I am Michael Connor, proud to be an alumni of Staffordshire University. I studied for the two-year, accelerated LLB (Hons) at Staffordshire University from 2015 to 2017. I graduated with a first class honours Law Degree. I also achieved a Scholarship from Law Society to study the LPC at Nottingham Trent University.
My time at Staffordshire University was very rewarding. I found the Law School to be a nurturing, supportive and encouraging environment. Even though I am a mature student, both students and staff welcomed me with open arms. A law degree is challenging and requires dedication to achieve[, but] I will always have the best memories of my time at Staffordshire University. Before attending university I was in the Welfare Rights profession for twenty years.
I have put my law qualifications to work for the benefit of our most vulnerable citizens [and made] legal history. I successfully applied for a judicial review in the High Court. This is now case law: (I think this is OSCOLA compliment!)
R (CONNOR) V SECRETARY OF STATE FOR WORK AND PENSIONS  EWHC 1999 (Admin)
After hundreds of hours looking at case law on Westlaw and Lexis, my own case is on there! I progressed this claim as a litigant in person. I had learned valuable in-court advocacy skills from taking part in extra curricular mooting sessions facilitated by Staffordshire University. I also learned about judicial review in the Administrative Law classes.
My judicial review is allowed. Mr Justice Swift in the High Court has declared that it is unlawful for the Department for Work and Pensions (“DWP”) to require Income Related Employment and Support Allowance (“ESA”) claimants to have a mandatory reconsideration by the DWP, before they can appeal adverse benefit decisions to a first tier tribunal.
This is because it is disproportionate that such claimants can access an appeal pending rate of ESA when an appeal is lodged, but cannot when a mandatory reconsideration is requested. This is incompatible with the fair trial and right to tribunal provision of Article 6 of European Convention on Human Rights. It is therefore unlawful per section 6 of Human Rights Act 1998.
This case arose after the DWP took 18 weeks to reconsider my personal ESA claim, after they incorrectly refused entitlement. During this time I had no right of appeal to the independent first tier tribunal. As I am a carer for my mother, who is severely affected by Parkinson’s Disease, I was able to claim Carers’ Allowance. However, for most ESA claimants there are no alternative benefits that can be claimed. This causes severe financial hardship and destitution for ESA claimants. Only when the DWP finally complete their internal review can an appeal be lodged. An appeal pending rate of ESA can be paid until the appeal is heard. This creates a disproportionate anomaly that makes the mandatory reconsideration requirement incompatible with the fair trial and tribunal right contained in article 6 of European Convention on Human Rights.
I conducted this judicial review claim as a litigant in person. I did all the court claims and submissions myself. I also presented my case in person at Birmingham High Court on 19 March 2020. I was supported by a successful crowdfunder campaign. Ms Lauren Bicknell, also a Staffordshire University alumni , assisted as Mckenzie’s Friend.
Although not officially a barrister I do have a recent first class honours Law degree, a Master of Laws with distinction and achieved a legal practice certificate. I have also had a twenty-year career as a Welfare Rights professional. Presenting as an LIP gave me a unique opportunity to have High Court advocacy experience.
I am a confident and effective advocate through years of representing at Social Security Tribunals. Legal research is also something I enjoy and am very effective at. I also very much like to think outside convention to find new approaches to old problems. I was therefore confident that I could progress this judicial review as a litigant in person. Good understanding of the civil procedure rules really helped. I submitted a “N244” application for a court order for a judicial review cost capping order of zero costs to be claimed from me as the claimant. Had I not done so I could not have afforded to proceed. Thanks very generous donations to a crowdfunder campaign, raising over £7,000, I was able to raise the money for court fees and my own costs.
I know from experience that when in court it is best not to be rigid with one’s submission and to know your material inside out. This allows one to be flexible in court. If the judge is just not accepting a line of argument or submission, try another until one bites. Also keep the Judge happy. If she or he is hinting pursuing a line or to stop, go with it. I had a very inquisitorial Judge, Mr Justice Swift. It was a challenging time in court. For me though the harder the better, I can think on my feet. I also was very fluent with my law, case law and facts of the case. Not so for the two DWP barristers who had a very hard time in court. However, unlike me they have to go with their client’s instructions. And their lead Barrister, Ms Apps, was very helpful in preparing the court bundles and drafting agreed court orders. Always make bridges and connection with the opposition lawyers. They are only doing as instructed, it is not personal that they oppose you in court.
Judicial review is unusual as there is a requirement to reach agreement and the court has to seek the least intrusive method of addressing any government unlawfulness or illegality. Therefore I was very happy with the final order, a declaration of unlawfulness for the mandatory reconsideration rules for ESA claimants.
The mandatory reconsideration regulation is 3ZA of Social Security and Child Support (Decisions and Appeals) Regulations 1999
Article 6 of European Convention on Human Rights states that,
“in determination of his civil rights and obligations everyone is entitled to a fair and public hearing, within a reasonable time, by an independent tribunal established by law.”
Section 6 of Human Rights Act 1998 states:
“it is unlawful for a public authority to act in a way that is incompatible with a convention right.”
Swift J applied the proportionality test in Bank Mellat v HM Treasury (No.2)  AC 700:
“could the objective have been pursued by a less intrusive measure without compromising its achievement; and having regard for the objective pursued and the severity of the consequences of the measure enacted, has a fair balance been struck between the interests of those affected and the general public interest?”
Swift J therefore concluded;
“It is anomalous that the payment pending appeal arrangements for ESA under regulation 30(3) of the ESA Regulations do not extend to ESA claimants who are required by regulation 3ZA to request the Secretary of State to revise a decision and await her decision on that request before initiating an appeal.
My conclusion is that regulation 3ZA of the Decisions and Appeals Regulations 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 under regulation 30(3) of the ESA Regulations.”
In my submission I also relied on Golder v United Kingdom (1979) 1 EHRR 524 and Ashingdane v United Kingdom ECHR case 8225/78 to support my proposition. Namely, that disproportionate hindrance to potential appellants to tribunals and courts is incompatible with Article 6 ECHR
Staffordshire University Alumni