How we help: protecting older person’s right to live in her own home
A little known use of the Human Rights Act is in complementing local legislation to ensure older people receive the care they are entitled to.
Law Centre (NI)’s community care team often use the Act in tandem with local legislation when negotiating with the health board and trusts on behalf of clients.
In a recent case, the Act's Section 6 – a Local Authority must not act incompatibly with the ECHR (Article 8 – right to respect for family and private life and Article 5 – not to be deprived of liberty were both engaged in this instance) helped the Law Centre ensure that a client’s wish to live in her own home was respected.
The Alzheimer’s Society referred her to the Law Centre when she was discharged into residential care against her wishes and those of her family.
The Trust had decided that she lacked capacity and argued that the move into residential care was in her best interest. Her close family felt that she did have the capacity to decide but the Trust had not taken their views into consideration and had not carried out a full assessment of capacity.
The Law Centre contacted the Trust and its legal department. The adviser argued that failing to carry out a proper assessment and placing her in residential care without her consent was in breach of the Human Rights Act as well as capacity caselaw and the Department’s own guidance.
The Trust was persuaded to carry out an assessment of needs. The client was discharged and a care package was put in place so she could live safely at home.
Implement independent guardianship to protect separated children
Following the finding by BBC NI’s Spotlight programme a BBC Spotlight programme that eight separated children went missing in Northern Ireland since 2005, Law Centre (NI) is calling for independent guardians to be put in place urgently.
Law Centre (NI) understands that the Health Board has taken measures to ensure that separated children (under 18s who have come to Northern Ireland without a parent or legal guardian) are now better protected. However, the Law Centre believes that all separated children should have access to independent legal guardians and calls on the Department for Health to put this in place urgently.
Law Centre (NI) head of policy Ursula O’Hare said: “One child going missing is one too many. While Independent Guardianship cannot offer a guarantee against children going missing, we believe guardians will go towards minimising the risk of this happening”
Independent Guardianship is a ground breaking provision of the anti-trafficking legislation, the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. Unfortunately, this provision has not yet been implemented.
Ursula O’Hare continued: “We owe it to these extremely vulnerable children to ensure that Northern Ireland’s laws do not just sit on the statute books but are instead implemented and made a reality”.
See the Law Centre's briefing on protection for separated children subject to immigration control (note: this background briefing predates the 2015 Act).
Read a statement by the Northern Ireland Commissioner for Children and Young People.
Read an Irish Legal News article about the issue.
Law Centre (NI)'s Anti-Trafficking Young People Project was pleased to contribute to the programme. The Project offers legal support and advocacy to young people who have been identified as possible victims of trafficking.
The benefit cap and its mitigation payment apply in NI from today
From 31 May 2016 the benefit cap limits the amount, in total, that claimants can receive in benefit payments each week. In practice, this should not have an immediate financial impact on claimants as the related supplementary payment also applies from this date until 31 March 2020.
However, as benefit requirements change (for example if the family has a new child), their supplementary payment will not increase.
The cap will be applied to all affected households within two months and Department has sent them information about this. Frontline advisers should therefore expect to receive queries in the near future.
The cap for single claimants is currently £350 a week.
The cap for couples with or without dependent children, and for lone parents is currently £500 per week.
The following benefits are exempted from the cap:
- Disability Living Allowance (including if received for a dependent child)
- Working Tax Credit (or later, UC as long as one person is working at least 16 hours per week)
- Personal Independence Payment
- Attendance Allowance
- Industrial Injuries Benefits
- Employment and Support Allowance, only if paid with the support component
- War Widow's or War Widower's Pension.
- Carer’s Allowance
There are additional exemptions for people who have been in employment, parental leave or Statutory Sick Pay for 50 out of the last 52 weeks.
The Law Centre has published a briefing explaining the benefit cap and supplementary payments.
New report shows how advice adds value to NI's economy
How do you measure the value of advice? The social impact is demonstrated through case studies showing how advice changes people's lives. The Law Centre's website, enewsletters and impact report are packed with such stories.
But advice also adds value to Northern Ireland's economy, as explained in this interesting piece of research published by Northern Ireland Council for Voluntary Action.
Read the report here: The Economic Value of Advice
A key finding of the report is that every £1 invested in advice brings £19.50 to NI's economy.
Mandatory reconsideration goes live in Northern Ireland
From today, 23 May 2016, Mandatory reconsideration is the initial stage that a person must go through in challenging a social security decision made on or after that date.
For decisions made from that date, it is no longer possible to lodge an appeal against a social security decision unless a Mandatory Reconsideration Decision Notice is attached to the appeal.
Read our information briefing for advisers: Mandatory Reconsideration and Direct Lodgement of Appeals
The Law Centre will run a one-day training session on mandatory reconsideration on 22 June in Belfast (10am to 4pm).
Follow law Centre (NI)'s welfare reform news microsite for regular updates on changes to the benefits system in Northern Ireland.
Changes to social security appeals: join the conversation
Time to Act: refugees and delays with benefits
For a long time now, the voluntary and community sector has been highlighting the problem of newly-recognised refugees facing long delays in receiving their benefits. Delays cause much hardship for refugees and their families and put a considerable strain on charitable organisations.
The Syrian VPR Scheme, which resettles a number of Syrian refugees in Northern Ireland, shone a fresh focus on the issue. While the first group of Syrian VPR refugees experienced delays with their benefits, the Department for Communities (previously Department for Social Development) was able to ensure prompt payment for the second group. This is a very welcome development.
Northern Ireland’s participation in the Syrian VPR scheme affords an opportunity to address this problem once and for all in a way that will benefit all refugees.
Law Centre (NI) proposes three next steps towards resolving this problem for all refugees:
- The Department for Communities could revive its 2011 Working Group and bring together officials from DfC/SSA/HMRC with members of the Refugee and Asylum Forum to identify required changes to policy and practice.
- The Department for Communities could insert a refugee ‘marker’ into the benefit process. Individual applications could then be tracked over a specified time period. This monitoring would enable decision makers to better understand current difficulties and to identify and address causes of delay
- The Department for Communities could recognise refugees as a priority customer group. This is already done in GB by Jobcentre Plus. It would be consistent with the Equality Commission’s recommendation that refugees may require ‘specific targeted action’.
As articulated by the Refugee Asylum Forumin its Five Actions/SAFER campaign, no refugee should experience destitution due to administrative delays in the benefit system.
Read the Law Centre’s briefing here: Time to Act – Refugees and Delays with Benefits
ESA assessments: challenging refusal and clarifying the legal position
Law Centre (NI) successfully challenged at Social Security Commissioners a Tribunal Decision to refuse Employment and Support Allowance.
We advised in a case that clarified the meaning of 'understanding verbal and non verbal communication' in the work capability assessment. The lady had been referred to the Law Centre by Belfast Citywide Tribunal Service because she had significant difficulties which they felt should be sufficient to qualify for the benefit.
We argued that the medical HCP report had inaccurately recorded the time the appellant was able to sit, and she should therefore be awarded points under ESA descriptor 2(c) (sitting for at least an hour without significant discomfort). The Commissioner agreed and sent the case back to a new tribunal.
We also pointed out that, as our client had serious difficulties with hearing, the tribunal had been wrong in deciding that she should not qualify under ESA Activity 7 (the ability to understand messages). The fact that she could understand written messages was not a sufficient reason to refuse her on those grounds. The Commissioner and the Department both agreed with us on this point.
How we use the Human Rights Act: Direct Payments to care for father
Law Centre (NI) resolved a delay in setting up direct payments for a man with complex physical needs to receive care from his son.
The case had been referred to our community care team by the Centre for Independent Living because the son had been providing a considerable level of care without receiving any salary for several months. This was in spite of the Trust having already determined that our client was eligible for the Direct Payment Scheme to employ a personal assistant.
We contacted the Trust, citing the relevant healthcare legislation and the Human Rights Act, and direct payments were set up immediately. The Trust also increased the level of payment awarded and provided back-payment.
Health and Personal Social Services (NI) Order 1972
Carers and Direct Payments Act (NI) 2002
Chronically Sick and Disabled Persons (NI) Act 1978
Human Rights Act 1998 - Article 8, Right to a Private and Family Life
Spreading the news on benefit changes
Welfare reform is gathering pace in Northern Ireland, in particular with imminent changes to the way decisions can be appealed and the beginning of transfer from DLA to Personal Independence Payment.
Department for Communities starts awareness campaign on benefit changes
The new Department for Communities (DfC) came into effect on 9 May.
The functions of the new department include:
- the roles and responsibilities of the former Department for Social Development (DSD).
- Employment Service and Economic Inactivity Strategy from the former Department of Employment and Learning (DEL)
- debt advice and financial capability strategy from the former Department of Enterprise, Trade and Investment (DETI);
- local government from the former Department of the Environment (DOE), including Built Heritage from the Northern Ireland Environment Agency (NIEA);
- the existing functions of the former Department of Culture, Arts and Leisure (DCAL), excluding inland fisheries & waterways.
A number of functions were also transferred from the Office of the First Minister and deputy First Minister (OFMDFM).
The Department has started an information campaign on benefit changes, including information posted on www.nidirect.gov.uk/welfarechanges
GB tribunal says past presence test for DLA discriminates against refugees
The Upper Tribunal (UT) in GB has found that the “past presence test” for Disability Living Allowance unlawfully discriminates against refugees and their families. The test requires a claimant to have been resident in GB for 104 weeks in the 156 week period before the claim is made. The UT disapplied it and found that the claimants in that case satisfied the presence and residence requirements.
This residence requirement also applies to Attendance Allowance, Personal Independence Payment (PIP) and Carer’s Allowance.
The same test applies for DLA in NI but the required period of residence is shorter (26 weeks in the last 52 as compared to the GB requirement of 104 weeks in the last 156) but this will change once PIP is introduced on 20 June.
It is not yet known whether the Secretary of State will appeal this decision. However, if the decision stands then it should apply equally to refugees in Northern Ireland.
Any refugees or their family members who are refused DLA due to the residence requirements should contact the Law Centre immediately for advice.
Watch: our ideas for MLAs to improve social justice
Ursula O'Hare explains 6 key actions Law Centre (NI) would like the Assembly to take to make social justice BETTER in Northern Ireland (starts at 12 mins 26 secs)
Welfare reform information session
Coiste na nIarchimí & Tar Isteach are holding an information public meeting in St Mary's College, Belfast on Tuesday 26 april, 7pm to 9pm.
Our social security legal adviser, Jacqui Loughrey, will give an outline of the welfare reform timeline and mitigations package.
The biggest change to the welfare system for 60 years is about to happen. Thousands of individuals and households will be impacted - affecting all working age claimants aged 16 to 65.
The meeting will provide information on:
- The replacement of DLA with PIP
- The time limiting of contribution based Employment & Support Allowance
- The reform of the Social Fund to include Community Care Grants
- Discussion on the proposed Mitigation Package and Transitional Protection
6 ways Stormont could make things BETTER in the next Assembly
With the NI Assembly 2016 elections fast approaching and the prospect of a new Programme for Government, Law Centre (NI) has identified six ‘BETTER’ key actions that would contribute to social justice in Northern Ireland:
Benefits: ensure all social security claimants have access to free medical evidence when challenging a decision to refuse benefits
Employment: regulate zero hour contracts
Trafficking: implement Independent Guardianship for separated children in the immigration system
Tribunals: ensure support is available for those who need help before a tribunal
Ensure timely access to mental health tribunals for people with impaired decision-making capacity
Respite services: make appropriate respite units available for carers
MLAs are welcome to contact Law Centre (NI) for more information on the ‘BETTER’ key actions, for briefings on policy issues and for support in their constituency advice work.
New NI Public Services Ombudsman given extended powers
Marie Anderson pictured in 2014 at the launch of NI Ombudsman’s report on administrative justice, with Brian Thompson, University of Liverpool School of Law, and Ursula O’Hare, Law Centre (NI)
Marie Anderson has been appointed as the first Northern Ireland Public Services Ombudsman (NIPSO).
The Office of the NIPSO has been created by the Ombudsman (NI) Act 2016, a new piece of Assembly legislation aimed at making it easier for the public to complain about public services and at increasing the public accountability of public service providers.
The Ombudsman independently investigates complaints about a wide range of bodies spanning the health, housing, local government and education sectors.
In addition, the public can also complain to the Ombudsman about the actions of the Northern Ireland Audit Office and the Northern Ireland Assembly Commission.
Minister launches leaflet to help people escape forced labour
DEL Minister Dr Stephen Farry has launched Law Centre (NI)'s Problems at Work? leaflet.
Public meeting - welfare reform update
The biggest change in the welfare system for 60 years is about to happen, affecting all claimants aged 16 to 65.
Tar Isteach is holding public meetings throughout the greater Belfast area to provide the most up to date information to community activists and the general public on the proposed time line for welfare reform changes and to discuss the mitigations package.
The first meeting will take place on 7 April, 7pm - 9pm, in the Duncairn Centre for Culture and Arts, Duncairn Ave. Antrim Rd. Belfast, BT14 6BP.
Other meetings are planned for the east and west of the city, details to follow.
Speakers will be: Thomas Quigley, Kathy Stanton and Agnes Fraser from Tar Isteach and Lee Hatton, social security legal adviser at Law Centre (NI).
The meeting will discuss:
- the replacement of DLA with PIP
- the time limiting of contribution based ESA
- the reform of social fund to include community care grants
- the proposed mitigation package and transitional protection
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