Inclusion London response to Judicial Review: proposals for further reform

October 2013

1. Introduction

Inclusion London welcomes the opportunity to respond to the consultation on Judicial Review: proposals for further reforms. The information about the consultation is available at:

Inclusion London

Inclusion London is a London-wide organisation which promotes equality for London’s Deaf and disabled people and provides capacity-building support for Deaf and disabled people’s organisations in London.

Disabled People

There are:

  • 11.5 million people in the UK who are covered by the disability provisions set out in the Equality Act. This is 19% of the population[1].
  • There are approximately 1.4 million deaf and disabled people in London[2]
  • Just under 1.3million aged 16 to 64 years resident in the London in 2011.[3]

2. Inclusion London’s response

Inclusion London is not an expert in legal issues but we are responding to this consultation because access to judicial review is of vital importance indisabled people obtaining equality and access to justice.

Equal access to justice

Inclusion London agrees with the government that judicial review is a ‘critical check on the power of the State, providing an effective mechanism for challenging the decisions, acts or omission of public bodies to ensure that they are lawful[4]’.

The rule of law and access to justice for all are central tenants of a democratic, civilised society. However, Inclusion London isseriouslyconcerned that several of the government’s proposals set out in the consultation will jeopardise these basic rights. Particularly the proposals to change the rules on ‘standing’, the proposal to usemethods other than judicial review for resolving Public Sector Equality Duty (PSED) disputes and several of the proposals under ‘Rebalancing Financial Incentives’. See details in Inclusion London’s response to the set consultation questions below.

2a Inclusion London’s response to the consultation questions

The response focuses only on the questions which have the greatest impact on disabled people.

Consultation questions on ‘Standing’

Question 9: Is there, in your view, a problem with cases being brought where the claimant has little or no direct interest in the matter? Do you have any examples?

Inclusion London believes strongly that problems will be caused if the rules on standing are changed in line with government’s proposals.

There is already a test for who can bring judicial review cases: all applicants have to show that they have ‘sufficient interest’ in the matter in question, therefore Inclusion London believe that further tests are unnecessary.

Inclusion London supports the following court judgements, which set out the arguments for keeping the current rules on standing clearly:

“the threshold for standing in judicial review has generally been set by the courts at a low level. This…is because of the importance in public law that someone should be able to call decision makers to account”[5].

“Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power.”[6]

The proposed changes on the rules on ‘standing’ will have an adverse impact: For instance, a voluntary group could be prevented in bringing a claim on behalf adisabled person who may find the court process too difficult to go through. Also there may be an unlawful policy but individuals have not been effect yet, so the policy cannot be challenged by an individual claimant.

Also it is unclear from the proposals what types of organisations they are intended to cover. This may result in organisations becoming over wary of taking out a claim, because they fear that they will contravene the rules.

Inclusion London is also seriously concerned that the government may wish to prevent an individual’s successful claim from being used as a ‘case law’, which will result in the same issue having to returnto court again and again, wasting time and money.

Question 10:If the Government were to legislate to amend the test for standing, would any of the existing alternatives provide a reasonable basis? Should the Government consider other options?

We do not consider that the Government should legislate to amend the current test for standing for the reasons given above.

Question 11: Are there any other issues, such as the rules on interveners, we should consider in seeking to address the problem of judicial review being used as a campaigning tool?

Inclusion London does not accept the premise of the question:

What is interpreted as ‘campaign’ is overly open to interpretation. Inclusion London is concerned that what government may consider a ‘campaign’ could be a legitimate legal challenge.

For instance there has been wide spread condemnation of the spare room subsidy (commonly known as the bedroom tax) by many voluntary groups, including Deaf and disabled people’s organisations. The Court of Appeal ruled in May last year that the local housing allowance size criteria discriminated on grounds of disability[7] and four out of five appeals were upheld by the Tribunal chair Simon Collins QC[8]. Could these claims be interpreted by government as part of a ‘campaign’ against the bedroom tax?

The Public Sector Equality Duty and Judicial Review

Question 17:Can you suggest any alternative mechanisms for resolving disputes relating to the PSED that would be quicker and more cost-effective than judicial review? Please explain how these could operate in practice.

Inclusion London believesthat the uses of alternatives methods to judicial review are likely to be a retrograde step in disabled people’s access to justice.

It is quite possible that quicker and cheaper methods can be found, but we do not believe that another method will give the necessary ‘critical check on the power of the State[9]’.

Inclusion London agrees with Lord Dyson, that, ‘there is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review’.[10]

Disabled people are more likely to receive services from public bodies than non-disabled people[11]and therefore changes in the rules for judicial review are likely to have a greater impact on disabled people.

Under the Equality Act 2010, the public sector Equality Duty (PSED) requires public bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities.

Discrimination

Disabled people are a long way from equality of opportunity in our society, even obtaining equality in service from public bodies has yet to be achieved - disabled people are still discriminated against for instance: A confidential inquiry published in March 2013 revealed that 37% of deaths of people with a learning disability were avoidable. According to Mencap, the findings of the Inquiry confirm fears ‘that people with a learning disability are still not receiving equal healthcare in all NHS settings and are continuing to die as a result’[12].

PSED

The Public Sector Equality Duties (PSED) are a vital tool in obtaining (as far as reasonably possible) the same standard of service from a public body as offered to non-disabled people, particularly through the duties to make reasonable adjustments and the duty to consult. If public bodies go unchallenged disabled people will continue to be discriminated against and their complaints will continue to be ignored by public bodies.

Parity in dispute

Public bodies have far greater resources to draw on when responding to a dispute over PSED than individuals, particularlydisabled people, who are more likely to live in poverty that non-disabled people[13]. Legal advice from a solicitor together with barrister presenting the case in court gives a level of parity between the public body and the individual, which may not be possible through an alternative method.

Also a judicial review ensures that the issues involved are looked at thoroughly from a legal perspective. Another important aspect of judicial review is it provides ‘case law’ which prevents the same injustice from occurring again and again.

Inclusion London’s comments on government’s concerns

In addition points given above, Inclusion London totally disagrees with the assumptions government’s has based the proposed reforms of judicial review.

For instance when the government mentions that some cases that ‘have little prospect of success’ it is necessary to examine what is meant by ‘success’. Research by the Public Law Project (PLP), suggests that thousands of cases are settled with a positive outcome for the claimant:

-after the claim was issued but before the permission application was determined

-after permission was refused on the papers but before the oral renewal was heard

-after permission was granted but before the substantive hearing[14].

These outcomes would be considered ‘a success’ by the claimant, but would not register as a successful judicial review claim.

The government speaks about the legal aid system needing to command ‘public confidence and credibility’. Disabled people have some degree of confidence in the current system of judicial review: It is seen as a valuable legal mechanism which provides individual disabled people with legal redress against large public bodies, with considerable resources. However, if the proposed reforms of judicial review come into effect it is likely that disabled people will lose confidence in the credibility of the system and lose their rightful access to justice.

The government says that their proposals ‘are intended to act as a ‘disincentive’ to those considering judicial review whose cases have no merit’. Inclusion London does not believe that there is evidence that disabled people need a ‘disincentive’ to take out a judicial review. Disabled people do not take out a judicial review claim lightly; claims are made when a public body refuses to listen to a legitimate concernuntil thethreat of legal action is made.

The government speaks of ‘abuse’ of judicial review and ‘unmeritorious’ reviews. Inclusion London does not believe that the government has evidence that that disabled people are either abusing judicial review, or making ‘unmeritorious’ judicial reviews to generate publicity. Below are examples of successfuljudicial reviews in key areas for disabled people:

  • Council care and support services: A successful challenge was made to the decision by Birmingham City Council to cut care service so that only individuals with ‘critical’ needs received social care[15].
  • Work Capability Assessment: A judicial review case was won against the Department of Work and Pensions on the inadequacy and discriminatory nature of the Work Capability Assessments for those with mental health conditions[16].
  • Bedroom Tax/Spare room subsidy: The Court of Appeal decided that the local housing allowance size criteria discriminated unlawfully. The government then changed the criteria so that some disabled children now do not have to share a room and withdrew its Supreme Court appeal[17].
  • Removal of tactile paving: A claim was successfully brought against Newham Council’s removal of tactile paving[18]

Disabled people quite rightly look to judicial review to right to wrongs of public bodies, as the government says judicial reviews provide, ‘a critical check on the power of the State[19]’. Disabled people are still struggling with discrimination and with obtaining equality of service from public bodies. It would be a retrograde step for justice if judicial reviews were not available for Public Sector Equality Duty disputes.

Rebalancing Financial Incentives

Paying for permission work in judicial review cases

Question 19: Do you agree that providers should only be paid for work carried out on an application for judicial review in cases either where permission is granted, or where the LAA exercises its discretion to pay the provider in a case where proceedings are issued but the case concludes prior to a permission decision? Please give reasons.

Inclusion London believes that disabled people’s access to justice will be jeopardised if the government’s proposals go ahead.

Although the government has modified the proposals put forward in the ‘Transforming legal aid’ consultation the modification does not reduce the uncertainty over whether legal representatives will be paid or not as a result:

  • Lawyers will stop taking PSED cases because they cannot risk not getting paid;
  • Disabled people will not be able to enforce their rights, and local authorities will ignore their complaints;
  • Lawyers will stop doing this sort of work, so disabled people will find it harder and harder to get legal advice about fundamental issues
  • Lawyers for disabled people will have to try to get their costs back from local authorities and arguing over costs will waste court time and council money[20].

Public bodies can ignore a complaint due until they are threatened with legal action. As the Public Law Project’s research[21] mentioned above showed, when lawyers threaten to bring legal action or begin proceedings, public bodies often settle before a judge has granted permission to continue to a full hearing. These outcomes would be considered a success by the claimant, but would not register as a successful judicial review claim.

Also lawyers would have to pursue court proceedings to make sure they were paid for their work, which could be costly and time consuming.

Question 20: Do you agree with the criteria on which it is proposed that the LAA will exercise its discretion? Please give reasons.

Inclusion London does not agree with this proposal. We agree with the Equality and Diversity Forum that it is not reasonable to expect solicitors to undertake cases in the hope of being paid.

Protective costs orders

Question 26: What is your view on whether it is appropriate to stipulate that PCOs will not be available in any case where there is an individual or private interest regardless of whether there is a wider public interest?

Question 27: How could the principles for making a PCO be modified to ensure a better balance a) between the parties to litigation and b) between providing access to the courts with the interests of the taxpayer?

What are Protective Cost Orders?

Protective Cost Orders (PCOs) have been developed to ensure there is a level playing field between the claimant and defendant, so court costs do not prevent cases of public interest from being heard.

If the proposed changes to PCOs go ahead they will clash with the proposed changes in the rules on ‘standing’. The government proposes that only those that do not have a direct interest in a case will be eligible for PCOs, while those that have ‘standing to bring a judicial claim musta ‘direct interest’ and so would be excluded from getting a PCO, this cannot be just and right.

Also the ‘private interest’ test has been widely criticised,because it prevents public interest cases from coming before the courts where the claimant has a private interest in the outcome, however, slight the private interest may be, and however overwhelming the public interest may be in the case being brought before the court[22].

For the reasons given above Inclusion London opposes the changes in the rules on PCOs.

That concludes Inclusion London’s response.

This response is supported by:

Disabled People Against Cuts

Dean Apps

Richmond AID

For more information contact:

Inclusion London

336 Brixton Road

London, SW9 7AA
Email:

Telephone: 020 7237 3181

London Deaf and Disability Organisations CIC
Company registration no: 6729420

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[1]Fulfilling Potential: Building Understanding report

[2]

[3]

[4]Judicial Review: proposals for further reform consultation :

[5]R v Secretary of State for the Home Department, ex p Bulger[2001] EWHC Admin 119 at 20:

[6]Sedley J in R v Somerset County Council, ex p Dixon [1998] Env LR 111 at 117-121.

[7]

[8]

[9]Judicial Review: proposals for further reform consultation :

[10] R (in the application of Cart) v Upper Tribunal [2011] UKSC 28 at para 122

  • [11] Disabled people in London are more likely to live in rented accommodation and are more likely to rent from the council.
  • Disabled people in London are more than four times as likely as non-disabled people to be receiving housing benefits.
  • Disabled people are more than twice as likely (66.7%) as non-disabled people (33.1%) to be receiving state benefits or tax credits.

[12]

[13]

[14]

[15]

[16]

[17]

Burnip, Trengove and Gorry v Secretary of State for Work and Pensions [2012] EWCA Civ 629

[18]

[19]

[20] See briefing for Deaf & Disabled People’s Organisations by Louise Whitfield, Deighton Pierce Glynn at:

[21]

[22]