Working Theory

by Michael Reed

Me?

I do employment law for the Free Representation Unit.

Email?

michael at workingtheory.co.uk

Elsewhere

Why FRU volunteers should do Social Security

15 May 2013

There’s a Social Security training day this Saturday (18th May 2013). If this post convinces you, sign up.

Ever since I’ve been involved in FRU more people have wanted to do employment work than social security work.

There are a number of reasons for this, some good and some bad. But really more people should be doing more social security cases.

Some people are more interested in employment law for sensible reasons. Perhaps they intend to practice in employment law. Also employment cases involve hostile witness handling. This is a key advocacy skill (and probably the most exciting one). It makes sense that people want to get experience of it. Social security cases (save in rare exceptions) don’t involve cross-examination.

I fear, however, that some people think that social security is a lessor area of law: less important, less interesting and less challenging.

This is just wrong.

Social security is an extremely complicated statutory regime. It’s probably the second most complicated bit of statutory public law in the UK – after tax, which it closely resembles.1 Similar statutory regimes operate in myriad areas of UK law: immigration, education, procurement, planning, etc. Major elements of criminal law are statute based. Experience of social security law is valuable in dealing with any of this. And the statutory analysis required for social security work is every bit as difficult as anything else in UK law.

As one would therefore expect, social security cases throw up many interesting legal points. Consider the highlighted decisions of the Upper Tribunal (Administrative Appeals) for February 2013. You’ll find human rights challenges to the rules about Disability Living Allowance payments to children who are hospitalised; decisions about how to approach assessment of mobility when it is unreasonable to expect a claimant to use a wheelchair (and when it is unreasonable); consideration of whether alcohol dependency is a physical or mental disablement – and where it is a physical disablement, but affects mental functions, whether the mental consequences should be considered in awarding Employment and Support Allowance. These are issues and decisions every bit as sophisticated as those that come before the High Court or the Court of Appeal.

Social security volunteers will also become familiar with the First Tier Tribunal’s procedure. In addition to the procedural rules, which are largely common through the First Tier Tribunals, this means familiarity with large parts of practical public law, including judicial review. How many pupils or trainee solicitors can say they’ve run and appeared in a JR?

Also you can start social security work earlier than you can start employment work at FRU. If you’re in your final year of an undergraduate degree you can start volunteering, spend a year working on social security cases, and then move into employment after you graduate. As I’ve discussed before, the sooner you can start doing FRU the more you’ll get out of it.

Finally, social security law is of vital importance to the clients concerned. The outcomes of these cases have a direct and often dramatic impact on peoples’ day to day lives – whether positive or negative. Very often they also involve clients who have the greatest possible difficulties in presenting their case; because of mental disability, lack of native English or simply because they cannot understand the complex system or how to present useful evidence to the tribunal. Almost all legal aid has now been removed. Pro bono work will never replace it, but you do have the opportunity to make a real difference to the individuals you represent.

  1. Really, tax law is just a subset of social security law that happens to operate in the other direction. ;->

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