Disabled woman seeking employment with Mental Health Tribunal refused petition challenging two-day work scheme

By Mitchell Skilling

Victoria Reid challenged a policy under which her application to join the Tribunal could not be progressed unless she was able to commit to two days of tribunal work per month. It was argued that the policy was unreasonable as she would lose her entitlement to Employment Support Allowance if she worked for more than one day per month.

The petition was heard by Lord Ericht in the Outer House of the Court of Session. Dailly, solicitor-advocate, appeared for the petitioner and McGuire, advocate, for the respondent. Webster QC appeared for the Advocate General as an interested party.

Context of review

On 14 June 2021 the petitioner emailed the MHTS recruitment mailbox to express interest in applying for a role with the Tribunal as a general member. After corresponding with representatives of the respondents who told her that her application could not be progressed further without having two days of availability per month and that the Scottish Government could not provide specific advice as to whether the MHTS would fall under the ESA’s “permitted work” scheme, she did not apply for the post.

Under the regulations for English and UK tribunals, there is an exemption allowing for members to work for one day a week while in receipt of ESA. However, this exemption did not apply to Scottish Tribunals, and worked in tandem with an earnings limit of 16 times the national minimum wage. In March 2022 there was correspondence between UK and Scottish Ministers concerning bringing this exemption north of the border, however at the time of the bringing of the petition no legal developments had come from this.

It was submitted for the petitioner that a decision required to be made on the basis of the current law even in the context of a review by the UK Government. As it stood, the two-day policy indirectly discriminated against the petitioner contrary to sections 19, 20, and 29 of the Equality Act 2010. Additionally, the petition raised issues of Wednesbury irrationality which could only be addressed in a judicial review and not by the Employment Tribunal.

Counsel for the respondents submitted that the petitioner had an alternative remedy available in commencing Employment Tribunal proceedings in relation to the Equality Act case. In any event, she had not suffered indirect discrimination as she had not established that she was a disabled person under section 6 of the Act nor that the minimum commitment of availability for two days per month put her at a particular disadvantage when compared to persons who were not disabled.

Foundational misconception

In his decision, Lord Ericht said of the difference in the Scottish tribunal system: “The distinction between the members of English/UK and Scottish tribunals is one which may be difficult to justify. ESA applies throughout the UK, and it is difficult to see why a member of an English or UK Tribunal should be entitled to an exemption for one day’s (or two half day’s) work but a member of the equivalent Scottish tribunal should not be.”

He continued: “The difficulty may be particularly acute in respect of the Mental Health Tribunal for Scotland as there is a legal requirement for the appointment of members who have experience of mental disorder or of using services provided in relation to mental disorder.”

Noting that the DWP had a discretion to average out weekly income in certain circumstances, Lord Ericht said: “It may be that a member of the MHTS would be able to sit for two days per week or month without losing ESA. The averaging need not be over a set period of five weeks, but may be over another period which in the particular case of the claimant, enables the claimant’s average weekly income to be determined more accurately. It is premature to speculate to what the appropriate period would be in respect of a particular member of the MHTS as this will depend on how frequently that person sits as a member.”

He concluded: “It is not the case, as the petitioner contends, that ESA is available when sitting as a member of the MHTS for one day but is lost by sitting for a second day. Entitlement to ESA for the week is lost by sitting as a member for just one day. Sitting for a second or further days that week makes no difference: ESA is already lost. That misconception is the foundation for all the challenges to the two days policy, whether they are formulated as Wednesbury unreasonableness or statutory breaches. That misconception goes to the heart of all the remedies which the petitioner seeks.”

The petition was therefore dismissed.

Scottish housing associations challenge legality of soaring power bills

The Highlands and Islands Housing Associations Affordable Warmth Group has teamed up with the Good Law Project and Fuel Poverty Action to raise concerns the energy regulator is unlawfully failing to take measures to protect the near 35 million people who are under threat of fuel poverty in the coming months.

Ofgem sets the level at which the cost of energy is capped. When it does this, it has a duty to protect consumers, particularly those who are vulnerable.

In analysis prepared by the Good Law Project, that means it has to conduct a proper impact assessment before implementing changes to the price cap. Having done so, it has the power to ease the pressure of mounting bills on vulnerable consumers who are likely to be most affected by imposing a separate, lower cap for them, sometimes called a ‘social tariff’.

But, on 26 August, Ofgem is set to announce yet another energy price cap hike, which will come into effect on 1 October. This will raise the average household bill to a predicted £3,582, marking a 180% increase from this time last year. In doing so, the organisations bringing the case said Ofgem has “barely considered the impact its decision will have, let alone any steps it could take to mitigate it”.

In July, the Good Law Project wrote to Ofgem, expressing its concerns about its decision-making and asked for proof of its impact assessments. The Project said the three-line reply it received “did nothing to ease our concerns”.

Now, along with Fuel Poverty Action and Di Alexander, the chair of the Highlands & Islands Housing Associations Affordable Warmth Group, it has written to Ofgem demanding it does more to protect vulnerable people and off-grid communities.

The organisations are now calling on Ofgem to commit to carrying out proper impact assessments, and to consider appropriate mitigation measures, before raising the energy price cap any further.

The pre-action warns: “It is unlawful for a public authority to act in a way that is incompatible with the ECHR.

“Given the potential impact that Ofgem’s decision will have on the human rights of vulnerable households across the UK, Article 8 of ECHR is engaged. Should Ofgem fail to take reasonable steps to safeguard the rights of individuals, it could be at risk of violating Articles 8 and 14 of the ECHR on the basis that such a significant increase to the energy price cap is likely to render some individuals destitute, rendering them homeless and/or forcing them to have to choose between heating their accommodation and feeding their family or other essential household expenditure.”

The groups say there should be a discounted social tariff for vulnerable groups to ease the price hikes for those in need and a failure to give a reasoned consideration over that prior to raising the energy bills cap next week “would likely be unlawful”.

Di Alexander, chair of the Highlands & Islands Housing Associations Affordable Warmth Group, said: “This is an urgent wake-up call for Ofgem who are clearly failing in their self-proclaimed ‘duty to ensure fair treatment for all consumers, especially the vulnerable’. Why is Ofgem discriminating so unfairly between off-gas and dual-fuel households?

“Gas costs 7p a unit and electricity 28p a unit, but 15% of all UK consumers can’t get mains gas and can’t escape having to pay so much more than even their hard-pressed dual-fuel counterparts for exactly the same level of energy consumption. It’s manifestly unfair and it’s the vulnerable who bear the brunt. That’s why they at least need the protection of a manageable ‘social tariff’, set at the same price per unit for both gas and electricity.”

A spokesperson for Fuel Poverty Action added: “Ofgem are failing in their duty to protect those most vulnerable in our societies from the horrors of living in fuel poverty. The price cap is one aspect of a failing energy system that is no longer fit for purpose and its meteoric rise is pushing millions into fuel poverty. Ofgem must stop acting in the interest of the energy suppliers and the fossil fuel industry, and begin to understand the life-threatening conditions they are imposing on people this winter.”

Lord Advocate urges Home Office to speed up child trafficking determinations

The intervention comes after Scotland was criticised in a major international report from the US State Department over a purported “increase in the proportion of criminally exploited children who were charged with crimes”.

In a letter to The Times which has been published on the Crown Office website, Solicitor General Ruth Charteris QC said there is “a strong presumption against prosecution of these victims”, but that “verifying a child is a victim of trafficking is a time-consuming process”.

It is up to the Home Office to formally determine whether a person is a victim of trafficking or exploitation through the National Referral Mechanism (NRM). In 2021, this took an average of 448 days from referral to final determination.

Ms Charteris said: “This means that the prosecutor must often, to prevent the case from time-barring, commence proceedings against people who have provisionally been identified as victims.

“We appreciate this has potential to be traumatising and, conscious of our obligations under the UN Convention on the Rights of the Child, the Lord Advocate has been in contact with the Home Office to request that final determinations come more quickly. No trial should be commenced until the final determination is received.

“In the meantime, prosecutors in Scotland will continue to do all they can to identify potential victims of trafficking, prosecute traffickers and apply the strong presumption against prosecution of confirmed victims detailed in the Lord Advocate’s instructions.”

New sentencing guidelines should distinguish between child abuse imagery offenders

The Scottish Sentencing Council (SSC) has published a new literature review carried out by Professor Melissa Hamilton of the University of Surrey and Dr Ian Belton of Middlesex University to inform its work on the guidelines.

The review found that there is little support for the proposition that viewing IIOC is a gateway to committing contact offences against children.

The impact on IIOC victims is also examined, including the long-term psychological and emotional harm, and damage to a child’s sense of privacy, dignity, and autonomy.

The report finds that victimisation as a child can lead to a number of serious challenges in adult life, including shame, anxiety, suicidal thoughts and relationship problems.

The report examines current sentencing practices and legislation in Scotland, England and Wales, the Republic of Ireland, Australia and the US. It also looks at the statistics on IIOC offences, including prevalence and type of crime, number of convictions and rates of imprisonment.

It considers the challenge of how to address the seriousness with which the public appear to view IIOC behaviour, while weighting sentences appropriately in comparison to other sexual offences.

The review explores the aggravating factors relevant to sentencing IIOC offenders, such as the severity of the image, age of children in images, acts involving production or distribution, length of time of offending behaviour, and the size of the collection.

Mitigating factors tend not to be unique to IIOC but generally include previous good character, lack of maturity, and steps taken to address offending behaviour.

Significant research has been undertaken on IIOC offenders — including female offenders —such as their motivations, situations, behaviours and course of action.

In a statement, the SSC said: “The Council is grateful to the authors of this comprehensive research, which will be of great assistance as it begins work on sentencing guidelines for offences involving indecent images of children.”

English criminal barristers vote for indefinite strike over legal aid rates

After a two-week ballot by the Criminal Bar Association (CBA) in which 2,273 people voted — significantly more than either of the two previous ballots — the vast majority (80 per cent) voted to escalate action.

In a statement confirming the ballot outcome, the CBA’s committee members said: “Given that many members have been away during this month, the increased level of participation in this latest ballot speaks volumes about the strength of feeling amongst colleagues across all six Circuits.

“We take great pride in the fact that our members have so consistently demonstrated such a deep commitment to the democratic process. It reflects an unshakeable underlying belief in the power of collective action and a demand to be heard.”

They added: “Our unity will forever be our strength.”

Ministers increased legal aid fees for barristers by 15 per cent earlier this year, but the profession has argued that increases of at least 25 per cent are needed to stem the exodus of young lawyers from criminal practice.

The indefinite strike will formally begin from Monday 5 September, but the disruption will begin earlier as barristers were already scheduled to strike for a week from Tuesday as part of their previously-agreed on-off industrial action.

Reeds Solicitors, one of the UK’s largest legal aid firms, said the strike could have a worrying knock-on effect for law firms.

Jan Matthews, managing partner, said: “The issues concerning junior barrister pay is just one aspect of the long-running underinvestment in the criminal justice system, but one that, should the strike continue for long enough, may well bring large portions of the defence market crashing down.

“This is because legal aid work outside of the Crown Court is largely loss leading for firms, so without CC fees coming in due to the strike many firms will be at high risk of failure. This is happening anyway in slow motion, but the strike will likely speed it up dramatically.”

Sophie Lennox: Scottish government to inject further regulation into non-surgical cosmetic procedures

Background

The number of non-surgical cosmetic treatments being carried out in Scotland is rising significantly as they become much more easily accessible.

Various independent clinics are regulated by Healthcare Improvement Scotland (HIS), but only those run by a medical or dental practitioner, registered nurse, registered midwife or dental care professional (clinical dental physician, dental hygienist, dental nurse, dental technician, dental therapist or orthodontic therapist). Non-surgical cosmetic procedures that pierce or penetrate the skin, such as dermal fillers (lip or face fillers), remain unregulated, so anyone can carry out these procedures. Several pharmacists have also started carrying out injectable procedures from establishments that are not regulated by, and do not need to be registered with, HIS.

As a result, in recent years, there have been increased calls from stakeholders in the cosmetics industry (including licensed practitioners), for tighter restrictions. The current system has been likened to the ‘wild west’. Concerns centre around the serious complications/injuries connected to these procedures and the requirement for corrective work.

The Scottish Government stated in 2020 that the goal in launching its consultation was to ensure that all non-surgical cosmetic procedures carried out in Scotland would be delivered from hygienic premises by appropriately trained practitioners.

Consultation response

There was a total of 437 responses to the consultation – 382 from individuals and 55 from organisations. Amongst the respondents were members of the public, the General Medical Council and individual aesthetic clinics.

The responses can be summarised as follows:

• 98% of respondents agreed that further regulation of non-surgical cosmetic procedures was needed. Most felt that non-surgical cosmetic procedures should be conducted by trained, qualified and regulated healthcare professionals.
• 61% of respondents agreed that individuals who are not qualified healthcare professionals should be licensed. Those respondents who disagreed with the proposal felt that more robust regulation than licensing was needed, or that the procedures should only be performed by healthcare professionals.
• 90% of respondents felt that pharmacists should be regulated by HIS in the same way as other healthcare professionals.

The Scottish Government’s position

The Scottish Government states: “It is clear from the consultation responses that there is strong public support for further regulation of non-surgical cosmetic procedures that pierce or penetrate the skin. The responses also show support for pharmacists who provide independent services to be regulated by HIS in the same way as other health professionals.”

As a result, the Scottish Government has pledged to introduce further regulation of these procedures in an effort to protect public safety. Their proposals are as follows:

• To consider legislation to restrict who can administer dermal fillers.
• To scope out other procedures which could benefit from further regulation.
• To consider introducing secondary legislation to bring pharmacists who provide services outside of NHS contracts under the regulation of HIS by adding them to the list of service providers included in the definition of independent clinic.
• To consider updating existing legislation to license businesses that provide a wider range of non-surgical cosmetic procedures or body modifications which are currently unregulated. This will relate to procedures which carry a risk of potential infection or tissue damage requiring a medical intervention, but which do not require an immediate or urgent prescription-only medicine to reverse dangerous side-effects.

It is clear that the Scottish Government will not be focussing on all non-surgical cosmetic procedures. They emphasise within their response that, from a clinical safety perspective, the priority is to consider regulating the administration of dermal fillers. When dermal fillers are administered, the complications can often cause long term damage that can only be reversed or limited by the urgent administration of specific prescription-only medication. This is not the case with other non-surgical cosmetic procedures.

For example, the Scottish Government also recognises there are concerns around botulinum toxins such as ‘Botox’. However, they point out that Botox is already regulated under UK legislation as a prescription-only medicine. Unlike with dermal fillers, there are regulatory requirements that govern the manufacture, distribution, retail sale/supply and advertisement of medicinal products such as Botox. Only doctors, dentists, nurse prescribers and prescribing pharmacists trained in administering Botox are able to write prescriptions for this. Non-prescribing practitioners need to ‘buddy up’ with a local prescriber or use a prescribing service.

The future of non-surgical cosmetics

The Scottish Government has made clear that there will be further stakeholder engagement and consultation before new legislation is proposed to tighten regulation around non-surgical cosmetic procedures in Scotland. However, practitioners should be alert to the fact they may soon be committing an offence if they continue to perform dermal fillers without a license. Additionally, pharmacists providing these services outside of NHS contracts will need to have an understanding of the professional standards expected by HIS.

The suggestion seems to be that this is only the beginning, the Scottish Government intending to consider what other non-surgical procedures may require further regulation.

It seems likely that Scotland will follow the position in England. The Scottish Government acknowledges that the Health and Care Act 2022 will soon introduce enabling powers to establish a licensing scheme for non-surgical cosmetic providers in England (who perform dermal filler and Botox injections for example). It suggests that it will work with the other UK nations to develop the proposals noted above, which would be a welcome step.

• Sophie Lennox is a solicitor at BTO Solicitors LLP.

No prosecutions for failure to complete Scottish census

In June, census authorities wrote to all households who had refused to complete the census to “advise them that they are at risk of being referred for potential prosecution and may receive a criminal record or fine”.

The Crown Office and Procurator Fiscal Service said it had launched no prosecutions because “no cases have been reported from National Records Scotland”, The Times reports.

Only 87.5 per cent of households have so far completed the census, well below the 94 per cent target.

Rapist jailed after being extradited from France

In November 2013, Remus Covaciu failed to appear at the High Court in Edinburgh to face charges including the rape of a young woman outside a nightclub.

A European arrest warrant was subsequently issued and the accused was traced to eastern France, where he was living with his partner and two children.

At the High Court in Glasgow in June, Covaciu, now 28, pled guilty to raping a woman in Aberdeen in January 2013. He also admitted breaching bail conditions and failing to appear at court proceedings.

The court heard that his victim had attended a birthday party in the city centre venue but was alone on the street at around 4am. CCTV cameras captured the accused approach the woman, who was drunk and incapable of giving consent.

The Romanian national, then 18, had been staying with his parents in Aberdeen at the time.

At the High Court in Edinburgh on Friday, he was sentenced to a total of three years and nine months’ imprisonment. His name was added to the sex offenders register.

Ruth McQuaid, procurator fiscal for the High Court, said: “Remus Covaciu has failed in his attempt to evade justice for his appalling crime. The woman he raped has endured a long process in seeing her attacker face the consequences of his actions. I commend her resilience and courage.

“The Crown Office and Procurator Fiscal service is committed to securing justice and any victim of similar offending should be assured that there is no time limit to this. I urge them to come forward, report the crime and seek help.”

Rishi Sunak accuses Jolyon Maugham QC of ‘wasting time and money’ through court challenges

A press release issued by the Tory leadership contender’s team about his plans to crack down on judicial reviews of government policy mentions Mr Maugham 10 times and lists examples of wasteful cases, all of which involve Mr Maugham.

In the release, Mr Sunak promises to resist what he calls “lawfare” and says he will deploy secondary legislation “in the event of judicial recidivism”.

Lucy Frazer, the former Solicitor General who once said Cromwell’s transportation of Scots as slaves to the colonies “is an answer to the West Lothian question”, is quoted in the release as saying the judicial review process is “being abused by campaigners”.

She added: “We need to act on this to stop our stretched courts being overwhelmed by political claims. Rishi Sunak’s government will act to get a grip of the increasing burden politically activist lawyers are placing on the judiciary.”

Responding to the release, Mr Maugham said: “Good Law Project’s litigation is uncovering billions of your money wasted by this government’s cronyism and sleaze.

“It wants you kept in the dark. But we think it should obey the same rules as everyone else. Not change them so it doesn’t have to. None of us is above the law.”

Canada: Indigenous woman nominated for Supreme Court in landmark first

The judge, who has served on the Ontario Superior Court of Justice bench since 2017, is an Abenaki member of the Odanak First Nation.

She is an accomplished jurist with expertise in the areas of mental health, Gladue principles (which relate to the sentencing of indigenous people), labour and employment law, human rights and privacy law.

Her nomination follows sustained criticism of the Supreme Court over its lack of diversity and has been welcomed by indigenous groups, CBC reports.

Canada’s prime minister Justin Trudeau said: “I am pleased to announce the nomination of Justice Michelle O’Bonsawin to the Supreme Court of Canada, which is recognized worldwide for its strength, excellence, and independence.

“Her nomination is the result of an open, non-partisan selection process. I am confident that Justice O’Bonsawin will bring invaluable knowledge and contributions to our country’s highest court.”

Pakistan’s ex-PM charged for alleged threat to judge

The charges are said to relate to a speech he made in Islamabad on Saturday in which he said he would sue a magistrate and police officers, the BBC reports.

Shortly after the really, the Pakistan Electronic Media Regulatory Authority (PEMRA) banned him from broadcasts for “levelling baseless allegations and spreading hate speech through his provocative statements against state institutions”.

Police have not yet arrested Mr Khan as he has been granted protective bail by the High Court in Islamabad until Thursday. He has been referred to an anti-terrorism court which could make a further ruling on bail this week.

Mexico arrests former attorney general in connection with student massacre

Mr Karam, who was attorney general from 2012 to 2015 and led a widely-criticised 2015 investigation into the disappearances, has been charged with forced disappearance, torture and the obstruction of justice, the BBC reports.

A truth commission established by President Andrés Manuel López Obrador in 2018 — shortly after he came to power at the expense of Mr Karam’s rival party — last week identified the disappearances as “state crime” involving federal police and the Mexican army.

The 43 students, from Ayotzinapa Rural Teachers’ College, disappeared while travelling to Mexico City on hijacked buses to take part in an annual demonstration commemorating the 46th anniversary of the Tlatelolco massacre, in which Mr Karam’s Institutional Revolutionary Party (PRI) was also implicated.

In a statement, the PRI defended its former attorney general and accused the Mexican government of political persecution. The party tweeted: “Our absolute support with him. We will not remain silent before a government that uses the state apparatus against opponents.”

And finally… cheeky red

Felipe Gimenez, owner of Tarragona wine company Reserva de la Tierra, has been summoned before a judge to answer charges of fraud, misleading advertising and falsifying documents and certificates, The Times reports.

Police believe that the company — one of Spain’s top wine sellers — had sold at least 15 million bottles of fraudulent wine for more than €20 million in total.

Authorities launched their inquiries after an amateur investigation conducted by local winemakers who were sceptical of the company’s rapid rise and cheap prices.

Reserva de la Tierra has been banned from selling wine and was recently bought out of administration.

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