Archive for July 11th, 2012

Guest Post: Simon Walland – Preserving the Quality of McKenzie Friends

McKenzie Friends have been permitted to attend hearings since the early 1970’s and are becoming more and more accepted as an alternative to professional legal representation, but what of the standards and quality of McKenzies?  Only in the last week or so the Court of Appeal upheld a refusal to allow a McKenzie Friend ‘who had been found to have behaved in an intimidating manner towards the mother’.

No regulatory body governs McKenzie Friends
The use of a McKenzie Friend can be a life saver, but if done badly, can also be a life wrecker.  While there is no regulatory body governing their use, the situation can only become more uncertain.  The fact is that anyone can become a McKenzie Friend, and prey on the vulnerable, and let’s face it, the majority of people going through a relationship break-up, loss of house, children and dignity, can be at their most vulnerable.

Most McKenzie Friends have had no training whatsoever, and rely on their own experiences when attending court in their own case as representative of how the courts operate, and however well, or badly they may have done is disregarded as they lead the unwitting litigant into the same mess that they created for themselves.  Being well meaning is not the same as being worthwhile.

Scarcity of McKenzie Friend Training
There is a scarcity of training, and a shortage of McKenzie Friends who are capable and knowledgeable about what is necessary to properly assist a litigant with the court process.
Being a good McKenzie Friend involves being able to provide a variety of skills, from counsellor, mediator, lawyer, teacher, friend, providing moral, emotional and legal support.
Most litigants have startlingly similar stories to tell, often falling into two camps, those that have relied on common sense and a feeling that justice will prevail, and those that believe that standing up and fighting back is the only way forward.  Both usually find themselves in the same position, apart from their children and relying on the courts, and/or CAFCASS to resolve their problems, and realise that they need to deal with things differently, as the typical delays of three months between hearing quickly results in not seeing their children for six months.

How a McKenzie Friend Can Help
A McKenzie Friend is forced to work at a disadvantage professionally to both Solicitor and Barrister, as they do not represent their client, and cannot speak for them in a hearing.  Assisting with paperwork, letter writing, and establishing a strategy which will be effective in countering the problems they are experiencing is essential, and a large part of the assistance is to explain the legal process, what to expect and effectively managing their prospects.  Preparation for a hearing will generally involve writing a Position Statement setting out their case, as relying on the litigant to remember say the right thing in a hearing is tempting trouble.  On the negative side, setting everything down on paper fixes their position, and prevents the fluidity and alternative proposals which can occur once the other party’s case is known.

Negotiation before the hearing and at breaks during the proceedings is often one of the areas in which the McKenzie can bring the greatest advantage.  Counsel will usually appreciate speaking to a McKenzie that is knowledgeable and has reasonable expectations.  Better that then arguing with a litigant that doesn’t understand what is happening to them.

During the hearing, the charm and eloquence of many Barristers, as well as a familiarity with a Judge is an unbeatable obstacle to many litigants, tongue tied, nervous and emotional.  It is no wonder they feel let down and beaten up by the system.  Being able to say the right thing at the right time is the key to a hearing, and although the McKenzie is able to talk quietly to his litigant and encourage them to make responses, by the time the litigant understands what to say the moment has often passed.

Nevertheless, it is clear that Judges in the majority of cases appreciate the benefits of a good McKenzie Friend.  It assists them to conduct the hearing efficiently and avoids irrelevant issues being argued repeatedly and focuses the hearing on what is necessary.  The Judiciary, with few exceptions, do as much as they can to ensure that the litigant is not disadvantaged, and will make suggestions and proposals which will assist.

McKenzie Friend Training
Whilst there is no regulation or governance over McKenzie Friends, Simon Walland has organised a training course to teach aspiring McKenzies how to work with litigants.  The first course will be held in London in September and is almost fully booked.  It is hoped to get together a network of McKenzies that will work together, have a level of understanding and knowledge that will benefit the litigant, and hopefully gain a reputation for being a good McKenzie.

To book or for more information, visit: McKenzie Friend Training Courses

Simon Walland is a Professional McKenzie Friend, as well as being a qualified Lawyer. Simon has been a McKenzie for ten years, and being heavily involved with several charities assisting parents apart from their children.

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The Benefit System: Does the DLA Discourage Employment?
Switalskis Employment Law

People claim Disability Living Allowance (DLA) for various reasons from arthritis, to alcoholism. It is intended to help people to cover the costs of their illness and is not just a benefit for those who are out of work. It is not means tested and is available to all.

How is DLA Connected to Employment?

The last Labour Government introduced an independent medical assessment for those wishing to claim Incapacity Benefit (IB). IB compensates those who are unable to work due to illness. The introduction of this assessment has made it clear that there are many in receipt of IB who are able to work and who should not receive it.

While those who receive IB are all unemployed, the same cannot be said for those in receipt of DLA. The Government however is of the view that receipt of DLA can be a factor that discourages those who are able to work, from seeking employment.

Potential discrimination in the workplace is a further factor that could discourage those who are in receipt of DLA from becoming employed. However there are many legal safeguards to protect disabled employees from discrimination and firms can assist if disabled employees believe they are the victims of discrimination.

The Current System

The current system for assessing DLA is a mainly paper exercise and there are concerns that this can result in a number of claims that are not genuine. In only a small percentage of cases are potential claimants medically assessed to ensure that the information provided on the form is genuine? However, the volume of paperwork that is currently required can have a significant impact on potential claimants, particularly those who are also looking after a sick relative or child. There is little doubt that the system is in need of reform but it is important that claimants with a genuine need do not feel alienated because of the desire to find who should not be entitled.

Plans for Reform

The Government plans to reform DLA by introducing a new form of independent medical assessment which will reduce the number of people entitled to the benefit and ensure that only those who really need it, receive it.

The number of people in receipt of DLA has increased to three million from one million in 1992. This could be because of factors such as medical advances and an ageing population. At the same time there has been a reduction in those claiming IB which could be because an independent medical assessment has been introduced for this benefit. However, it is unclear whether those who have been declared medically fit for work then go on to be in employment or whether they are still claiming other unemployment benefits as well as DLA.

It is not thought that the very existence of DLA discourages employment, however the question has to be asked, whether it is right that those who have had their IB stopped because they are deemed to be fully able, yet are still unemployed, should continue to receive another benefit that is intended to help those with a disability? It is this imbalance that the Government is trying to address while ensuring that the DLA remains in place for those who really need it.

This post was written on behalf of Employment Advice Law who are solicitors in Wakefield

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