Chelsea and Westminster Hospital: Declan is hospitalised with pneumonia and discharged unwell back into the streets no more than 42 hours after admission

An hour and a half after my previous blog post yesterday afternoon, Declan was discharged unwell from Chelsea and Westminster Hospital back into the streets in freezing weather and dense fog - no more than 42 hours after admission to the hospital for pneumonia.

The discharge report states that Declan's admission on Monday night, 18 December, was due to "Interstitial Pneumonia". It further states that he 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." His loss of consciousness occurred on Sunday at 7.00am, whilst he vomited all over his clothes on a bus. He could have easily died had I not been with him.

We believe Declan's pneumonia was brought on by two things. The first thing was a virus he contracted from one of the 30 homeless guys he shares a floor with at night; since last Friday, we have been sleeping in rolling shelters run by the West London Churches Homeless Concern (WLCHC) across two West London boroughs. The second was stress. We couldn't afford the luxury of resting and taking it easy over the weekend after a court clerk left out of Judge Walker's order of 11 December 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 Monday - having been given three days upon receipt of the order to do so - or risk having his case dismissed because he had not filed within seven days of the date the order was made.

Last night, having been discharged from hospital, Declan was too unwell to eat the meal the rolling shelter provided; on Wednesdays, we sleep in a makeshift shelter at the back of the Catholic Holy Trinity Church in Brook Green. Instead, he went straight into his sleeping bag, coughing non-stop to the understandable annoyance of some who were eating. For us, it's not at all inconceivable that he was discharged earlier than he should have been because the Metropolitan Police and/or the secret services were in some way involved. When he was discharged yesterday at 2.30pm, we knew immediately that we had to find some way of getting out of the freezing cold and dense fog for as much of the afternoon as possible - in an area we were unfamiliar with - before taking two buses to the next shelter for the night. We must get to each shelter before 8.00pm or we don't get in and our names go to the bottom of the long list of people who want to get in on WLCHC's winter shelter programme.

We wonder what sort of reputation Chelsea and Westminster Hospital would have if everyone with serious respiratory illness was discharged from the hospital so unwell. We can only hope there will be no major setbacks and it's relatively downhill from here, the winter weather and being homeless notwithstanding.

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Declan is hospitalised with pneumonia

On Monday, three hours after Declan filed our appellant's notice in the Court of Appeal, he was admitted to Chelsea and Westminster Hospital with pneumonia. He managed to file with an hour to spare – crippled in pain. He says that at one stage he actually thought he wasn't going to make it back to me (and our bags), that he could barely walk down street steps in Temple just moments from the Royal Courts of Justice.

The court clerk says 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 we were granted to appeal the Judge's decision not to allow us to apply for a judicial review against the Department for Work and Pensions. It meant we only had three days to file an appellant's notice based on the order we were given, or risk having our case dismissed because Declan had not filed within seven days of the date the order was made.

Declan has asked me to blog our skeleton argument for the record:

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. I appeal on the grounds that judicial review was the correct route in the first instance due to procedural impropriety on the part of the Defendant, and that 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 of action.

Judicial review was the correct route in the first instance due to procedural impropriety on the part of the Defendant

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 stated in answer to question 7 (page 4) that she was looking for a "temporary job" that could enable her "take up training to have a new career". (A copy of this letter of suspension 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 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 this letter of suspension 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. It verifies 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 this page 15 from my ES2JP, which is stamped by the Jobcentre, 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. This includes any restrictions on the location or type of employment in accordance with regulations 5, 8, 13 and 17 (emphasis added). A JSAg without the ES2JP only allows for "agreed restrictions on [the] availability and/or agreed restrictions on types of work" (emphasis added). Where, therefore, my wife had placed a restriction on her availability for employment that Birmingham Erdington Jobcentre Plus did not agree with (such as on the type of employment for training purposes), the ES2JP had to be included with her JSAg for an independent decision to make a decision on her availability for work.
5. Birmingham Erdington Jobcentre Plus had in essence refused to accept my wife's proposed JSAg for referral to an independent decision maker, thereby disenfranchising me the internal appeal process. Accordingly, Judicial review was the correct route in the first instance because of procedural impropriety on the part of the Defendant.

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 another 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 both of these letters of reinstatement 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 the copy of my letter of 30 September 2006 to the Jobcentre filed in the appeal bundle, p. 32.)
3. On 19 September 2006, Birmingham Erdington Jobcentre Plus wrote a letter to me and another 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 both of these letters of suspension 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 of action

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 that I was available for work. This 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 (not every second Wednesday) and, in accordance with the internal appeal process, I informed Birmingham Erdington Jobcentre Plus in a letter dated 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 and Pensions. (A copy of my letter of 30 September 2006 to the Jobcentre 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." (A copy of this letter of termination 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 of 30 September 2006. However, despite an additional two letters to the Secretary of State and Pensions outlining the wrongful nature of the termination of my joint claim JSA, I have never been provided with a response to my letter of 30 September. (A copy of the Jobcentre's letter of acknowledgement is filed in the appeal bundle, p. 49.)
4. On 2 November 2006, I wrote in my third letter to the Secretary of State for Work and Pensions: "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 and 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, nor telling me why the decision could not be changed, I was again denied the internal appeal process. The pursuance by me of the judicial review application more than a month after the decision of 27 September to terminate my joint claim JSA therefore was the appropriate course of action.
6. Accordingly, the Court should grant me permission to apply for judicial review.

Judge Walker refuses us permission to apply for judicial review to have our unemployment benefit reinstated by the Department for Work and Pensions. We've been homeless on the streets of London for five weeks now

Perhaps the Metropolitan Police officer who told us two nights ago "see you around", after Declan had informed him we had a hearing in the High Court today to try and have our unemployment benefit reinstated, had inside information; and also the Department for Work and Pensions (DWP) since no defending counsel or solicitor turned up, only a representative who sat in silence at the back of the courtroom.

Judge Walker 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 his summation alone took 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 his 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. It read:

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 conceded that our unemployment benefit was almost certainly wrongfully terminated by the DWP. Erdingtion Jobcentre in Birmingham alleged that Declan did not sign his declaration that he was available for work on 27 September, when he was not due to sign on until two days later. We signed on every second Friday, not every second Wednesday.

However, it was Judge Walker's ruling that in submitting an application on 24 August for permission to apply for judicial review following an unrelated suspension of his joint claim for Jobseeker's Allowance (JSA), Declan had taken an incorrect route in that he should have exhausted the internal appeal process first. This despite Declan's repeated protestations that he had been disenfranchised of the internal appeals process as a result of the jobcentre refusing to accept my proposed Jobseeker's Agreement for referral to an independent decision maker. Judge Walker then ruled 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 court's summoning letter of 31 October following the termination of benefit the month previous; and this notwithstanding that Declan's repeated letters of complaint had been ignored and he had thereby been denied the internal appeals process a second time.

So basically on 3 November we should have chosen homelessness in Birmingham (rather than London) in the absence of a response from the jobcentre to Declan's letter of 30 September that outlined the wrongful nature of the termination of his joint claim JSA. Declan brought the letter to the attention of Secretary of State for Work and Pensions John Hutton on three separate occasions, but it was still ignored (as were his letters to the Secretary of State). Nonetheless, we should then have attempted to exhaust the internal appeals process whilst homeless in Birmingham (not London), even though Declan had been summoned to the High Court after having been denied his automatic right of appeal to an independent appeals tribunal.

It seems incredible to us that such blatant thuggery on the part of the DWP has been so easily accepted by the court. Now we only have one week to prepare all the paperwork to go with an appellant's notice for the Court of Appeal.

Fourth visit by the police. High Court hearing tomorrow

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 the homeless on the streets of numerous cities – not anywhere, but at specific locations known as vendor pitches. In London, homeless people train for four days in Covent Garden (an initial contact and assessment period). 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 is sold for £1.50 – the vendor pays 70p for it – although most people give £2.00. There are basically two approaches a homeless vendor uses to sell the magazine: 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 exceptionally 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 fare the worse; 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. They actually find it quite impossible to pass you without giving some attitude – even their children.

Declan and I have come to the conclusion that the Spanish attitude towards the homeless has to do with the infuence of the Catholic Church in Spanish life. I am from Madrid, and I can say that the Spanish are brought up in a thicket of dogmas and prejudices and are more rigid in their judgements. 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 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 the likes of religious education in public schools. The profile that most fits those who have bought The Big Issue from us 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 on the streets 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. NHS dentists are quick to remove the teeth of the poor and the-down-and-out!

Before we started selling The Big Issue the Metropolitan Police had us exactly where they wanted us: 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. We guess the money that we are earning selling The Big Issue has basically spoilt their fun – but there's been little or no let up from them, quite the contrary!

For the last week at our patch we have been subjected to their sleep deprivation techniques (notwithstanding that we sleep in a quiet business area): alarms from up and down the street; cars parking alongside us at all hours of the morning with music blasting (in one instance with the passenger door wide open); people talking loudly beside us at all sorts of strange hours; and 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 the the police dropped in on us a fourth time. I was getting ready to put on my seven pairs of socks (two of them woollen) when an unmarked police car stopped by our patch and out popped a policeman. The questions started again: how long have we been sleeping there, 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 officer is questioning us because of it. His last word to Declan is "see you around", after 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 seems to us that Judge Walker – the third High Court judge so far involved in these proceedings – has no intention of issuing such an order. We then will only have two ways to go, either he gives us permission to apply for a judicial review or we appeal his decision to refuse us the permission. Either way, I will blogging what happens tomorrow.