Friday, 19 August 2016

Update on judicial review and social work law decisions in Scotland

Govan Law Centre has secured permission for a petition for judicial review to proceed which challenges a decision of a social work complaints review committee that was subsequently ratified by a local authority.

Counsel for the local authority had argued before Lord Pentland on 29 July 2016 that the petitioner had failed to exhaust his remedies and ought to have complained to the Scottish Public Services Ombudsman (SPSO). The failure to do so, it was argued, rendered the petition for judicial review incompetent, and therefore it fell to be dismissed.

The defender relied on the cases of W v. Scottish Ministers 2010 SLT 65 and McCue v. Glasgow City Council 2014 SLT 891 - none of which addressed the specific issue of the SPSO.

The petitioner argued that having regard to the terms of the Scottish Public Services Ombudsman Act 2002 and the jurisdiction and powers of the SPSO thereunder, and the SPSO's own guidance on social work complaints, it was clear the SPSO could not deal with the subject matter of the petition - which claimed the council's decision was Wednesbury unreasonable and irrational in law - nor could the SPSO provide the remedy of reduction, which the petition sought.

Lord Pentland rejected the local authority's arguments on this point, and held that the SPSO did not oust the jurisdiction of the Court of Session in a petition for judicial review that claimed a social work decision decision was unlawful; and sought reduction of that decision.

Permission was granted and a substantive hearing was assigned.  GLC's Mike Dailly appeared for the petitioner; and Ms Martin-Brown appeared for the local authority.
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Tuesday, 16 August 2016

Improving people's lives and safeguarding their rights: Govan Law Centre's 2015/16 annual report

We will be publishing our 2015/16 annual report in full shortly, but meantime we have set out some headlines below. It's been a remarkable year of growth for Govan Law Centre where we been able to help improve the lives of more people in Scotland through our casework and campaigns. In 2015/16
we have:

   Launched 3 innovative projects
   Successfully campaigned on growing problems in the private rented sector including the Scottish Parliament accepting some of our proposals and them being included in the new Private Housing (Tenancies) (Scotland) Act 2016
   Agreed to join the Scottish Governments advisory group on the implementation of the Private Housing (Tenancies) (Scotland) Act 2016
   Report submitted to United Nations on rights of tenants, homeless people and asylum seekers in Scotland
   Over a 1,000 people prevented from being made homeless in Glasgow
   Over £5m housing debt cases dealt with in Glasgow alone
   In over 9 in 10 cases we prevent homelessness saving families misery and the public purse £millions every year
   600 people got a benefit check, almost 200 benefit appeals taken on.
   We represent in Ayr, Glasgow, Kilmarnock sheriff courts every week; and Scotland's Supreme Court, the Court of Session
   We provide a dedicated home visiting service provided to carers in the North East of Glasgow
   We have gained our clients in Glasgow almost £500,000 contributing to the local economy
   8 in 10 of clients in our busy Govanhill office are from BME community.
   75% of clients in our Govanhill office speak English as a second language or need an interpreter
   We worked with Scottish Government to improve the rights of children within Education (Scotland) Act 2016.
   We run community rights hubs in homeless day centres and NHS mental health services across Glasgow. Meeting the needs of some of the most vulnerable people in our city

Growing GLC
We have three new projects: a new project to tackle the growing problems in the Private Rented Sector funded by the Big Lottery Fund, a new Public Interest Litigation Unit which takes on cases with a wider public benefit and a Personal Insolvency Law Unit which is the first project of its kind to take an ethical approach to supporting people through serious debt/bankruptcy. We have had to take on new office space to accommodate our growing organisation.

Campaigning GLC
We successfully campaigned on Private Housing (Tenancies) (Scotland) Act 2016 to improve the rights of growing number of people forced to rent in the private sector. A number of recommendations were supported by a Parliamentary Committee, which were reflected in Scottish Government amendments to the Bill at Stages 2 and 3. 

We have agreed to join the Scottish Governments advisory group on the implementation of the Private Housing (Tenancies) (Scotland) Act 2016. Our recommendations were backed up by our Big Lottery funded research Powerless: no expectations, choice or security.

We were successful in our campaign against social landlords seeking up-front rent payments from homeless persons who are legally entitled to an offer of a permanent tenancy.

We have been successful in improving the rights of ordinary homeowners through our strategic test case and court work has improved the rights of homeowners mortgage companies will have to ensure borrowers are properly protected when they issue short term interest only mortgages.

We represented 4,000 Govan residents at a Public Hearing in their campaign against parking restrictions in Govan since the building of the Queen Elizabeth University Hospital.

Glasgow City Council Contract
Our Glasgow City Council contract runs to 2018 and last year 474 clients were prevented from homelessness, we dealt with £5,478,711.74 of housing debt, £481,764.24 of financial gains were achieved and we made143 home visits to provide a service to vulnerable clients.

Justice Fellowship
We have participated in the launch of the Justice Fellowship for trainee solicitors to undertake innovative projects. Funded by Legal Education Foundation and Royal Bank of Scotland. We produced a report for United Nations on housing conditions and rights of tenants, homeless people and asylum seekers in Scotland, and how this impacted on the quality of life of our clients. We have been undertaking a wide range of housing and social welfare casework to develop an innovative access to justice project in Glasgow.

Govanhill services
   6 in 10 of our clients are in the private rented sector
   6 in 10 of casework deals with evictions, illegal evictions, and properties below the tolerable standard
   3 in 10 of our clients are disabled
   8 in 10 of our clients are BME and over
   7 in 10 have English as a second language or require an interpreter

We provide a dedicated home visiting service provided to North East carers

Ayrshire services
Ayrshire homelessness prevention project provides representation and support in mortgage repossession case. It runs monthly surgeries in Ardrossan and weekly representation in Kilmarnock and Ayr Sheriff court. We have taken on almost 50 new cases.

National Education Law Unit
      Over 500 cases dealt with on helpline
      We took on almost 96 new tribunal cases, and we took on 31 new cases with strategic litigation importance.
      ELU worked closely with Scottish Government in developing the proposals for extending childrens rights within the tribunal process.  This resulted in Part 3 of the Education (Scotland) Act 2016.

Prevention of homelessness project
   We have a  95% success rate in preventing homelessness
   Over christmas and new year winter period we carried out 32 - or over 100 hours of - rights hubs in Glasgow which resulted in 200 legal letters sent out on behalf of clients, 198 people getting re-housed,  and 6 successful judicial reviews in Edinburgh at the Court of Session
   We did 595 benefit checks.
   We challenged 163 benefit claims using appeal and review systems 94% were successful.

   Private rented research project was a voice for growing private rented sector tenants. Our report confirms that far too often tenants in Scotlands private rented sector are getting very poor value for money, they have very little choice and feel powerless to do anything about there predicament.

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Friday, 22 July 2016

Concern over the practice of buying & selling of older consumer credit debts; court action dismissed for absence of proof

Govan Law Centre has successfully defended an ordinary cause action at Glasgow Sheriff Court for an alleged consumer credit debt of £7,500.  Cabot Financial UK Ltd claimed they had purchased the debt from OPUS Credit Card (a trade mark of SAV Credit Ltd) in September 2011.  Our client had no recollection of ever having this credit card, and had no paperwork in relation to this credit agreement.

The action was defended upon the basis the defender was not due the debt. The pursuer was called upon to lodge in court the original regulated consumer credit agreement, a statement of how the debt was accrued and a copy of the assignation agreement of the debt. They failed to do so, and agreed to dismiss the action against our client with no expenses.

Our client's solicitor, GLC's Mike Dailly said:
"This case raises wider issues in relation to the general practice of the buying and selling of consumer debts in Scotland and the UK. Court actions are being raised when the purchaser of the debt would appear not to have proof of the legal constitution of the debt - that shouldn't happen. We are also concerned that debts are being pursued which have 'prescribed' and been extinguished in law. If you are being pursued for an old debt you should take advice from a local law centre, advice agency or solicitor as to your legal rights and liabilities".

In Scotland, consumer credit debts can prescribe and become unenforceable in law where no payments have been made for five years, and where the debt has not been subject to court or other legal proceedings, or been "relevantly acknowledged" by the debtor.  The relevant rule is set out in section 6 of the Prescription and Limitation (Scotland) Act 1973.

"Relevantly acknowledged" is defined by section 10 of the 1973 Act to mean where the debtor performs the obligation (e.g. by making a payment arrangement) or writes to the creditor and admits the obligation exists. A relevant acknowledgement means the five year time period begins again. If in doubt you should take independent legal advice to know whether a liability to make payment exists or not.
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Wednesday, 20 July 2016

Time to end the unfair financial windfall of creditors from Scottish debtors

Govan Law Centre (GLC) has written to the Minister for Business, Innovation and Energy in Scotland, Mr Paul Wheelhouse MSP, expressing our concern that many creditors are gaining a massive financial windfall at the expense of financially vulnerable people in Scotland who are finding it tough to make ends meet.  

The financial windfall for creditors occurs because of a lacuna in the law. Scotland's judicial rate of interest has remained at 8% per annum, at a time when inflation has been at a historic low for many years; as has the Bank of England's base rate, which remains at 0.5%.

To give a practical example. GLC has a client who entered into a protected trust deed just over a decade ago with a mix of unsecured loans, credit cards and overdrafts in the sum of £27,321. Our client owns a house in Glasgow South West with equity, has four dependent children and his wife has recently died from cancer. This family now face repossession. 

Our client made his monthly payments over the years without fail to the trustee, and was advised by the insolvency firm to enter into this arrangement with a view to re-mortgaging at a later date, however, this was prior to the financial crisis. Just over a decade later and our client owes those creditors a staggering £52,507. We believe this is grossly unfair. 

A further additional £14,736 is owed for the fees of the trustees and their solicitors (the overall sum due is £75,474 on a debt of £27,321; and this sum is growing daily).

 GLC's Principal Solicitor, Mike Dailly said:
"Any member of the public investing savings in an ISA or savings vehicle would expect to gain interest of 0.5% to 1%. Yet, creditors are entitled to 8% interest on debts which are subject to a protected trust deed or sequestration. We believe this is an unjust windfall, and a lacuna in the law which could easily be rectified by the Scottish Government reducing the judicial rate of interest on debts to a percentage more aligned to the base interest rate by way of a Scottish statutory instrument".

"We would be happy to meet with the Minister for Business, Innovation and Energy and/or his officials to provide further examples, and discuss how this issue could be best addressed to minimise the need for avoidable repossessions, and striking a fair and equitable balance between the interests of creditors and debtors in Scotland".
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Friday, 15 July 2016

Cover-up of human rights abuses and social apartheid against Kurds in southeast Turkey

Carole Ewart, Peter Hunter, Dee Flanigan,
Muharrem Erbey, Mike Dailly and Jillian Merchant
Govan Law Centre (GLC) was honoured to take part in a briefing from Turkey's Kurdish human rights lawyer and Vice-President of the Human Rights Association (IHD), Muharrem Erbey at UNISON Scotland's Glasgow HQ today.

Mr Erbey had been imprisoned without trial for five years under Turkey's 'Anti-Terror Law' since December 2009 on charges of 'membership of an illegal organisation'. He still awaits trial and is facing a further 15 years in prison if convicted; however, the charges against him are linked to his work as a human rights lawyer.

Anyone who democratically exposes or challenges human rights abuses in southeast Turkey is treated as a 'terrorist' and silenced through arrest, prison, intimidation, and fear.

Muharrem Erbey has worked for many years as a human rights lawyer and advocate in the southeast of Turkey, compiling reports on disappearances and extra-judicial killings in the region, while also representing local individuals in provincial, national and international courts (including the European Court of Human Rights in Strasbourg).

GLC heard oral testimony today which confirms there is wide-scale state suppression of the most grievous of human rights abuses against Kurdish people in southeast Turkey; with cities and infrastructure being destroyed and bombed, local people being unlawfully killed, and Kurdish culture being outlawed in a brutal form of social apartheid.

Over 50 Kurdish lawyers who have stood up against human rights abuses have been imprisoned and/or are awaiting trial; with 33 journalists in prison for trying to report this humanitarian crisis.

In May this year the United Nations human rights chief reported having received a succession of alarming reports about violations allegedly committed by Turkish military and security forces in south-east Turkey over the past few months, and urged the Turkish authorities to give independent investigators, including UN staff, unimpeded access to the area to verify the veracity of such reports. And yet, no-one is allowed to access and report on these human rights abuses.

Clearly, there is a major role for Scottish MSPs, MPs and MEPs to do more to help expose these human right abuses and ensure that Scottish and UK delegations are permitted entry to affected cities and communities in southeast Turkey; as well as using Scotland and the UK's influence to support the UN and EU to use its powers and tools to put pressure on the Government in Turkey to respect the rule of law and the legal, social and cultural rights of minority groups.
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