We are delighted with the Court of Appeal ruling on our Article 14 challenge in respect of our client , the late Miss Lucy Trengove.  See here for the full judgement.  As reported in our post of 18^th March, the statutory appeal for local housing allowance, joined with the cases for Ian Burnip and Richard Gorry, challenged the discriminatory impact on severely disabled persons needing an additional bedroom of Regulation 13 (D) of the Housing Benefit Regulations 2006.

Although the legislation had been amended from 11/4/11 to make provision for an additional bedroom when a severely disabled person needs to accommodate overnight carers, the appeals in the first 2 cases concerned the period prior to the legislative amendment, when no provision was made for them, and in the case for Richard Gorry, whose two disabled daughters need separate bedrooms of their own, the additional housing need remained unprovided for.

In a significant ruling, the Court of Appeal unanimously held that –

(1) the appellants have established a prima facie case of discrimination pursuant to Article 14 and (2) for the reasons set out in the judgment of Henderson J, the Secretary of State has failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria. (Kay LJ, paragraph 24)

It was common ground that ‘disability’ was a status falling with Article 14, and that housing benefit falls within the ambit of Article 1 of Protocol 1 as a ‘possession’.  Richard Drabble QC submitted for the Appellants that one way or another, the statutory criteria have a disparate adverse impact on the disabled, or failed to take account of the differences between disabled and able-bodied persons.  Citing DH v Czech Republic (2008) 47 EHRR 3 and Thlimmenos v Greece (2001) 31 EHRR, the different approaches were described as complimentary and overlapping, rather than mutually exclusive.

The Court had no difficulty in recognizing the discriminatory impact of the housing benefit regulations, without resort to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which Counsel for the Appellants, and Helen Mountfield QC for the Equality and Human Rights Commission, as Intervener, relied upon, holding (para 22)

If the correct legal analysis of the meaning of Article 14 discrimination in the circumstances of these appeals had been elusive or uncertain (and I have held that it is not), I would have resorted to the CRDP and it would have resolved the uncertainty in favour of the appellants.  It seems to me that it has the potential to illuminate our approach to both discrimination and justification.

The Court rejected arguments on behalf of the Secretary of State that the analysis for the Appellants was flawed because it did not use correct comparators (citing the Malcolm case); the criticism that the Appellant’s case was not founded on statistical evidence; and that the Thlimmenos principle is more limited than is suggested, holding –

· It would be quite wrong to resort to Malcolm so as to produce a restrictive approach to Article 14.  Indeed, one of the attractions of Article 14 is that its relatively non-technical drafting avoids some of the legalism that has affected domestic discrimination law. (para 13)

· On the same basis, I would reject the attempt on behalf of the Secretary of State to criticise the appellants’ case for not being founded on statistical evidence.  Whilst such evidence can be important in an Article 14 case (see, for example, Hoogendjik v Netherlands (2005) 40 EHRR SE 22, at page 207), it is not a prerequisite.  Where, as in the present case, a group recognised as being in need of protection against discrimination – the severely disabled – is significantly disadvantaged by the application of ostensibly neutral criteria, discrimination is established, subject to justification.(para 13)

· Whilst it is true that there has been a conspicuous lack of cases post- Thlimmenos in which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area.

· I can see no warrant for imposing a prior limitation on the Thlimmenos principle.  To do so would be to depart from the emphasis in Article 14 cases which, as Baroness Hale demonstrated in AL (Serbia) (at paragraph 25), is “to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification”.(para 18)

On the question of justification, the Court gives very clear guidance as to the correct approach.

It is elementary that what has to be justified is not the scheme of HB as a whole, or the general policy of calculating HB in the private sector by reference to the number of bedrooms deemed to be needed by “occupiers”, but rather the difference in treatment resulting from the application of those criteria which has been held to infringe Article 14 (para 26)

The submission for the Appellants that ‘very weighty reasons’ would be needed to justify discrimination in the case of congenital disability, was rejected, holding –

Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue.  As in AM (Somalia), therefore, the proportionality review applicable in the present case must be made by reference to the usual standard, not an enhanced one.

After detailed analysis of the various benefits in payment Henderson J addresses the question whether the wider benefit context provides an objective and reasonable justification for the discrimination found to be established in relation to the amount of housing benefit.  Drawing a clear distinction between subsistence benefits and benefits in respect of housing needs, he concluded -

It would therefore be wrong in principle, in my judgment, to regard Mr Burnip’s subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay. (para 45)

It is not yet known whether the Secretary of State will appeal to the Supreme Court, but we are gratified that the after a three year fight for the rights of our client and disabled people like her, justice has prevailed, and social security law is not ‘human rights-proof’.

The Claimant was represented by Richard Drabble QC and Desmond Rutledge.

Perplexity in the High Court on how to apply Zambrano principles as interim relief JR – Sanneh v Secretary of State for Work and Pensions – is refused

Birmingham Law Centre’s groundbreaking Income Support case continues onwards to the Upper Tribunal now that permission to appeal has been granted to the DWP.  In the mean time, however, the High Court has refused permission for a Judicial Review of the decision to suspend our client’s payments of benefit pending the outcome of the Secretary of State’s appeal.

Back in August last year we applied for Interim Payments of Income Support prior to any decision on entitlement.  This was on the basis that our client  was experiencing hardship and that her daughter, an EU citizen, was being prevented from enjoying the substance of her rights as a citizen of the union and would (due to economic pressure) be forced to leave the territory of the EU.  Please see our previous blog posts here and here for details.

The First-tier Tribunal appeal was heard on 28 November last year and the Tribunal Judge agreed with the contention that our client came within the principles of the Zambrano judgement.  The effect of the statutory provisions excluding her from mainstream benefits created a situation where her stay in the UK would become untenable.  As her daughter would have to accompany her abroad, this amounted to denying her daughter the enjoyment of the substance of her rights as a union citizen and therefore breached EU law following the landmark ruling in Zambrano.  The DWP have now lodged an appeal with the Upper Tribunal which we hope will be expedited.

It was clear to us that the claim for Income Support would be resisted and that the proper route to a sustainable challenge was through the statutory appeal process (ie, the tribunal).  However, an early decision by the High Court on the lawfulness of refusing Interim Payments would perhaps give us an indication as to how Zambrano principles would be interpreted by the Courts.  Unfortunately, the High Court has decided not to help settle how Zambrano should be applied and, in an interesting judgement, HHJ Purle said that:

‘the precise impact of Zambrano has had a number of us judges scratching our heads and the right is not clearly defined.’

The Secretary of State’s arguments that, ‘Zambrano is not a right to benefits’, and that any risk to an EU child leaving the territory of the EU must be immediate, seemed to be persuasive.  Our argument has always been that it is the effect of the national measure as opposed to the measure itself that is of fundamental importance and that the lack of means would sooner or later lead to a situation where our client would be forced to leave the UK.   Indeed, it was this more nuanced approach that was taken by the First-tier Tribunal.

The case before the High Court changed character as time had passed.  The claim for Interim Payments gave way to a claim against the Secretary of State’s decision to suspend benefit whilst he considered an appeal to the Upper Tribunal: a subtle but important difference. Our client has recently lost the Child Tax Credit that she had been receiving and is now being housed in emergency accommodation arranged for her by Birmingham Children’s Services.  She currently has an income of £56.53 per week that is not being topped up by Birmingham.  By anyone’s standards, this is hardship and has an undeniably detrimental effect on her and her daughter.  However, the Judge held that he would only take into account the circumstances pertaining at the time of the decision to suspend payment of benefit, when she was receiving Child Tax Credit.  The Judge also made reference to the Secretary of State’s offer to reconsider the suspension in light of these changed circumstances.

Of course, it was never for the High Court to decide the substance of the claim for Income Support but the Judge had to look at whether we had a strong enough case to challenge the decision to suspend payment of the the award of Income Support made by the tribunal and so to properly assess the balance of convenience in order to grant interim relief.  He decided that our case did not overcome the first hurdle and that it was not sufficiently arguable stating that:

‘Given that the Claimant was living sustainably though not lavishly at the time the decision to suspend benefit was made, it seems to me that the potential challenge to the letter of 15 December does not get off the ground.’

We believe that our argument that, on the basis of Factortame, our client’s daughter’s EU rights should be effectively safeguarded has not been given sufficient weight and we are actively considering an appeal to the Court of Appeal.

The Claimant was represented by Desmond Rutledge of Garden Court Chanbers.

Despite the Court of Appeal judgement in Birmingham City Council v Clue bringing clarity to the issue of when a local authority has a duty to provide accommodation to destitute children whose parent’s immigration status is not settled, social workers and Children’s Services managers continue to use the threat of removing children from families to avoid providing services under section 17 of the Children Act 1989.

It has now been two years since judgement was handed down but it remains a significant decision and one which has had a positive impact on the children of many undocumented migrants across the UK.  However, we continue to hear from clients who have been advised by social workers that, in spite of the decision in Clue that separating the children from their mother would be unlawful, they can only provide accommodation for their child.  Clients come to us at the Law Centre and tell us that they are frightened to continue talking to social services because they don’t want their children taken from them.  Many social workers appear to have been told that, ‘section 17 is just a very small fund that we can’t really apply for’.

Colleagues at ASIRT, a charity providing advocacy support to people subject to immigration control, report examples such as that of a single mother of a ten year old daughter, herself resident in the UK since the age of 15, approaching the Local Authority for help only to be told that nothing, other than the provision of section 20 foster care support for her daughter, could be made available. Dave Stamp, Manager at ASIRT, told us that:

‘this refusal of support has left the service user with an ever-spiralling debt problem and considerable emotional distress. Birmingham City Council steadfastly refuses the presence of advocates during assessment processes, further weighing the balance of power against the impoverished and frequently traumatised client.’

In 2008 Birmingham Law Centre successfully challenged Birmingham City Council in the High Court over their decision to refuse to provide support to Ms Clue and her children.  Birmingham Law Centre’s, Yasmeen Qazi, began to defend the subsequent appeal brought by Birmingham.  Public Law Solicitors then took conduct of the case and steered it successfully through the Court of Appeal.  Ms Clue was represented by Stephen Knaffler QC and Nadine Finch of Garden Court Chambers.

Ms Clue had arrived in the UK from Jamaica in 2000 and, in 2008, applied to the Home Office for leave to remain on the basis that her eldest child had been in the UK for more than 7 years.  At that time, the Home Office was still operating the ‘seven year rule’, a concession within the immigration rules allowing applications for leave to remain for those with children who had lived in the UK for 7 years or more, and which was effectively re-introduced by the judgement EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC). Birmingham refused to provide support and accommodation under Section 17 of the Children Act 1989 on the grounds that the family could return to Jamaica.  They had ignored the fact that Ms Clue and her children had established an Article 8 private life in the UK and that it would therefore be a breach of their ECHR rights to force them to return.  The Court held that it was not acceptable to use an Article 8(2) qualification, ‘by reference to the even more pressing claims of others on the budget’.

The case turned on whether it was right for Birmingham to assess the merits of Ms Clue’s application for leave or whether this should be left to the Home Office.  The Court of Appeal held that it was not the local authority’s decision to make unless the application was clearly hopeless or abusive.  Dyson LJ also held that the financial circumstances of the local authority should have no bearing on the outcome of the application:

‘It [would be] unfair and arbitrary if the outcome of a person’s application for leave to remain depends on the budgetary priorities of the particular local authority to which the claim for assistance is made.’

Let us also not forget that, but for the potential breach of Ms Clue’s rights under the European Convention on Human Rights, she would have been caught by the pernicious effect of section 54 and schedule 3 of the Nationality, Immigration and Asylum Act 2002.  This piece of legislation outlined provisions for support to be withdrawn or withheld from certain classes of migrant, including refused asylum seekers and persons, like Ms Clue, unlawfully in the UK. 

The impact of this decision has been felt across the country and by countless families faced with destitution and nowhere else to turn.  For the last two years we have continued to help families in similar circumstances to Ms Clue and her children to access services from the local authority.  Unfortunately, just at the point when children find themselves in the greatest need, local authorities in the Midlands have attempted to ignore the pleas for help until reminded of their responsibilities under the Clue Judgement.

Introduction

On 13 May 2010 Liam Byrne MP, former Chief Secretary to the Treasury, somewhat ominously forewarned his successor that “there is no money”. The latest figures indicate that the UK has amassed a national debt totalling £770 billion, upon which it is paying interest at the annual rate of around £43 billion.  

It is estimated that the legal aid cuts in the Legal Aid, Sentencing and Punishment of Offenders Bill will achieve cost savings of £350 million. However, as I shall argue in this article, the projected cost savings represent a false economy. In my view, the provisions in the Bill are likely to spell the end of neighbourhood Law Centres and will result in legal aid practitioners moving out of legal aid work, if not leaving the profession altogether.

The Role of Law Centres in Deprived Communities  

There are at present 56 Law Centres across England, Wales and Northern Ireland. These are not-for-profit organisations which provide free legal advice and representation to local communities, predominantly in relation to housing, debt, employment and welfare benefits. Law Centres receive payments from the Legal Services Commission on a case by case basis, under a standard legal aid contract. Figures released by the Law Centres Federation show that one in three Law Centres rely on legal aid contracts to provide at least 60 per cent of their annual funding. A number of Law Centres receive annual local authority grants in addition to legal aid funding, but such arrangements are becoming increasingly rare and in any event are generally quite modest in value.   

On 13 May 2010 I was working at Saltley and Nechells Law Centre in Birmingham, in the heart of Liam Byrne MP’s Hodge Hill constituency. The reality of there being “no money” was becoming horribly clear.

Saltley and Nechells Law Centre was sited in one of the most deprived areas of the country. The Hodge Hill Constituency recorded the second highest rate of unemployment benefit claims in the UK in May 2010, according to figures published by the House of Commons on 16 June 2010, in Research Paper 10/43. Hirsch and Beckhelling, on behalf of the Campaign to End Child Poverty, estimated that 45 per cent of the children in the Hodge Hill Constituency were living below the poverty line in 2010.  

Over a twenty year period the Law Centre played a key role in facilitating access to justice in the community, by providing publicly funded housing, debt and welfare benefits advice and representation to local citizens. Within a mere six weeks of my appointment, I was offering legal advice to some of the most vulnerable members of society, including victims of political torture, domestic violence victims, people with substance abuse issues as well as those detained under the Mental Health Act.

The Law Centre was involved in a number of ground-breaking cases and performed its role with a high degree of success. In particular, it represented the appellant in a landmark decision against Walsall Metropolitan Borough Council, in which the First-tier Tribunal (Social Entitlement Chamber) held that the Local Housing Allowance Regulations discriminate against people who require an extra bedroom for a live-in carer, thereby contravening the European Convention on Human Rights.

The Plight of Law Centres under the Current Legal Aid Scheme

However, the Law Centre was experiencing financial pressures on an unprecedented scale. The overheads involved in running even a modest community Law Centre are high. These include the rent of premises, the salaries of solicitors, fee earners and administrative staff, fuel bills, telephone bills, stationery, postage, professional indemnity insurance premiums, photocopier hire fees and subscriptions to practitioners’ texts.

Save for the modest proceeds of its fundraising efforts, Saltley and Nechells Law Centre was dependent on legal aid to fund its service. In respect of each welfare rights case, it received a standard fixed fee of £167.00 excluding VAT. The fixed fee was the equivalent of three hours’ work on the case at an hourly rate of £55.60. The Law Centre was paid on closure of the case, notwithstanding the fact that many cases take several months or even years to close. This was particularly true of cases being appealed to the Upper Tribunal or the Tax Adjudicator.

The Law Centre received no additional remuneration if it spent more than three hours on a case, except where a fee earner spent over nine hours on it. Under these circumstances, it received remuneration for the actual amount of time spent on the case, at the rate of £55.60 per hour.

The difficulties with this system are threefold. Firstly it creates an incentive for organisations to cherry-pick those cases which can be closed with the minimum amount of time and effort. The Law Centre refused to cherry-pick cases and as a result, found it difficult to make publicly funded work financially viable. However the deployment of a cherry-picking strategy defeats the concept of access to justice – the very raison d’etre of a legal aid scheme.   

Secondly, the system creates an anomalous situation, where a case that falls just short of the three times limit is only paid at a fraction of its true value. Under these circumstances, legal aid practitioners might be tempted to generate unnecessary costs purely to tip the case into the “exceptional category”, thereby generating a fee which befits the actual level of time and effort invested in the case.

Thirdly, and perhaps most fundamentally, the overwhelming majority of cases fall between these two extremes. These cases result in a net loss to the organisation, since the value of the work conducted on the case exceeds the standard fixed fee payable. From a purely financial perspective, these are the least desirable cases to open.

The upshot was that the level of remuneration available for legal aid work was simply insufficient to meet the Law Centre’s overheads. The poor rate of remuneration created severe cash flow problems, resulting in the deferral of staff salaries. On 13 October 2010, having assisted thousands of clients over a twenty year period, the Law Centre went into administration.  

The closure of the Law Centre has had the following impact on the local community:

Ø      Tenants are now less likely to oppose applications for possession orders, which may lead to an increase in evictions and homelessness in the constituency. According to a report by the New Economics Foundation each local authority eviction will cost the taxpayer £34,000, compared to the £174 cost of 9.5 hours of legal advice.

Ø      Employees who are unfairly dismissed by their employers are now less likely to seek legal advice, with the result that valid claims are less likely to be identified and brought within the limitation period.

Ø      Unfavourable welfare benefit decisions are now less likely to be appealed, leading to lower household incomes, increased child poverty and increased social exclusion. Figures published by the Ministry of Justice on 1 December 2011 reveal that 40% of First-Tier Tribunals (Social Entitlement Chamber) find in favour of appellants appealing against decisions not to award them incapacity benefit.

Ø      Local citizens facing debt are now less likely to seek advice, resulting in an increase in bankruptcy orders and mental illness in the area. 

The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO)

In the current economic climate, the need for neighbourhood Law Centres has never been greater. However, far from investing in them, the Government is doing the exact opposite.

The new LASPO Bill proposes to abolish entitlement to legal aid altogether in respect of employment law, welfare benefits and debt which does not threaten homelessness. Housing law will face a 40 per cent reduction in scope. The proposals will therefore remove the bulk of legal aid funding from Law Centres’ main practice areas, leaving them without the financial means to continue their work. Furthermore, the Law Centres that currently receive local authority funding will face a 53 per cent cut in their annual funding over the coming year.

The cumulative effect of cuts in legal aid and local authority funding will be to starve Law Centres of much needed funds and force them to close. It is therefore likely that the experience of Saltley and Nechells Law Centre will become a more regular occurrence.   

Emily Johnson LLB member of Middle Temple, spent a year working with Saltley and Nechells Law Centre and now volunteers with Birmingham Law Centre.

This article first appeared in the March 2012 edition of Counsel Magazine.

Birmingham Law Centre are applying for interim relief within judicial review proceedings pending statutory Income Support appeal on basis case comes within Zambrano principles and such relief necessary to give effect to EU law.

At the same time as appealing against the decision to refuse to award Income Support, we assisted Ms Sanneh with an application for interim payments of Income Support on account, pending the outcome of the client’s appeal to a First-tier Tribunal.  After her appeal was allowed by a First-tier Tribunal on 28 November 2011, the Department sent a letter to our client advising her that they ‘cannot’ pay Income Support as they had asked for a statement of reasons and were considering a further appeal to the Upper Tribunal.

We immediately notified the High Court in Birmingham and were given a date for a renewal hearing.  Unfortunately, the Tribunals Service did not produce the statement of reasons for the appeal decision until the day before the hearing which was held on 7 February 2012.  The Department were able to argue that they simply hadn’t had sufficient time to consider whether or not they would appeal to the Upper Tribunal and successfully argued for an adjournment.  They also said that the question in front of the Court could no longer be about interim payments as, following the First-tier Tribunal’s decision, benefit had been suspended.  The DWP therefore argued that the judicial review (in respect of the decision to refuse interim relief) was academic and should be dismissed or the application should be adjourned while it considered whether to appeal.  However, HHJ Purle accepted that if the Secretary of State were to decide not to appeal then payment of benefit would be restored and there would be nothing for the Court to determine.  HHJ Purle (sitting as a deputy Judge of the High Court) adjourned the hearing for a month and reserved it to himself.  The case has now been listed for 30 April 2012.

The outstanding issue in the Administrative Court is whether the decision to suspend payment of Income Support whilst the Secretary of State appeals to the Upper Tribunal is lawful.

We have always argued that Ms Sanneh’s daughter’s rights under European Union law as declared by the Zambrano judgment cannot be given full and immediate effect unless the High Court grants interim relief - R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) is authority for this.  Factortame also established that in social welfare cases, where damages are not appropriate, the ‘balance of convenience’ test for granting interim relief is modified to include a consideration of the wider public interest.  When this is applied to a case involving European law, the applicant will only cross that threshold if they can demonstrate that there is a strong prima facie case (or a strongly established case on the merits) that the national measure being challenged is incompatible with EU law.

In his reasons for refusing the application for interim relief on 22 September 2011 HHJ Judge Robert Owen (sitting as a Judge of the High Court) said that the balance of convenience does not support the making of a mandatory order as the Claimant’s contention that she has a derived right of residence is ‘weak’ for the reasons given by the Secretary of State (in his Acknowledgement of Service).

We believe that the subsequent decision of the First-tier Tribunal to award Income Support proves that Ms Sanneh’s case is clearly not weak and that she should be granted interim relief.  It will be for the Court to take a ‘provisional view’ of the merits and then determine whether interim relief is necessary to avoid a breach of EU law.

The client is being represented by Desmond Rutledge of Garden Court Chambers who has provided assistance with both the judicial review and the statutory appeal.

We would still like to hear from practitioners with similar cases and are willing to offer help where we can.  We can send you a copy of the (anonymised) statement of reasons for the Income Support appeal decision.  Contact us at admin@birminghamlawcentre.org.uk.  Please also contact us to refer clients in similar circumstances.

Michael Bates

March 2012

This week, Birmingham Law Centre will take one of three joined cases to the Court of Appeal in order to challenge to the Local Housing Allowance (LHA) rule (‘the size criteria’) which prescribes the number of bedrooms that a claimant can qualify for when a claim for Housing Benefit is made in the private rented sector.  The complaint, in essence, is that the size criteria within the LHA scheme introduced in April 2008 is unlawful because it does not make any allowance for the needs of severely disabled people who require live-in care (where the carer is not also an occupier).

The size criteria also ignores the needs of disabled claimants who need an additional room to store medical equipment and the needs of claimants who have disabled children where it is unreasonable for them to share the same room.  Hence, when granting permission to appeal, Judge Jacobs said that the issue raised by this appeal “arises on a variety of factual circumstances”.  The law has since been changed, effective from April 2011, allowing for LHA to cover the cost of an additional room for use by an overnight carer.  However, we have been allowed to continue with the appeal on the basis that there are a wider range of housing needs for disabled people and the principles involved are of public interest.

Birmingham Law Centre’s client, Miss Lucy Trengove, was a severely disabled young lady born with hydrocephalus and severe cerebral palsy.  She was regarded as someone with severe learning difficulties, was registered blind and suffered from epilepsy.  Sadly, Lucy died during Christmas last year but her case is continuing on the basis that everyone concerned considers that her case raises issues of fundamental importance.  The Legal Services Commission has agreed to fund Lucy’s mother so that the case can continue.

Lucy’s case is that the State’s failure to recognise her essential housing needs due based on her status as a severely disability person is disproportionate and therefore cannot be justified.  She will rely on the principle that treating persons who are in significantly different situations the same is prima facie discriminatory under Article 14 of the European Convention of Human Rights where it is the housing needs of a severely disabled person which is the feature that makes the situations significantly different.

Lucy was adversely affected by the lack of any modification to the size criteria because it meant that she could not claim Housing Benefit to cover the additional bedroom as of right and the resulting uncertainty about who or how the resulting shortfall in her rent would be met represented a significant barrier to her ability to achieve ‘independent living’, i.e. her ability to have choice and control the care she receives and equal access to housing of her choice.

Jan Jesson started work on this case three years ago at Saltley and Nechells Law Centre before joining us at Birmingham Law Centre.  Jan has taken this case to the Court of Appeal with the assistance of Desmond Rutledge at Garden Court Chambers.  Good luck to both Jan and Desmond for later this week.  We hope to post another article after the hearing…

Speaking of his appointment, Lord Hunt said: “The work that Birmingham Law Centre undertakes for our most vulnerable in society is vital. In challenging times, we must support those who need this help more than ever, and so I’m delighted to have been asked to become Patron to support their work and raise their profile across the City.”

He continued: “Law Centres transform people’s lives, helping them to stay in their homes, keep their families together and get into employment or education. The proposed Government cuts to Legal Aid will leave thousands more people with serious but everyday problems nowhere to turn to.”

Elizabeth Hensel, Chair of Birmingham Law Centre commented: “Lord Hunt brings not only vast experience within the public and voluntary sector, but will also enable us to raise our profile with those who support our work. We are entirely dependent on donations, grants, charitable and legal aid funding to continue our work with those who cannot afford to pay for advice. As the only Law Centre in Birmingham it is important we are able to secure a sustainable future.”

Ends

Notes for Editors:

Law Centres are not-for-profit legal practices providing free legal advice and representation to vulnerable and disadvantaged people. They are solicitor-led organisations that have rights of hearing and litigation in the highest courts and are members of the Law Centres Federation.

Birmingham Law Centre (BLC) is one of 55 Law Centres in England, Wales and Northern Ireland, staffed by solicitors, caseworkers and in some cases barristers who specialise in areas of civil law including debt, employment, housing, discrimination, welfare benefits, education and immigration.

BLC provides in-depth legal advice and representation, including judicial review, on social welfare areas of law such as: welfare benefits, debt, community care, housing and employment discrimination. Last year, around 2,000 clients were helped and more than 3,500 hours of casework were undertaken.

For further information please call Pete Lowen, Chief Executive of the Birmingham Law Centre on 0121 766 7466 or email: pete.lowen@birminghamlawcentre.org.uk

Lord Hunt of Kings Heath was created a life peer in 1997. For further information please call 0207 219 2030 or email: huntp@parliament.uk

Despite strong opposition by the Secretary of State, a First-tier Tribunal sitting in Birmingham allowed an appeal by our client who was a third country national and claiming Income Support as a lone parent based on a right to reside derived from her dependant daughter who is a British national and a citizen of the European Union within the principles established in Ruiz Zambrano v Office national de l’emploi (ONEm)(Case C-34/09) [2011] All ER (EC) 49. The Tribunal rejected arguments advanced by Treasury counsel (Jason Coppell) that Zambrano had no application as it was concerned with a contributory-based unemployment benefit and that residence was a matter for the Home Office to determine.

The decision in more detail

In an appeal to the First-tier Tribunal, we successfully represented our client in her application for Income Support. Our client is a Gambian national and has a two year old daughter by a British citizen father. She has overstayed her student visa and but for EU law she would be ineligible to claim main-stream benefits as someone subject to immigration control. The father’s involvement in our client’s daughter’s life was intermittent and spasmodic. Our client received benefits paid to children and some child support payments but her total income was less than 40% of the usual benefit levels. Out of this she had to pay rent of £250 per month, leaving her heavily in debt and gradually sinking into destitution. She had eaten only rice for each meal in the four days prior to the hearing. The tribunal held that:

‘[the appellant] is not excluded as a person subject to immigration control. She has a right to reside in the UK derived from her daughter’s status as a Union citizen and is habitually resident in the UK.’

‘[the appellant’s daughter] is unable to enjoy the substance of the rights conferred by [EU Citizen] status unless the appellant is able to provide financial, practical and emotional support for her in the UK.’

‘The appellant cannot provide this support for her daughter without receiving a non-contributory benefit (Income Support).’

This is a ground-breaking decision that, by virtue of Article 20 Treaty on the Functioning of the European Union (TFEU), sees citizenship of the European Union conferred on the daughter stopping the UK government from refusing our client Income Support as it would have the effect of denying her daughter the genuine enjoyment of the substance of the rights conferred on her by EU law.

The tribunal have closely followed the case of Ruiz Zambrano v Office national de l’emploi (ONEm) and applied it to our client’s case. They agreed with us that it would be disproportionate to refuse to award our client Income Support if this had has the effect that her child would be forced (by economic pressure) to leave the territory of the EU as a whole. It is not yet known if the department will appeal.

Whilst the Income Support decision was pending, our client was refused a request for Interim Payments and a Crisis Loan. Both of these decisions were challenged by way of Judicial Review with the assistance of Desmond Rutledge of Garden Court Chambers. A matter of weeks before the tribunal hearing, a High Court Judge refused to grant permission saying that our client’s attempt to rely on Zambrano was ‘unarguable’. An oral renewal of the application for permission and interim relief is still pending – subject to whether the DWP decides to appeal the tribunal’s decision to the Upper Tribunal.

Comment

We believe that this decision represents a powerful extension of the principles established in Zambrano into the social security arena. It allows benefit entitlement to third country nationals who are the primary carers of UK citizen dependant children and, at last, there will have to be a focus on the rights of the child.

The tribunal’s Decision Notice itself, like the one in Zambrano, is simple and impressive and is available on request. Please email admin@birminghamlawcentre.org.uk for a copy.

We would like to hear from practitioners with similar cases and are willing to offer help where we can. Please also contact us to refer clients in similar circumstances.

Michael Bates

December 2011

Link to Zambrano:

Ruiz Zambrano v Office national de l’emploi (ONEm)(Case C-34/09) [2011] All ER (EC) 49