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Swallowing A Bitter Pill

September 18, 2013

Regrettably, I’ve had to decide not to pursue the Housing Benefit appeal to the Upper Tier Tribunal.

I received the judgement from the First Tier, two weeks ago today, so that only leaves another 14 days in which to submit an appeal.

Try as I might, I have not been able to secure any legal representation to support me with taking it further. After the experience with Hillingdon’s barrister at the first hearing, I know there is no way that I will be able to present a case on my own. Even if I got non qualified representation, it may be like the First Tier, where my representative was not allowed to speak.

I did have one hopeful offer of help but was quoted £300 +vat just for an initial meeting. At the very least, there would also be the cost of writing the submission and appearance at the actual hearing to follow and there is no way that I can afford those sort of fees.

If I’m honest, I feel slightly bitter about the lack of interest. Since 2011 and Neary vs Hillingdon, I’ve agreed to many legal firms using our story to speak at events, write about in various publications etc. All the firms involved in 2011, use the story prominently on their websites.

But it’s not really the fault of the legal firms – they are just doing their jobs. Ultimately, this is about the legal aid reforms and how access to justice is closed off for so many people.

I still like to think that we would have had a good chance of winning. There were so many errors of evidence in the first judgement, that I believe they could have been challenged. Also, I was looking forward to challenging the strange weighting the judge gave his decision. Five pages on one of the issues and one paragraph on the other two. Yes, I’m pretty sure we would have had a pretty good case.

So – what now? We are back to having no say about our housing situation. If I had won the appeal, I could have taken matters in my own hand and gone and found us a new flat. As it stands, we are stuck in this hellhole of a flat until the council find Steven a property. It will be five weeks tomorrow that Hillingdon did their deal with my landlady to stay on here until they find somewhere. I haven’t heard a word from them since.

The only good news in all of this is that (I’m touching wood here) Steven’s anxiety about the move seems to have abated in the past week. He has added “Moving to our new house” in his category of subjects that will probably never happen – alongside Abba reforming and Jimmy Puddle returning to the Mencap Pool. He brings up the subject daily, but throws his arms out wide theatrically, which is the sign that he doesn’t believe it’s going to happen.

Except of course, it is. One day.

Update 10.11.13

Just realised that is a year ago to the day that I sat in the council offices and was told they were stopping the HB. I’ve just been advised to write the issue “in a nutshell” to be forwarded on to the UN. Here it is in a nuthsell:

Housing Benefit – Neary Vs Hillingdon

Introduction:
My family consists of myself (Mark Neary), my wife (Julie Neary) who has paranoid schizophrenia and my 23 year old son (Steven Neary) who has autism and severe learning disabilities.
From 1995 to 2009, we lived together as a family in the family home that is jointly owned by myself and my wife.
In July 2009, Hillingdon Council Adult Social Care department gave me an ultimatum. As my wife’s mental health condition was causing increasing problems in sustaining Steven’s care package, if I didn’t move out with Steven, they would remove Steven from our care. It was a horrible decision to have to make but I put the best interests of my son before my wife and moved out.
We moved to a privately rented property and before taking on the tenancy, I checked with Hillingdon’s housing benefit department that we would be entitled to housing benefit. They decided that the property that I jointly own could be disregarded as capital available to me and subsequently awarded HB. This continued until September 2012 and the claim was reviewed several times during those three years.
It is also useful background to know that in June 2011, a judge at the Court of Protection found that Hillingdon had acted unlawfully for the whole of 2010 by keeping my son in a care home. The court found that the council had illegally deprived him of his liberty and breached both his article 5 & article 8 human rights. In 2012, the court ordered Hillingdon to pay Steven damages for this event. I mention this because one month after the damages award, Hillingdon made their decision to stop my housing benefit. Nothing had changed in my circumstances at that time, except for my income reducing after a change in employment.

The Decision:
Hillingdon decided, and the First Tier tribunal agreed with them, that they could no longer disregard the value of the second property and therefore took it that the capital of that property is now available to me. In making that decision, they took three factors into account:
1. My wife is not my partner.
2. My wife is not a relative
3. My son is not a member of my family.
If they had decided that any one of the three points was in my favour, then they could have disregarded the second property and awarded housing benefit.

My Appeal:
My appeal is on the grounds that the regulations are discriminatory to families with disabled or mentally ill members. Although we are living apart, I still consider my wife to be my partner. Our relationship is fragmented and there are very few things we do together but that was also the case when we were living together as a result of hwer mental illness.
The HB guidance, considers a “brother in law”, or a “non blood uncle” to be a relative but not a wife.
Finally, the HB guidance also states that because my son is over 18 and has his own income, he is not a member of my family. That completely ignores the dependency of a learning disabled person on most other aspects of their life.
Also, the decision fails to consider the “exceptional circumstances” of the case. Not only in the specific make up of my family but also that it was the same council that brought about the situation by insisting on the move that four years later stopped my benefit.
The judge stated that he applauded me for putting my son’s best interests first at all times but the non entitlement to HB is a consequence of that.
That cannot be right.

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From → Social Care

10 Comments
  1. Annie permalink

    Do you have legal cover on your contents or motor insurance, Mark? If so you should have the telephone number of the legal help line which may be able to assist you dependent on the type of legal action it covers.

    I have read the judge’s decision on the Mental Health Law site, I had a number of issues with the way in which the tribunal was conducted but when I checked your blog I noticed that you had referred to it being an Upper Tribunal in an earlier post so did not list them in an earlier reply. If it was a First Tier Tribunal you might want to put in a request to the First Tier Tribunal for permission to appeal to the Upper Tribunal in the hope of having the first decision set aside on grounds of procedure. A set aside and rehearing would give you the opportunity of another First Tier Tribunal hearing with representation, i.e. a fair hearing. I believe that there are a number of procedural errors, including denying you representation on the grounds that your representative was not legally qualified.

    Whatever you decide, Mark, whilst Hillingdon may have won the appeal neither Hillingdon nor the Tribunal Service come out of this looking good. If I was a council tax payer in Hillingdon I would be asking how Hillingdon justified using my money in engaging a barrister in order to win a First Tier Appeal which had no implications beyond that particular case. And having read the decision more than once I came away thinking that the way in which the tribunal was conducted was tanatmount to allowing the defendent and his/her barrister to conduct and control the court hearing in the Criminal Courts, you were the appellant, Hillingdon the respondent tasked with defending their decision.

    What would I do? I would find myself a good welfare rights advisor and put together a request for permission to appeal to the Upper Tribunal, if permission is granted you always have the option of withdrawing your appeal but you will have bought yourself more time to find pro bono legal representation.

    Annie

  2. CathyB permalink

    I’m really sorry to hear you’re not taking this further but I totally understand why. Have you approached charities with legal resources. Two that spring to mind are Shelter and The Child Poverty Action Group who have both taken on legal cases like this.

    Also, what about contacts in journalism? Perhaps the social welfare correspondent of, say, The Guardian may know legal firms experienced in this field who would act pro bono for kudos and good publicity. If nothing else you may get a newspaper piece to raise public awareness.

    Perhaps an organisation like Channel 4 news may have similar contacts or want to do a segment to highlight these issues.

    I worked for many years in welfare benefits (don’t hold that against me!) and I would STRONGLY advise you to register an appeal to protect your right of appeal. As you know only too well, these matters take ages to get heard so that will give you time to sort out legal support. If you can’t find legal representation, or if you just want to throw your hands up and forget it all (who can blame you?), you can withdraw from the appeal process at any time.

    Please, whatever you decide, just submit an appeal to preserve your right to continue to challenge this outrageous, unethical decision, or just to p*ss off the council!

  3. CathyB permalink

    Hi again! A word of warning if you plan to use legal cover from an insurance policy. I had to settle my Employment Tribunal case because the insurance-provided solicitor said that if I didn’t agree with her recommendation to settle she would rat me out to the insurance company and I would have to pay for all the legal support already provided (which included a barrister who earns more per hour than god!). Legal blackmail! And the work is always given, it seems to me, to the most junior solicitor who loathes this sort of work and isn’t very good at it anyway.

  4. Hi Mark, I’m so sorry to hear this and that you haven’t been able to find the support you need to challenge the decision. It’s just vile in every way – shows up the system and the legal aid and welfare cuts for what they really are. I wish I knew more about housing law and could offer to lend a hand, but I wouldn’t have a clue where to start.

    Hope you and Steven are doing ok. Glad Steven’s anxiety is getting a bit better. Take care, L

  5. I’ve found a benefits barrister who may be able to help. Could you contact me urgently via janeyoung.me.uk/contact/ or DM me via Twitter @theyoungjane and I’ll put you in touch.

  6. Jamie permalink

    Hoping for a better answer.

  7. ian glen permalink

    Mr Neary
    I am prepared to meet and see whether I can help on a pro bono basis.
    Ian Glen

  8. Hi Mark, I think you have good grounds to have the decision set aside on procedural error because your representative was not allowed to speak:

    You are entitled to have a representative of your choice. Your representative does not have to be legally qualified. He or she could be a friend or relative. But in choosing a representative, you should bear in mind what the role of a tribunal representative is.

    The Tribunal Judge will summarise the issues in the appeal according to the papers and agree with both sides what ground needs to be covered in the hearing and in what sequence. This is an opportunity for representatives, if they wish, to make an opening statement, outlining their case.

    If, after the Tribunal has finished asking its questions, you think it has missed anything, do tell the Judge. The Judge will also allow relevant questions from any representatives.

    Source: http://www.justice.gov.uk/downloads/tribunals/social-security-and-child-support/forms-and-how-to-appeal/HTA_English_Final_rev.pdf

    Also I don’t think the issue of whether your wife is a former partner and whether you are separated but not estranged was covered adequately. This is about income support but it’s the same issue (even though the former partner in this case is not incapacitated):

    14. The Secretary of State did not know if paragraph 4 should apply. This provides:
    “Any premises occupied in whole or in part by –
    (b) the former partner of a claimant as his home; but this provision shall not apply where the former partner is a person from whom the claimant is estranged or divorced.”
    “Partner” means a member of a couple. Mrs P and her husband are a couple if married to each other and members of the same household (Regulations, regulation 2(1)). Mrs P’s information makes it clear that they are not living in the same household, so she and her husband must be “former partners”. Are they estranged or merely separated? That is not defined. I take “separated” to mean that they are still married but not members of the same household (in which case it adds nothing to the designation in the regulation of Mrs P’s husband as a former partner). “Estrangement” clearly adds another element. See CIS/4843/2002. R(IS) 5/05, following R(SB) 2/87, indicates that it has a connotation of disharmony. There is no evidence in this case about why Mrs P and her husband are living in two separate households, and therefore no basis to find if such disharmony is present.

    15. To establish if the exception applies, it has to be decided if Mrs P’s husband is her former partner rather than her current partner. If they are still partners, then the disregard does not apply. Assuming that they are former partners, it has to be further decided if Mrs P is separated from her former partner or estranged from him. If they are former partners, and separated and not estranged, then the disregard does apply.
    Neither of those issues has been decided.

    Source: http://webarchive.nationalarchives.gov.uk/+/http://www.dwp.gov.uk/commdecs/amendpkg/07_no4.pdf

    I hope that you can get someone to take on your case Mark.

    • Liz. permalink

      Having read the Mrs P link, it seems the issue which SHOULD be addressed is whether you have access to the capital tied up in the house, and it seems that this judge was prepared to acknowledge the reality that that is not always the case.

      If anyone tried telling me that my daughter was not a member of my family, I would, like you, be outraged. Someone, somewhere, has to acknowledge that what might be good laws get rather complicated and irrelevant when it comes to adults with LD. But if fighting on that issue isn’t working for you, a change of tack might work? The social security and Care laws are so complicated it is very hard for anyone to know what they mean – so I do hope you can get someone tenacious to help.

  9. Terence Pomroy permalink

    As a parent of an autistic son aged 19 my heart goes out to you in your plight simply to support your son who after all is a highly vulnerable young adult who needs your care and protection in his best support. It is a national disgrace that there is so much incompetence and ineffectual management of SEN people out there, set up by well-meaning but frankly often ineffectual and incompetent or inadequate agencies. You get the clear impression that no one knows how to best provide the essential care that is needed. So that essential care is finally managed as best we are able by loving parents who then find themselves fighting a system that purports to be assisting us. It is frankly exhausting and our only propulsion in the process is the love of our children or family members in desperate need of help. We all have our bureaucratic issues to resolve in these areas but if it is at all any comfort to you I can promise you you are not alone. I will be damned if I do not ensure the very best for my disabled but frankly wonderful son and I will keep up that fight until the day I die. Best wishes to you and your son and well done for your stirling efforts in support of your family.

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