All four Metropolitan Police officers who strip-searched a 15-year-old black schoolgirl while she was on her period are now being investigated for gross misconduct, it has been revealed.
It had been claimed that the girl, known as Child Q, smelled strongly of cannabis and may have been in possession of drugs.
So police were called to her school and subjected her to an intimate body search without any other adults present.
The incident took place almost two years ago but only came to light in March this year after a safeguarding report was published. This Site has previously reported on the incident here.
The Local Child Safeguarding Practice Reviewfound that the strip search should never have happened, was unjustified, and racism “was likely to have been an influencing factor”.
“Four constables have now been advised that they are being investigated for potential breaches of the police standards of professional behaviour at the level of gross misconduct,” the Independent Office of Police Conduct (IOPC) said.
However, it added that this “does not necessarily mean that disciplinary proceedings will follow”.
“We are looking at complaints that her mother was not given the opportunity to be present during the strip search, and that there was no other appropriate adult present,” it added.
“We are also considering whether the child’s ethnicity played a part in the officers’ decision to strip search her.”
If the officers are found to have breached policing standards, they could be dismissed from their jobs.
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Boozy Johnson: this is not an image of him at the Downing Street garden party on May 20, 2020 (it was actually taken in 2019) but it serves to suggest his behaviour there quite adequately.
The easy answer to the question in the headline is: no, he should have known his parties broke the law.
I say “his” parties because they were parties at 10 Downing Street, his home and place of work, taking place directly under his nose and that he attended in many instances. They were part of a “party culture” created during his watch.
And I say he should have known they broke the law because he announced to all of us what the law was – and it didn’t allow for social gatherings in a work setting, by the way. Furthermore, evidence in the Sue Gray report shows that his aides certainly did know that these events were legally questionable because they took steps to prevent the press from finding out about them.
Let’s discuss the party in the Downing Street garden on the evening of May 20, 2020 when Covid-19 regulations stated that “participating in a gathering of more than two persons in public was prohibited except where the gathering was ‘essential for work purposes'”, but had been amended to allow “meetings outdoors for exercise or recreation with one person from another household”.
Clearly an after-hours drinks event in the garden of 10 Downing Street, with more than 200 people invited to socialise with each other – even if socially-distanced – would have been a flagrant breach of these regulations.
It would have been a gathering of more than two persons in public that was not essential for work purposes, and it would have been a meeting outdoors between multiple people from more than one other household.
This did not stop Boris Johnson’s principal private secretary, Martin Reynolds, from advertising it by email, while other officials requested that tables be put out by the “Internal Events” team – which This Writer would have thought clearly marks this out as an illegal social occasion.
Alcohol was available at the event – both supplied by officials and also via a request for attendees to “Bring your own booze!”
In total, around 200 staff were invited although it is believed attendance was around 40 – still a massive breach of the regulations at the time.
Here’s the punchline: those arranging the event – including Reynolds – knew it was against the rules because they went to lengths to hide it from members of the media who attended a press conference just before it was due to take place.
According to the Gray Report, a Number 10 special advisor sent this message to Reynolds:
Just to flag that the press conference will probably be finishing around that time, so helpful if people can be mindful of that as speakers and cameras are leaving, not walking around waving bottles of wine etc”.
Martin Reynolds replied:
“Will do my best!….”
The report continues:
A No 10 Director declined the invitation and told the investigation that they had raised with either Martin Reynolds or his office that it was not a good idea.
Lee Cain, the then No 10 Director of Communications (a special adviser), also
received the invitation. In response, he emailed Martin Reynolds, No 10 official (1),
and Dominic Cummings at 14.35 on 20 May 2020 stating: “I’m sure it will be fine –
and I applaud the gesture – but a 200 odd person invitation for drinks in the garden
of no 10 is somewhat of a comms risk in the current environment.” Lee Cain says
he subsequently spoke to Martin Reynolds and advised him that the event should
be cancelled. Martin Reynolds does not recall any such conversation. In addition,
Dominic Cummings has also said that he too raised concerns, in writing. We have
not found any documentary evidence of this.
Referring to the event itself, it is clear that – once again – Boris Johnson attended and participated fully:
The Prime Minister attended at approximately 18.00 for around 30 minutes to thank staff before returning to his office with Martin Reynolds for a meeting at 18.30.
So he was there with Martin Reynolds, who knew it was an illegal gathering. He should have known himself that it was an illegal gathering, being the government representative who had explained the rules to the rest of us. But he not only allowed it to happen but attended and spent 30 minutes with the 40 staff there.
The excuse that he only stopped by to thank staff for their work during the Covid crisis doesn’t make sense because it does not take 30 minutes to make a brief speech of thanks. It seems clear that Johnson was himself socialising with staff, adding his own household to all the others that should not have been mixing at that time, according to the rules that he had put in place.
How strange that the Metropolitan Police who investigated this event, and must have known that it was an illegal party attended by the prime minister, chose not to fine him for this flagrant law-breaking! How convenient for them that their Acting Commissioner was able to dismiss this omission simply by declaring that, as far as he was concerned, all the decisions were above-board!
Reynolds, who subsequently had a meeting with Johnson inside 10 Downing Street, sent a WhatsApp message to a special advisor later in the evening, which appears to be about a story in the press:
[Martin Reynolds] [19:36] “Best of luck – a complete non story but better than them focusing on our drinks (which we seem to have got away with).”
In the light of all this evidence, it is not credible for Boris Johnson to claim that he had not fallen foul of rules in the Ministerial Code because he had not broken the law on purpose.
He should have known himself that the event broke his rules because he was the one who laid them down for us all.
His principal private secretary certainly knew that the event broke Johnson’s own rules, and attended the event with Johnson. Considering the contents of his electronic correspondence, it seems extremely unlikely that he did not mention to Johnson that the event was illegal.
Also, if the event was not against the rules, why was everybody involved so tight-lipped about it, to the point of hiding it from the media?
And this is just one of many such parties.
It doesn’t matter what Johnson says – the evidence exposes him as a liar.
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No to racism: but Boris Johnson is widely-held to be a huge racist himself, so his government’s response to accusations of structural racism in the UK’s institutions may not be a surprise.
Let’s set the scene:
One investigation by the City & Hackney Safeguarding Children Partnership has happened and its report has formed the basis of news coverage. Another, by the Independent Office of Police Conduct, was started in May and is in the process of being finalised. The three officers directly involved – one of whom, it appears, was male – remain on full duties. Why?
This incident occurred in December 2020, when police – two male, two female – were called by teachers at a secondary school in Hackney, who believed she was carrying drugs because they could smell cannabis.
She was then subjected to what seems clearly a deliberately humiliating strip-search. Labour MP Diane Abbott puts it straight:
She was made to strip naked, to spread her legs, to use her hands to spread her buttock cheeks and then to cough. She was menstruating. According to family members, the police insisted that she take off the bloody pad and would not let her go to the toilet to clean up. Then they made her reuse the same pad.
No drugs were found, yet the rumour spread around the school that this perfectly innocent girl was a drug dealer. Her mother told the local child safeguarding review that the experience had left her daughter traumatised. Her aunt added: “I see the change from a happy-go-lucky girl to a timid recluse that hardly speaks to me.” She said the girl was now in therapy and that she self-harms.
The search took place without the presence of an appropriate adult – a person to safeguard the interests, rights, entitlements and welfare of children who are suspected of a criminal offence, by ensuring that they are treated in a fair and just manner and are able to participate effectively. Teachers were outside the room and parents of the girl, known as Child Q, knew nothing about the incident at the time.
The report by the City & Hackney Safeguarding Children Partnership (CHSCP) contains the following further findings:
The police officers involved should have contacted superior officers for permission before carrying out the strip-search; there is no evidence that this happened.
The person conducting the search must be of the same sex as the person being searched; if three police officers are under investigation but only two of those who arrived at the school were female, then we must question whether a male officer was involved.
Searches involving exposure of intimate parts of the body must not be conducted as a routine extension of a less thorough search, simply because nothing is found in the course of the initial search; this one was.
Searches involving exposure of intimate parts of the body may be carried out only at a nearby police station or other nearby location which is out of public view (but not a police vehicle); it appears this one was not.
It is likely that school staff knew a further search of Child Q would be undertaken by the attending officers, but it is unlikely that the school was informed by the attending police officers of the intention to strip-search Child Q.
It is likely that the importance of the Appropriate Adult role was insufficiently explained to either Child Q or the school staff present.
There is no evidence that Child Q was resistant to the search undertaken by school staff or that there were any indicators in her behaviour that she might be hiding drugs on her person.
We now discover that the IOPC investigation began in May last year – 10 months ago – after a referral from the Met to check whether “legislation, policies and procedures” were followed. The three officers concerned were informed that they were being investigated for misconduct.
One wonders why it has taken 10 months – so far – and still failed to come to a conclusion.
In such situations – where discrimination has been alleged – statutory guidance calls for an investigation into gross misconduct, rather than just misconduct – and this has now been requested by London Mayor Sadiq Khan.
There is so much wrong with this case that it is hard to know where to start.
Paramount must be the question of whether Child Q would have suffered anything like the same traumatic experience if she had been white.
The CHSCP report makes it clear that “racism (whether deliberate or not) was likely to have been an influencing factor in the decision to undertake a strip search”.
And this all came into public knowledge right before the government announced its response to an inquiry that found that there is no structural racism in the UK’s institutions.
The document, ironically (it seems) entitled Inclusive Britain, took a panning from the pundits on the BBC’s Politics Live yesterday. This is a seven-minute clip but it is well worth watching in full:
The report contains 70 recommendations but they are vague: the government will stop using the acronym “BAME” (Black And Minority Ethnic), it will create a few panels and do some research, have some pilot schemes and create some frameworks.
Stella Creasy’s comment from the top of this article was taken from this discussion. She made it clear that after what happened to Child Q, politicians “pontificating about whether or not we have an issue with structural racism doesn’t feel very real”.
The report, as Ms Creasy said, does not accord with what people in communities are saying.
Its measures do nothing to deal with racism but are simply “tinkering round so the government can feel like it is doing something”.
And apparently it even denies that slavery happened!
Given the humiliation and traumatisation of Child Q because of a smell, one cannot see this as anything but another slap in the face of people who suffer racism – and of those of us who want to end it.
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Once again the Department for Work and Pensions has been caught lying about the support it provides to people who are terminally ill.
This Site reported, many years ago, on the scandal when it was discovered that – despite having a policy to put people likely to die within six months on a fast track for benefits – many benefit claims were refused, leaving these people to die in appalling conditions.
So then-Work and Pensions Secretary Amber Rudd announced in 2019 that there would be a “fresh and honest” re-evaluation of the way these benefits were awarded.
It is now two years later, and two charities – the Marie Curie Trust and the Motor Neurone Disease Association – have drawn public attention to official data showing that the DWP is rejecting benefit claims by more than 100 terminally-ill people, every month.
Worse still, the official figures also show that an average of 315 people are dying every month*, never having been able to secure the fast-track benefits that are supposed to help them pass away with dignity.
This is damning:
They say there are “serious concerns” over the government’s “six-month rule” – under which people must prove they have six months or less to live to access fast-track benefits support.
They said there were red flags in the DWP’s ability to recognise when a claimant was approaching the end of life.
I think that is very… charitable.. of them.
It is far more likely that the DWP is simply ignoring the facts in order to avoid paying out the benefit money – knowing that these people will soon be dead; they can’t complain or appeal and expect justice before their condition kills them.
This in turn suggests that nothing at all has changed and that Amber Rudd’s “fresh and honest” review was nothing of the sort.
Here’s some evidence in support of that conclusion:
The charities say that the findings of the review are “being withheld”.
So, after 11 years of Tory control (and it wasn’t much better under neoliberal New Labour) we can say with confidence:
The Department for Work and Pensions intentionally harms people claiming benefits by depriving them of their payments in order to hasten their deaths.
No wonder we all hate having anything to do with that vicious, poisonous arm of the Tory government.
No wonder millions of people suffer anxiety attacks whenever they see an envelop marked “DWP” in their letterbox.
No wonder I said, years ago, that the DWP is not fit for purpose and should be scrapped.
But I’ll tell you why it wasn’t:
In killing thousands of people every year, the DWP is doing exactly what Boris Johnson and his Tories want.
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We have no reason to doubt that Boris Johnson said he’d rather see bodies piled high in their thousands than have another lockdown – even after he denied it.
That’s because we all know that Johnson is a well-known habitual liar. His dishonesty is legendary.
Recently we’ve heard him claim, in Prime Minister’s Questions, that Keir Starmer had voted against a promise of a 2.1 per cent pay rise for nurses – that his own government is breaking.
He said there would be no funding cut for the body tasked with improving transport in the north (he’s taking away 40 per cent of its funding).
He claimed all Covid-19 contracts had been published and were “on the record” – only to be contradicted by the High Court.
Remember his Brexit campaign, when he lied that the NHS would be given £350 million a week?
His lie that the NHS would get 20 hospital upgrades, starting in his first week as prime minister – that he then edited out of a video?
And what about his other offences?
Remember when he tried to make a joke of the massive loss of lives in the Libyan city of Sirte during that nation’s civil war? Or when he had to be stopped from inappropriately quoting a colonial poem by Kipling in Myanmar?
Remember when Eddie Mair, on BBC Radio 4, read out a litany of Johnson’s racist behaviour, to the dismay of Amber Rudd?
When Johnson refused to condemn widespread police violence against civilians in Catalonia?
When he spoke nonsense about Nazanin Zaghari-Ratcliffe in Parliament, and the Iranian government used it to threaten her with an extra five years in prison, beyond the five she was already serving on a trumped-up charge? Only this week, she has been re-imprisoned for another year – admittedly on the basis of separate evidence.
When he was reprimanded by then-Commons Speaker John Bercow for referring to Emily Thornberry in “frankly sexist” terms?
When he praised Viktor Orban on his election win in Hungary after an anti-Semitic campaign?
The allegation that Downing Street sought to restrict Johnson’s access to sensitive intelligence when he became Foreign Secretary?
The evidence that he met a Russian ex-KGB agent without being accompanied by his personal security detail, which strongly suggested that he was harming the UK’s security in relation to Russia? What happened about the so-called ‘Russia report’, discussing such security issues, that Johnson has been suppressing since before the general election last year?
His obscene description of then-Labour leader Jeremy Corbyn?
The corruption scandal in which he allegedly gave public money to his friend Jennifer Arcuri? What happened about that, by the way?
The allegation that Boris had taken money for his Tory leadership campaign from a group of hedge fund bosses who planned to make a fortune by getting him to force a “no deal” Brexit? What happened about that, by the way?
His decision to run away when the UK was flooded and needed strong leadership?
His failure to follow his own social distancing rules and subsequent illness with coronavirus? If he had died, it would have been of stupidity.
Put those all together and it seems entirely likely that Johnson would say what it’s alleged he said – and lie about it afterwards.
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Gavin Williamson turned down an offer to get free or cheap broadband for thousands of disadvantaged families, the Mirror has learned.
Broadband giant BT offered to supply families basic connections to allow children to access online learning with schools closed for months during the Covid-19 pandemic.
And the firm’s Chief Executive revealed they had given free wifi vouchers to the Government in June but the Department for Education ‘struggled to distribute them effectively’ and returned them.
A spokesman for the education department said a pilot of the scheme had not provided “reliable and consistent” internet connection.
Who do you believe?
Well, BT is an Internet Service Provider of very long standing, with experience in providing a reliable service to many thousands – if not millions – of homes.
And the Conservative Government of which Williamson is a member has also displayed consistency – in wasting public money on services offered by cowboy companies cobbled together by Tory donors or spoilt friends of Cabinet members.
It looks like another ideologically-motivated attack on the poor; pretend the offer doesn’t meet what passes for Conservative government quality control and reject it – to ensure that poor kids miss out on the education that might otherwise give them an advantage over rich kids who tend not to have two brain cells to rub together.
It’s just been exposed that Gavin Williamson refused an offer from BT to provide free/cheap broadband to kids who need access to online learning. The Tories don’t care and are going out of their way to hurt the poorest kids.
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‘We starve children’: Rishi Sunak’s slogan was a little different when he published it, but a member of the public has corrected it for him.
There’s a reason we call her “Thicky” Nicky. Tory High Command will be fuming this morning.
The reason? Former education secretary Nicky Morgan admitted on the BBC’s Question Time that she and her Conservative colleagues voted down a motion to give poverty-stricken children free school meals during the holidays – not for any practical reason, but because a Labour MP insulted one of them during the debate.
Angela Rayner has apologised for using that word during a speech by Christopher Clarkson. Considering the content of his speech, one is moved more to sympathy with her point of view than his.
So it is doubly hard to accept “Thicky” Nicky’s excuse as she peddled it out on Question Time – more so because she backpedalled in the face of criticism and tried to say the Labour Party was wrong to introduce the debate as an Opposition Day motion.
And she was still saying the Tories were reacting petulantly to the way the debate was being carried out, rather than to its content – the necessity of helping to feed children in England.
Those children are now set to starve, because Tories like Nicky Morgan made up excuses to be upset.
Here’s her outburst, as televised:
“The Labour party might have found they got more supporters if the deputy leader hadn’t called one of the Conservative MPs scum.”
So Nicky Morgan on #QuestionTime essentially just admitted that kids are going to go hungry over winter because they didn't want Labour to look good politically……@AngelaRayner was right, all 322 Tories are #SCUM
(There are more than 322 Tories but that’s the number of their MPs who voted down the motion to feed starving children.)
Did Nicky Morgan REALLY just say that supporting FSM children in school closure period would have been higher had Conservative MPs not been called scum Really? Really?????? Absolutely unbelievable@bbcquestiontime#bbcqt
I hope everyone can see the irony of a Tory Nicky Morgan saying she was happy to watch poor kids starve as revenge for being called scum.#BBCqthttps://t.co/fAx71wcdBd
There are now moves to shame all the Tories who voted against this motion online, simply by pointing out what they did to their electorate.
This Writer notes that my own MP – Fay Jones – voted against it. She represents a Welsh constituency – and I don’t think it’s a good look for a Welsh Tory to be voting to starve English children.
Do you?
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Rosie Duffield: she broke lockdown to meet her married lover and had to resign as a Labour whip as a result. Now she’s claiming she is a victim of misogynistic abuse.
Former Labour whip Rosie Duffield is trying to reclaim the moral high ground by playing the victim and we need to reject her.
She has given an interview in The Times in which she claims that she is the victim of misogynistic abuse and death threats over her opinions about anti-Semitism, Brexit and – particularly – transphobia.
The article points to her Commons speech about domestic abuse – for which she received a standing ovation from teary-eyed fellow MPs – as a sign that she’s on the side of the angels.
It doesn’t mention the fact that she broke lockdown in order to commit adultery with a married lover last May. Is her new media appearance an attempt to rehabilitate her image?
Many seem to think so, and the article has triggered a storm on the social media – mostly, it seems to This Writer, between opponents on the transphobia issue.
I stay out of that discussion as much as I can. My personal opinion is that the way a person identifies their gender is nobody’s business but their own.
Nobody should receive death threats for the simple holding of a belief; if their belief is against the law, or encourages people to break the law (especially in violent ways) then there are legal remedies. I wonder whether the Times reporter responsible for the article has seen evidence of such threats, though.
I have seen many tweets like this:
Well done for speaking out Rosie. “It feels as though women’s voices aren’t particularly wanted here, that’s what’s so frightening,”https://t.co/ar6VgDjDFU
More evidence Rosie Duffield actually just doesn’t want to be an MP anymore. She’s not really keen on representing all of her constituents and seems she’d prefer being a media personality. https://t.co/uWLIi7lCnG
— Looking California, Feeling Minnesota (@ijclark) October 12, 2020
And then I saw these two…
Rubbish. Rosie Duffield was called out for her transphobia, dug her heels in, and was criticised for it!
It’s got NOTHING to do with being a woman.
Now she’s just playing the victim card for sympathy – It’s called DARVO.https://t.co/WjKLrQBX3T
If you check the Metro article, DARVO stands for “Deny, Attack, and Reverse Victim and Offender“.
It states: “First you have Deny – that’s pretty self-explanatory. You’ll see the person accused of wrongdoing simply denying that that’s the case; ‘I do not hold those views’, ‘I never said that’, ‘I did not do that bad thing’.
“The Deny stage is where gaslighting starts to come into play, with the person often trying to simply deny someone else’s lived reality. ‘No, that doesn’t happen’, ‘no, you’re making that up’, or ‘that might have happened, but it’s not as bad as you say it is’.
“Then there’s [the] Attack bit. This is when the accused person will turn around the criticism to focus blame on the person calling them out. So let’s say a celebrity was called out by someone on Twitter – they might go into attack mode by accusing that person of just being jealous, or bitter, or a liar.
“Finally, you’ve got the Reverse Victim and Offender stage. This is where things get sneaky and subtle. Suddenly, the accused person will turn things around and say that actually, they’re not guilty of doing something terrible. In fact, they are the ones being treated poorly.
“In this stage, you might see someone introduce their own trauma as an excuse or a distraction tactic. They’ll respond to accusations of racism, for example, with a story about how they faced gender discrimination when they were younger. Or they might focus their statement on how they feel ‘bullied’ by the accusations, so those reading feel that the person who has been called out is actually the victim, facing online abuse rather than being challenged on their actions.”
Metro goes on to give an example that is pertinent to Duffield’s case:
“Let’s say an influential person is accused of transphobia. They issue a response in which they deny that they are transphobic – ‘I love trans people! I have many trans friends!’ – then attack their critics – ‘people saying I’m transphobic are just cruel, hateful people who want to cause division’. Finally, they Reverse Victim and Offender: ‘I’m receiving so much online abuse because I’m a woman and we live in a sexist society’.
“Now, as a critic, you’re stuck. If you continue to call that person out, you’re ‘cruel, hateful and want to cause division’. You’re being sexist. You’re piling on the online abuse.”
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Frequent flyer: but This Site isn’t convinced that this is the way Boris Johnson arrived at Perugia (if, indeed, he did).
Boris Johnson may have thought – briefly – that the heat was off and he could come out in public again after the boss of Perugia airport said there had been a mix-up and it wasn’t the current UK prime minister who was seen there, but former PM Tony Blair.
The possibility of Johnson having been there is significant because it would have indicated that he was visiting the villa of his Russian friend Evgeny Lebedev, at a time when he and the Conservative Party in general are suspected of taking Russian government money and being influenced to carry out the wishes of that country’s President Putin.
So this would have been a significant exoneration…
Perugia airport boss admits his staff mixed up Boris Johnson with Tony Blair https://t.co/6QhUpLqVWe
President of #Perugia airport tells me #BorisJohnson ‘definitely’ did not come through here this month. Says original press release confused him with Tony Blair, who did #perugiagate
… had it not been refuted very quickly (indeed, apparently before the excuse was made):
The airport statement lists them as "…PM Boris Johnson, followed by his predecessor Tony Blair (Ex PM)…" Whoever made the statement clearly know they're not the same people. pic.twitter.com/s7Df0M7Wv6
Perugia airport statement: "Over the past few days, many names and personalities from the political, sporting and economic world have arrived here. Prada CEO Patrizio Bertelli, British PM Boris Johnson, Tony Blair and footballer Luis Suarez."https://t.co/Rbq9YexKID
BUT there are some pretty inconvenient details. Perugia Airport actually put out a statement on Sept 17 confirming Boris Johnson’s presence at the airport ‘over the past few days’… pic.twitter.com/RrORIZrHP0
Add in Johnson’s weirdly dodgy central London 20-minute wifi issues on Friday & his cancelled meetings on Monday morning & 🤔 pic.twitter.com/i0BKWLxoFE
Of course, the Twitter wits have been working overtime and, whether the story is true or not, these comments are worth preserving:
As the President of Perugia airport says the press are mistaken and it was a former Prime Minister who passed through their gates, Tony Blair reveals the results of his Italian hair transplant operation pic.twitter.com/U1vF57gnSD
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The High Court – also known as the Royal Courts of Justice – in London.
The High Court has just ruled that a rule allowing the Department for Work and Pensions to force some benefit claimants to wait – unpaid – for a mandatory reconsideration before they can appeal against refusal is unlawful.
The system previously demanded that, if a claim for income-related Employment and Support Allowance was refused, claimants would have to wait for a “mandatory reconsideration” of their case to take place before they could appeal.
This could take weeks, and has often taken months, in which the claimant – who is claiming because of serious illness, remember – has no income on which to survive.
Mr Justice Swift ruled that the demand that a mandatory reconsideration must take place before a claimant can appeal is a “disproportionate interference with the right of access to court” – in some cases.
This case was brought by law graduate Michael Conner, with crowdfunded aid from the website Benefits and Work – and represents a considerable victory for the claimant, the website, and crowdfunded legal proceedings in general.
Mr Connor had been forced to wait 18 weeks while the DWP carried out a mandatory reconsideration of his ESA decision. During this time he had no right to claim ESA.
If he had been able to lodge an appeal, he would have been paid ESA on a probationary rate, dependent on the provision of medical evidence by his doctor.
The judge said that after his benefit was cancelled on October 18, 2018, Mr Connor applied for a mandatory reconsideration.
But, in an “error” of the kind that benefit claimants have come to expect from the DWP, he said “no action was taken in response… The request for revision was incorrectly entered onto the Secretary of State’s electronic document management system.
“The document was not recognised or recorded as a request for reconsideration, and instead was classified as ‘unstructured whitemail'” and “it was not until 6 March 2019 – 4 months after Mr Connor’s request had been received – that it was identified as a request for revision.”
Mr Connor had managed to claim Income Support and Carer’s Allowance in the meantime, so he decided not to appeal the decision. Instead, he informed the DWP that he intended to challenge the legality of the rule making him unable to appeal until a mandatory reconsideration had happened.
He pointed out that:
The rule creates an open-ended deferral of the right to appeal that could leave claimants without income for an unlimited period – as evidenced by his own case.
Its effect is anomalous as ESA is payable before a decision is made and while an appeal is taking place, but not while the DWP is going through the mandatory reconsideration process [or, more likely, forgetting about it – in the opinion of This Writer].
If an appeal is started, there is no provision for back payment of ESA to cover the period of the revision decision while an appeal is ongoing.
So the interference is disproportionate because “it places benefits claimants, such as him, who are vulnerable, in a position of ‘legal and financial limbo, distress and destitution’ for the duration of the revision process that must be pursued before an appeal can be commenced” – and there is “no limit on the time permitted to the Secretary of State to determine an application for revision.”
In his ruling, Mr Justice Swift said: “It is anomalous that the payment pending appeal arrangements for ESA … do not extend to ESA claimants who are required … to request the Secretary of State to revise a decision and await her decision on that request before initiating an appeal.
“At the hearing of this case I gave the Secretary of State the opportunity to … explain why no provision exists to pay ESA to claimants… None of this further information provides the answer.
“My conclusion is that [the regulation in question] 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.
“The advantage permitted to the Secretary of State by [the] regulation … comes at a cost to ESA claimants. There is no explanation for that.
“There is no evidence to support a conclusion that the objective pursued by [the] regulation … would to any extent be compromised if payments like the payments pending appeal made to ESA claimants who are pursuing appeals to the Tribunal, were made to them while they waited on the Secretary of State’s revision decision.
“In the absence of payment equivalent to payment pending appeal, the application of [the] regulation … to ESA claimants does not strike the required fair balance, and for that reason is an unjustified impediment to the right of access to court guaranteed by ECHR Article 6.”
Benefits and Work has stated: “Sadly, the ruling does not apply to other benefits such as PIP or DLA.
Nonetheless, it is an important victory and it means that ESA claimants, who are often faced with the prospect of many weeks without funds if they wish to appeal, are now in a much better position when challenging a decision.”
It will be interesting to see what will happen now.
The ruling is that the current situation is unlawful but no further remedy has been put in place beyond a statement to that effect.
What will happen to ESA claimants who must go through the mandatory reconsideration process now? Will they be paid while their case is reviewed?
That seems the logical course.
But I fear the DWP may find a way to duck out of it.
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