Friday 10 June 2016

Barnet's Freedom Pass fiasco: a legal challenge is served ...

Jenny and Siobhan Fairclough

If you have followed the rather extraordinary story of the cancellation by Barnet Council - and its contractors Capita - of the vital travel passes held by many of this borough's vulnerable and disabled residents, (see below for links to previous posts) you are very likely to be pleased to hear that yesterday the authority was served with a Judicial Review 'letter before claim' letter, in regard to one of the residents whose pass was wrongfully removed. 

This letter before action has been sent on behalf of Jenny Fairclough, the nineteen year old student whose mother Siobhan has shown great courage and determination in exposing the shameful treatment of her daughter, and countless other residents with learning or physical disabilities, who have been subjected to a pass 'renewal' process, run by Capita, on behalf of the Tory run authority.

Barnet's private partners began this scheme after asking for, and being granted, a contract variation by Barnet Council worth £100, 000, in order to undertake the administration of the passes. 

It is unclear why the process of renewal was considered necessary, when the passes appear to be valid until 2020, but in the course of this enforced renewal scheme, Jenny and other residents found their Freedom Passes had been cancelled, some without any warning, apparently on the grounds of failing the eligibility criteria created by Barnet, that is to say local criteria, based on requirements that differ from, and are in addition to, the statutory definition.

The impact of this scheme has been immensely distressing in terms of the immediate impact on vulnerable residents suddenly finding themselves unable to board buses or the underground, and the longer term implications and financial loss incurred by the loss of their free passes.

A challenge has therefore been brought by the Fairclough family, with legal support from Giles Peaker, of Anthony Gold Solicitors  - (Giles is also known for his 'Nearly Legal' blog ) - and the initial stage of a process which could lead to Judicial Review has begun.

This action is being brought on the basis of the following claims - amongst other grounds:

Failure to have regard to Department of Transport's statutory guidance on assessment of eligibility

Failure to publish or make known criteria for eligibility set by Barnet Council

Falsely and inaccurately describing the criteria being used to the resident in question

Acting beyond its powers in imposing additional, more restrictive criteria than in legislation

Failure to have regard to the council's Public Sector Equality Duty

Cancelling Jenny's Freedom Pass without warning, within a 30 day appeal period.

Barnet Council has been required to remove the unlawful additional criteria for eligibility for a Freedom Pass and to re-instate Jenny's Freedom Pass, and a response is due within 14 days.

After this iniquitous scheme was exposed by local bloggers, and through FOI requests, and questions to council committees, the council was obliged to announce it would address concerns through the work of a 'review' - which initially, apparently as part of an effort to shift the blame, it claimed was on behalf of London Councils. This 'review', we now understand, will be the work of an 'Improvement Group', and overseen by an officer with the typically absurd title of 'Strategic Lead for Effective Borough Travel'. 

Mrs Angry, for one, always endeavours to travel throughout the borough in an effective way, and welcomes the extension of this aspiration to our friends at Capita. One can only hope that they will be able to find some new source of profit from this new approach, 'moving forward'.

The emphasis of this review, however, or as we were then informed, a process which would only be completed in November, while disabled residents carried on worrying about their temporary passes - would be on aligning Barnet's criteria with the 'ethos' of the Care Act, with reference to helping residents live more 'independent' lives. 

Only latterly has the authority even begun to acknowledge that in fact it is the Transport Act which defines eligibility, and as Mrs Angry pointed out at the Policy and Resources meeting where the passes were discussed, we all know what 'independence' means, in Barnet: removing support on the pretext of 'more choice', just as they did recently when they cut meals on wheels to other vulnerable residents. 

In other words, the intention might reasonably be assumed to be that the review should be a face saving exercise, and a useful interval, after which all the fuss, they hoped, would die down, and they could continue setting their own minimalist criteria. 

Jenny Fairclough's legal action has now, however, with perfect timing, and adept direction, presented the ultimate challenge to yet another shameful policy exercised by Tory Barnet, through its outsourced contractors, and of course we look forward with great interest to the response from the authority, but it is also timely to ask ourselves a question. 

If such an obviously ill conceived policy, and one that has had such a devastating impact on the lives of our most vulnerable residents, is only discovered by external scrutiny - and exposure, what other irregularities might there be lurking under the cover of commercial sensitivity, and contractual arrangements that have shrouded the outsourced administration of our local public services? 

At the very least this shameful episode has proved that there is no effective oversight by our elected representatives of the Capita contracts they so happily approved, on the basis of so little examination of the finer details, wherein the devil, especially in the infernal world of privatisation, is so comfortably established. The only alternative conclusion would be that councillors knew, and were complicit in, this horrible process. That would be very hard to accept.

And something else to consider - as the catastrophic election day cockup has suggested - although a thought ignored by the dismally limited scope of the investigation by Southampton Council's Chief Operating Officer: has the outsourcing of legal services created a risk to standards of governance that has now moved past the tipping point, and delivered this authority into the last stages of failure in corporate competency?


Freedom's just another word: the disabled residents in Barnet, struggling to retain free travel passes issued by Capita

The price of Freedom: on the eve of elections, Barnet Tories panic as their Capita run disability pass 'renewal scheme' is exposed

Cry Freedom: at last - victory for disabled residents, wrongly deprived of their travel passes - 'sorry', say Barnet Council, and Capita ...

The Tailoring of Communication, and Mrs Angry, designed to Annoy: the Freedom Pass Scandal, a lot of questions, and not many answers

The Price of Freedom, still under negotiation: have thousands of disabled residents in Barnet lost their travel passes?


John Brace said...

Hi Mrs Angry,

Although obviously a JR claim is one way of dealing this sort of matter, I would've thought considering on what grounds the Freedom Pass is granted it's possible it might also lead to a disability discrimination case in the local county court too?

Sadly local councils rely on the fact that a lot of disabled people are too frightened, frightened or poor to go down the legal route, especially with widespread rumours that there's no longer any legal aid.

Of course freedom from discrimination/human rights (and more widely preventing abuses of state power) are some of the aims of the European Union that haven't been mentioned much in the discussion so far about the EU Referendum.

I'm glad you are reporting on these matters and if my comments on the legal framework helped move the debate along I'm glad about that too.

Frankly, the excuses Barnet came up with for not complying with their legal responsibilities and trying to pass the blame to others when things went wrong is not their finest hour.

Mrs Angry said...

Hi John: hmm, well, I think that Barnet now knows perfectly well that it has f*cked up, good & proper, in this case. The reasons are manifold, but clearly disposing of their in house legal service, the outsourcing of so many council services, and failing to create an efficient system of scrutiny to monitor those services have played a major role here.

This is an important point, in the history of the hollowing out of our council's services - the point at which it becomes clear how much has been lost, in terms of democratic oversight, in the mass privatisation. Sadly, I think the Tory councillors will never admit the deep reservations many of them may have now, because saving face, & political expediency, is more important to then than the impact on the residents whose interests they are supposed to represent.

John Brace said...

Hi Mrs Angry,

Unfortunately disposing of a council in house legal service is often a false economy.

They appear to be down to just one in-house solicitor Davina Jo-anne Fiore, which is hardly enough considering the size and scope of operations at Barnet Council is it?

Mrs Angry said...

Well, at least this one, unlike the last, has some legal qualifications. But yes, she is awfully busy, and on A Journey, you know, and I wish her well, but I also wish she would ask my question about how the Tory leader could say the renewal scheme was lawful, when she had told me the council had not taken legal advice ...

Mrs Angry said...

Answer my question, not ask, obvs.

John Brace said...

In my experience (apart from the Monitoring Officer), local government solicitors are unlikely to answer questions that would cause political embarrassment for their masters IMHO, but maybe she's different?

Reading between the lines maybe she's saying that her bit of the Council didn't commission external legal advice on the issue or give legal advice internally about the matter. I'm trying to be fair to her.

Then again couldn't in Barnet the contractor for providing legal services be advising themselves on the lawfulness of renewal of passes (if it's the same contractor) making sure such advice never goes through Barnet Council? However you'd know the answer to that not me.

As to the lawfulness of the renewal passes fiasco.

The short answer is if someone was legally entitled to a Freedom Pass and Barnet (or their contractors on their behalf) knew this, but cancelled it or didn't renew it without cause then yes it's unlawful.

The truth is the less passes they issue the less the cost is. So if they can drag out the application and renewal process, do things like insist all applicants go see their doctor, that sort of thing they can just make life difficult for people and save money!

Another approach is to assume that everyone applying or renewing is automatically fraudulent and treat them accordingly with extreme suspicion.

It's a terrible system really where people are put through the mill for exercising a legal right to something that has environmental benefits, reduces air pollution and encourages use of public transport!

Mrs Angry said...

John: I have no reason at all to doubt the first response, ie that no legal advice was sought. My question was to establish why the Leader stated the scheme was lawful, when clearly no one could know, as they had not bothered to check. Why not? Because there is an absence of scrutiny by councillors and a failure on the part of the commissioning side of the council. Contractors are able to do more or less what they like in this sort of venture, it would seem, and as for whether or not Capita takes its own legal counsel for such activities as the so called renewal programme: who knows? It would appear not, in this case!

One of the curious aspects of all this is the way in which our lazy Tory councillors are quite happy to sit back and leave contractors to run local services, with virtually no involvement or interest in detail from themselves, thereby creating something they claim to despise: a monolithic bureaucracy, inventing unnecessary procedures that complicate what should be straightforward administrative council functions. It's Frankenstein's monster: a horrible experiment gone wrong, and now unstoppable.

John Brace said...

"It's Frankenstein's monster: a horrible experiment gone wrong, and now unstoppable."

Well the contract must have an end date or a break clause date?

However, it allows Barnet Council from a political perspective to shift blame the contractor for their own failings in not managing the performance of the contract properly.

It allows the contractor to blame the Council and well, you get a lot of confusion when nobody really knows what's going on and who's responsible for what!

As to proper scrutiny by councillors. The systems of scrutiny by politicians seem to be set up to fail from the start.

Politicians seem to rely on what senior managers tell them. However the contractor's employees aren't directly under the control of Barnet Council.

Therefore the whole system would rely on good communication between Council/contractor, which the public sector seems very, very, bad at!