William Flack Blog

A law school professor and then a police officer explain why.

Strictly speaking this is not social welfare law but it is maybe the best law related video I have ever seen. It should silence forever the argument that you must have something to hide if you won’t answer police questions or “help them with their inquiries”.

The Garden Court Chambers bulletin for 25 October 2011 reports the strange Judicial Review decision in the case of R(B) v Nottingham CC [2011] EWHC (Admin) [2011] All ER (D) 180 (Oct) where it is reported that the claimant was a pregnant girl aged 16. Her mother was not prepared to accommodate her and the expected baby. The claimant sought assistance with accommodation and was provided with a place in a specialist unit for pregnant teenagers under the homelessness duty in Housing Act 1996 section 193. She sought judicial review of decisions by the council’s social services department not to treat her as a ‘child’ to whom it owed duties under Children Act 1989 sections 17-20. Her claim was dismissed. The council had been entitled to find that she was not a ‘child in need’ and that she had suitable accommodation in the unit.

This case seems to me to be wrongly decided and is crying out for appeal. This is because the previous House of Lords R (G) v Southwark [2009] UKHL 26 (See Nearly Legal Post for Summary) made it as clear as I thought it could be made that homeless teenagers should not be dealt with under the Housing Act 1996 but under the Children Act 1989. In this new case it seems that the coucncil housed a 16 year old under the Housing Act 1996 and got away with it. Maybe I am missing something. I don’t think a full report is avaiable yet.

If anyone can shed any light I would be very grateful for a comment here or an email to me at wflack63@gmail.com.

This evening I watched The Future State of Welfare with John Humphrys on the BBC iPlayer. It is only available for a short time so I won’t put a link to the show here. Instead here is a link to the article which Mr Humphrys wrote for the Daily Mail in advance of the show.

I was expecting a load of rubbish and this was exactly what I got.  I won’t go into detail as to what was wrong with it here.  Others have done this much better than I can such as the Left Foot Forward,  Broken of Britain and Diary of A Benefits Scrounger blogs.  Suffice it to say that Humphrys did not consider what the future might actually be. For instance there was no analysis of what the new Universal Credit Scheme due to be introduced in two years might look like.  Instead we just got the usual tired old stuff about people preferring to sit at home rather than take all the jobs which were waiting for them and all the people pretending to be sick in order to get Incapacity Benefit.  Humphrys met with a number of benefits claimants but did not really treat them as anything more than animals in the zoo like the picture of the characters from TV’s Shameless who occupy pride of place in the middle of his Daily Mail piece.

From scanning the different blog posts on the John Humphrys TV show and Daily Mail article I have come across some excellent blog posts such as those above and also the  The Files of Mason Dixon, Autistic blog which mentions the essay “On Bullshit” by the American Professor of Philosophy Harry Frankfurt which I had not heard of before.  I was able to find a video of Professor Frankfurt being interviewed on the subject of bullshit. It is very entertaining but also allows me at last to put my finger on what it is about John Humphrys that always used to leave me shouting at the radio before I gave up listening to the Today Programme. It is his lack of interest in what the truth of a story might be and his insatiable desire stir up bullshit and create news stories usually by tricking his guests into saying something they would later regret.  Maybe next time the BBC commission a programme on the future of welfare benefits they will ask the makers to concentrate more on the future of welfare benefits.

http://www.youtube.com/watch?v=0q_h5ZyjJWA&feature=youtube_gdata_player

Thanks to Patrick Torsney at ilegal for posting this discussion on YouTube. This makes for painful viewing in that none of the people in the studio seem to have much of a clue as to what the Human Rights Act is actually about….not even the presenter. She starts off with the words “criminals, terrorists and even rioters…” and its downhill from there.

Maybe I am being unfair about the woman described as a feminst law reform campaigner or something. I can not really tell what she thinks as she keeps getting talked over by John Bird and John Gaunt. It ends up sounding like feeding time at the pig pen.

The two lawyers who contribute via the screen link up are pretty good though.  One of these is Adam Wagner of the UK Human Rights Blog whose post in response to David Cameron’s recent unfortunate comments about the Act following the riots is well worth a read for anyone who is interested in what the Human rights Act is actually about.

This video clip really reminds me of the old Chris Morris Brass Eye programmes such as this old classic

Ravi Govindia, the leader of Wandsworth engaged in a publicity campaign on Friday 12 August publicising how his council were taking steps to evict a council tenant whose son had been charged with being involved in the riots at Clapham Junction the previous Monday. He suggested that following eviction the family would receive no further assistance from the council because the mother would be “deliberately homeless” and the council’s obligations towards the family would be at an end. His comments were then given wide coverage in the media and he has been treated as taking an exemplary tough stand over the riots. However, if they are carefully considered Cllr Govindia’s comments were silly enough for us to be entitled to expect that he toured the news studios  wearing long flat red shoes and a flower concealing a water squirter driving a little yellow open top car with doors and a bonnet that flew off amidst clouds of smoke.

The legal basis of the council’s proposed possession action has been considered in detail on the Nearly Legal blog. I would add to that by saying that even if the council were to obtain a Possession Order against the rioter’s mother and just supposing they were to be able to get away with finding her to be intentionally homeless and turning her away if she then applied to the council’s homeless persons unit for assistance after being evicted that would not be the end of the council’s responsibilities. Wandsworth are a unitary authority and as such they owe the children of the family duties to assist them under the Children Act 1989 if they were to become homeless. This would include not just the alleged rioting youngster himself as he is 17 but also his sister who I understand is only 8. Readers may have noticed that in Britain in the 21st century we do not see 8 year olds sleeping in the street. There are reasons for this.

The Children’s Services Department would be obliged to assess the children’s needs for the purposes of Section 17 of the Children Act 1989. It would be difficult to establish that eviction and homelessness would not impair their wellbeing or development. They would therefore have to be treated as “in need” and assisted. Therefore unless the social workers were satisfied that the children had somewhere else suitable to go they would have to provide them with assistance in obtaining accommodation.

There are essentially three ways in which the social workers could assist the children in obtaining accommodation. The first would involve them being nominated back to the Housing Department with their mother. I think we can rule this option one out here as it would defeat the whole purpose of evicting them. The second would be to take the children into care. This would be extremely unlikely. It is hard to see how it could be found that the children should be separated from the mother just because she allowed her 17 year old to go out without foreseeing that he would become involved in a riot. It would also be very expensive. The council would therefore be most likely to go for the third option which would involve assisting the mother in obtaining private sector accommodation. This assistance would take the form of providing money to pay the rent in advance and deposit that a private sector landlord would most likely require and in locating a private landlord who would accept someone who had been evicted from council accommodation because of the criminal behaviour of a family member. The end result would be that the family would be likely to be rehoused by the council in private accommodation. It should be added that if she had to leave the private property in the future through no fault of her own while she still had children living with her the mother would be entitled to be housed again by the council as they would not be allowed to take the way in which she lost her council accommodation into account.

This is a long way from the impression given by Cllr Govindia and his council’s press release. Those involved in this media stunt must be aware of this. However, they appear to be prepared to gamble that most people in the media are not familiar with the details of the council’s actual responsibilities and won’t spot their slight of hand. They are also aware that it will be some months before the family would face eviction by which time everyone will have lost interest in this story. This seems to be another example of the recent trend identified by Bystander at the Magistrates Blog of people who should know better making comments which they know are misleading but which give the impression that they are taking a tough stance over the riots.

I have had concerns about the character and capability of Iain Duncan Smith from almost as soon as I first heard of him. As can be seen from this video clip these concerns are shared by prominent former colleagues in the Conservative Party.

After he was humiliatingly but quite rightly sacked as party leader I have to confess to feeling sorry for him. As such I was open to being taken in like a prize sucker by his Road to Damascus type conversion from Eurosceptic Thatcherite nasty into a more humble man dedicated to social justice and founder of the Centre for Social Justice. 

After he became Secretary of State for Work & Pensions Duncan-Smith seemed to talk sense about the need for the benefits system to be dynamited and replaced with something that you did not need about four professors to debate for an hour in order to establish what you were entitled to.  I was therefore prepared to give him the benefit of the doubt. I am reaching the point now where I think that this was a serious mistake.  I have been waiting but don’t seem to hear any detail of the new Universal Credit system and how people in low paid jobs might be assisted with things like not being evicted from their homes because their Housing Benefit has not been assessed properly after they started a low paid job.  I don’t hear any of this.  Instead last week I found him perpetuating two extremely unpleasant myths about unemployment  which anyone familiar with the subject and serious about positive reform should steer well clear for.

The first myth is the old racist classic that unemployment is caused by foreigners coming over and taking all the jobs away from good honest English folk.  The same foreigners are often also portrayed as scroungers who come over to claim benefits and do nothing other than commit crimes.

The second myth is that there are lots of jobs out there but unemployed people are lazy and don’t take them because they don’t want to work.  In recent years this myth has been elaborated upon with some psychobabble to suggest that after generations of unemployment people are incapable of working due to mental health problems even if they wanted to.  It is this myth that has made a sort of Jade Goody type celebrity out of Hayley Taylor, TV’s Fairy Job Mother. Viewers can watch her work her magic by bullying and publicly humiliating unemployed people into working again.

Last Week Iain Duncan Smith appears to have put out a press release in advance of a speech which Inside Housing turned into an article. This includes the quote:-

“Mr Duncan Smith is also expected to say that the government was putting pressure on businesses to employ British citizens. He will also call for ‘tough action’ to be taken to tighten immigration rules to stop a generation of young people ending up on benefits. ‘We have to ensure that our immigration system works in the interests of Britain, enabling us to make a realistic promise to our young school leavers’, he will say.

This is to shamelessly buy into the first myth and to try to generate political support from it.  In doing so he is engaging in racist grandstanding instead of getting on with doing what he is supposed to be doing.  Fortunately this seems to have backfired as even the Daily Mail has reported that the business community has responded by denouncing the comments.

The Daily Mirror quoted Paul Griffin, the head of employment law at law firm DBS as saying  “Employers will be in trouble if they follow this. Iain Duncan Smith’s speech, while on the surface seeming positive, is actually a crude political act to scapegoat migrant workers for a lack of jobs.”

Mr Duncan-Smith then bought into the second myth with the suggestion that the original values of the benefits system had been undermined such that:

‘… by the time we entered Government late last year it was apparent that these values had been perverted – we had a system that punished those who did the right thing while rewarding destructive behaviours.

This is dreadful.  Its not just laziness or fecklessness which is preventing unemployed people snapping up all the excellent jobs which are waiting for them. It is their destructive behaviour. Oh dear. I am not even going to bother taking issue with this beyond suggesting that they should make a special episode of Fairy Job Mother in which Hayley Taylor coaches Ian Duncan Smith to get over the laziness and fecklessness which is likely to lead to him losing his job….again.

The serious point here is that I do not think that it is posssible a for task as important as reforming the benefits system and confronting the other problems preventing people from working to be undertaken by someone who is stupid enough to engage in this sort of behaviour when there is so much serious work to be done.

I  am a big fan of housing law blogger Ben Reeves-Lewis.  I enjoy reading his posts on Landlord Law every Friday.

Last week’s piece on homelessness was particularly good. Ben considers what now seems to be the inevitable change to the law on homelessness which will soon mean that local authorities can discharge their duties to homeless persons by make arrangements so that they are provided with private sector accommodation.

I have always thought that it was strange that the law on homelessness so far has meant that local authorities had to provide council or housing association tenancies to homeless persons who were owed a housing duty. This seemed to confuse the issues the need for emergency accommodation and access to social housing. Don’t get me wrong. I would like to see all homeless people (and everyone else too for that matter) get secure low cost social housing. However, the trouble with the current system is that it has meant that people who are not homeless have often been denied access to what limited stock there is. It has also meant that homeless persons have spent long periods of time in temporary accommodation waiting for the offer of a council flat which never seems to arrive, especially if they need four or more bedrooms. As a result I agree with Ben that freeing councils up to refer people into private accommodation is a logical step for councils who don’t have properties anyway.

Moving on from this Ben thinks though how this will all work and hits the nail on the head in identifying the problem at the heart of the strategy. This is that just as there isn’t enough council or housing association housing available there isn’t enough low cost suitable private sector accommodation either. Whilst there may be property out there available for homeless people to rent it will be definition be the kinds of property that the landlords could not rent to wealthier tenants. This means that it will be in poor condition and bad areas. Councils will have to ensure that they are referring people to suitable accommodation. However, in order to do this they may be asking more of private landlords than they are prepared or able to give. What is the point of for a private landlord of  doing up a property in order to meet with the necessary council standards so that prospective tenants can be referred to them if the low levels of Housing Benefit or Local Housing Allowance payable mean that the lanldord gets no return on the investment.

It will be very interesting to see how all this pans out.  I suspect that it will leave quickly leave us were we started with not enough accommodation available in the public or private sector for homeless people to be referred to.

Where I take issue with Ben is that he suggests that these changes and the forthcoming Legal Aid cuts are bad news for lawyers. Firstly, I think that these new changes will create more rather than less work for housing lawyers. Secondly, I don’t want to tempt fate but as far as I am aware homelessness and the threat of the loss of a home are areas which Kenneth Clarke has ring fenced as protected from the cuts.

I have not studied the provisions in detail yet but I predict that the changes which Ben mentions in allowing councils to discharge duties by referrals to the private sector will not reduce work for housing lawyers but will increase it. This is because:-

• Most of the work of lawyers around homelessness at the moment concerns either the refusal of the council to accept a duty or the failure of a successful applicant to accept an offer. This will remain so after the changes. The council’s entitlement to offer private sector accommodation to successful applicants will not change this. It may actually lead to an increase in refusals of offers by applicants and so an increase in work for lawyers.
• The increased use of private landlords may mean that there are more unsuitable properties being offered. Private landlords are unlikely to maintain properties and refurbish them prior to an offer being made to the same standard as social landlords. This may lead to more people abandoning properties or applying to the council for alternative accommodation.
• The use of private sector tenancies which can end after 12 months means that there will be an increase in the number of people making fresh applications for accommodation after 12 months. This will give rise to more disputes about whether the tenants are (still) in priority need or whether they have become homeless intentionally.

I have been meaning to write something about the Christian Legal Centre for a few weeks now since I read the Comment piece by in the Law Society Gazette by Andrea Minichiello Williams entitled Modern Legal Thought Eliminates Christian Morality.  Judging by what Ms Williams thinks passes for Christian morality I believe that it is the duty of all of us who have anything to do with the legal system to ensure that Christian morality is completely eliminated and never allowed to return.  Ms Williams’ piece in the Gazette appeared to be a watered down version of a longer and even nastier piece which appeared in the Daily Mail.

This is not the place for debating the nature of what Christian morality is. I am not a Christian but I respect the right of others to call themselves Christians and to practice their faith. That is until it turns into what can only be described as a hate filled crusade against gay people based on the claim that they are carrying out God’s will.

In order to see Ms Williams and her fellow concerned Christians  in action I would recommend that you watch the Panorama documentary  “In The Name of God” which is available on Youtube in 4 parts.  Please do not think that the resemblance between the Christians in the opening shots of the film to the far right skinhead thugs is a coincidence. Their politics have a lot in common. Ms Williams’ main organization Christian Concern was originally called Christian Concern For Our Nation. The clue here is in the term “nation” which was presumably dropped to make the organization sound less ugly. This is the same “nation” as in National Front and British National Party.  It is is not about a nation as a geographical area but about the nation as a race or volke as the Germans put it more precisely than us. I have to admit that many of the people championed by The Christian Legal Centre are black. This means that  I can’t accuse them of being white supremacist organisation like so many others who fight crusades for their idea of  their nation. I think that this just means that Christion Concern are more sophisticated than the old head bangers of the openly racist right.  The traditional concern of these people is that that nation is being polluted by deviants.  In the old days it was jews and blacks and communist tyrants today it is gays and muslims and liberal tyrants. This is what Ms Williams is concerned about.

If you do not believe me take the case of Council van driver Colin Atkinson referred to in Ms Williams’ Law Society Gazette piece as championed by her and dealt with in detail on the Christian Concern Web Site. Reference to the same campaign can also be found in on the BNP web site under the headline Victory for Christian Common Sense!

The role of the Christian Legal Centre appears to be to fund hopeless legal cases such as those of the people listed by Ms Williams in her Comment piece so as to generate  media interest and encourage recruitment to Christian Concern and other such right wing Christian organizations engaged in the fightback against what Ms Williams refers to in her above Daily Mail piece as Liberal Tyranny. As such they are not really concerned with the law but with using kamikaze style legal challenges to generate publicity.

I tried to find out more about the history and background of the Christian Legal Centre. There is not a lot out there go to go on.  I found a useful link at the Thinking Anglicans web site which reveals that they are funded by sinister organizations in America such as the Alliance Defence Fund funded by the Blackwater Private Defence organization of Iraq fame and right wing Christian Texan James R Leiniger. This did not come as a surprise but it does make me sit up and realize that Ms Williams has some serious backers and must therefore be opposed and not just dismissed as a harmless eccentric. The next step from the right to discriminate peacefully against gay people, as advocated by Ms Williams, is to discriminate through violence. This chilling Christian video from America opposing the recognition of hate crimes against gay people gives us a taste of what might follow if we treat these people as respectable now and fail to stop them.

This is not just a gay issue either. Christian Concern are also targetting Muslims  (their web site ominously proclaims “the presence of Islamism in the UK has great repercussions for all of us”) and they are involved in increased American style campaignging against abortion rights. This article from the Guardian shows the involvement of the Christian Legal Centre in such actions and quotes them as saying that they now have “very significant plans” for later in the year.

In the film “The Usual Suspects” we are told that the best trick the devil ever played was to persuade us that he doesn’t exist.  I would take this a step further. Perhaps his best trick was to persuade some of us that his some of his servants were Christians doing God’s work? This would explain the Inquisition, the Crusades and the Kool Aid laced with cyanide for the congregation at Jonestown. When I hear Ms Williams near the beginning of the Panorama documentary calling on supporters demonstrating outside Parliament to raise their voices so that the Lord can hear them I can’t help feeling that the Lord she refers to is not the Christian God we initially think she means but a very different Lord altogether. As Ozzy Osbourne once sang, “Satan laughing spreads his wings.”

Back in December 2008 I have to confess that I was very pleased to see Sharon Shoesmith sacked as Head of Children’s Services in Harringey.  Her role as the head of the Department which failed to protect Peter Connelly (“Baby P”) from his tragic death and the comments which she had made about how social workers could not stop children from being killed seemed unforgivable.

Two and a half years on and having read the Court of Appeal Judgment allowing Ms Shoesmith’s appeal against the dismissal of her claim for Judicial Review against Harringey Council and the Secretary of State I now recognise that I was wrong and that we can’t throw the rule book out of the window along with justice and fairness just because we do not like someone or because we have strong feelings about events that they have been involved in.  I actually knew nothing about Sharon Shoesmith. I had never heard of her before December 2008 and yet I felt entitled to pass judgment on her and see her sacked from her job and exposed to terrifying levels of public animosity. What was I thinking?

It is worth adding here that Ms Shoesmith did not win her appeal on technicalities but had really only lost at the first instance on the technicality that the Judge had considered that her case should be dealt with by an Employment Tribunal and not through Judicial Review proceedings. That Judge had referred to his sense of “lurking unease” when dismissing the application for Judicial Review. The Court of Appeal have in my opinion correctly identified the fundamental errors made by Ed Balls and Harringey council and have rightly held that national and local government cannot be allowed to conduct administration in that way.

What Went Wrong In December 2008

At the heart for the problem was the desire of the then Children’s Secretary Ed Balls to limit the political damage to himself arising for the Baby P affair and if possible to even make some political capital out of it.  This followed the criminal convictions of those directly responsible for his death and the and the lifting of media silence. He therefore arranged for Ofsted to carry out in investigation into Harringey Children’s Services and provide him with a report by the end of the month.  Ofsted normally take five months to prepare this kind of report but Balls gave them just over two weeks.  As such the report was always going to be a rush job. The report was very critical of Harringey but not of Shoesmith or any named officers. Despite this Balls held a press conference after  receiving the report and discussing its contents with Ofsted.  He announced that he was suspending Shoesmith as Head Of Children’s Services based on the report. This was without any specific allegations of misconduct or failure being put to Ms Shoesmith  so that she might have a chance to respond to them.  This left her suspended from public office but not sacked as a council employee. The council then sacked her because of what they claimed to be the findings about her by Ofsted and the Secretary of State.  This was wrong because neither Ofsted nor the Secretary of State had actually made any findings of fact in relation to her.

Nobody should be sacked in this Kangaroo Court manner.  If she was to be sacked it should have been after a proper investigation of her performance and after she had been given an opportunity to responding to the findings of that investigation.  Those who think that she should have been sacked should not be afraid to recognise this. I would not have a problem myself with her being sacked but definitely not like this.

Further Questions Arising from the Baby P Tragedy

I don’t want to suggest that I have any solutions here. I am not a social worker and do not have any knowledge of child care procedures. I would not therefore want to sound like I am telling people who know much more about this area than me what to do. Having said that I would like to know:-

• Why is so much of the criticism in this case being directed towards Sharon Shoesmith?  She obviously has to take some of the blame but what about the management of hospital who where the paediatrician managed to examine Peter without spotting that he had suffered severe injuries including a broken back and ribs. What about the local police who appear to have been overwhelmed by whatever else they were doing at the time when Peter was being reported to them as being abused.  Is anyone to be held accountable other than Sharon Shoesmith?

• Why is Ed Balls himself or the previous Secretaries of State not expected to take any blame for what occurred in Harringey.  Shoesmith was responsible for the Children’s Services at a local level. Balls was responsible at a national level. It seems to be considered fair for her to be made into a pariah for her role but for Balls to limit his role to passing judgment on Shoesmith rather than acknowledging his own failings or those of his colleagues responsible for child protection at a ministerial level before him.

• How did we end up with a situation of having two public officials  responsible for Child Protection at such high levels who knew next to nothing about the subject? It has always seemed ridiculous to me that the ministerial system of government leads to someone like Ed Balls being in charge of something like Child Care which he would probably be the first to admit in private that he, as a financial journalist by background, knows nothing about. Following a reshuffle he might find himself in charge or some other area he knows nothing about like Defence or Agriculture. He can blag his way through a lot of the job by reading out scripts written by civil servants and advisers but this is not a substitute for actual knowledge. It seems tragic that this flaw at a national level should be compounded at a local level in the wake of the public inquiry into the earlier death of Victoria Climbie in 2000 by the creation of Children’s Services Departments in local councils by merging Education and Social Services. This in turn led to Shoesmith whose background was exclusively in education and who had no social work experience being in charge of child protection in Harringey. There is the further question of whether she should be getting paid over £100,000.00 for this job even if she knew how to do it.

• Why is David Cameron wasting time and tax payer’s money in appealing to the Supreme Court against the decision of the Court of Appeal in the Shoesmith Case? He claims that there is a principle of democracy to be upheld that ministers and council leaderships should be able to make politicial decisions such as the decision to sack Shoesmith. This seems to me to miss the point which is that they are of course free to do so but have to act within the law. I believe that he should publicly acknowledge what he almost certainly believes in private which is that in his desire to pander to the Sun newspaper and what he perceived to be public opinion Ed Balls and the council officials who followed his example simply got it very wrong here and no wide principles actually arise. Infact why is David Cameron getting involved at all so soon after the judgment. He could have left the press comment to the current Children’s Secretary. Instead he seems to be wading in and playing the same cheap game as Ed Balls by putting the boot into Sharon Shoesmith before someone possible at the Sun newspaper puts the boot into him.

• Is Diane Abbot really so stupid that she can’t see what has happened here or she feels obliged out of a sense of loyalty her party to write rubbish about the judgment as she did in the Guardian. I can understand the usual right wing trolls like Leo McKinstry in the Daily Express responding to a Court of Appeal  judgment which they have not understood or even read by denouncing the Judges.  These people make a living out of stirring up people’s worst impulses by writing nonsense about dope smoking, communist Judges parachuted in from Strasburg or Berlin to free all the paedophiles and cop killers. I would have expected better from someone like Diane Abbott but more fool me.

Conclusion

I guess it might just be because I am a lawyer and therefore feel a sense of professional deference to Court of Appeal Judges but I can’t help feeling when reading the Judgment in this case that we are very fortunate indeed as a civilized society to have people like Lord Justices Burnton, Kay  and Neuberger amongst us. When terrible tragedies such as the death of Baby P occur it is reassuring to know that they can carefully consider the issues however distressing they might be and reach considered judgments. So much of what we hear about this case from politicians and the media serves only to remind us of how short a time it is since we came down from the trees or crawled out of the swamps.