Frontline 90

FRONTLINE Law Centre (NI) social welfare law quarterly

LEIGH DAY & CO: holding corporations to account

capacity bill migrants and healthcare WELFARE REFORM MITIGATIONS aLEX mASKEY: THE work OF THE SOCIAL DEVELOPMENT COMMITTEE

90 winter 2013-14

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CONTENTS

FRONTLINE 90

editorial

practitioner

Welfare reform

4

news Pro bono in practice

5

Anti-trafficking project

6

Law Centre AGM

7

Modern Slavery Bill

8

Food banks

9

features

Race equality

22

Migrants and benefits

24

reviews Law in Northern Ireland

26

Safeguarding adults

26

Employment law

27

20

Focus on welfare reform NIASC suggests mitigations 10 Alex Maskey on Social Development Committee

FRONTLINE 90 Editor Catherine Couvert Design & Layout Michael W Beggs Cover photo: Martyn Day at the Law Centre’s social justice lecture. Photo Kevin Cooper © Law Centre (NI) 2014 All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or transmitted in any form by any means, including photocopying/recording, without prior written permission of Law Centre (NI).

12

Holding multinationals to account

14

Social housing reform

16

Mental Capacity Bill

18

Health care and migrants

20

Miliami Unamoyo at BIPP celebration.

Photo: Arev Vardanyan

Editorial Panel

Editorial/Advertising

Kevin Higgins Advice NI Sian Fisher Citizens Advice

124 Donegall Street, Belfast, BT1 2GY Tel: 028 9024 4401 Fax: 028 9023 6340 Textphone: 028 9023 9938

Sharon Geary Housing Rights Service

Email: admin.belfast@lawcentreni.org Twitter: @LawCentreNI

Gráinne McKeever University of Ulster

Website: www.lawcentreni.org

Ursula O'Hare, Patricia Carty and Jennifer Greenfield Law Centre (NI)

Law Centre®

ISSN 0962 - 8800 Frontline is published four times per year by Law Centre (NI). It aims to provide a forum for information, analysis and opinion on matters relating to welfare law and allied social policy issues. Views expressed in the magazine should not be taken to be those of Law Centre (NI).

Frontline is available in large print on request from our publications unit.

Phone: 028 9024 4401 or email: admin.belfast@lawcentreni.org Frontline | Winter 2013/2014 | 3

EDITORIAL

the race for welfare reform A quick glance at the Office for Budget Responsibilities fiscal outlook document released to accompany the Chancellor’s autumn statement in December 2013 is instructional. It shows the extent to which the introduction of Universal Credit has slowed for 2013/2014 and 2014/2015. It also reveals that the full delivery of Universal Credit will not be completed until 2018/2019.

Lord Freud has also announced that in Britain the transfer of claimants on ESA to Universal Credit will happen late in the process and not begin until 2017. This news comes as the implementation of the Welfare Reform Bill comes to the fore once again.

Mike Penning, the Department for Work and Pensions minister, visited Northern Ireland recently to deliver bullishly the message that the monthly penalty of £5 million if the Welfare Reform Bill is not delivered will begin in January 2014. With no desire to lose significant sums from public expenditure, there is likely to be some movement from Sinn Fein and the DUP. Whatever happens, and it will almost certainly fall short of passing the Bill by January, it remains to be seen whether any movement will be enough to avoid the financial penalty.

The outline of a deal is on the horizon. In the public domain is that the ‘spare room tax’ will only be introduced for new claimants.

Beyond that, the Northern Ireland

4 | Frontline | Winter 2013/2014

Executive is likely to follow the Scottish Executive and put more money into the Discretionary Support Fund, develop a contingency fund and address issues that will not cost a great deal to introduce, for example around sanctions and claimant commitment, for Universal Credit.

In addition, many sensible variations with little or no cost can be made in the regulations which follow the Bill.

Ensuring that already announced flexibilities (paying fortnightly rather than monthly, payment of housing credit direct to landlords and splitting Universal Credit payments between men and women more readily) are meaningful and not cosmetic will also be important. On these issues the devil is in the detail.

Dealing with the transition from Disability Living Allowance to Personal Independence Payment is more problematic. Altering the descriptors, assessment process and basic structure of the benefit is highly unlikely to happen.

Instead, the focus is more likely to be on decision-making, evidence gathering and dealing with the consequences of the aftermath with access to advice on claiming other benefits and readjusting to the significant loss of income. Options include an initiative to pay for better medical evidence in advance of decisions so that the Social Security Agency can have additional evidence more readily, as recommended in the earlier Harrington Review of the Work Capability Assessment and significantly endorsed for claimants with mental health problems in the recent Court of Appeal case of MM v Secretary of State for Work and Pensions.

The Department for Work and Pensions and Treasury appear to be

‘The outline of a deal is on the horizon. In the public domain is that the ‘spare room tax’ will only be introduced for new claimants. ’ willing to accept variances providing Northern Ireland foots the financial bill. The actual cost of doing things differently is therefore important.

A recent study from the University of York into the spare room tax concluded that the estimated savings projected from the initiative will be reduced by between 33 to 39 per cent of the original estimates outlined by the Department for Work and Pensions.

Moreover, the further delay in Universal Credit will pose more challenges to the Department for Finance and Personnel as it may lead to a re-think on whether to meet the ten per cent shortfall in the transfer for rates for potentially a third year, having committed to the subsidy this and the next financial year.

January will be an important month for the Welfare Reform Bill.

In addition, attention needs to be retained on the regulations that are due to follow the Bill once passed. We are about to move into interesting times once again for social security reform.

Les Allamby

1

Fiscal outlook: Office for Budget Responsibility December 2013 p134-135.

NEWS

Pro-bono work: international perspectives and local solutions Sinéad Mulhern, Head of Legal Support Project at Law Centre (NI), looks back on a productive conference and a successful first year.

On 8 November, the Law Centre’s Legal Support Project (LSP) hosted a conference on Pro Bono in Practice: International Perspectives at Riddel Hall, Queen’s University.

The conference was chaired by Mr Justice Stephens.

Delegates heard from leading international practitioners about their experiences of pro bono work in promoting human rights and access to justice, and from a panel of leading law firms about the business case for pro bono.

They also had the opportunity to participate in workshops and put forward ideas for the future development of pro bono work in Northern Ireland.

Pro bono experts Dr Colin Gonsalves, founder of the Human Rights Law Network (India) and a senior advocate of the Supreme Court in India, spoke about his involvement in a number of major human rights actions on behalf of large numbers of litigants.

Balázs Sahin-Tóth, counsel with Allen & Overy (Budapest), shared his experience of acting for Roma students claiming damages arising from school segregation in Hungary.

Participants also heard from Siobhán Moloney of A&L Goodbody (Dublin) and Sophie Orr (Allen & Overy London) about their firms’ current pro bono programmes.

Workshop discussions Martha de la Roche, from the Access to Justice Foundation, spoke about the Foundation’s work following the introduction of pro bono costs orders in England and Wales under the Legal Services Act 2007. The workshop explored options for extending the Foundation’s reach to Northern Ireland.

At the LSP Pro-bono conference: David Hunter QC, Dr Colin Gonsalvez, Balázs Sahin-Tóth and Monye Anyadike-Danes QC. Photo: Sarah Hunter

Marieanne McKeown, senior legal officer with PILnet: the Global Network for Public Interest Law, explained the role of pro bono clearing houses and highlighted potential opportunities for NGOs here to access legal expertise internationally.

Finally Gráinne McKeever, senior lecturer at the University of Ulster School of Law, led a workshop focusing on raising awareness of pro bono within legal education.

Impact report A report on the work of the Legal Support Project in its first year was launched at the conference.

In its first year, LSP took on 120 new cases up to 31 March 2013. A high percentage of the cases have now been concluded, with successful outcomes achieved in most.

Also in the first year, 58 potential volunteers attended LSP training courses. Of those, 47 took on cases, providing a total of 1,792 pro bono hours.

Our volunteers come from a variety of legal/advice backgrounds and experiences. They include law

graduates, postgraduates, newly qualified lawyers and a small number of experienced practitioners.

We have established positive working relationships with private practice and hope to build on this. A number of our leading employment law firms delivered specialist employment training to LSP volunteers on a pro bono basis.

The LSP’s Advisory Group has been providing valuable advice on developing and sustaining our work and strengthening our relationship with the wider legal community.

LSP Impact Report 2012-2013 is available on: www.lawcentreni.org/ LSP/LSP-Impact-Report-2013.pdf

Members survey The Law Centre will shortly be undertaking an online membership survey. We would be grateful for your views on our work and on your needs.

Details will be announced on www. lawcentreni.org.

Frontline | Winter 2013/2014 | 5

NEWS

Trafficked young people get specialist help at the Law Centre Law Centre (NI) has launched a new anti-trafficking project. Project worker Fidelma O’Hagan explains that this new service, aimed at young people up to the age of 25, is meeting an important need: ‘Increasing numbers of victims of human trafficking are being identified in Northern Ireland. Every year, this includes a small number of children and young people. Children and young people who are trafficked into Northern Ireland face real hurdles in getting the support they need to navigate a complex system and enjoy their legal rights.

‘The first of its kind in Northern Ireland, this project allows Law Centre (NI) to work to ensure that every young person who is a victim of trafficking in Northern Ireland receives the guidance and assistance he or she needs, through our legal advice and representation service.

‘We are very grateful to Comic Relief for the support that enables us to provide this specialist, dedicated service’ Patricia Lewsley-Mooney, Northern Ireland Commissioner for Children and Young People, and Deirdre Coyle of Children and

Fidelma O’Hagan, Law Centre (NI), Children’s Commissioner Patricia Lewsley-Mooney and Deirdre Coyle, Health and Social Care Board. Photo: Michael Beggs

Family Services, Health and Social Care Board, spoke at the launch, emphasising why this project is important. Patricia Lewsley-Mooney said: ‘While official figures report a relatively small number of trafficked children here, we also know that there may be more children who arrive here and others who go missing within Northern Ireland who

Social justice award for NICRAS chairperson Congratulations to Justin Kouame, chair of Northern Ireland Community of Refugees and Asylum Seekers, who has received a Community Foundation Stephen Pittam Social Justice Award.

In addition to his voluntary work for NICRAS, Justin volunteers as a tribunal representative for Citizens Advice.

Photo: Catherine Couvert

6 | Frontline | Winter 2013/2014

are never captured by our recording processes. The process that every trafficked child goes through must seek to protect them when they are facing a very frightening time.

‘The Anti-Trafficking Children and Young People Project at Law Centre (NI) will support this vulnerable and often invisible group of young people.

It offers skills and expertise to listen to, advise and support trafficked children to help them enjoy the rights they are entitled to through the United Nations Convention on the Rights of the Child.’

The launch was well attended, highlighting the extent of interest in the issue of anti-trafficking work in Northern Ireland.

The creation of the Anti-trafficking and Young People Project enables the Law Centre to focus expertise through the provision of specialist legal advice and representation to young victims of trafficking aged between 11 and 25, as well as by providing information and policy responses on identified issues.

The advice line is open Monday to Friday 9.30am-1pm, 028 9024 4401.

NEWS

Welfare reform coming to a head hears Law Centre AGM The Law Centre’s AGM 2013 focused on the vexed issue of welfare reform, which is due back for consideration in Stormont in the next few weeks (see editorial page 4).

Welfare reform Micky Brady MLA and Michael Copeland MLA, outlined the challenges ahead for the Assembly’s Social Development Committee and expressed concerns about the potential impact on vulnerable people, communities and Northern Ireland’s economy.

Paula Bradley MLA and Stewart Dickson had to send apologies due to other commitments but passed on their best wishes.

A short film highlighted the reality of life on benefits and the negative impact of social security changes in GB. See it here: http://

doleanimators.wordpress.com

In preparation for the event, Law Centre director Les Allamby interviewed Alex Maskey MLA on the role of the Social Development Committee in the months ahead.

Read about it on pages 13 and 14, or watch the complete interview at:

that the right to reside test for Child Benefit and Child Tax Credit amounts to unlawful discrimination; ensuring faster process of claims for refugees through the fast-track system.

Employment: shaping the discussion on alternatives to dispute resolution; casework success in relation to TUPE cases, employers becoming insolvent and a low pay case involving the Agricultural Workers Board.

Mental health: ongoing work on the resettlement of long-term patients in partnership with Mencap and Tell It Like It Is; contributing to efforts to secure progressive mental health legislation for Northern Ireland.

Community care: securing positive changes to the Business Services Organisation’s guidance on registering patients with GPs leading to more migrants being able to access primary care health services; securing clarity on access to patients’ records and notes for adults who were in care when children.

Immigration: taking a test case on behalf of a Sudanese non-Arab Darfur family that highlighted the deficiency of the asylum system in the Republic of Ireland. The case was a lead case of 38 working their way through the courts.

Support services: the Law Centre continues to deliver high quality training, publications and online services.

Legal Support Project: the project had a very successful first year and is expanding the pro bono culture in Northern Ireland and working with the Bar Council, Law Society and PILS to secure legislation to introduce pro-bono costs orders for Northern Ireland.

Read more in the Law Centre’s Impact Report 2013: http://www.lawcentreni.org/ Publications/Impact-Report-2013. pdf

http://vimeo.com/81410828

One year’s work at the Law Centre Les Allamby stressed that the Law Centre rejects the rhetoric of the ‘deserving’ and ‘undeserving’ poor and underlined our commitment to focus on the circumstances that people are in.

He emphasised the importance of our working relationship with advice agencies and praised the partnership with our colleagues in the Advice Services Consortium.

He presented the year’s notable achievements which include: Social security: ensuring that human rights and equality are properly considered in the context of welfare reform; enabling the extension of a reciprocal agreement for ESA between GB and NI; establishing

Les Allamby, Gráinne McKeever, Michael Copeland MLA, Mickey Brady MLA and Ursula O’Hare prepare for the Law Centre AGM. Photo: Michael Beggs

Frontline | Winter 2013/2014 | 7

NEWS

Training success Congratulations to all the participants on the Law Centre’s Welfare Rights Advisers Programme and Tribunal Representation courses who received their Open College Network certificates this year.

Those who were able to attend the certificates presentation at the Law Centre’s AGM are pictured here.

To find out more about our courses, go to: www.lawcentreni.org/training/courses. html Photo: Michael Beggs

Modern Slavery Bill

T

he proposed Modern Slavery Bill aims to send an international and domestic message that slavery will not be tolerated.

The Bill primarily seeks to criminalise certain activities in order to form a strategic response to the threat of modern slavery. It aims to reduce the current levels of human trafficking and slavery in the UK whist also preventing future victims being exploited. If passed, it will run alongside the nonlegislative based Modern Slavery Action Plan which is due to go live this spring.

Worrying statistics There were 1,186 referrals of potential victims to the National Referral Mechanism in 2012, an increase of 25 per cent from 2011, and there is concern that there may be many more unknown victims. Figures vary but the UK Human Trafficking Centre Strategic Assessment for 2012 estimated up to 2,255 possible victims of human trafficking in the UK, while the Global Index on Trafficking 2013 estimated nearly 30 million people affected by

8 | Frontline | Winter 2013/2014

human slavery and trafficking worldwide with over 4,000 potential victims in the UK alone.

Different jurisdictions Although as drafted the Bill will apply only in England and Wales, the UK government aims to work closely with devolved governments in Northern Ireland and Scotland to secure a UKwide bill. Here in Northern Ireland, Lord Morrow has presented his own Private Members Bill which covers some of the same ground but goes further in many areas.

Four key areas The England and Wales Modern Slavery Bill addresses four key areas; sentencing for offences of slavery and human trafficking, the introduction of STPOs and STROs (Slavery and Trafficking Prevention/Risk Orders), the creation of an Anti-Slavery Commissioner and the introduction of specified public authorities having a legal duty to report potential victims of trafficking to the NCA.

Important changes Overall, the Modern Slavery Bill makes some important changes to current legislation, for example consolidating the current set of offences into the one Act with two substantive offences.

The Bill also aims to address the severity of the issue in Britain through increasing maximum sentencing from fourteen years imprisonment to life imprisonment for conviction on indictment.

Whilst not without its critics for failing to provide protections for victims, the Bill takes crucial steps towards reducing the levels of modern slavery and trafficking in the UK. Sophie McVea, Intern, Law Centre (NI)

NEWS

Turning the tide on food banks Advice NI has launched a report entitled ‘Turning the Tide’ which highlights the rapid increase in the number people seeking help from emergency food providers and calls for action to address the root cause of hunger in Northern Ireland.

Speaking ahead of Advice NI’s Annual Meeting on 29 November, Chief Executive Bob Stronge said: ‘We acknowledge and pay tribute to the work of food banks in helping people with literally nothing to feed themselves and their family.

However we believe the time has come to examine more closely the reasons why, in a relatively affluent society, we have people who cannot access a nutritionally adequate diet.’

The report highlights a number of stark facts including: ww at least eleven food banks have

opened in NI in the last year;

ww the reasons why people needed

help from food banks included unemployment, benefit cuts and delays, indebtedness, illness and disability, an inability to budget and manage money;

ww Trussell Trust food banks in

Northern Ireland fed 1,538 people in the period April to June 2013;

On 29 November 2013, Advice NI held a members-only AGM to focus on the needs of its membership in adapting to challenging times. Members dicussed quality assurance, digital inclusion and adapting to change. ‘Turning the Tide’ was launched at the meeting. Photo: Advice NI ww the help provided by food banks

often takes the form of a parcel of emergency, non-perishable food sufficient to cover three days.

The Advice NI report reflects on the international context, particularly in North America, where campaigners are calling for adequate levels of wages and social security benefits so that demand for food banks declines and emergency food providers eventually cease to exist.

Similarly Advice NI is calling for more research into the food bank phenomenon aimed at understanding the causes of food poverty and for independent advice services to be strengthened in Northern Ireland to help people to maximise their incomes and better manage their money and to mitigate the more negative aspects of welfare reforms. The report is available on: www.adviceni.net/publications

Citizens Advice launches new website Creating the Good Economy - for life Northern Ireland Council for Voluntary Action is holding a conference to explore the economic position of young people.

Speakers: Bonnie Greer, social commentator, Ed Howker, author of The Jilted Generation, and Richard Ramsey, Chief Economist, Ulster Bank.

Minister for Social Development Nelson McCausland MLA with Citizens Advice Chairperson John Devine, launching the new CAB website at the AGM. Photo: Citizens Advice.

The conference, the first in a series of three, is on Friday 31 January in Riddel Hall, Belfast. For more information, contact eoin.rooney@nicva.org or call 9087 7777.

Frontline | Winter 2013/2014 | 9

FOCUS | Welfare reform

Welfare reform and mental health Softening the impact for most vulnerable

Northern Ireland Advice Services Consortium representatives Les Allamby, Kevin Higgins and Pól Callaghan have presented the Assembly’s All Party Group on Mental Health with a list of possible mitigations to the welfare reform agenda. The recommendations are summarised here.

S

tormont’s All-Party Group on Mental Health met in December to discuss what consequences the Social Welfare Bill will have for users of mental health services. The Group invited the Northern Ireland Advice Services Consortium (NIASC) to present possible mitigations to protect the most vulnerable.

Most of the recommendations would involve no additional cost, and NIASC explained that the few added costs would be modest, would not come out of the block grant and are likely to have a positive effect on the local economy.

Putting the right to independent advice on a statutory footing A clause should be added to the Bill highlighting that anyone affected would have the right to independent advice.

An independent advice service can make a significant difference to people’s lives in terms of income and coping with debt and, through resolving issues at an early stage, save public services time and money. In particular, deploying independent advice services towards people migrating from DLA to PIP or subject to contribution-based ESA time limits would help ensure that the most vulnerable do not fall foul of unintended consequences and maximise other income apportunities.

10 | Frontline | Winter 2013/2014

Disability Living Allowance and Personal Independence Payment ww Claimants with the severest

disabilities should be passported through the assessment process.

ww Claimants should be given eight

weeks to return Part 2 of the PIP application form to give them time to get additional medical evidence and access advice.

ww Claimants should be informed of

available independent advice at the end of the Part 1 interview.

ww PIP medical assessments should be

subject to tight scrutiny.

ww Medical assessors should have

sufficient qualifications and experience, with expertise in areas such as mental health, learning disability, post-traumatic stress disorder, behavioural and personality disorders and addiction.

ww Specific evidence should be sought

in mental health cases before a decision is taken.

ww Medical assessors should allocate

sufficient time for claimants to fully discuss their health problems and associated impact on their daily living and mobility.

ww Claimants should be able to verify

that medical assessors have properly recorded their evidence during medical assessment.

ww Medical assessment providers

should be held to account through a learning loop which runs clearly back to them (with sanctions where appropriate) where individual cases are overturned at appeal.

ww There should be an effective

process for collecting medical evidence from all available sources so that PIP decision makers can make informed decisions.

ww PIP decision makers must be

encouraged and empowered to make decisions weighing up all the evidence provided.

ww A timely, effective system must

be put in place to allow people to dispute decisions, ranging from a rapid mandatory reconsideration by a different decision maker to an appeal hearing.

Payment of contributory ESA (WRAG group) limited to twelve months ww The Social Security Agency should

have an appropriate review process to establish if a person should be in the ESA Support Group rather than subject to benefit removal under the time limit.

ww Claimants affected by the time

limit should be informed that they can still be considered incapacitated for Working Tax Credit purposes.

FOCUS | Welfare reform Lone parents with young children looking for work ww Additional flexibility should be

built in for lone parents to more carefully define their availability for work.

ww Decision makers should consider

whether appropriate, affordable and accessible childcare is available when determining availability for work.

ww No sanctions should be applied

without senior management signoff to ensure that the well-being of children is fully considered.

ww Parents should be able to decline

job offers where appropriate, affordable and accessible childcare is not available.

ww No sanctions should be applied to

lone parents until the youngest child reaches age five.

Les Allamby, Law Centre (NI), Pól Callaghan, Citizens Advice, Maeve McLaughlin, Chair of the Health Committee, Annette Carter, Advice NI, and Kevin Higgins, Advice NI. Photo: Advice NI

ww Claimants should have ten

working days, rather than five, to provide a ‘good cause’ explanation.

If the ‘Bedroom Tax’ is introduced ww Tenants should be exempt from

the under occupancy penalty where there is no appropriate alternative accommodation.

ww Where appropriate alternative

accommodation is available, help with relocation costs should be provided.

ww To help those unable to relocate,

the Discretionary Housing Payment fund should be significantly boosted.

ww Efforts should be made to increase

awareness of the fund, including through the notification letters to claimants.

client needs and include face-toface and telephony. ww An effective review and appeals

mechanism should be put in place.

ww An annual report should be

produced, outlining the number and value of applications to the scheme and of payments made; administration information such as processing times; information about challenges to decisions; assessment of the scheme’s effectiveness in serving its purpose and meeting demand.

Child maintenance ww The Department should rethink

proposals to introduce charging for parents with care and explore options such as charging parents who prevent family based arrangements.

Social Fund Crisis Loan and Community Care Grant replacement scheme

Benefit cap

ww Maximum resources should

ww It should be possible to appeal the

ww An effective communications

Overpayments and alleged fraud

be added to the replacement discretionary support scheme. strategy should be implemented to increase awareness of the scheme.

ww Access channels to the scheme

should be geared towards meeting

discretion and is likely to be financially counter-productive.

General points ww The Department should produce

annual reports monitoring and evaluating these proposals.

ww Statistical modelling of the impact

of welfare reform should be based on most recent information rather than pre-recession data.

ww Effective arrangements on

passported benefits in devolved areas (Free School Meals, help with Health Service Charges, access to civil legal aid) should be put in place before introducing Universal Credit.

ww The Social Security Agency should

monitor and report on the number and type of Universal Credit cases needing to be administered clerically ‘offline’.

imposition of a benefit cap.

ww Cautions for first offences should

not be replaced with a more severe administrative penalty or a prosecution as this removes

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FOCUS | Welfare reform

shaping change through engagement

The essential role of Assembly Committees in law and policy development

In preparation for the Law Centre’s AGM and seminar on welfare reform developments, Alex Maskey, Chair of the Northern Ireland Assembly’s Social Development Committee, was interviewed by Law Centre (NI) director Les Allamby. An extract of the interview is reproduced here. View the full interview at: http://vimeo.com/81410828 Can you give us an overview of the role and priorities of the Committee?

Our Committee, like all the statutory Assembly Committees, is supposed to have three functions, one is to hold the Department and the Minister to account, one is to scrutinise their work, and the other one is to help to shape and formulate policies that the Department and the Minister might want to develop in the time ahead.

I think that the Committee needs to work more effectively than it currently does in helping to shape the policies adopted by the Minister.

The best way of doing that is through engagement with people in the community who are what I would describe as relative experts in the field that you’re dealing with, be that housing or welfare, regeneration and social deprivation. I have made the argument repeatedly in the Assembly that the Committee needs to think more strategically to make sure that they are a voice that has to be taken account of.

One of the areas where the Committee has had an impact is welfare reform.

What has been the role of the Committee in the Welfare Reform Bill to date?

Alex Maskey MLA, Chair of the Northern Ireland Assembly’s Social Development Committee.

Photo: Northern Ireland Assembly

12 | Frontline | Winter 2013/2014

Since the beginning of this particular mandate there has been a lot of engagement by the Committee with

FOCUS | Welfare reform a wide range of organisations whose work would touch on aspects of the impending British government’s welfare reform agenda, not least the Law Centre and other similar organisations.

The formal stage when the Committee engaged on the legislation was very important. I was very pleased that, notwithstanding the various views around the table amongst MLAs, whether people instinctively support parity or don’t support parity in principle, the Committee worked at producing a report on a unanimous basis. It set the scene for the Minister, the Department and the Executive as a whole, that they had to take account of what was a very substantial report which clearly laid out firm areas of objections that all the members across all the parties had agreed to.

That was of course based on the members’ own experience but also on the quality of the evidence presented to the Committee.

The report was pivotal because here you had for the first time in the Assembly a unanimous cross-party report, and because the report had suggestions as to how the Bill could actually be improved if the Assembly and the Executive were minded to do that.

Once the Bill comes back to the Assembly, what role does the Committee play then or does it simply go on to the Assembly floor?

One of the things that the members of the Committee were struck with from day one was that this is enabling legislation. Of course, the Bill itself will set down key principles and fundamentals and you will only have a narrow scope within the regulations to change any of that. I’m very mindful of that as I think most of the members, if not all of them, are.

We are also conscious that in time we will be dealing with regulations which will then set everything from rates of benefit to the administration of benefits, the actual eligibility criteria and so on.

Very important work will travel on from the Bill by way of regulations and the Committee has made it clear that we want to make sure that, as the statutory regulations go through the Assembly, they will have to go

‘I think that the Committee needs to work more effectively than it currently does in helping to shape the policies adopted by the Minister.’ through the highest, maximum threshold of acceptability. In other words it will not be nodded through.

Can you tell us about other thoughts you have about how Assembly Committees, including your own, might effectively engage with stakeholders both within the Department and beyond?

The MLAs have a specific responsibility to support, decide and challenge policy and so on; as elected representatives they ultimately have the responsibility to legislate and to support or otherwise the various proposals on legislation so the MLAs will have to carry that burden.

Obviously MLAs, by the very nature of the fact that they are representatives, engage with members of the public every day of the week. Most MLAs would be quite knowledgeable on a wide range of issues but whether in relation to housing or tackling disadvantage, there are people out there for whom it’s their daily bread. The Assembly must take that on board.

The Minister will authorise consultations on the basis of the statutory framework and Committees can have a complementary role to play. By substantive and quality engagement we can together help to shape future policies. We have to up the game on working with stakeholders. I’m satisfied as the Chair of the Committee that we can do that.

If the Committee has concerns about a particular issue, whether it’s funding or a policy, I would also be looking around to see if we have allies in the field that will work with the Committee to help shape the policy.

If people come to us and tell us that they believe a government policy is wrong, or it’s potentially good, then I think that working together we can actually make it good, or if it is wrong we can redress that.

The roles of Committees are as yet underestimated and probably still quite considerably underdeveloped.

Finally, what are the priorities for the Committee as we move towards Assembly elections in 2015?

As the Chair of the Committee, I have to chair meetings on a professional and impartial basis. I have my own particular political viewpoint – I’m a member of a party and I bring that experience to bear – but in my duty as Chair I have to make sure that I reflect the views of the Committee in its entirety. Thus far, the Social Development Committee has by and large worked on quite a degree of consensus but consensus isn’t always the right way to go, so I will always make sure that different voices will be given a place at the table of the Committee.

We have the welfare reform agenda which is over and above the Bill itself. In terms of tackling, as I see it, the cuts agenda, the priority is how the Assembly Committee, the stakeholders, the Department and the Executive as a whole, can collectively work to mitigate the worst aspects of the cuts.

Whether we can and how we might reform social housing provision is probably going to be one of the key aspects of the Committee’s work. The Committee has made it clear to the Minister and the Department that we will have a very clear role in this in the time ahead, in conjunction with people who are working on housing matters on a day to day basis.

Of course, fundamental to a lot of this is tackling social deprivation by way of regeneration and empowering communities to help themselves and to access government, sources of funding and so on. Community development has to be very important, tackling disadvantage at source within the communities and empowering people to make the best use of resources and to be forward thinking and progressive. The Department for Social Development can’t do all that on its own but it’s a major player.

These are the areas of work that the Committee needs to focus on in a very significant way for the remainder of this mandate.

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FEATURE | Law and social change

holding multinationals to account Odd beacons of light in the gloom

Martyn Day (Partner) and Nichola Marshall, Leigh Day, write about the legal framework for holding multinational corporations to account. Leigh Day is a London firm that represents individuals both in the UK and abroad.

Martyn is head of the International claims team which brings legal actions on behalf of people, primarily in the developing world, against multi-national corporations as well as the British government. He was the keynote speaker at the Law Centre’s inaugural social justice lecture in September. Nichola Marshall specialises in international claims and group actions.

Corporate legal accountability should be a mechanism to ensure that multinationals cannot operate with impunity. It is important in every country, but even more so in the developing world. Whether it has effect or not often depends on where the harm was committed and the ability of the judicial system of that country to hold the corporation to account.

Sadly, this means that for the developing world, redress for victims of human rights violations by multinational corporations is improbable at the least. Whether because of vested interests between governments and the corporations committing the wrongs, poor or even corrupt judiciaries, the fear of speaking out for risk of persecution, or simply the lack of money to fund a

14 | Frontline | Winter 2013/2014

legal case, the sad reality is that justice is not often obtained locally.

With such difficulties in bringing litigation on behalf of victims seeking monetary compensation, redress in the courts where the multinational corporation is headquartered is far more realistic.

Barriers to individual complaints The difficulties for the victim in taking this step are considerable.

An African farmer earning a low income who has suffered pollution of his land is at a massive disadvantage when trying to seek justice in this way. First, he has to find a legal firm in the relevant jurisdiction, not only willing to take his case but also having the wherewithal to fund it.

The latter is a significant hurdle.

The legal cases are often risky, dealing with complex issues leading to huge expense. Much depends on the funding regimes in the relevant jurisdiction.

For one, or even two farmers, the cost of bringing such a case alone, against a multinational corporation that will undoubtedly fight hard, and will hire a raft of expensive lawyers, is prohibitive.

Group claims For human rights violations that affect many people, it can be useful for victims to form a group and bring one legal case against the multinational corporation. However, only a few countries, including Australia, Canada and the UK, have a legal system that allows this.

Sharing the cost amongst many others can make a legal case a possibility where it would have been impossible for one claimant alone.

It allows for common issues of law to be decided and avoids lengthy proceedings dealing with duplicative issues.

The UK has good procedural rules that provide cost effective management of group claims and many group claims have been successfully concluded in the UK. The case of Lubbe v Cape plc was settled on behalf of 7,500 South African minors who contracted asbestosis.

Motto v Trafigura Ltd and Trafigura Beheer BV, on behalf of 29,614 Ivorian citizens for personal injury, was able to proceed to a final settlement in three years.

Many of the legal cases in this field that have been brought to the courts have resolved before trial. Whilst beneficial for the individual claimants, this means there are few binding legal precedents.

The UK case of Chandler v Cape plc did proceed to trial, however. Mr Chandler contracted asbestosis as a result of dust escaping from a factory where he worked in London. He was unable to sue his employers and

FEATURE | Law and social change instead brought a claim against the parent company. The Court of Appeal in April 2012 held the parent company responsible for the activities of the subsidiary.

This landmark decision has significant implications for MNCs either domiciled or with offices in the UK whose subsidiaries in developing countries are causing harm to people or the environment.

The limits of extra-territorial accountability Even with a decent legal framework, there still remain significant hurdles.

Success can depend on the appetite of the judiciary for bringing MNCs to account. Whilst there is evidence to suggest more countries are taking an interest in corporate legal accountability, some of those that have previously led the way seem to be regressing.

On 1 November 2013, the IntraAmerican Commission on Human Rights considered, for the first time, whether a multinational corporation’s home country can be held liable for the actions of the corporation abroad.

Yet conversely, in the United States of America, the decision handed down by the Supreme Court in April this year in the case of Kiobel v Royal Dutch Petroleum Co was less encouraging.

The case was brought on behalf of Nigerian nationals, alleging that the defendants had aided and abetted the Nigerian government in committing human rights violations against locals protesting against the environmental impact of the defendants’ activities in Nigeria. The Supreme Court was asked to consider whether, and in what circumstances, the Alien Tort Statute (ATS) could be used for violations of the law of nations occurring outside of the US. The Supreme Court unanimously agreed that the ATS did not apply outside of US borders. It was found not to contain a clear expression that it was intended to apply extraterritorially.

Instead of promoting and showcasing a forum for corporate legal accountability, it has been argued that this has had the effect, in the US, of shielding MNCs from accountability for the human rights violations they commit abroad.

‘for the developing world, redress for victims of human rights violations by multinational corporations is improbable at the least.’

to set out guidance to companies on integrating human rights into their operations. The Law Society of England and Wales has set up an advisory group to inform on business and human rights issues, making it the first bar association globally to review the approach of the legal services sector to the UN Guiding Principles.

Knock-on effects

UK legal system - a glimmer of light

The decision is disappointing, and knock on effects are already being felt in other corporate accountability cases.

In May 2013 in a case in respect of human trafficking in Iraq, a US court dismissed ATS claims against the defendant, KBR. In June 2013 another US court dismissed the Abu Ghraib lawsuits against CACI and Titan as a result of the decision in Kiobel.

It remains to be seen whether ATS claims will survive in cases where there is a strong territorial connection to the US but for present purposes, Kiobel is having a negative impact on foreign claims. Particularly discouraging when significant efforts are being made to encourage corporate accountability elsewhere.

Ending the ATS claims in the US means that a country that has for the past decade aggressively fought, and won, many cases of human rights violations against multinational corporations for their business activities abroad, is no longer a reliable forum for such matters.

This leaves relatively few countries, other than the UK, that have both the legal framework, and the judicial appetite, for bringing multinational corporations to account. The decision in Chandler, the excellent group action legal framework and the continuing success of bringing multinational corporations to account in the UK reveals the UK as a glimmer of light on an otherwise dark horizon.

UN Guiding Principles In 2011, the UN endorsed the Guiding Principles for Business and Human Rights, a globally recognised framework aiming to ensure businesses consider possible human rights violations that may arise as a result of their business activity.

Whilst the Guiding Principles do not have any legal status, they are increasingly being referred to in law, and companies are encouraged to endorse them.

Following on from the Guiding Principles, in September 2013, the Foreign and Commonwealth Office launched its action plan on business and human rights, making the UK the first country

Martyn Day speaking at Law Centre lecture. Photo: Kevin Cooper

Frontline | Winter 2013/2014 | 15

FEATURE | Social housing reform

involving tenants in social housing

Paving the way for progressive social housing reform Nicola McCrudden, policy and communications manager at Housing Rights Service, reports on a conference which discussed involving tenants in shaping social housing reform.

At a packed conference organised in December

by Housing Rights Service and Supporting Communities NI, tenants’ groups and social housing landlords discussed how effective tenant involvement can help achieve better outcomes both for landlords and for tenants.

Landlords’ perspective

Better homes and services

Tenants’ perspective

In her opening remarks, Housing Rights Service Director Janet Hunter set the scene by asserting that tenants should be at the heart of government plans to reform social housing in Northern Ireland. She argued that a key principle of ‘better homes and services for tenants and people in housing need’ should be at the heart of the reform process. As tenants and people in housing need are the main stakeholders, they should be involved in consultation, be part of the decision making process and inform the eventual delivery model. They should be offered choice, with consumer impact uppermost in the minds of decision makers.

Lesley Baird, Chief Executive of the Scotland brand of the Tenant Participation Advisory Service (TPAS Scotland), outlined the extensive role social tenants play in Scottish housing policy and management.

TPAS Scotland, the national tenant and landlord participation advisory service for Scotland, promotes good practice in tenant participation. Lesley Baird noted that ‘tenant involvement is essential if landlords are to meet the specific housing needs of their tenants. Tenant participation, however, does not always happen naturally and TPAS offer a range of services to help get the most out of tenant participation.’

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Steve Stride, Chief Executive of Poplar Harca Housing Association, described the ground breaking approach his organisation has adopted in regenerating the community in the East End of London. Poplar Harca was awarded the Tenant Empowerment Team of the Year Award at the Chartered Institute of Housing’s Housing Heroes Awards 2010 and also won The Guardian’s Public Services Award 2009 in the Housing and Regeneration category, for its Family Intervention Project.

More information is available on: www.poplarharca.co.uk

More detail on the work of TPAS Scotland can be found on: www. tpasscotland.org.uk

Housing management bodies Robin Lawler, Chief Executive of Manchester-based Northwards Housing., presented the approach of arm’s length management organisations (ALMOs) to tenant involvement.

Northwards Housing is a notfor-profit organisation created by tenants’ representatives and Manchester City Council which took over management of 13,000 council homes in north Manchester in 2005. It is an independent organisation but the council continues to own the housing.

Robin Lawler emphasised the need for tenants to be properly represented on the boards of social housing providers and involved in all strategic management decisions.

A third of his board members are tenant representatives. More information can be found on: www. northwardshousing.co.uk Housing Executive and Oaklee and Ulidia Housing Associations provided the local perspective, with input from tenant representatives.

DSD proposals for change Deirdre Ward, Deputy Director of Housing at the Department for Social Development, then outlined the

FEATURE | Social housing reform Minister’s proposals for social housing reform and highlighted his reasons for change: ww to develop social housing

structures fit for the future;

ww to create a financially sustainable

and tenant-focused model;

ww to lever in additional funds; ww to increase capacity to deliver new

homes and services;

ww encouraging a wide range of

tenants (and residents) to get involved; ww increased tenant representation in new structures; ww open lines of communication between housing providers and tenants; ww good governance and accountability.

ww joined up government approach;

Mags Lightbody, DSD’s newly appointed Director of Transformation, spoke about her background in Glasgow Housing Association and how lessons can be learned from this experience.

She said the best tenant engagement is to listen to all and engage with all, using all available channels including making the most of social media. Then, design the services and engagement to suit tenants. She stressed that there is no blue print in the ‘bottom drawer’ and that ‘Your views will impact on the final shape and outcomes’.

ww reduce reliance on public sector

Regulation

ww to support and help communities.

The DSD has already begun its consultation process and Deirdre Ward gave an insight into some emerging themes: ww greater tenant involvement; ww specific housing services to tackle

issues such as homelessness;

ww deliver more housing plus; ww affordable and sustainable rents; ww long term funding;

funding;

ww effective regulation; ww support for housing-led

regenration;

ww build new homes.

In particular, she highlighted priority issues for tenants to include: ww involvement in the development

of design requirements and policies for new social housing models;

Phil Morgan spoke about developments in housing regulation.

A former Chief Executive of TPAS who has been involved in developing various regulation systems, he is convinced that the culture of a landlord is crucial to placing tenants at the heart of what they do. ‘That culture needs to start with the regulator, wherever it is placed, and inform its own culture and practice.’

He is a strong believer in tenant scrutiny which he feels promotes

service improvement and support accountability.

Stock transfer Paul McNeill led 27 stock transfers for Scottish Council/ Scottish Homes Transfers, where the key underlying principles were: ww tenant involvement; ww value for money; ww competition; ww level of service; ww opportunities for staff; ww homes retained for social renting.

He said that tenant involvement in the process must be a top priority and recommended that consultation should start soon with opening up lines of communication through focus groups, newsletters and digitally inclusive use of social media.

Social Development Committee Social Development Committee Chairman, Alex Maskey MLA, joined the speakers in a Question and Answers session. He stated that the Committee had not yet formed a view on what social housing reform might look like but stressed that tenant involvement was a priority.

He added that his party, Sinn Fein, was not in favour of transferring Housing Executive stock out of public ownership, that they would like to see alternatives to stock transfers to housing associations and that he did not rule out the issue of a tenant ballot.

Mags Lightbody addresses HRS tenant involvement conference. Photo Frances McGrath

Frontline | Winter 2013/2014 | 17

FEATURE | Capacity Bill

PRogress on capacity bill

An overview on the emerging shape of the Northern Ireland Mental Capacity Bill Colin Harper, Law Centre (NI) Assistant Director (Community Care and Mental Health Policy), sets out the background and provisions of the draft Mental Capacity Bill which is due to be published in the spring.

The Northern Ireland Mental Capacity Bill is a new law which aims to protect people’s right to make decisions for themselves and to provide safeguards where someone is not capable of making a decision because of an impairment of or a disturbance in the functioning of their mind or brain.

The law is expected to be passed by the Assembly by March 2016. A public consultation, expected in spring 2014, will include the draft text of the core civil provisions of the Bill, along with policy positions on how it will apply in criminal justice settings.

This article outlines key provisions of the Bill as it is shaping up. It is important to remember that the policy positions may change before the Bill enters the Assembly.

Background The Bill is to create a legal framework for situations where someone aged sixteen or over lacks the capacity to make a decision for themselves

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in relation to their care, treatment or personal welfare. The Bill has its origins in the Bamford Review of Mental Health and Learning Disability. It seeks to deliver on the Bamford recommendation that there should be ‘a single comprehensive legislative framework for the reform of mental health legislation and for the introduction of capacity legislation in Northern Ireland’. It is also being created to better respect people’s human rights, including the requirements of the European Convention on Human Rights, the United Nations Convention on the Rights of Persons with Disabilities, and the Hague Convention on the Protection of Adults.

The new law will replace the Mental Health (Northern Ireland) Order 1986 except for a small number of children and young people.

The Department of Health, Social Services and Public Safety is the lead Department, but responsibility is shared with the Department of Justice.

Who will the new law apply to?

The Mental Capacity Bill could potentially apply to anyone over sixteen who lacks the capacity to make a decision about their care, treatment or personal welfare or who is interacting with someone who lacks the capacity to make a decision.

What principles will the Bill apply?

The Bill will contain a set of principles which confirm how it must be understood and which anyone using the law must keep to.

1. It must be presumed that someone has the capacity to make a decision until it is established that they don’t. No one has to prove capacity; it is up to the person questioning a person’s ability to make a decision to prove that they don’t have the capacity.

2. Individuals must not be treated as unable to make a decision unless all practical help and support to enable them to make the decision have been given without success.

3. A lack of capacity cannot be established because of age, appearance, condition or behaviour; for example because a person is old, looks differently to society’s expectations, has a diagnosis (such as learning disability or schizophrenia), or simply behaves in a way others find strange or unusual.

4. People cannot be treated as being unable to make a decision because they make an unwise decision.

Everyone has a right to make bad choices, it does not mean they are not capable of making decisions.

FEATURE | Capacity Bill 5. Any intervention made in the life of a person lacking capacity must be in that person’s best interests.

The new law will include a process to follow in working out what is in someone’s best interests. This will include consulting with people who know them and their wishes well.

Who will have obligations under the new law?

The new law will impose obligations on any person or organisation when making a decision for someone else because that person lacks the capacity to do so. They will have to act in a certain way and make sure certain safeguards are in place for the person who lacks capacity. If they don’t, then the person making the decision could be liable in civil or criminal law.

Who will receive protections under the new law?

People who lack the capacity to make a decision will be afforded certain safeguards to protect their rights and interests when a decision is made for them; the more serious the intervention in someone’s life which is being considered, the more safeguards required to be met under the Bill to protect their rights and interests.

What is the ‘capacity test’?

The Bill contains a legal test to be used to decide whether someone lacks the capacity to make a particular decision at a particular time. There will be nothing in the Bill to allow someone to be declared to completely lack the capacity to make any decisions at all. A person may lack the mental capacity to make one decision but still be able to make other decisions.

Nor will the Bill allow someone to be found to lack capacity because other people do not like the possible consequences of a decision the person wants to make. The legal test will have two stages: the ‘diagnostic’ stage and the ‘functional’ stage.

The ‘diagnostic’ stage means that only a person who lacks the capacity to make a decision due to an ‘impairment of or disturbance in the functioning of their mind or brain’ could come under the Bill. This does

not mean that someone has to have a medical diagnosis or fall into a legal category of ‘mental disorder’. It could include people with: ww conditions

associated with some forms of mental illness;

ww dementia; ww learning disabilities; ww long-term effects of

brain damage;

ww physical or medical

conditions that cause confusion, drowsiness or loss of consciousness;

ww concussion

following a head injury; or

ww effects of alcohol or

drug use.

Someone with an impairment of the mind or brain may still have the capacity to make a decision.

The functional stage looks at how well someone’s mind or brain is working with respect to a particular decision. To be able to make a decision, a person must be able to: ww understand the information

needed to make the decision;

ww retain the information long

enough to make the decision;

ww appreciate the relevance of the

information and use and weigh the information in order to make the decision; and

ww be able to communicate the

decision.

It is only if the person fails to satisfy one of the four components because of the impairment that he or she can be considered to lack capacity.

For routine matters, a reasonable belief that a person lacks capacity will suffice. For more serious interventions, the Bill will require a formal assessment of capacity to be carried out.

Konstantin Sutyagin

What decisions will the Bill apply to?

The Bill will introduce a single statutory framework governing all decision making in relation to the care, treatment (for a physical or mental illness) or personal welfare (including financial matters) of a person aged sixteen or over, who lacks capacity to make a specific decision for themselves.

The Bill adopts the common law doctrine of necessity. It provides protection from liability in situations where the person’s consent would ordinarily be needed for a decision or intervention. If their consent would not ordinarily be needed, then the new law will not apply.

There are some decisions that can never be made on a person’s behalf; for example, who the person should marry or should vote for. These are excluded from the scope of the Bill.

Decisions which could be made under the Bill include:

Continued page 21 Frontline | Winter 2013/2014 | 19

FEATURE | Migrants and healthcare

FREE treatment MAKES SENSE

The case for free healthcare for asylum seekers Law Centre (NI) policy officer Liz Griffith explains why free healthcare for asylum seekers in Northern Ireland would lead to improved patient care and public health and more efficient use of health service resources, and looks forward to the Department’s response to proposals for change.

On 4 December 2013, the Law Centre gave evidence to the Committee of Health, Social Services and Public Safety alongside Red Cross and NICRAS on the issue of access to healthcare for asylum seekers.

We argued that Northern Ireland’s current health framework, which prevents refused asylum seekers receiving free primary and secondary care, is unjust and ineffective. At the moment, if a person’s asylum application is rejected, so is their NHS entitlement withdrawn. The person is barred from all health treatment except for that provided in an Accident and Emergency unit or in very specific circumstances.1 The bar on access applies to all members of the family, which means that some asylum seeker babies and children do not have a doctor.

We argued that Northern Ireland should look to Scotland and Wales, both of which provide free healthcare on the basis of clinical

20 | Frontline | Winter 2013/2014

‘Northern Ireland’s current framework, which prevents refused asylum seekers receiving free primary and secondary care, is unjust and ineffective’ need to any asylum seeker in their jurisdiction. The Republic of Ireland also provides free healthcare although on a discretionary rather than statutory basis.

We proposed that free healthcare is made available to all asylum seekers. This proposal had attracted wide support from the voluntary and community sector as well as two statutory human rights bodies. Our proposal would bring many benefits including: ww improved patient health;

Severe asthma attack Melody is an African woman who suffers from asthma. She lost her NHS entitlement when her asylum application was rejected. Without access to her regular inhaler, she became so seriously ill that she had to be admitted into a Belfast Intensive Care Unit in November 2012. She spent five days in hospital before being discharged.

Improved public health Public health is improved when people can access a GP, thus providing an opportunity to diagnose and treat infectious disease. A particular concern is that children are not receiving their vaccinations.

ww improved public health; ww better use of health resources.

Improved patient health When a patient has regular access to a GP, many health conditions can be effectively managed. Without GP access, conditions can deteriorate until such a point that an urgent medical intervention is necessary.

Tuberculosis treatment stopped Ahmed was being treated for tuberculosis when he lost his NHS entitlement. He could no longer attend his GP surgery which meant his course of treatment was disrupted.

FEATURE | Migrants and healthcare Better use of health resources The current restrictions give refused asylum seekers no option but to seek treatment through A&E. This places pressure on specialist services and is ultimately much more expensive for the tax payer: it is three times more expensive to see a patient at A&E than at a GP surgery.

Regular A&E trips Zayna attends primary school and her family is not entitled to free NHS treatment. Due to an underlying health condition, Zayna is susceptible to infection. She has been advised that she should treat any minor illness (such as a common cold) with a course of antibiotics. Her parents have no choice but to take her to A&E to obtain the medication every time she needs it.

Discussion Our proposal was rejected by the Department, which expressed concerns that a change in policy might incentivise asylum seekers to come to Northern Ireland. The Department maintained that refused asylum seekers should not be in Northern Ireland, a view shared by some committee members.

In response, we explained that the decision by Scotland and Wales to provide NHS entitlement does

The ‘Belonging in Belfast’ installation, Belfast Integration and Participation Project celebration. June 2013. Photo: Milosz

not appear to have any impact on number of asylum applicants. We also explained that some refused asylum seekers stay in Northern Ireland for different reasons including because there is no safe or feasible route of return.

We argued that healthcare entitlement should not be tied to a person’s asylum seeking status. There are both practical and humanitarian reasons for providing healthcare on the basis of clinical need to any asylum seeker who remains in Northern Ireland.

Progress on Capacity Bill - continued from page 19 ww where someone lives; ww what someone can spend large

sums of money on;

ww whether someone can go out on

their own; or

ww whether someone should have

medical treatment (including for mental illness).

What are the safeguards in the Bill?

Proposed safeguards include: ww every decision must be made in the best interests of the person; ww there must be a second medical opinion when

certain treatments with serious consequences are proposed; ww a ‘nominated person’ (like the

‘nearest relative’ under the Mental Health Order) must be consulted;

ww authorisation (in most cases by

a Health and Social Care Trust panel) must be obtained for particularly serious interventions such as compulsory treatment with serious consequences or any deprivation of liberty;

ww an independent advocate must

be provided for any serious intervention that needs to be

Moving forward Following our evidence, the Committee voted 4:3 to provide free secondary care to all refused asylum seekers. It remains to be seen how the Department will respond.

Access to primary care remains outstanding although the Department has committed itself to discussing this issue with stakeholders.

1

There is provision in law for access to a GP for ‘immediately necessary’ treatment and for treatment for prescribed communicable infections. In practice, this provision is not always accessible.

authorised, including where the person resists the intervention or their nominated person objects; ww an independent tribunal must review decisions made by the Trust panel; and ww some very serious decisions can only be made by the court.

The Bill and criminal justice The Bill will in general apply the same capacity-based approach to health and welfare issues relating to those in the criminal justice system.

This work is being taken forward by the Department of Justice which still has to work out details of policy positions.

Frontline | Winter 2013/2014 | 21

EQUALITY COMMISSION | Race equality

race equality

Policy developments: influencing change The Equality Commission for Northern Ireland has been asking people across Northern Ireland about their views and experiences of racial discrimination and everyday problems. Paul Noonan of the Commission writes about its new racial equality policy recommendations.

Racial equality in Northern Ireland is still an area that needs work and focus. In developing our policy positions on race equality, which have been informed by engagement, analysis of cases and research, what has emerged is that prejudice is still a major issue. To combat this, we believe that there should be a focus on: ww reform of the race equality law; ww advancing race equality in

education and employment;

ww tackling hate crime, prejudicial

attitudes and institutional racism; and

ww advancing race equality in access

to accommodation, healthcare and social welfare.

Policy recommendations Our recommendations, which we are making directly to the Northern Ireland Assembly and departments, include the issues of multiple identities and monitoring and evaluation. We have specific concerns and recommendations

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about Irish Travellers’ experience of education, employment, housing/ accommodation and health services in particular.

All the issues are detailed in our policy document ‘Racial Equality Policy – Priorities and Recommendations - August 2013’, available on our website www. equalityni.org

Consultation meetings To help establish these policy positions, we undertook a series of meetings throughout Northern Ireland where we heard from people involved in black and minority ethnic groups and other voluntary and community groups.

We asked people about problems they encountered in their daily lives as a consequence of attitudes and behaviours related to their ethnic identity.

Employment issues Employment remains a major concern, with evidence, for example, of poor working conditions and exploitation of migrant workers in the fishing, mushroom and catering industries. Research published in 2012 showed that racial harassment is also a problem – 42 per cent of respondents in a survey of the Filipino community stated that they had experienced racial harassment in the workplace.

‘Over the last five years, over three quarters of enquiries to our legal advice team in relation to harassment at work related to racial harassment at work’ Our statistics back this up - over the last five years, over three quarters of enquiries to our legal advice team in relation to harassment at work related to racial harassment at work.

Migrant workers are also very anxious about letters from employers threatening to recover costs from workers who challenge poor treatment at work, pay or conditions.

The treatment of migrant women at work during pregnancy was also an issue.

Our policy recommendations include support for initiatives aimed at tackling the exploitation of migrant workers and reducing ethnic minority disadvantage in employment, including the inclusion of ESOL and rights awareness in training courses for migrant workers.

Many migrant workers are agency workers and so may not have the same protection from discrimination as directly employed workers. We recommend that the UK

EQUALITY COMMISSION |Race equality Government extend the remit of the Gangmasters (Licensing) Act 2004 to all sectors where migrant labour is prevalent.

Public authorities An overarching concern is the collection, monitoring and evaluation of appropriate data to ensure effective policy and service development and delivery and to fulfil obligations on public authorities arising from Section 75 of the Northern Ireland Act 1998.

We recommend that the Executive and departments ensure appropriate monitoring and evaluation are in place for the Racial Equality Strategy and across all relevant policy areas to produce data disaggregated by race or ethnic origin, which is comparable at EU level.

Access to goods and services Access to goods, facilities and services is also an emerging issue.

We heard examples of individuals experiencing language barriers in accessing goods, facilities and services, for example people entering into credit agreements in a language they did not fully understand and then not being able to get out of them - particularly when buying electrical goods or mobile phones or obtaining credit reference checks and companies failing to provide any interpretation of the documents. No-one to date has sought Equality Commission assistance for a legal challenge, so this is an area of the law that we have not yet challenged in the courts.

Race equality legislation We believe there is a robust case for strengthening the rights of individuals in Northern Ireland against racial discrimination and harassment.

The need for reform of the race equality legislation in Northern Ireland has been heightened by developments in Great Britain. In particular, the introduction of the Equality Act 2010 in October 2010 has addressed in Great Britain a number of previous recommendations made by the Commission for law reform in Northern Ireland. This has resulted in

Race equality consultation event, Lisburn Civic Centre. Photo Equality Commission

individuals in Northern Ireland now having less protection against racial harassment and discrimination than people in other parts of the UK. Our proposed changes to the law will help tackle systemic and institutional racism, as well as new and emerging forms of racial discrimination. We need comprehensive race equality legislation to act as a catalyst for change, encourage good practice, raise standards and enable individuals to obtain redress when standards fall.

The legislative changes proposed by the Commission will also harmonise and simplify the race equality legislation, making it easier for people to understand their rights and responsibilities under the legislation.

Convention on the Elimination of Racial Discrimination and the Framework Convention for the Protection of National Minorities.

Your views welcome Policy is always evolving. While we learnt a great deal in the information gathering phase of the last year or so, we are always interested in hearing more. If you have a view, a comment or a question about our race policy priorities, please contact me, Paul Noonan, at pnoonan@equalityni.org or 028 90 500 570.

Protecting human rights The Commission’s policy recommendations, if implemented, would advance the overarching aims and objectives of the Executive’s current and revised Racial Equality Strategy and help the UK Government meet its obligations to respect, protect and fulfil human rights for black and minority ethnic people under the United Nations

Frontline | Winter 2013/2014 | 23

practitioner | Social security

social security update Tough new rules on benefits for migrants Lee Hatton, social security adviser at Law Centre (NI) explains changes that will affect European jobseekers, including British or Irish nationals who have been abroad.

The government has introduced legislative amendments in social security and immigration which will affect European nationals who have come to or currently reside in the UK on the basis of being a jobseeker.

Romanian and Bulgarian nationals When Romania and Bulgaria joined the European Union in January 2007, EU member states were permitted to restrict access to their labour markets for nationals from these countries for a seven year accession period.

Romanian and Bulgarian nationals had to obtain authorisation if they wanted to take up employment in the UK and had stringent restrictions placed on claiming benefits.

Now that the accession period has ended, from 1 January 2014, Romanian and Bulgarian nationals are free to take up employment in the same way as nationals of other member states (except Croatia who joined the Union in July 2013). They are also permitted to claim social security benefits subject to meeting the normal rules of entitlement and, in particular, the newly amended habitual residence test.

Amendments to the habitual residence requirement for JSA Coinciding with this change, amendments have been made to the habitual residence test for Incomebased Jobseeker’s Allowance (JSA).

JSA, along with most meanstested benefits, has had a habitual residence requirement from 1994. To be entitled to a social security benefit, a person had to be habitually resident in the Common Travel Area (CTA).

24 | Frontline | Winter 2013/2014

The CTA includes the UK, Republic of Ireland, Isle of Man and the Channel Islands. Habitual residence was never defined in the legislation but court and Social Security Commissioner decisions established how a person can demonstrate habitual residence.

While a range of factors must be considered in determining habitual residence, of particular importance given the recent amendments was the requirement that a person has actually resided in the CTA for an appreciable period of time. The courts were clear that ‘an appreciable period of time’ depended on the circumstances of each case. A period of around one to three months was usually sufficient to establish habitual residence.

In 2004, the test was amended to include a requirement that a person must have a right to reside in order to be habitually resident. A European national who comes to the UK for the first time and is looking for work would have a right to reside as a jobseeker and in general would be habitually resident somewhere between one and three months after arrival.

An amendment effective from 1 January 2014 imposes a three month residence requirement for those claiming JSA. This is in addition to the requirement to be habitually resident and having a right to reside.

The new rule applies to everyone claiming JSA, including British or Irish nationals who have been abroad and have returned to the UK. It applies to all claims to JSA made after 1 January 2014. Claims made prior to that date are unaffected.

One way to potentially mitigate the impact for those who are moving

from an EU member state to the UK is to export the unemployment benefit from the state they are leaving. Unemployment benefit can be exported for three months (and longer in certain circumstances) where a person is moving within the EU. However, this must be arranged before leaving the country.

The government has also introduced a tougher habitual residence test. This currently applies in England, Scotland and Wales and will operate in Northern Ireland from 20 January 2014. In a press statement, the DWP stated: ‘In order to pass the improved Habitual Residence Test migrants will have to answer more individually tailored questions, provide more detailed answers, and submit more evidence before they will be allowed to make a claim. For the first time, migrants will be asked about what efforts they have made to find work before coming to the UK and whether their English language skills will be a barrier to them finding employment.’

It is concerning that this refers to a requirement to answer more questions and submit more evidence before being ‘allowed to make a claim’. Under the regulations governing the making of claims, which have not been amended, a person is entitled to make a claim to benefit and have a decision on that claim. There has been no change to the definition of habitual residence in the legislation and no new case law to suggest that this approach was warranted.

practitioner | Social security It is difficult to see how the government can state that a person who would have been habitually resident if they had claimed in 2013 is now not habitually resident despite no change in the law or jurisprudence on this issue.

The Law Centre would be interested in hearing from advisers whose clients have been told that they cannot make a claim or refused on the basis of the new habitual residence test.

Changes to the Immigration (European Economic Area) Regulations 2006 The habitual residence test for JSA has also included, from 2004, a requirement that a person has a right to reside. From that date, social security advisers have had to keep one eye on the immigration regulations in order to advise if a person has this right.

From 1 January 2014, the definitions of jobseeker and of a person who retains worker status due to now being a jobseeker have changed. This will impact directly on those claiming JSA for the first time or who have been previously in employment and are now seeking further work. The changes are: ww A jobseeker is a person who

has entered the UK to look for work or is now looking for work immediately after previously having a right to reside as a worker, self-employed person, self-sufficient person or a student.

ww A person seeking to reside in

the UK on the basis of being a jobseeker must provide evidence of a genuine chance of getting employment.

ww The status of jobseeker will only

be retained for six months unless a person can provide compelling evidence of continuing to seek work and having a genuine chance of getting employment

ww A person who was in employment

and is now looking for work can retain the status of worker for up to six months if able to provide evidence of having a genuine chance of getting employment. If the previous employment was for less than twelve months, worker status can only be retained for a

maximum of six months. If the previous employment was for more than twelve months, worker status will only retained if the person can meet the ‘compelling evidence’ test set out above.

There has always been a requirement to provide evidence of seeking work and having a genuine chance of finding it in order to be a jobseeker under the EEA Regulations. In general, claiming JSA and meeting the conditions of entitlement were accepted as sufficient. The change is that after six months a person must provide ‘compelling’ evidence. It remains to be seen what additional requirements the inclusion of ‘compelling’ will impose. In one DWP publication, reference has already been made to GPoW assessments (Genuine Prospects of Work) starting in July 2014.

In summary Under these changes, a person must be resident in the CTA for at least three months before being entitled to JSA. After this period of residence, and if the person is able to satisfy the new more robust habitual residence assessment, it is likely that he or she will get JSA for six months at least.

At the end of the six months, if a person has not got employment there is the possibility of JSA entitlement stopping. This will also mean the loss of Housing Benefit, although the government is proposing to remove entitlement to Housing Benefit from migrant jobseekers in any event.

Our advice line operates between the hours of 9.30-1.00, Monday-Friday inclusive.

Telephone: 028 9024 4401 or 028 71262433

Ombudsman

Northern Ireland

Department of Education and Training Inspectorate Information retention and destruction of records

T

he Ombudsman received a complaint about the actions of the Education and Training Inspectorate (ETI). The complaint was that ETI failed to recognise a complaint; that it had destroyed the evidence base of a follow-up school inspection it had undertaken; and that the reporting system used for that inspection had several inaccuracies.

The Ombudsman’s investigation found evidence of maladministration on the part of ETI in relation to the premature destruction of the evidence base of the follow up school inspection.

He was satisfied that this action meant that the complainant was effectively denied their fundamental right to challenge and question the detail of the matters which gave rise to the criticism.

This practice also failed to take account of the need to respond to

any enquiries that the Ombudsman or any other party might make in the event that the complainant challenged or queried ETI’s actions beyond the scope of its own internal complaints process. He also identified maladministration in the ETI’s complaints handling processes, although he was satisfied that the complainant did not sustain an injustice as a consequence of that failing. The practice had already ceased at the time of his investigation.

The Ombudsman recommended that the follow-up inspection report should be withdrawn as it could not be relied upon.

The Permanent Secretary of the Department of Education accepted the findings of the investigation and the recommendations. The ETI has also taken practical measures to improve its complaints handling processes.

Frontline Frontline||Winter Winter 2013/2014 | 25

REVIEWS | Books

REVIEWS Safeguarding adults and the law 2nd edition, by Michael Mandlestam.

Published by Jessica Kingsley, 2013.

Price £40.00.

The transition from institutional to domiciliary care of vulnerable adults has not removed the risk of inappropriate care, neglect and abuse, but has now perhaps further removed the issue from public sight.

Meanwhile, according to Michael Mandelstam, increased emphasis on the individual’s right and responsibility to determine and make arrangements for one’s own care needs may mean greater autonomy for some, but risks leaving the most vulnerable in greater peril than ever.

Having examined in detail the issue of neglect and abuse in the caring services (How we treat the sick: neglect and abuse in our health services, 2011), Mandelstam now updates his comprehensive work (first edition 2009) on the law intended to prevent the sort of incidents he has documented elsewhere.

A page count more than double that of the first incarnation and the disappearance of the word “vulnerable” from the title indicate that much has changed in the field, with further change to follow as the Care Bill works its way through Parliament.

Designed as a convenient resource for quick reference, each chapter deals with a separate area of law, setting out the essential points of the legislation and providing real-life examples from case law and investigations.

26 | Frontline | Winter 2013/2014

Physical, sexual and financial abuse, regulation of care providers and mental capacity remain among the key topics, while the increasing importance of human rights in defining proportionate intervention and of whistleblowing in exposing inappropriate treatment is reflected in the addition of chapters on those themes.

Readers whose main interest is in one of the devolved regions will note that the book’s focus is firmly on England; while some references to Scottish and Welsh legislation appear, areas in which the law in Northern Ireland may differ to that described are not highlighted.

Mark Simpson, School of Law, University of Ulster

Law in Northern Ireland 2nd edition, by Brice Dickson.

Published by Hart Publishing, 2013.

Price £32.00.

This book has been written two years on from the first edition, which itself was a revamping of The Legal System in Northern Ireland (SLS Legal Publications NI Ltd, Belfast 1984).

A great improvement on previous publications, Dickson covers the evolution of law making in Northern Ireland, through legislation and the courts before looking at the roles of international, public, private and criminal law, before moving to the distinctive procedures relating to both civil and criminal proceedings.

Beginning with the evolution of law and law-making throughout the jurisdiction, from the initial Brehon law through to the St Andrews and Hillsborough Castle Agreements; Dickson moves succinctly through history and the various constitutional arrangements that have affected the Executive, legislative and judicial concerns and the Separation of Powers.

His concise yet informative style provides a good background to legislation in Northern Ireland and how to find it, together with the determination of the system of superior and inferior courts and tribunals in a relatively easy read.

The five sources of public international law are evaluated in respect of international treaties; custom and practice and a comprehensive examination of European Law. A distinction is made between public and private law, with an examination of the roles of judicial review; Ombudsmen; and the various offices of Commissioners within Northern Ireland; and there is a brief explanation of the public law functions of welfare law; housing law and planning law.

A considerable prominence is granted to criminal law and criminal proceedings, useful for those not practicing this branch of law, and requiring refreshment of knowledge.

The elements of private law, land, succession, contract, consumer, commercial, company, tort, family and employment are similarly addressed with a penultimate chapter of civil proceedings available for redress.

The specific references pinpointing Northern Ireland caselaw coupled with comprehensive referencing to legal and academic sources make this an excellent starting point for those less familiar with all aspects of law as it applies in Northern Ireland. This book is an invaluable guide to the law student and others with an interest in understanding the practise of law and a superb concise reference point for those with skills in need of refreshment.

Carolyn Rhodes, apprentice solicitor, Law Centre (NI)

Employment law, an adviser’s handbook 10th edition. By Tamara lewis.

Published by LAG, 2013. Price £42.00.

Library news A selection of new publications added to the shelves of the Law Centre’s library

Books/reports Guide to reason writing in tribunals by Prof Jeremy Cooper. Judicial College, 2013 (article) A lot to learn: refugees, asylum seekers and post-16 learning, by Lisa O’Doyle and Gill O’Toole. Refugee Council, 2013.

Personal Independence Payments (PIP): what you need to know. CPAG, 2013.

State of the Nation 2013: social mobility and child poverty in Great Britain, October 2013. Social Mobility and Child Poverty Commission, 2013.

Work and the welfare system: a survey of benefits and tax credits recipients in Northern Ireland. NISRA, 2013.

This excellent LAG book (now in its tenth edition) is in exactly the same format as the previous editions with the only significant additions being in relation to fees and early conciliation.

For anyone who advises workers and is not familiar with the book, it is invaluable. For the new adviser, the brief clear summaries of the relevant legislation on each area are an excellent starting point for providing advice. As the author herself acknowledges, however, such summaries are only a starting point and in many cases further research on the law will be required.

Where this book really comes into its own is as a guide for bringing proceedings in the Industrial Tribunal. The book provides step by step guidance in the form of checklists and sample documentation right from how to take initial instructions up to drafting submissions for tribunal and concluding a settlement agreement.

The appendix also contains a very useful case study of an unfair dismissal case. This book is not just for the new adviser (or for the self-represented claimant). More experienced advisers will find it a useful for tool for double checking issues such as what counts as pay for NMW purposes and the checklists can also be a useful to ensure that all relevant issues have been raised in a statutory questionnaire, in additional information or disclosure. Indeed, when advising on a very complicated

Journal articles Debt and mental health: a look at why mental health is a key issue for money advisers. Adviser Nov/Dec 2013.

Deciding appeals in the absence of claimants. Welfare Rights Bulletin (236) Oct 2013.

100 questions: identifying research priorities for poverty prevention and welfare.

Journal of Poverty and Social Justice 21 (3) 2013.

No man is an island: relational autonomy and dementia. Elder Law Journal 1 (3) 2013.

A permanent blow to Workfare in the United Kingdom of a temporary obstacle?

Reilly and Wilson v Secretary of State for Work and Pensions, by Philip Larkin.

Journal of Social Security Law (3) 2013.

Rationally irrational: mental disorder and capacity to consent to medical treatment after re SB. Elder Law Journal 3 (4) 2013.

Reform of adult social care law. Elder Law Journal 3 (3) 2013.

Residence capacity: complexity and confusion. Elder Law Journal 3 (2) 2013.

Special issue on Detention/Deportation. Forced Migration Review (44) 2013.

The UKs new statelessness determination procedure in context, by Alison Harvey.

Journal of Immigration, Asylum and Nationality Law. 27 (4) 2013.

Walking, wheelchairs and the WCA. Welfare Rights Bulletin (237) Dec 2013.

case it can be useful to go back to basics and remind yourself that you have covered all areas.

As with any publication from England and Wales, advisers need to bear in mind the ever increasing differences between that jurisdiction and Northern Ireland.

A key difference is of course that much of the legislation referred to is English so advisers do need to identify the equivalent Northern Ireland legislation. The section on appeals, fees and early conciliation do not apply in Northern Ireland and advisers need to be aware that

the unfair dismissal section will not cover the statutory disciplinary and dismissal procedures (which have only been retained in Northern Ireland). Particular care also needs to be exercised in respect of discrimination, as the Equality Act (2010) does not apply here.

Despite these differences, this book remains an essential for any adviser working in the employment law field.

Caroline Maguire, employment legal adviser, Law Centre (NI)

Frontline | Winter 2013/2014 | 27

training at Law Centre (NI) Belfast

Rights in Progress A guide to the European Convention on Human Rights and the Human Rights Act

Fourth Edition

date

course

23/01

Protecting human rights in community care

revised and expanded

29/01 - 30/01

Introduction to employment law (two days)

6/02

Legal research skills for advisers (half day)

Les Allamby and Jonathan Simpson

6/02 - 7/02

Advocacy skills (two days)

13/02

Mental health law and people concerned in criminal proceedings

14/02

Understanding Universal Credit

18/02 - 8/04

Welfare Rights Adviser Programme (WRAP) (8 days)

20/02

Children and Young People in the Immigration System

14/03

Understanding Universal Credit

19/03

Social Security Appeals – Tackling Common Issues

Law Centre (NI) 2013, ISBN 978-1-872299-27-3 £10.00 (postage and packing free) Are you a public authority with obligations under the Human Rights Act, legal adviser, law and social policy or politics student or researcher?

Then this guide is for you.

Derry date

course

26/02 - 27/02

Introduction to employment law (two days)

28/02

Understanding Universal Credit

All Law Centre courses count towards CPD requirements for solicitors, barristers and CAB advisers.

Contact Elaine McCorriston for details: admin.derry@lawcentreniwest.org or visit www.lawcentreni.org.

Full Training Programme online: www.lawcentreni.org/training/training-programme

Training and conference rooms for hire

Order from: Publications Unit, Law Centre (NI), 124 Donegall Street, Belfast BT1 2GY Or online: catherine.couvert@lawcentreni.org

Advertise in Frontline Reach over 500 organisations in the voluntary advice sector, social services, trade unions, solicitors practices, statutory organisations, libraries, legal departments of universities throughout Northern Ireland.

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