Thursday, December 21, 2006

Chelsea and Westminster Hospital discharges Declan in 42 hrs

An hour and a half after I put up my last blog yesterday afternoon, Declan was discharged from Chelsea and Westminster Hospital into freezing weather and dense fog - 42 hours after admission.

The discharge report by Dr M Feher says that Declan’s admission on 18 Dec was due to “Interstitial Pneumonia”. It further reads that Declan was admitted “… with cough and shortness of breath. Felt feverish with no sweats. Productive cough for 4/7 with brown sputum. Chest pain, worse on breathing, worse on inspiration. Has not been eating due to lack of finance. No loss of appetite, no weight loss. Did have episode of loss of consciousness, witnessed by partner [on Sunday at 7.00am, as he vomited over his clothes in a bus]”.

Declan’s pneumonia came about due to two factors. The first is that Declan got the virus from one of the 30 homeless guys he shares a floor with at night. Yes, Declan and I have been sleeping in rolling shelters since last Friday, which are run by the West London Churches Homeless Concern (WLCHC) in the boroughs of Kensington & Chelsea and Hammersmith & Fulham. The second is that Declan couldn’t afford the luxury of resting and taking it easy after the court clerk left out of Judge Walker's order of 11 Dec (which he did not sign, but is stamped by the court) that we were granted leave to appeal his decision not to allow us apply for a judicial review against the Department for Work and Pensions. Declan had to file against the order we were given by 4.00pm on 18 Dec, having been given 3 days upon receipt of the order to do so, or risk having the case dismissed because he did not file within 7 days of the date the order was made.

Last night Declan was so sick he didn’t eat any dinner in the rolling shelter (on Wednesdays, we sleep in a makeshift shelter at the back of the Catholic Holy Trinity Church in Brook Green) and instead went straight into his sleeping bag, coughing.

I believe that Declan was discharged earlier than he should have been because the Metropolitan Police prefer when the person they have to take out is vulnerable – always a plus. With Declan discharged at 2.30pm, they knew we immediately had to find some way of getting out of the elements for the afternoon, in an area we were unfamiliar with, before having to take two buses to the shelter for the night. (We have to arrive at each shelter before 8.00pm, and are woken at 6.00am.)

If the Metropolitan Police think they are going to silence us, they are very seriously mistaken. All they are succeeding in doing is having us more intent than ever that we will not be beaten.

Wednesday, December 20, 2006

Declan in hospital with pneumonia

On Monday, three hours after filing our appellant’s notice in the Court of Appeal, Declan was admitted to Chelsea and Westminster Hospital, having been diagnosed in the Emergency Department – a clear cut case of pneumonia.

According to the court clerk, she needs to see the transcript of the previous Monday’s hearing and speak to Judge Walker before she can amend the order she drew up without the leave to appeal (the refusal of permission to apply for judicial review) we were granted. It meant we only had 3 days left to file an appellant’s notice based on the order we were given, or risk having our case dismissed. Declan managed to file with an hour to spare – crippled in pain.

For the record, Declan wants me to blog our skeleton argument against the Department for Work and Pensions:


Grounds of Appeal

Introduction
  1. In summary I, the Claimant/Appellant, appeal the decision of 11 December 2006 by Mr Justice Walker to refuse me permission to apply for judicial review, on the grounds that judicial review was the correct route and the decision of 13 September 2006 to reinstate my joint claim for Jobseeker’s Allowance (JSA) was disingenuous. Further it is submitted that the pursuance by me of the judicial review application more than a month after the decision of 27 September 2006 by Birmingham Erdington Jobcentre Plus to terminate my joint claim JSA (from 19 September) was the appropriate course.
Judicial review was the correct route
  1. On 18 August 2006 my wife did not attend an advisory interview because Birmingham Erdington Jobcentre Plus refused to accept her form ES2JP “Your job search plans” as part of a Jobseeker Agreement (JSAg) for her that was current, resulting in a doubt as to her availability for work and consequent suspension of her JSA from 19 August. This ES2JP restated in answer to question 7 (page 4) that she was looking for a “temporary job” that can enable her “take up training to have a new career”. (A copy of the letter of suspension to my wife of 18 August 2006 is filed in the appeal bundle, p 16.)
  2. Because of Birmingham Erdington Jobcentre Plus's unwillingness to accept my wife’s ES2JP, I refused to participate in an advisory interview on 18 August 2006 (the second in one week) pending notification from Birmingham Erdington Jobcentre Plus that my wife’s ES2JP would be accepted by the Jobcentre in the event of non-agreement on her job search plans, resulting in a doubt as to my availability for work and consequent suspension of my JSA from 19 August. (A copy of the letter of suspension to me of 18 August 2006 is filed in the appeal bundle, p 15.)
  3. As part of my JSAg that was the subject of an advisory interview on 11 August 2006, Birmingham Erdington Jobcentre Plus accepted my ES2JP as part of a JSAg for me that was current, verifying on page 15 that in my pursuit of a “temporary job that can enable me take up training to start my own business” I did not appear to be placing restrictions on the work I was willing to do. (A copy of page 15 of my ES2JP of 11 August 2006 stamped by Birmingham Erdington Jobcentre Plus is filed in the appeal bundle, p 50.)
  4. A prescribed requirement for a JSAg under regulation 31 of the Jobseeker's Allowance Regulations 1996 is that it shall contain any restrictions on the claimant's availability for employment, including restrictions on the location or type of employment, in accordance with regulations 5, 8, 13 and 17. On the other hand, a JSAg only allows for “agreed restrictions on [the] availability and/or agreed restrictions on types of work”. Where, therefore, my wife had placed a restriction on her availability for employment that Birmingham Erdington Jobcentre Plus did not agree with, the ES2JP had to be included in her JSAg for an independent decision maker to make the decision on her availability for work.
  5. By not accepting my wife’s ES2JP, Birmingham Erdington Jobcentre Plus denied my wife and I the internal appeal process. Consequently judicial review was the correct route in this case.
The decision of 13 September 2006 to reinstate my joint claim JSA was disingenuous
  1. On 13 September 2006 the decision maker wrote a letter to me and a letter to my wife advising that the doubt on our availability for work had been removed, with the proviso that “there is no provision, in the law relating to jobseeker’s allowance, for form ES2JP to be included in a person’s JSAg”. (A copy of each of these two letters of reinstatement of 13 September 2006 is filed in the appeal bundle, pp 45-48.)
  2. On 15 September 2006 I wrote a letter to Birmingham Erdington Jobcentre Plus advising that neither my wife nor I would attend another advisory interview without confirmation in writing that my wife’s ES2JP would be accepted as part of a JSAg for her that was current. (See paragraph 4 in copy of my letter of 30 September 2006 to Birmingham Erdington Jobcentre Plus filed in the appeal bundle, p 32.)
  3. On 19 September 2006 Birmingham Erdington Jobcentre Plus wrote a letter to me and a letter to my wife advising that due to our non-attendance at an advisory interview on 19 September 2006 our JSA was suspended. (A copy of each of these two letters of suspension of 19 September 2006 is filed in the appeal bundle, pp 41-42.)
  4. On 25 September 2006 Birmingham Erdington Jobcentre Plus wrote a letter to me advising that my joint claim JSA had been reinstated from 21 September. (A copy of this letter of reinstatement of 25 September 2006 is filed in the appeal bundle, pp 37-40.)
The pursuance by me of the judicial review application more than a month after the decision of 27 September 2006 by Birmingham Erdington Jobcentre Plus to terminate my joint claim JSA (from 19 September) was the appropriate course
  1. On 27 September 2006 Birmingham Erdington Jobcentre Plus wrote a letter to me advising that my joint claim JSA was terminated (from 19 September) because "[I] did not attend to sign [my] declaration", despite the fact that my "sign on" day was two days later on Friday, 29 September. My wife and I were obliged to sign on every second Friday and, in accordance with the internal appeal process, I informed Birmingham Erdington Jobcentre Plus in a letter of 30 September 2006 of the wrongful nature of the Jobcentre's termination of my joint claim JSA. A copy of this letter was sent to the Secretary of State for Work & Pensions. (A copy of my letter of 30 September 2006 to Birmingham Erdington Jobcentre Plus is filed in the appeal bundle, pp 32-33.)
  2. In the Jobcentre’s letter of termination of 27 September 2006 it states under the heading “What happens after the decision is looked at again” that “If the decision can be changed we [Birmingham Erdington Jobcentre Plus] will send you a new decision. If we cannot change the decision we will tell you why. You will still have the right to appeal against the decision.” It further states under the heading "How to appeal" that "If you want to appeal you should fill in the form in GL24 'If you think our decision is wrong'. Please send it to us within one month of the date of this letter." (A copy of this letter of termination of 27 September 2006 is filed in the appeal bundle, pp 34-36.)
  3. On 5 October 2006 Birmingham Erdington Jobcentre Plus wrote a letter to me acknowledging receipt of my letter to the Jobcentre of 30 September. (A copy of the letter of acknowledgement of 5 October 2006 is filed in the appeal bundle, p 49.)
  4. On 2 November 2006 I wrote a letter to the Secretary of State for Work & Pensions outlining for the third time the wrongful nature of the termination by Birmingham Erdington Jobcentre Plus of my joint claim JSA, adding: "Please note that my wife and I are due accumulated arrears from the Department for Work and Pensions of £579.21 as of today, and that we will be homeless on the streets of London as from tomorrow." I enclosed with this letter a copy of a letter to me of 31 October 2006 from the Administrative Court Office confirming that the Court's decision of 13 October to refuse me permission to apply for judicial review would be reconsidered at an oral hearing to be held on 11 December in the Royal Courts of Justice in London. (A copy of my letter and enclosures of 2 November 2006 to the Secretary of State for Work & Pensions is filed in the appeal bundle, pp 26-48.)
  5. By Birmingham Erdington Jobcentre Plus neither changing the decision of 27 September 2006 (to terminate my joint claim JSA) within one month of the date of the decision, nor telling me why the decision could not be changed, I was again denied the internal appeal process. Consequently the pursuance by me of the judicial review application more than a month after the decision of 27 September 2006 by Birmingham Erdington Jobcentre Plus to terminate my joint claim JSA (from 19 September) was the appropriate course.
  6. Accordingly the Court should grant me permission to apply for judicial review.

Monday, December 11, 2006

Judge Walker refuses us permission to apply for judicial review

The Metropolitan police officer that told Declan two nights ago “see you around” after Declan informed him we had a hearing in the High Court today, at which we would be seeking a mandatory order to compel the Department for Work and Pensions (DWP) to reinstate our claim for unemployment benefit, must have had inside information; and also the DWP since no defending counsel or solicitor turned up in court, only a representative who sat in silence at the back of the courtroom throughout the hearing.

Not only did Judge Walker not give us the order we were seeking, but he also refused Declan permission to apply for a judicial review.

Our hearing was scheduled for a half an hour, but Declan gave the judge such a run for his money that he ended up giving a recorded judgement speech of a half an hour – Declan taking up the first half an hour briefing the Court. It was no mean feat that Declan won the judge’s leave to appeal to the Court of Appeal, as well as a free transcript of the judgment.

The first thing Declan did was give Judge Walker and the representative from the DWP a statement he had prepared and which was read in silence by the judge before the hearing commenced:


IN THE HIGH COURT OF JUSTICE                         CO/7092/2006
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT


In the matter of a claim for Judicial Review

The Queen on the application of

HEAVEY

versus BIRMINGHAM ERDINGTON JOBCENTRE PLUS

________________________________________________________

STATEMENT OF DECLAN HEAVEY BEFORE MR JUSTICE WALKER FOR PERMISSION TO APPLY FOR JUDICIAL REVIEW

________________________________________________________

At this oral hearing for permission to apply for judicial review, my preliminary statement to the Court comprises of the following six paragraphs:

   1.    On 24 August I filed my second claim for judicial review against Birmingham Erdington Jobcentre Plus following the decision of 18 August by the Defendant to suspend my joint claim for Jobseeker’s Allowance from 19 August. On 27 September, while awaiting permission to apply for judicial review, the Defendant terminated my joint claim JSA (from 19 September) because I did not sign my declaration, when my 'sign on' day was in fact two days later, on 29 September.
   2.    Given the wrongful termination of benefit on 27 September, I am seeking a mandatory order that the Defendant cause my joint claim JSA to be reinstated immediately, pay the accumulated arrears to me, and transfer my claim to my local jobcentre in Tower Hamlets in London.
   3.    In respect of the transfer of my claim to London, my wife and I have two registered pitches at Liverpool Street Station to sell The Big Issue magazine and all our connections are in Tower Hamlets, including, inter alia, the Dellow Centre and the Whitechapel Mission.
   4.    With regard to returning to Birmingham, not only have our connections been terminated there, but our employment prospects in the Midlands have been seriously compromised by the Department for Work and Pensions, given two judicial review applications against Birmingham Erdington Jobcentre Plus within a four-month period (the first prior to settlement), and having been forced to sleep rough in London for the past five weeks.
   5.    As for why we came to London, it was a question of taking to the streets either in Birmingham or London. Given our situation in Birmingham, we were left with no option but to come to London.
   6.    In an order made on 25 August, Mr Justice Sullivan asked if there was no internal appeal/review process whereby the Defendant could reconsider the decision of 18 August to suspend my joint claim JSA. In the light of the wrongful termination of benefit on 27 September, my application for judicial review is neither premature nor disproportionate. Accordingly, I request permission to apply for judicial review, save the mandatory order sought in paragraph 2 above.

Signed                                                    Dated 11 December 2006


Judge Walker basically made out that despite Declan's protestations that he was denied the internal appeal process through procedural impropriety on the part of the DWP (corrobated by what the judge conceded was almost certainly the wrongful termination of benefit on 27 September when Declan was not due to sign on until 29 September), his application of 24 August for judicial review was the incorrect route in that he should have exhausted the internal appeal process by firstly appealing to an appeal tribunal (his protestations relating to the denial of due process in relation to an appeal tribunal notwithstanding).

Accordingly, the judge made out that although Declan's permission application was listed for oral hearing this morning in the Royal Courts of Justice in London, he should have ignored the summoning letter of 31 October from the Administrative Court Office and chosen instead to sleep rough in Birmingham, rather than in London, while awaiting a reply to his letter to Birmingham Erdington Jobcentre Plus of 30 September informing the jobcentre of the wrongful nature of the termination of our unemployment benefit. Thereafter, Declan should have attempted to exhaust the remainder of the internal appeal process, while still sleeping rough in Birmingham, even though he had been denied an automatic right to appeal to an appeal tribunal due to the Jobcentre's refusal to reply to his letter of 30 September within one month of the date of the termination of benefit.

Sunday, December 10, 2006

Fourth visit by the police

I haven’t posted anything in the last week, the reason being that Declan and I have been training to become authorised vendors of The Big Issue magazine. The Big Issue was launched in 1991 and is a well-known publication – the inspiration for the magazine came from Street News, a newspaper sold by homeless people in New York, which Gordon Roddick of The Body Shop saw on a visit to the States. It is sold by homeless in the streets of numerous cities – not anywhere, but in specific locations known as vendor pitches. In London, homeless people train for 4 days (an initial contact and assessment period) in Covent Garden. It is a lovely and trendy area in which to work, after which you become an authorised vendor and a pitch is registered to you in your area of choice. An authorised vendor can step into somebody else’s pitch anywhere, but only if the pitch is empty.

The Big Issue price is £1.50 – the vendor pays 70p for it – although most people give £2.00. There are basically 2 approaches a homeless vendor uses to sell The Big Issue: passive and/or active. With the passive approach, the vendor holds a few magazines as visibly as possible for people to see as they pass by. This approach works, but only to a limited extent. The other approach, being active, is more rewarding and faster. The vendor asks people directly if they would buy the magazine. And I mean asking all the time, saying the words “The Big Issue” literally hundreds of times – there are homeless vendors that are extraordinarily good at it.

So who buys The Big Issue? Chinese people never buy it, and I mean never – they totally ignore you. Muslims, men and women, don’t buy it either. Very posh people don’t buy it – a vendor told me it’s because they look down on us. The Spanish (and there are plenty of them to be found in Covent Garden, as well as around Liverpool Street Station - where we are authorised to sell at two pitches) fare the worse. They actually find it quite impossible to pass you without giving some attitude – even their children.

(Declan and I have arrived to the conclusion that the Spanish attitude towards the homeless has to do with Catholic church influence. I am Spanish, and I can say that the Spanish are brought up in a thicket of dogmas and prejudices and are more rigid in judgment. To those who would say that the Spanish are not that religious – given that Spain allows for gay marriage etc – I would respond that the Catholic church can still draw millions to a Papal mass or to a march on the streets of Madrid to protest against government plans to do away with religious education in public schools. We have observed that the Whitechapel Mission and St Martin's – both Protestant – have more fresh air about them than the Catholic Dellow Centre – with its child-like little regulations like giving your name into an intercom before being allowed in, the number given in reception before collecting your breakfast, etc.)

The profile that most fit those who have bought The Big Issue from Declan and I are white Londoners, probably more women than men, and educated. Declan thinks this is because these people are more acquainted with the advances of a modern age. Anyway, many people that don’t buy the magazine are friendly - the vast majority being white Londoners.

To buy The Big Issue is a good thing because it allows the homeless vendor to make some money and therefore to have some degree of independence. Declan and I have been able to pay for weekly bus tickets (£27.00 for two), some cheap winter clothes and food. For example, in St Martin's there is the small charge of £1.50 for a full meal including desert – that is £10.50 weekly for one person. How are you supposed to pay it if you are not earning some money?

Homeless people that have been in the street for many years are at a particular disadvantage and have no means whatsoever of earning some money legally other than selling The Big Issue (begging is illegal in the UK). This especially applies because virtually all of them are missing a large number of teeth – the NHS pull their teeth out rather than put in a filling as they would for normal people.

Before we started selling The Big Issue the Metropolitan Police had us exactly where they wanted us to be: we were unable to get any free food after 11.30am, were not getting clothes from either the Dellow Centre or the Whitechapel Mission, and had no money to pay for transport. The money that we are earning selling The Big Issue has basically spoilt the fun for the Metropolitan Police – but they are not lying down.

For the last week in our patch we have been subjected to their sleep deprivation techniques (despite that we sleep in a quiet business area): alarms from up and down the street; cars parking alongside our patch with music blasting (in one instance with the passenger door wide open); people talking loudly beside our patch; not to mention police cars frequently driving by us. Three days ago a guy came to us from the medical centre across the road (they have a particularly loud alarm) to ask us if we had seen who took the milk that had been left outside their main door…

Last night we had our fourth visit by the Metropolitan Police. I was getting ready to put on the 7 pairs of socks (2 of them woollen) that I always put on before getting into my sleeping bag – in order not to freeze at night – when an unmarked police car stops outside our patch and out comes a policeman. The questions of course start again: how long have we been sleeping in the patch, what are our plans, etc. We have our High Court hearing against the Department for Work and Pensions (DWP) tomorrow morning at 10.30am and we know the policeman is by our patch because of it – his last word to Declan is “see you around”, despite that Declan had informed him we are looking for a mandatory order that has the DWP reinstate our claim for unemployment benefit, pay us the arrears they owe us (£1,081.20 as of tomorrow), and transfer our claim from Birmingham to our local jobcentre in Tower Hamlets here in London. It is clear Judge Walker – the third High Court judge so far involved in these proceedings – doesn’t have the slightest interest in issuing any such order. Oh well, we have two possibilities, either he gives us permission and we apply for a full judicial review or we appeal his decision to refuse us the permission. Either way, I will blog about the whole thing tomorrow afternoon.