I am Michael Connor, the litigant in person in the landmark welfare fights success in R (Connor) v Secretary of State for Work and Pensions.
I had a 20 year plus career as a welfare rights professional. I also am affected personally by depression and anxiety. Due to the axing of the welfare rights service by the new Tory leadership at Staffordshire County Council, I lost my Job as a welfare rights officer. I decided to go to Staffordshire University to study Law. I achieved a First Class Honours degree in Law in just 2 years rather than the usual 3. The University’s support for disabled people, including myself with mental health issues was key to this success. I also achieved a scholarship from the Law Society through to achieve the Legal Practice Certificate and Master of Laws at Nottingham Trent University. The Law Society has a very supportive Diversity Access Scheme that is tremendously supportive for disabled people wishing to join the legal profession.
I am a life long advocate of the rule of law. It is my lifeblood to want to put that power into the hands of citizens, especially those facing disadvantage. One’s legal rights cannot be denied. A democracy can only claim to be that any ordinary citizen can hold its government to account in the courts, if it acts unlawfully, irrationally or beyond its permitted powers.
I have put my law qualifications to work for the benefit of disadvantaged citizens by making legal history. I successfully applied for a judicial review in the High Court. This is now case law.
The right to appeal incorrect benefit refusals to an independent tribunal is vital to the wellbeing and welfare rights of disabled people. All too often decisions on life support benefits for disabled people, Employment and Support Allowance and Personal Independence Payment, are based on poorly conducted medical interviews with private sector providers. I would encourage anyone who feels they have been wrongly denied welfare benefits to take up their right to appeal. I could not in good conscience allow our Government to lay the mandatory reconsideration regulations. They unlawfully hinder and deny the right to appeal to an independent and impartial tribunal established by law. Morally and ethically, I was compelled to apply for my judicial review to quash this unlawful regulation.
R (CONNOR) V SECRETARY OF STATE FOR WORK AND PENSIONS [2020] EWHC 1999 (Admin)
I was determined to progress my case as a litigant in person. As I am not formally a barrister or a solicitor this is the only way I have rights of audience in High Court. I am fluent in law and a confident advocate and confident I could present my case better than any barrister I could hire. I did hire a paralegal, a student barrister, Lauren Bicknell, to keep me organised and basically to practice my submissions with. As Lauren is familiar with dealing with me when I have mental health issues this was a wise investment to keep me going.
My judicial review is allowed. Mr Justice Swift in the High Court has declared that it is unlawful for the Department for Work and Pensions (“DWP”) to require Income Related Employment and Support Allowance (“ESA”)claimants to have a mandatory reconsideration by the DWP before they can appeal adverse benefit decisions to a first tier tribunal.
This is because it is disproportionate that such claimants can access an appeal-pending rate of ESA when an appeal is lodged but cannot when a mandatory reconsideration is requested. This is incompatible with the fair trial and right to tribunal provision of Article 6 of European Convention on Human Rights. It is therefore unlawful per section 6 of Human Rights Act 1998.
BACKGROUND
This case arose after the DWP took 18 weeks to reconsider my personal ESA claim after they incorrectly refused entitlement. During this time, I had no right of appeal to the independent first tier tribunal. As I am a carer for my mother, who is severely affected by Parkinson’s disease, I was able to claim Carers’ Allowance. However, for most ESA claimants there are no alternative benefits that can be claimed. This causes severe financial hardship and destitution for ESA claimants. Only when the DWP finally complete their internal review can an appeal be lodged. An appeal pending rate of ESA can be paid until the appeal is heard. This creates a disproportionate anomaly that makes the mandatory reconsideration requirement incompatible with the fair trial and tribunal right contained in article 6 of European Convention on Human Rights.
PERSONAL REFLECTION
I am a confident and effective advocate through years of representing at Social Security Tribunals. Legal research is also something I enjoy and am very effective at. I also very much like to think outside convention to find new approaches to old problems. I was therefore confident that I could progress this judicial review as a litigant in person. Good understanding of the civil procedure rules really helped. I submitted a “N244” application for a court order for a judicial review cost capping order of zero costs to be claimed from me as the claimant. Had I not done so I could not have afforded to proceed. Thanks to very generous donations to a crowdfunder campaign, raising over £7,000, I was able to raise the money for court fees and my own costs.
I know from experience that when in court it is best not to be rigid with one’s submission and to know your material inside out. This allows one to be flexible in court. If the judge is just not accepting a line of argument or submission, try another until one bites. Also keep the Judge happy. If she or he is hinting pursuing a line or to stop, go with it. I had a very inquisitorial Judge, Mr Justice Swift. It was a challenging time in court. For me though the harder the better, I can think on my feet. I also was very fluent with my law, case law and facts of the case. Not so for the two DWP barristers who had a very hard time in court. However unlike me they have to go with their client’s instructions. And their lead barrister, Ms Apps, was very helpful in preparing the court bundles and drafting agreed court orders. Always make bridges and connection with the opposition lawyers. They are only doing as instructed it is not personal that they oppose you in court.
Judicial review is unusual as there is a requirement to reach agreement and the court has to seek the least intrusive method of addressing any government unlawfulness or illegality. Therefore I was very happy with the final order, a declaration of unlawfulness for the mandatory reconsideration rules for ESA claimants.
LAW NOTES
The mandatory reconsideration regulation is 3ZA of Social Security and Child Support (Decisions and Appeals) Regulations 1999
Article 6 of European Convention on Human Rights states that,
“in determination of his civil rights and obligations everyone is entitled to a fair and public hearing, within a reasonable time, by an independent tribunal established by law.”
Section 6 of Human Rights Act 1998 states:
“it is unlawful for a public authority to act in a way that is incompatible with a convention right.”
Swift J applied the proportionality test in Bank Mellat v HM Treasury (No.2) [2014] AC 700:
“could the objective have been pursued by a less intrusive measure without compromising its achievement; and having regard for the objective pursued and the severity of the consequences of the measure enacted, has a fair balance been struck between the interests of those affected and the general public interest?”
Swift J therefore concluded;
“It is anomalous that the payment pending appeal arrangements for ESA under regulation 30(3) of the ESA Regulations do not extend to ESA claimants who are required by regulation 3ZA to request the Secretary of State to revise a decision and await her decision on that request before initiating an appeal.
My conclusion is that regulation 3ZA of the Decisions and Appeals Regulations is a disproportionate interference with the right of access to court, so far as it applies to claimants to ESA who, once an appeal is initiated, meet the conditions for payment pending appeal under regulation 30(3) of the ESA Regulations.”
In my submission I also relied on Golder v United Kingdom (1979) 1 EHRR 524 and Ashingdane v United Kingdom ECHR case 8225/78 to support my proposition. Namely, that disproportionate hindrance to potential appellants to tribunals and courts is incompatible with Article 6 ECHR.
Note that my case applies to income related ESA claimants who have been disallowed on the basis of being found to not have limited capability for work. Before this refusal, claimants must have either been getting ESA because it is their first claim or they had previously been found to have limited capability for work. A disallowance of ESA for any other reason; for example not returning an ESA 50 or attending a face-to-face interview still requires an MR before appeal.
MICHAEL CONNOR LITIGANT IN PERSON R (CONNOR) V SECRETARY OF STATE FOR WORK AND PENSIONS.
