Tag Archives: benefits

Labour Conference: Bedroom Tax and Beyond

My last post was about Conference season, written before Labour’s Conference. During the Conference I was reflecting on what I’d said about Labour in that post. The plan is to split this up into three posts. Otherwise it’s going to be a really long post and might not get posted until Spring Conference. I’m not looking at how Labour can deliver the promises it’s made and I’m going to limit it to some issues which are particularly important to me. I’m asking myself whether or not I can say “thanks Labour. You exceeded my expectations of the ideological position you would take in your policy announcements at Conference”.

A few hours after I saw that Ed Miliband was finally committing to the abolition of the bedroom tax on the Friday before Labour’s Conference started I watched the BBC’s 10 o’clock news and Newsnight and found the post-match analysis. Regardless of Labour’s reasons, the decision to scrap the bedroom tax is the right one but, as far as everything I said about what I want from Labour goes, the reasons matter to me. In fairness, Miliband did say that the bedroom tax is hurting people but the BBC coverage went on to suggest that he’s only making a commitment now because the bedroom tax polls so badly among Labour voters. Well, it’s true that it does and, yes, I think it’s also likely that the increase in overall opposition to the policy (from 51% to 59% since its introduction in April) added to his decision to finally stick his neck out. That and the fact that, if he didn’t, divisions within the party over the issue could’ve come to the fore at the Conference. The BBC also warned that he needs to stop there so Labour doesn’t come to be seen as soft on “welfare”. God forbid that should happen (a few months ago it was Newsnight who revealed the Tory-lite proposal of matching what people get out of social security to the level of their contributions but hey ho).

The bedroom tax was sold by the Government using the politics of resentment: the resentment of people who receive housing benefit and live in social housing by people who are financially better off yet unable to afford a home of equal size, whether to buy or rent. The Government wanted to financially punish people on housing benefit for having the audacity to live in the homes allocated to them by their social landlords. People came to see the underlying unfairness of this. A vocal campaign made that happen. Activists (particularly but not exclusively disabled ones), social landlords and some councils have made the running when it comes to changing public opinion. The result is that the public has been able to see past the figleaf of housing distribution that caused a lot of people to initially support it. More people see it for what it really is now they realise how spare rooms are defined and that there’s nowhere to move people to. They’ve seen it for what it is and they say “that’s wrong”. I don’t believe that the national Labour politicians have done a great deal to achieve that (but give some credit to Labour councillors). Other people made the running to change hearts and minds on the bedroom tax by putting it in the spotlight. In his Conference speech, Liam Byrne acknowledged the contributions that a variety of people make to changing public opinion. Obviously a large section of the public still support the bedroom tax but it’s progress. You might think it doesn’t matter how Labour’s new bedroom tax policy came about if the end result is the same but I’m thinking about whether Labour is proactive or reactive in setting policy.

Pundits on Newsnight went on to say that, while Labour might get away with talking about the bedroom tax, it ought to reaffirm its commitment to benefits uprating, although my understanding of Labour’s current stance on benefits uprating is that it’s warning the issue’s not at the top of its priorities as far as budgeting goes, rather than that the party thinks it’s an inherently fair measure. The BBC coverage does seem to be how it goes. One step forward then rapidly urged to take one sideways, to the right, and then back. The media acts like an over indulgent auntie telling Labour to just give the kiddies what they think they want, even if it’s dolly mixtures for breakfast, without necessarily stopping to ask the kiddies if they’d rather have something more healthy. On Newsnight uprating was called a popular cut. However, when I checked to make sure I hadn’t missed something new on benefits uprating in the Conference, I found a Labour List post saying Labour’s opposition to benefits uprating early this year had public backing. That post also made the same case for open dialogue with the public that I made in my last post. In the end, benefits uprating wasn’t mentioned by Miliband or Byrne at the Conference. I’m left wondering if the reason for that is that Labour’s concerned about being seen as soft on social security or whether it’s actually that the party doesn’t want to remind Labour voters of its wait and see policy. It could even be both, which is what’s irritating about the approach of selling only what people already know they want.

Saturday rolled round and Miliband had replied to the question “when are you bringing back socialism?” with “that’s what we are doing, sir” (which made me laugh because it sounded so like something the Tripe Marketing Board would tweet, but anyway). It made for fantastic headlines. Over the course of the weekend more policies were revealed, followed by Liam Byrne’s Conference speech. Looks good on the surface, doesn’t it? But what struck me was who was saying what and what wasn’t being said at all. Certain issues have been noticeably absent.

What were promised were easy policies. For example, a pledge to terminate Atos’ contract is a no brainer coming from Labour. It’s hardly cause for celebration. It’s another vote winner because, no matter what their views on payment of sickness and disability benefits generally, everyone has seen the stories of cruelty and incompetence related to Atos. Even the Daily Mail has published them, while continuing to push the argument that most recipients of ESA and DLA/PIP are up to no good. An unprecedented level of activism from disabled people has, I believe, put disability rights onto Labour’s agenda at the Conference. Byrne acknowledged the contribution disabled activists have made. I have a huge amount of respect for disability rights activists who haven’t given up in the face of everything from apathy to scorn and have continued to challenge Labour to stand up for disabled people. The steady pressure they’ve brought to bear has driven the unfairness of the bedroom tax and Atos assessments home to the public, despite a climate where disabled people are increasingly demonised as scroungers.

The proposal to introduce a specific offence of disability hate crime is also welcome. It should have been done sooner but it’s telling that it was Liam Byrne who made this announcement*. The creation of a new offence would be an announcement best left to Yvette Cooper, given the two hats she wears as shadow Home Secretary and shadow Equalities Minister. To me, including it in the shadow Work & Pensions Minister’s speech implicitly accepts the Government’s and media’s narrative that all disabled people are on benefits and legitimizes their agenda. It’s like saying it’s ok to have negative attitudes to disabled people, just keep it within the law. If they said that about other minority groups, I expect they’d be pilloried for it.

Byrne’s speech is a bit like one of those what’s missing from this picture puzzles. He says that there must be sickness and disability assessments, with or without Atos. That’s stating the obvious and people can interpret it how they want. It looks to me like the only thing Labour intends to change at the moment is Atos. I’m not holding my breath for a return to old medical assessments. He also says Labour will look at a better approach to the provision of health and social care but doesn’t mention the possibility of reversing the new criteria for disability benefits in the form of PIP. During consultation plenty of responses dealt with the question and in considerable detail. Was Labour listening? The April Labour List post linked to above cites a YouGov poll which found only 11% of people polled backed cuts in DLA so there isn’t public support for cuts per se but I’m not so sure about public opinion on medical criteria for entitlement, which would be telling. The stories of extreme hardship experienced by the most severely disabled and terminally ill people have gotten through but there’s a high level of public suspicion that claims are being fraudulently made. Maybe it’s too much effort to address the negative attitudes to disability benefits being pushed in the media. Maybe Labour just doesn’t believe people who will lose out under the new criteria. I found this footage from March where Milliband took a question from someone who will lose out. I found it a bit disturbing that, even as he was giving reassurances that DLA/PIP and motability would be looked at, he sounded like he didn’t really know much about it. Looking at it now, after the Autumn Conference, it feels like maybe Labour have just shelved the issue for now.

What else is missing from the picture? Byrne said:
“And the cardinal principal is this, full employment first,”
Fair enough. That should be the goal of any government: a job for everyone able to work. At Conference Labour talked about the minimum wage, inflation and even backed a living wage in a limited way but didn’t mention workfare. I get that Labour supports back to work schemes (well, back to work schemes that actually lead to long term employment) but how can Labour claim it stands for a fair day’s pay if it won’t commit to paying minimum wage under workfare? How can Miliband say it’s wrong for everyone’s favourite villains to pay minimum wage but it’s right for others, including large retailers, to pay nothing at all? As far as I’m concerned, silence on workfare is another sign that Miliband is looking for easy wins. There is so much resentment towards unemployed people now that short term slavery has become socially acceptable. He doesn’t have to do away with sanctions or work schemes completely to make a positive change but he’s not making the case for change at all.

As I mentioned above, there was no mention of benefits uprating, despite rhetoric about inflation and despite the fact that many people receiving benefits and tax credits are in work. The fact that Labour wasn’t prepared to go there, even after Byrne said:
“We’ll need a campaign for the living wage because it is wrong that we are spending the nation’s tax credits propping up low pay at firms with rising profits”,
is weak as far as I’m concerned. We get it. You’ve told us that there won’t be limitless cash in 2015. Couldn’t you at least commit to doing what you can?

I’m going to post separately on Ed Miliband’s Conference speech and the overall impact of the Conference on me but it’s fitting to end this post with a quote from his speech:
“We know what we’re going to see from these Tories till the general election: the lowest form of politics, divide and rule. People on benefits against those in work, people inside and outside unions, private sector versus public sector, the north against the south. It’s the lowest form of politics.”
I’m having some trouble seeing how Labour’s policy announcements prove they’re really going to strike out in a new, brave direction though. It seems to me that Labour gave potential voters what it was confident they already want when it comes to social security.

* since writing this I’ve read Yvette Cooper’s speech and gather from that that Byrne was actively involved in forming this policy which is even odder as far as I’m concerned, even if it does explain why he was the one to make the announcement

Accentuate the Negative

One Legged Man Falsely Accused of Benefit Fiddle, I read. Wow, I thought. There’s a whopping black eye for the DWP…and the CPS too, who actually prosecuted a man for supposedly claiming for his right leg, conveniently ignoring his left leg. Hurrah! A positive disability benefits story! Well, no. Actually it’s not, if you read the article I’ve linked to. Yes, it exposes incompetence of an absolutely gobsmacking nature in the medical assessment and at every stage afterwards but look at the way it’s framed. Robert Punter and his consultant both emphasise the fact that he worked right up to the age of 63 as being evidence he wouldn’t make a fraudulent claim. So we’re back to the striver/skiver language. He must be innocent because he worked despite what sounds like a devastating injury. It wasn’t necessary for the consultant’s letter to Robert Punter’s solicitor to say that. The glaring mistake in the medical evidence the DWP claimed to have could be identified without including the consultant’s own opinions on the characters of Robert Punter and other patients but presumably he was eager to help his patient and thought his additional comments would strengthen the impact of his letter.

DLA is a benefit provided solely on medical need. The consultant’s letter seems to suggest that lots of patients try to get more money in benefits by trying to weasel their way into an assessment that they’re worse than they are medically. He says he has:
“witnessed over the years many patients with far more trivial problems who have gone to long lengths to maximise their symptoms so as to claim various benefits,”
Unfortunately, his letter reinforces the myth that huge numbers of people are fraudulently claiming disability benefits. Although his comments weren’t necessary, there’s no reason his letter should debunk the myth – it was sent to Robert Punter’s solicitor for a specific purpose. I wonder how patients who read that letter in the paper will feel though. How many will wonder if he’s pointing the finger at them? How many will trust him less as a result of this?

Of course, it’s the newspaper which is reinforcing the myth by quoting so extensively and not pointing out that only 0.4% of DLA claims are fraudulent. It’s the newspaper that doesn’t bother saying that DLA can be what’s needed to make it possible for some people to work: one of the arguments against PIP by recipients of DLA who work is that the reforms will make it harder for disabled people who are downgraded into a lower band or taken off the benefit completely to work because they use the money to help them to stay in work. If they even manage a negative spin on a case like this, what will it take to get a paper to write a story that doesn’t just become one more brick in a wall of negative rhetoric about disability and benefits?

Benefits Britain

I got quite upset watching Benefits Britain last night and reading the comments about it on Twitter. So many people on Twitter were calling Karen a lazy scrounger. Nobody could stand her. Nor could I but that doesn’t mean I think she’s faking. There was a lot of sympathy for Melvyn and Craig but I saw none for Karen outside the WOW circle. I have chronic pain and even I had precious little sympathy for her because she was so whiny and I just didn’t like her (I appreciate she has several conditions but I’m going to focus on chronic pain here for obvious reasons). I felt let down by Channel 4’s choice of person to represent invisible disabilities. It seems people saw Karen as ignoble and obnoxious. She wasn’t bearing the conditions she has with “quiet dignity”. There’s no law saying people with disabilities have to be likeable though. It’s not a condition of entitlement to benefits either. It’s like the convention that people diagnosed with cancer suddenly become angels on the day they’re diagnosed. Two words: Lance Armstrong. It often seems like the public wants disabled people it can admire and pity in equal measure. People want heroes overcoming all odds, like Paralympians. They want Tiny Tim. But, when all’s said and done, disabled people are just people: good, bad, indifferent, imperfect people.

Karen was criticised for her answers during the work assessment, particularly for saying it hurt to lift a potato. Only Karen knows the truth of what hurts and how much. Not Twitter, not me. Watching Karen, I understood where her responses could be coming from. It’s hard to answer questions in an assessment when you have chronic pain. Many people with chronic pain can perform a lot of different actions once, on the day, but if they do it without giving feedback that it hurts or that they couldn’t do it repeatedly they run the risk the assessor will note that they’re always capable of doing it when the reality is that they might have a flare up tomorrow from doing it once and might cause a long term deterioration in their condition if they tried to do it regularly.

I believe Karen’s report that the pain increased when she picked up the potato – she pointed to the outside of her arm when she said it and I get increased pain from even lightweight lifting there too, although it’s a small and fleeting increase. If I thought her response was excessive at all, it was because the rules of the game say it’s unwise to remark on an increase in pain for such a minor action, assuming her increase in pain was relatively small. Doing so runs the risk that the assessor (whether a pure medical assessment or DWP one) will say you’re exaggerating and/or affected by psychosocial issues. Exaggeration is what viewers tweeting negatively apparently thought. Karen didn’t say it hurt a lot, just that it hurt, but that was enough to generate a lot of negative tweets.

I don’t know what happened to Karen before she was diagnosed with the conditions she has. Maybe it was a smooth ride from initial appointment to diagnosis. Maybe it was a pitched battle. I suspect that at some point it was a pitched battle because I’ve seen the frustration she exhibited over not being believed before. People suffering from chronic pain have to walk a path through the healthcare system but it sometimes seems like an invisible path. Say too little and you don’t really need help. Say too much and a diagnosis of depression is as likely as tests to find a physical cause for the pain. I’ve never had that happen to me but I spent over three years under one particular GP who seemed to think that I was too fragile a flower for the legal profession, that the pain was all in my head and induced by stress, while throughout that time a disc causing debilitating pain was growing ever more (as the surgeon later put it) rotten and my muscles were being put under strain, forced to compensate, in ways I haven’t recovered from yet and may not ever. I can see judgements being made by doctors on an person who comes off as abrasively as Karen and I can see her becoming more and more abrasive as a result.

If she’s defensive, even allowing for the possibility she might always have been unlikeable, it may be because she’s been made to feel like a liar so many times that she can’t help it. I don’t have to like her to understand it because I’ve been through the “I can’t fucking win” feeling. In one mind boggling case, an insurer’s assessment concluded that the surgeon who diagnosed a degenerative disc was just a trigger happy scalpel jockey who enjoyed cutting people up way too much for his diagnosis to be trusted. I paraphrase, but only barely. The surgeon was absolutely livid.

If Karen has been on benefits for some time, this could also be relevant to how she answers. When I made my first Incapacity Benefit claim I rang for guidance on completing the form because some of my symptoms fluctuate. The questions were similar to what Karen was asked, with multiple choice answers. I was quite clearly told, “tell us how it is on your worst days, not how it is today.” I don’t know what the DWP currently says but that’s the rule a long term recipient of Incapacity Benefit would be used to.

Among the tweets were some saying Karen was physically capable of doing a desk job involving typing if it wasn’t for her fake nails. I’m not going to get into how she spends her money but being in pain all the time can drag you down and it’s not controversial to say,  “find pleasure in the small things.” It’s a topic you might find on chronic pain forums and my pain clinic says to find things which make you happy. The small things can take many forms. Mine include star gazing, watching the wildlife and my cats but there’s another one that makes me think maybe this is why Karen has such cheerful nails. I mentioned in my last post I usually pick clothes to wear which reflect or enhance my own happiness. I started doing that after surgery, with a dazzling and mood lightening array of different coloured vests and pj bottoms.  Rather than carping at Karen, could we consider the possibility that she deserves one thing in her daily life that takes her mind off the pain in the moment she looks at her brightly painted nails?

One of the factors taken into consideration when determining if a person’s pain is “all in their head” or exacerbated by psychosocial issues is their appearance. Someone who makes no effort could have it held against them by an assessor (even the underwear you wear gets judged. Plain cotton is the best way to go. That’s not just personal opinion: I’ve read academic papers on the subject…on psychosocial issues, not undies generally!). In a medical context, bright multi-coloured fingernails could suggest someone who is not just making an effort but who has a sunnier nature than the stress of a medical appointment might display. When it comes to work assessments, this is another no-win situation though. Make too little effort and the same negative conclusions could be drawn. Make too great an effort and, just like the viewers who tweeted on this, the assessor could take it as a sign you’re less impaired than you’ve said in your forms.

Speaking of appearance, the “potato incident” suggested something about her appearance to me. Styling my hair hurts a lot in that part of the arm and in my shoulder. I used to hate my curls and only learned to love them after I realised by blow drying I was putting myself through unnecessary strain. Now I only blow dry my fringe (which, again, I love now but only had put in last summer after my hair temporarily thinned after a large number of steroid injections were administered in one go). It hurts even to do that. Often even lifting my arms to put my hair in a ponytail hurts. I think about Karen’s cornrows and wonder if she’d always have chosen them, whether she’s happier with them than if she was still able to tame her own (probably much tighter) curls (if she did before), whether she’s come to terms with losing a measure of control over her own appearance.

Back to the question of her ability to do a sedentary typing job. A reminder in case anyone reading this is new. I do work. I work part time. It hurts like hell every single working day. It hurt like hell to write this on my mobile even though I wrote it in chunks. I didn’t catch which part(s) of Karen’s back are affected because I missed the start of the programme, although that one little mention of pain in her arm that provoked so much fury suggests to me that typing could be out of the question. The chronic nature of her pain is also relevant. Doctors now know that, regardless of what the underlying cause of chronic pain is, pain begets pain. I’ve been told several times that by living in a daily “pattern of pain” where I peak and trough throughout each day of my normal working life instead of having the more normal non-pattern of good days and bad days (flare ups), I’m risking making my body’s ability to process pain worse as well as risking joints and muscles. That’s what Twitter (and the Daily Mail, of course) could be demanding Karen should do. But then, I didn’t see Channel 4 explain to viewers what strain different types of work would put on someone like Karen by modern medical standards or how chronic pain itself affects her body. Did I miss it? Channel 4 got the “money shot” of her refusing to do the work experience they were offering. In the context of the show, I thought she made the wrong choice. It’s one day. She’d probably have a flare up afterwards but it’d settle down again. That’s not to say she’s fit to work in the real world, just that I wish she’d stopped to think about the image she was putting out there.

Channel 4, you let us down. You hurt me. It’s your fault if people with invisible disabilities felt like Twitter was rounding on us during and after your programme. It’s your fault for not acknowledging prejudices and ensuring you had three people with similar personalities. It’s your fault for casting a wicked witch for dramatic effect. You know what, Channel 4? I hate you a little for that. I really do. There is one thing Channel 4 could do now to help the people it hurt by broadcasting this. Presumably it verified Karen’s medical conditions before making the show and verified their impact on her. It would be the sensible thing to have done. If it did, it should make a statement to that effect on the news and both before and after next week’s programme.

Notes:
For more on perceptions of people with invisible disabilities, I’d (not very humbly) recommend Looking Good: Invisible Disabilities where I picked out quotes from a study on the subject.

The programme mentioned rates of employment of disabled people in 1949 and today. The high rate of employment in 1949 wouldn’t have included Karen. For a detailed review of disability discrimination in the jobs market today I would (even less humbly) recommend How many elephants can you get in the DWP where I reported on the avalanche of evidence I found on the scale of disability discrimination and the fact that the Government isn’t doing enough to change things.

The Bedroom Tax

I first wrote this in March but Nick Clegg made me so furious when he suggested that the Bedroom Tax is necessary due to long waiting lists that I decided to reblog one of my own posts for the first time. The Tory part of the coalition told us when the Bedroom Tax was introduced that they were doing it to save money. Clegg now claims it will redistribute social housing. Even if the Government’s goals have changed, it won’t redistribute social housing. North Herts made a handy case study to prove the point…

While I’m on the subject, the Director of Aragon Housing in Bedfordshire shared their review of the first 100 days of the Bedroom Tax with me last night. As she put it, they’re just across the border (Incidentally North Herts Homes also owns properties in Bedfordshire). I’m hoping they’re not the only ones and plan do a future blog on it but it’s great they’re collating and sharing this information so I thought I’d pass it on now.

Law Geek's Blog

The bedroom tax. Apart from the financial and social problems it will create, I couldn’t help wondering how it could be expected achieve anything other than making a large number of people poorer. There have been so many personal stories, particularly involving disability but the question I kept coming back to was, what the hell is the point? That’s what sent me looking for more information. The Government’s stated aim is not to reallocate resources more effectively but to cut the cost of housing benefit. The fact that this change is only being put in place for working age people in receipt of housing benefit underlines this point. Retired people who are underoccupying are completely unaffected. A property is underoccupied if there are any bedrooms left over after:-
A. an adult couple sharing one room
B. two mixed sex children under 10 sharing
C. one or two same sex children…

View original post 2,355 more words

WOW, impact assessments and consultation

When I reviewed the provisions of the UN Convention on the Rights of People with Disabilities, by reference to a Report from a Joint Committee on Human Rights published in March 2012, I suggested that the Government’s failure to perform a cumulative impact assessment of it’s reforms, its response to the WOW Petition and its refusal to engage even with an mp (Michael Meacher) who supports the call for a CIA (all of which prompted that post) could breach the Convention. Last week, during a Commons debate on the need for a CIA Employment Minister Mark Hoban repeated the DWP’s line that it’s just too difficult to carry out a CIA and was mocked by Liam Byrne who suggested that if the UK can host the Olympics, participate in space programmes and have military operations abroad its government ought to be able to carry out a CIA. I’ve finally started to go through the rest of the Committee’s Report on the UK’s implementation of the Treaty and the Committee had this to say on the then Welfare Reform Bill (it received Royal Assent a week after the Committee’s Report was published):

“In our legislative scrutiny Report on the Welfare Reform Bill we noted criticisms of the impact assessment process for that Bill. Equality impact assessments were not published by the Government until the Bill was in Committee in the Commons, and, while equality impact assessments have now been published for distinct parts of the Bill, these do not attempt to assess the cumulative impacts of multiple provisions in the Bill on particular groups with protected characteristics. This is of concern, since at least some individuals will experience these changes cumulatively, and their impact needs to be understood in this way. For example, a disabled person may find that they lose their lower rate DLA, and therefore become subject to a cap on their housing benefit such that they cannot afford to remain in their home. Moving may disrupt informal patterns of care and support at the same time as they have increased reliance on these supports.”

And

“We are concerned that the UNCRPD, and Article 19 in particular, does not appear to have played a central role in the development of policy. Inadequate attention has been paid to the impact of relevant policy on the implementation of the UNCRPD, in contravention of Article 4(1) and 4(3). We recommend that the Government make a clear and unequivocal commitment to Parliament, equivalent to that which it has already given in relation to the UN Convention on the Rights of the Child, that they will give due consideration to the articles in the UN Disabilities Convention when making new policy and legislation, and in doing so will always consider relevant recommendations of the UN treaty monitoring bodies.

“However, if properly carried out, equality impact assessments provide an important mechanism through which to ensure policy achieves desired goals and avoids unintended consequences, and help to demonstrate transparency and accountability. We recommend that they should be produced early in the policy-making process with the full involvement of those likely to be affected by the policy.

“Given the breadth of the current reforms, the Government should publish a unified assessment of the likely cumulative impact of the proposals on independent living, and set out any relevant mitigations through the Disability Strategy. The relevant strategies in the devolved administrations should also include such mitigation plans.

“We regret the exclusion from the English specific duties under the new Public Sector Equality Duty of the requirement to conduct equality impact assessments. The Government should either revise the duties accordingly, or promote equality impact assessments as a matter of good practice, with the assistance of other expert bodies such as the Equality and Human Rights Commission, Scottish Human Rights Commission, Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. We welcome the willingness of the Secretary of State for Justice to consider the impact assessment methodology being developed by the Scottish Human Rights Commission and we look forward to the outcome of that consideration.

“Our evidence suggests that equality impact assessments have not played an important part in assessing the impact of recent policy on disabled people in the context of the UNCRPD, because of poor quality, or untimely, EIAs. There also appears to be some confusion over the requirement to conduct EIAs, which the Government should clarify.” 

So, the Committee said that in March 2012. You’d think we wouldn’t need the WOW Petition. You’d think the Government would take these conclusions on board and act on them. Instead, in November 2012 David Cameron announced at a CBI Conference:

“Let me be very clear. I care about making sure that government policy never marginalises or discriminates. I care about making sure we treat people equally.

“But let’s have the courage to say it: caring about these things does not have to mean churning out reams of bureaucratic nonsense.

“We have smart people in Whitehall who consider equalities issues while they’re making the policy. We don’t need all this extra tick-box stuff.”

“So I can tell you today we are calling time on equality impact assessments.”

Apparently the “smart people in Whitehall” conveniently forgot about the Committee’s Report. Even before that speech, in May 2012 the Government had launched a review of the Public Sector Equality Duty. It called for evidence but, crucially, said it wouldn’t be opening the subject up to consultation. Why’s that crucial? The obvious reason is because it would meet with opposition but the other reason for the purposes of this post is that the Committee’s Report on the Disabilities Convention also considered the issue of consultation. It seems obvious to me that the Report’s conclusions on both consultation and EIAs would also apply to Cameron’s plan to drastically scale back the use of EIAs where disabled people may be affected by proposed policies. The Committee concluded:

“The UNCRPD specifically requires disabled people to be involved in the implementation of the Convention, and the Government have acknowledged the importance of such involvement. We recommend that the Government aim to involve disabled people in the development of policy, rather than simply consult them, and to ensure that timescales and methods are used which enable a full range of disabled people and their representative organisations to be involved.

We are disappointed that the English specific duties under Section 149 of the Equality Act no longer encourage the involvement of disabled people. This is a retrogressive step. The Government should actively promote involvement to public authorities as a means of meeting their Equality Duty and in order to comply with the UNCRPD.”

The Report noted that consultation does happen on various levels but also that some people felt that consultation tended to be with “the usual suspects” ie household name charities. Then Disabilities Minister Maria Miller’s defence of the Government’s record included the boast that they’d had over 5,000 responses to the Consultation on the replacement of DLA with PIP. I’ve checked. The DWP received 5,500 reponses, nearly 2,500 of which came from individuals. Protests at the reforms were met with the response from Miller at the time that they were symptomatic of problems with the existing system, demonstrating that one key to effective consultation with disabled people is whether policy makers are actually willing to listen and engage with them – Miller wasn’t and I’ve seen no evidence since that any DWP minister is.

The Report didn’t specifically address the issue of activists like WOW, Sparticus and Pat’s Petition. Disabled people are grouping together, carrying out research, professionally writing reports like this one (pdf) and taking to the streets in protest. Disabled people are stakeholders and clearly don’t feel the various relevant charities are contributing enough to the policy making process. Rather than being treated as stakeholders, activists are ignored at best. At worst they’re subjected to scorn and derision, facing the accusation that you can’t be that disabled if you’re able to give a detailed professional response to a consultation, organise opposition through social media or attend any relevant meeting or protest. Paul Maynard mp went even further in the House of Commons on 10 July, accusing disability activists of being “extremists”. From where I sit, if you have a vocal group of disabled people and their carers who want to engage you over your reforms, it’s shameful to ignore them and disgusting to try to undermine them with language usually attached to religious fundamentalists and terrorists. In fairness to Maynard, Pat’s Petition has reported he regrets his use of the word, following communications between Pat’s Petition and him.

This is a long enough post already so I won’t say anything more about Maynard but the fact is that nearly 50,000 people have signed the WOW Petition. I’m one of them and, if you aren’t yet I’d urge you to become one. The WOW Petition is necessary because the Government refuses to listen. It refuses to engage with disabled people. It refuses to acknowledge that the arguments for a cumulative impact assessment have merit. As I said in my earlier post on the Convention, individuals can’t bring claims against the Government solely on the basis of a failure to comply with the Convention but that doesn’t mean it’s not binding on the Government or that the UK courts and the European Court of Human Rights can’t rule that breaches have occurred in appropriate cases (see my earlier post for more on this). Apparently, the UN has also been made aware of the situation.

The UK should’ve been leading the way, setting an example for the countries it encouraged to sign the Convention. Instead this Government been guilty of wilful ignorance over the most basic of issues (namely whether the Convention is binding on the UK at all), has deliberately introduced reforms which take the rights and living standards of disabled people backwards and has done so without appropriate consideration of the consequences of its actions. The result has already been a reduction in the independence of disabled people and an increase in poverty among disabled people. Yesterday David Cameron launched the hashtag #DisabilityConfident. I’m confident of this: many more disabled people will suffer as a result of his Government’s policies if it doesn’t change course.

PIP and Mental Illness Guidance

The most common search terms by far for people coming to my blog are PIP and mental illness. People find my blog because I wrote a post condemning assessments of people with mental illness for PIP and society’s attitudes towards mental illness in general. Maybe that’s what people coming to the post were looking for anyway but I’m concerned people looking for guidance on their own individual circumstances are not finding it so I went looking for some practical advice which I could link to for those visitors. It’s no wonder people are ending up here. The vast majority of pages out there are political in nature. PIP is very much in its infancy and people on DLA on 7 April 2013 don’t need to worry too much for now. If you’re making a new claim, I’m sorry to say that there doesn’t seem to be a great deal of written advice out there at the moment. The best one I’ve seen is on Disability Online and gives quite detailed guidance. In particular, it specifies the dates on which PIP is being rolled out in different postcodes and runs through the application process.

4/10/13
A Benefits advisor I follow on Twitter also recommended Benefits and Work. The site isn’t specifically for people suffering from mental illness but I trust her judgement so it’s probably a pretty good general source of guidance.

Call me a cynic but…

I got a tweet in response to The Day Justice Died saying:
“call me a cynic but Govt blocking access to the law at same time as other attacks shows lessons learned from #workfare”.
I wouldn’t call that cynical. If anything, I’d say it doesn’t go far enough. Yes, the current round of cuts is brutal. It fits neatly in with all of the other cuts and makes it considerably more difficult for people who are affected by them or by the state of the economy generally but cuts in Legal Aid are nothing new. The introduction of modern Legal Aid was one of the many post-war measures to create a fairer society (although the roots of the principle of access to justice lie in the Magna Carta). Created by statute in 1949, it sat alongside the NHS and the modern system of social security. But while the NHS is a national treasure, Legal Aid unifies people in a different way: a national punching bag. Might the imminent destruction of all of Legal Aid’s more popular siblings be what it takes to make people see its value? Like the plain, dull sibling in a Jane Austen novel; Legal Aid has been sitting, rejected and forlorn in the corner for so long that I wonder how many people ever think of it at all. The Tories didn’t sneak up out of the mist and slit Legal Aid’s throat on the 1st April. Legal Aid has been slowly starving to death for a generation and arguably stands as a lesson to its more popular siblings.

In 1945 a Parliamentary Committee included the following recommendations in its report (acknowledgement goes to Save Legal Aid, who I’m quoting heavily here):-
– Legal aid should be available in all courts and in such manner as will enable persons in need to have access to the professional help they require.
– This provision should not be limited to those who are normally classed as poor but should include a wider income group.
– Those who cannot afford to pay anything for legal aid should receive this free of cost.
– There should be a scale of contributions for those who can pay something toward costs.
– The cost of the scheme should be borne by the state, but the scheme should not be administered either as a department of state or by local authorities.
– The legal profession should be responsible for the administration of the scheme.
– Barristers and solicitors should receive adequate remuneration for their services.

As a lawyer with lefty-leaning views, that all sounds fair and sensible and when Legal Aid began in 1950 it followed those recommendations. Some people would (I confidently predict because they always do) criticise lawyers over the “adequate remuneration” recommendation. The average annual salary of a Legal Aid solicitor is £25,000 (just below the national average). The difference between the “fat cats” and mere mortals doing Legal Aid work and/or working in the high street is vast but you only ever really hear about “fat cats”. Incidentally, by way of comparison, GPs earn an average of £90,000 per year (I’m not knocking them for it but come on, it’s a massive pay differential). In 2009 Jack Straw told Legal Aid solicitors they shouldn’t expect to be paid as much as doctors and should model themselves on optician chains instead (the one time I used Boots opticians they fucked up my sight test and I had to get an independent optician to redo the test a few weeks later but, hey, this is your justice system, right?). Jobs which routinely pay more than the average salary for a Legal Aid solicitor include teaching, police, fire brigades and (according to the Law Society Gazette a couple of years back) bin men. It’s a wonder anyone offers Legal Aid services at all.

In 1950 80% of the population was entitled to Legal Aid, the amount being based on a means test. Some people had all of their costs paid but many others received a contribution. If that system was still around today, I would be able to afford legal fees. Until the 1970s most cases involving Legal Aid were criminal and family cases. In the 1970s, another period of vast economic upheaval, employment and housing claims rose. Even by 1973 though, the proportion of the population entitled to claim Legal Aid had dropped to 40%. At one time Legal Aid was even widely available for will writing. That might sound odd but anyone who has children (particularly if they’re unmarried) should have a will, even if all their possessions added together aren’t worth £100, because their children need a guardian. By 2008 29% of the population was entitled to Legal Aid. This figure rose to 36% in 2009, not because the means test changed but because of the impact of the financial crisis on claimants’ incomes. While the number of people eligible has changed over time, other efforts have long been underway to reduce the cost of Legal Aid. Labour called the 1st April a “day of shame” for the legal aid system but it made plenty of cuts and reforms of its own during its time in office (never forget this about New Labour: before we even had a chance to celebrate the fact that Michael Howard was no longer Home Secretary in 1997, Jack Straw said to my Criminology lecturer at a party, “the trouble with you lefties is”). In particular, the rates paid for Legal Aid work and the method of winning contracts to do Legal Aid work both led to reductions in the number of lawyers doing it. Legal Aid was only limping along by May 2010 and Labour would have cut it too if it had been reelected.

As of the 1st April, even people on income based benefits such as JSA are subject to stricter tests. The categories of work for which Legal Aid is now available have been slashed but are complicated by the exceptions and concessions gained through the course of a brutally long fight against the LASPO (all credit to the House of Lords who did what they could to make Lord McNally’s life a misery each time the Bill came back to them and kept fighting on the implementing regulations). All told, it’s estimated that about 600,000 will lose entitlement to Legal Aid (to put that in context, it’s estimated that the Bedroom Tax will affect 660,000 claimants). The Bar Council’s guidance on the new regime runs to 69 pages so I’m not giving you anything but a snapshot. There are other cuts and other exceptions. Matters civil Legal Aid is no longer available for include:

Family cases which don’t involve proven abuse, forced marriage or the protection of children and aren’t public law care/adoption proceedings;

Employment cases unless they’re under the Equalities Act or involve human trafficking;

Medical negligence except for babies who suffer serious neurological harm in limited cases (personal injury claims other than medical negligence were dropped years ago);

Social Security cases unless and until they’re appealed to the Upper Tribunal and above on a point of law (and only on a point of law);

Education unless the child has special needs;

Housing cases except where there is serious disrepair, the threat of eviction, the claimant is homeless or to defend Council anti-social behaviour action;

Debt except where bankruptcy or repossession proceedings are threatened;

Consumer law and contract law;

Criminal injuries compensation;

Immigration cases which aren’t actual asylum applications or where the person is detained or a victim of domestic violence or human trafficking. Applications for asylum support aren’t covered unless the person has also made claims for housing and financial support.

The rump left in addition to the exceptions above includes mental health, community care, judicial review, abuse of position or powers by a public authority, breach of Convention rights by a public authority (not all human rights cases are covered though), facilities for disabled people and equality claims. Nb “mental health” means Mental Health Act proceedings. The same rules apply to mentally ill people in areas like Social Security and Housing as apply to people who don’t suffer from mental illness. The stricter means test I mentioned above applies to all of these areas and tests relating to the prospect of success and whether alternatives to Court have been pursued remain.

Turning to the Workfare case, this case muddies the waters if you’re trying to work out what Legal Aid is now available for and why cuts were made. It was an application for judicial review (for which Legal Aid continues to be available, although the signs are that the Government wants to cut Legal Aid for public law claims too) but Cait Reilly and Jamie Wilson won their earlier appeals against the sanctions on them on the basis that there had been breaches (which were admitted by the DWP) of the Regulations anyway. Two different things were going on. They could have accepted their own individual wins at an earlier stage and walked away but they pursued the legal principle. If it had only ever been a simpler appeal against sanctions, without the opportunity to claim judicial review, it would be a different matter and Legal Aid wouldn’t be available below the Upper Tribunal under the new system. The availability of Legal Aid for judicial review (for the time being) gives a glimmer of hope in the whole mess we’re facing and lawyers with public law expertise are fighting but it’s a big picture right. Anyone run over by the juggernaut of “reforms” will find it much harder to get any kind of remedy in the meantime.

For benefit appeals without public law aspects, this is an area where the Lords seemed to have won the hugely important concession of retaining Legal Aid for appeals but what we got in the end was Legal Aid only for appeals on points of law in the Upper Tribunal and above and not for first stage appeals. Firstly, something like an appeal against a Work Capability Assessment is more likely to revolve around medical evidence and therefore wouldn’t be covered in any event. The other crucial thing is that Legal Aid won’t be available right at the start of the process of appealing a welfare decision. When I was on Incapacity Benefit my claim was wrongly reduced on a technical point of law. Fortunately for me I’d studied social security law so it was easy for me to check it out and to literally quote its own Technical Manual back at the DWP. One letter was enough to get it sorted out. It’s a complex system though and the vast majority of people could use some guidance navigating it. Having read the last couple of paragraphs, you probably agree that it takes a certain amount of time and skill just to identify whether an appeal is based on facts, a point of law or public law!

It could be said that it’s not the end of the world not to be able to get a solicitor or barrister to advise claimants directly through a law firm or chambers right at the outset. That’s what the Government wants us to accept and, in the short term, it would be true if other sources of advice such as the CAB are available but that’s a big ‘if’ because they’ve been reliant on Legal Aid too and are heavily reliant on lawyers donating time to them. Charities providing welfare advice are having a very hard time (earlier this week I tweeted a letter from Shelter published in my local paper announcing the closure of an advice centre) and it’ll get tougher as the reforms to social security take hold. It’s safe to assume they’ll be utterly swamped by people needing advice on things like the Bedroom Tax and PIP. Because it’s a highly technical statute based area of law, I’m not convinced it lends itself very well to casual volunteering by lawyers who work in other fields either (assuming we want people to get high quality advice). The Government says it’s set aside £65 million of lottery money over the next two years for legal advice centres, seemingly immune to the irony of using lottery funds to support a justice system which is a postcode lottery.

The immediate availability of early legal advice is a short term problem but the long term problem with removing Legal Aid for all early legal advice is how we gain new lawyers specialising in these areas. It will be harder for junior lawyers to get experience and (see pre-LASPO pay rates above) financially unviable for many young lawyers who need to work and need some assurance of job prospects in the long run, no matter how idealistic they are. Private work in areas like family and employment will feed new lawyers into those areas (although the number of firms offering Legal Aid services in those areas will, as it has been doing for years, continue to shrink) but what about social security law? It’s hard to imagine many will enter such an insecure area. As that happens there will be less competent lawyers available for the stages of upper appeal tribunal through to Supreme Court even though those stages are still covered by Legal Aid and, as I’ve said, people would still need free guidance through the initial appeal stages in order to get to the point where Legal Aid would kick in. The best way of salvaging something of this mess may well be for public lawyers to offer free initial advice (themselves or by donating their time to advice centres) on areas which are relevant to public law, such as social security and housing, whether the individual cases turn out to be public law cases or not, and set it off against the work they can get paid for. It shouldn’t have to be like that though. It’s a massive burden to ask them to take on and every time lawyers meekly accept lower rates of pay and agree to work for free, the Government of the day seems to wonder how much further they can be pushed, while the public via the media just declares “well of course they should work for free. It’s the least these fat cats can do.”

I’ll finish with Liberty’s summary of the wider situation, which hits the nail on the head:

“the true impact of these cuts goes much further than the likely individual injustices which will prevail. The ever-present prospect of legal intervention is the surest way of securing a society where respect for human rights, equality and due process guides the behaviour of our decision-makers. Alongside other assaults on the rule of law such as Secret Courts and worrying judicial review overhaul, legal aid upheaval risks leaving big business, Government and other members of the rich and powerful elite that bit freer to act with impunity”

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