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Legal Aid, Sentencing and Punishment of Offenders Bill

If that was the concession that was sought, it was very poor fare indeed. The reasons why the deal is so unsatisfactory are numerous. Let me be brief about them. First, it is utterly impractical. What happens in real life is that, following an adverse review by the DWP, a claimant will decide whether to appeal to the lower tribunal. At present the claimant will be able to see a specialist adviser who will tell him whether there is a case or not. This prevents hopeless cases from clogging up the First-tier Tribunal but ensures that good cases go ahead to the First-tier Tribunal, which is a tribunal of fact and law. None of this will happen under the proposed arrangement. How can a judge decide whether a case has a real point of law until it comes before him or her? Without sensible legal advice, it may never come before the First-tier Tribunal. This will mean that in practice many good cases, when mistakes have been made, are never taken up and may well mean that rubbish, hopeless cases clog up our already overburdened tribunals. Secondly, this distinction between pure law and pure fact is a chimera. It is a nonsense at this stage. The First-tier Tribunal is not just a tribunal of law in the way that the second-tier tribunal is. It deals with the whole position and makes decisions on fact and law as they apply. Indeed, no one made that clearer than the Conservative Member of Parliament Mr Robert Buckland, who said in an intervention: "““I am listening to my right hon. and learned Friend's arguments with great care, but I am still puzzled about the unavoidable problem of the ability to work out what is a legal issue as opposed to a merely factual one. Fact management and legal issues often come hand in hand, and they are often best handled by a lawyer. I worry that we are making an artificial distinction””.—[Official Report, Commons, 17/04/12; col. 227.]" Later, in his speech, he said: "““A person does not come through the door of the citizens advice bureau, the law centre or the local practitioner saying, 'I am a problem of fact' or, 'I am a problem of law.' They come as individuals with a particular issue that needs untangling by somebody with expertise. That somebody will, I am afraid to say, often be a lawyer. That is a fact and we should not shy away from it. Often a lawyer can quickly, in the provision of advice—I am not talking about representation in the tribunal at this stage—””" I should say that nor are we, in the course of this amendment— "““sort out the problem effectively””.—[Official Report, 17/4/12; col. 248.]" He could not have put the case better for the amendment and against the very vague arrangement that was mentioned in the other place last Tuesday. Let us look at a real-life impact of the measure that the Government propose. According to official figures last year, 173,880 people appealed a benefits decision in the First-tier Tribunals. Of those, 161,400 related to disability benefits—that is, 80 per cent—including incapacity benefit, employment support allowance, and DLA or industrial injuries disablement benefit. About 60 per cent of all appellants who received advice from a front-line agency won their case but only 39 per cent of those who did not receive advice won their case. That is clear evidence of what can be called the advice premium. In short, meritorious claimants are more likely to win their case if they have been advised in advance. Overall, 45 per cent of those before the tribunals won their case. I hope that that puts paid to any notion that the majority of appeals lack merit or involve chancers having a go. Clearly there is a substantial need for a mechanism to correct errors. We all know that the department makes errors all the time—and that will happen as long as life goes on. I regret that I must note that 45 per cent represents a marked increase over the previous year, in which 38 per cent won their cases, itself the culmination of years of improvement. So last year represents a sudden and significant degradation in the quality of decision-making in state agencies, which is quite the opposite to the claims made by the Government that the DWP is working to make the system more effective. The worst degradation in decision-making was for employment support allowance, on which overall half the appellants won their case. To put that in numbers terms, more than 40,000 disabled people a year have their employment support allowance reinstated after a First-tier Tribunal ruling that overturns erroneous decisions from the DWP. Again, there are marked disparities in the percentage of appellants who succeed, based on whether they receive advice or not, with some 70 per cent of advised ESA appellants winning and only 43 per cent of unadvised appellants winning. We are talking about advice, not representation. The conclusion is that advice really matters. We argue—and I hope that the House is with us—that the present system works all right. It is true that tribunals are already overburdened, but we are now in an age of austerity and we have coming up the road radical welfare benefit reform about to commence. There will be mistake after mistake made by the authorities, so how can this be the right time to take away or remove our fellow citizens' rights to have wrong decisions corrected—decisions that for some actually make the difference between a decent life and one wrecked by poverty and insecurity? If our amendment were passed, it would cost the Government at most £15 million. All commentators agree that the Government's proposals will cost the state much more in the end because, if people do not get that expert early advice, their lives go wrong. The problems that they have can be dealt with, and have been dealt with for years, by not-for-profit organisations such as law centres and CABs, in which advice on social welfare law and the law for everyday life is given for free under legal aid. If that advice is no longer available, those problems get worse and multiply and in the end the state has to pay out much more in picking up the pieces. We do not believe that, for £15 million, which is what the Government claim would be saved by changing this system—that is, by not allowing advice at the early stage—that can possibly be sensible. This Government have, for example, found £250 million in order that we might all have weekly bin collections, but they cannot afford £15 million per year in order that people can get advice. A system that was set up by a Conservative Government, under the noble and learned Lord, Lord Mackay of Clashfern, and supported by previous Conservative Governments, as well as by the Liberal Democrats over the years, and by us, is to be completely overthrown in order, in fact, not to save any money at all. Our amendment would allow early advice to see whether a case was one that was suitable for First-tier Tribunal or not. That is all that we are asking the House to agree to tonight. This is basically the same amendment that the noble Baroness, Lady Doocey, moved on Report, but because there is financial privilege we have lessened it. It is not for the review period—the review to the DWP. It comes into play only when there is consideration of whether to go to the First-tier Tribunal. I beg to move.