JOURNAL OF SOCIAL WELFARE AND FAMILY LAW最新文献

{"title":"Smoke and mirrors? Regulation 12 and access to legal aid for victims of domestic abuse","authors":"Kayliegh Richardson, A. Speed","doi":"10.1080/09649069.2023.2243148","DOIUrl":"https://doi.org/10.1080/09649069.2023.2243148","url":null,"abstract":"Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was introduced the number of unrepresented victims of domestic abuse in applications for protective injunctions, has increased. Studies consistently point to the strict legal aid means criteria as the reason behind this, however, there is a paucity of literature challenging why this is the case, given that provision is made within Regulation 12 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 for the financial eligibility thresholds to be waived in applications for a protective order. Drawing on a survey of 24 legal professionals and information provided by the Legal Aid Agency (LAA) following Freedom of Information Act requests, this article seeks to address this gap in the literature and examine the value of Regulation 12. Findings indicate that the limited use of Regulation 12 can be attributed to a weak understanding amongst legal aid practitioners about its existence, concerns amongst practitioners about not being remunerated for work completed on files and an absence of clear guidance for the Director as to the use of the discretion. The findings are timely as the means test being considered by the ongoing Legal Aid Review.","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47624007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Section 48 orders in the Court of Protection: undermining autonomy or an honest account of interim judging?","authors":"Jaime Lindsey","doi":"10.1080/09649069.2023.2243152","DOIUrl":"https://doi.org/10.1080/09649069.2023.2243152","url":null,"abstract":"ABSTRACT This case note considers the role of section 48 orders under the Mental Capacity Act 2005 following the decision by Mostyn J in A Local Authority v LD and RD [2023] EWHC 1258 (Fam). The case concerned an application for removal from home for a man in his 40s with learning disability, autism and Down’s Syndrome for the purposes of assessment of mental capacity. The case note considers the role and function of interim orders under section 48 as well as the wider problem of removing adults from their own home in the name of safeguarding.","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44217233","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Never say never again? Access to advance payments of universal credit for “no-NINo” claimants is ‘possible in principle’","authors":"Michael Bates, Claire Hall, Kasper Meidell","doi":"10.1080/09649069.2023.2243151","DOIUrl":"https://doi.org/10.1080/09649069.2023.2243151","url":null,"abstract":"","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46336465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Editorial","authors":"E. Hitchings","doi":"10.1080/09649069.2023.2206226","DOIUrl":"https://doi.org/10.1080/09649069.2023.2206226","url":null,"abstract":"","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"45 1","pages":"101 - 103"},"PeriodicalIF":1.5,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47821846","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Closing routes to universal credit for young disabled students","authors":"Rebecca Khan","doi":"10.1080/09649069.2023.2206220","DOIUrl":"https://doi.org/10.1080/09649069.2023.2206220","url":null,"abstract":"","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"34 3","pages":"192 - 195"},"PeriodicalIF":1.5,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41248813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Hostile and inept: the government’s approach to asylum support","authors":"Katie Bales","doi":"10.1080/09649069.2023.2206219","DOIUrl":"https://doi.org/10.1080/09649069.2023.2206219","url":null,"abstract":"Under section 95 of the Immigration and Asylum Act 1999 (IAA 1999), the Government are obliged to provide support and accommodation to asylum seekers who would otherwise be destitute. This responsibility stems from the EU Reception Conditions Directive (2003/9/EC; recast as Directive 2013/33/EU) – which remains ‘retained law’ – the Charter of Fundamental Rights of the European Union and Article 3 of the ECHR, to prevent inhuman and degrading treatment, where work exclusions apply (R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin); R (on the application of Limbuela) v SSHD (2006) 1 AC 396). Restrictions on working mean that welfare support is necessary because once forced migrants arrive in the UK, they are effectively trapped: they cannot return to their countries of origin for fear of persecution and can no longer be returned to other transitional countries in Europe following Brexit and the UK’s withdrawal from the Dublin Regulation. Asylum seekers are thereby at the mercy of the UK Government who over the last three decades have overseen the slow degradation of their living standards (Bales 2013, Mayblin 2017, 2019). The claimant in R (on the application of CB) v SSHD [2022] EWHC 3329 (Admin) challenged s.95 support levels on two grounds. Firstly, the lawfulness of an uprating decision made by the Secretary of State for the Home Department (SSHD) in November 2021 which changed the methodology for calculating the cost of essential living needs for asylum seekers, bringing the expected uprating down from £41.76 to £40.85 per week (up from the base rate of £39.63). Secondly, the lawfulness of the SSHD’s failure to reconsider or review the rate of asylum support since the uprating was implemented on 21 February 2022. In a progressive judgment that carefully treads constitutional boundaries, Fordham J makes clear that the SSHD failed in upholding their statutory duty to provide for the essential living needs of asylum seekers and neglected careful consideration of the amount needed to cover such costs. This finding is perhaps unsurprising taking into account the increasingly hostile environment imposed upon forced migrants within the UK, and the pending ‘Illegal Migration Bill’ which is an affront to the right to asylum. The claimant was a 32-year-old Nigerian national who arrived in the UK in April 2021 alongside her three children aged 6, 7 and 8, the eldest of whom has cerebral palsy and","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"45 1","pages":"188 - 191"},"PeriodicalIF":1.5,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47691014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Treating claimants like criminals: universal credit sanctions as punishments","authors":"Reuben Andrews","doi":"10.1080/09649069.2023.2206223","DOIUrl":"https://doi.org/10.1080/09649069.2023.2206223","url":null,"abstract":"ABSTRACT The UK’s social security system has attracted much criticism for the severity, ineffectiveness and invasiveness of its sanctioning regime. Political theorists, news outlets, and welfare claimants repeatedly describe sanctions as punitive, yet most use the term ‘punishment’ in a colloquial manner, rather than treating it as a theoretically-contested concept. Instead, this article subjects the empirical realities of welfare sanctions to four theoretical models of punishment: the classic Flew-Benn-Hart model, a Foucauldian model focussed on the disciplinary potential of punishment, a Durkheimian model concerning social sentiments, and Feinberg’s censure-based model. This article ultimately concludes that there is sufficient overlap in order to consider welfare sanctions a form of punishment. For this reason, proponents of welfare sanctions must be able to justify sanctions not just as a mechanism of social security law, but also as punishments.","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"45 1","pages":"165 - 180"},"PeriodicalIF":1.5,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42039822","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The marginalisation of victims of domestic abuse under the Irish Domestic Violence Act 2018","authors":"E. Sullivan","doi":"10.1080/09649069.2023.2206221","DOIUrl":"https://doi.org/10.1080/09649069.2023.2206221","url":null,"abstract":"ABSTRACT This article critiques the civil law intervention set out in the Irish Domestic Violence Act 2018 as it applies to victims of domestic violence. It evaluates the five civil orders: safety order, protection order, barring order, interim barring order and the new emergency barring order. The analysis reveals striking inequality in the legislature’s approach to providing protection to victims of domestic violence. While some victims have only access to minimal protection, others still are left with no recourse under the Domestic Violence Act 2018. This article highlights these substantive gaps in protection and reveals inconsistencies and contradictions in how these victims are marginalised and excluded.","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"45 1","pages":"119 - 142"},"PeriodicalIF":1.5,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46649637","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Discretion in overpayment recovery","authors":"P. Spicker","doi":"10.1080/09649069.2023.2206218","DOIUrl":"https://doi.org/10.1080/09649069.2023.2206218","url":null,"abstract":"R v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin) calls into question at least three aspects of the long-established practice of the Department for Work and Pensions (DWP). The case concerns the DWP’s discretionary power to waive the recovery of overpayments. In former times, the rules governing recovery only rendered claimants liable if they had misrepresented or failed to disclose a material fact. Tax Credits had required low income families to repay substantial amounts of money delivered in error – a process the Ombudsman condemned as ‘fundamentally unsuited’ to their needs (Parliamentary and Service Ombudsman 2007, p. 5). Following this example, in 2013 a general power to recover overpayments from other benefits was introduced, governing Universal Credit, Jobseekers Allowance and Employment and Support Allowance. In the present case, the DWP had ‘repeatedly’ miscalculated the benefit, and assured the claimant that the payments were correct. The claimant had taken ‘all reasonable steps to repeatedly clarify her entitlement and provide information’ (para. 1). There was no dispute that the overpayment was the result of official error. The DWP had apologised for ‘this profound lapse in service’. The claimant asked the DWP in three separate applications to exercise its discretion to waive repayments, and the DWP refused at every point. The first issue this case raises concerns the DWP’s use of its discretion. For decades – at least since the 1960s – the DWP and its predecessors have limited their use of discretion by the development of national rules, intended to ensure that there is no inconsistency between judgements made in different parts of the country (Hill 1969, Spicker 2011). The ‘discretion’ being exercised here is the discretion permitted to the Department, not the judgment of individual officers. In 2012, the then junior minister Chris Grayling explained to Parliament: ‘There will be an absolutely clear code of practice that will govern the circumstances in which recovery action will or will not be taken, to ensure consistent, considered decision making’ (cited at para. 122). As it turned out, the code of practice did not consider that the egregious fault of the DWP could be considered a sufficient reason for not pursuing recovery. The (unpublished) guidance (cited at para 37) states:","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"45 1","pages":"184 - 187"},"PeriodicalIF":1.5,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41908949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Involving children and young people in research on domestic violence and housing: re-visited","authors":"Linda Arnell, Sara Thunberg","doi":"10.1080/09649069.2023.2206222","DOIUrl":"https://doi.org/10.1080/09649069.2023.2206222","url":null,"abstract":"ABSTRACT Children’s and young people’s opinions and experiences are important to listen to, as they offer perspectives that adults might not be aware of otherwise. Yet children are often viewed as a vulnerable group in need of protection, with adults talking for them instead of letting them speak for themselves. Sometimes this might be the correct decision. However, it is also important to let children and young people participate in research on their own terms, to identify, for example, what kind of support they might need in relation to problems they have experienced. Based on previous research, we revisit this topic and discuss it’s relevance today, once again asking the question of how best to involve children in research in order to hear their views and opinions on matters that concern them. We base our experiences on a research project examining what sheltered housing means for children living there.","PeriodicalId":45633,"journal":{"name":"JOURNAL OF SOCIAL WELFARE AND FAMILY LAW","volume":"45 1","pages":"104 - 118"},"PeriodicalIF":1.5,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44184991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}