Tag Archives: DWP

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?

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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.

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”

To help save UK justice, please sign this petition.

We’re All Retro Now

If you accidentally tread on someone’s toes the normal response would be to apologise. Nobody expects you to rush off to buy painkillers and arnica gel. But that’s a mere accident involving two individuals where there’s not likely to be much more damage than a few bruised toes. When the State introduces a scheme of any kind which impacts on the public or a section of it, expectations are rather higher. The State is expected to implement its scheme in accordance with applicable law. Personally, I believe Workfare is wrong in principle and that people should be paid to work. I’ve also yet to see evidence that it actually succeeds in getting people into long term employment but that’s not really the point of this post.

It’s not exactly controversial to suggest that, when making laws and forming schemes, governments should get it right. That’s their job. If they don’t, they can’t expect to find that courts sympathise with the government. If people suffer loss as a result, the government will be expected to compensate those people. Similar (although not identical) rules apply to us all, both in the context of goods and services we provide in our working lives and in the sense that we can personally do things which hurt others. For example, if a lawyer or a doctor is negligent, they’ll be liable. If a driver is responsible for an accident, he’s liable. The “guilty” person will usually be expected to put the injured party into the same state they would have been in but for the actions of the “guilty” person, in so far as that’s possible. This is all a massive oversimplification (arguments over issues like access to justice are perfectly valid but I don’t want to go off piste here) but the bottom line is that every single person and organisation in the UK is subject to its laws and none of us can turn the clock back.

The Court of Appeal ruled that the that the Workfare scheme is procedurally flawed. People suffered as a result of that. Maybe some (possibly many) would have been sanctioned anyway, if the DWP had got it right, but it didn’t. The case opened the door to all of those people. The DWP failed to do its job properly and, like anyone else, it should have paid for its actions in accordance with the law but from day one the DWP was determined not just to remedy the flaws identified by the Court but to ensure that nobody was compensated for the original flaws. Its immediate response was, in essence, “we’re big enough and ugly enough to get away with not paying for our mistakes.” The only way the DWP could outflank the judgement and prevent claims for compensation from people who’d been wrongly sanctioned was to introduce new legislation with retroactive effect. As if by magic that would cure previous procedural errors. Metaphorically speaking it’s like the DWP got a knock on the door from a neighbour:
“Excuse me but your cat just shit on my carpet.”
“No it didn’t.”
“It did. Come look.”…
“That could have been anyone’s cat.”
“But it wasn’t. It was your cat. I saw it”
“Oh. Well that’s easily fixed.”
“So you’ll clean my carpet?”
“No. I’ll do something better.”
“How?”
“I’ve built a time machine to take us back to last Tuesday.”
“And then there won’t be any cat shit?”
“There will but you won’t be able to prove it was my cat.”
“But…what the FUCK ARE YOU TALKING ABOUT”

The DWP’s approach to the Workfare judgement makes a mockery of the Court system. The DWP has every right to change the Workfare Scheme so as to ensure that it complies with the law in future but it also claims it has the right to an exit strategy from responsibility for past actions and to avoid the consequences of those actions. One rule for us. One for the Government. Our constitution requires the separation of powers of Judiciary and Parliament. The whole point of that is to ensure that justice can be done when the Government and its agencies deliberately, negligently or even innocently get it wrong. The job of the Courts is to protect us when it needs doing but the DWP’s logic is that it can use a retroactive law in order to make a mockery of the original judgement. Neither statute nor any international convention says that the Government can’t impose retroactive laws by passing them through Parliament in the civil context (criminal law can’t be changed). However there is a fundamental unwritten rule barring retroactive legislation (that might sound a bit lame but it’s part and parcel of the common law system) due to its basic unfairness.

Last year, a retroactive law was introduced to force Barclays to pay £500 million in tax which it had avoided. Now a retroactive law is being introduced to enable the Government to avoid repaying £130 million to people who were wrongly sanctioned under the Workfare scheme. This is one of those times where lawyers’ views may differ from many other people’s. Forcing Barclays hand to ensure it pays its taxes probably appeals to a lot of people. It does to me but only to the extent that I believe Parliament should introduce legislation which closes loopholes. The number of businesses who routinely avoid tax disgusts me but Parliament should identify the methods of avoidance and enact legislation to make that act evasion in future. I don’t sympathise with Barclays, not least because they just paid nearly £40 million in bonuses to Rich Ricci and others but also because the actions it took went against assurances it had made that it wouldn’t avoid tax. That still doesn’t mean I think we should apply retroactive legislation to Barclays and others like it. No matter how much I loathe them, the principle is what matters. Even though corporations and wealthy individuals are playing with a stacked deck, we shouldn’t cherry pick who benefits from the rule of law.

The Government wants to apply retroactive laws to benefits claimants. Of course, this wasn’t just about the Coalition. The vast majority of Labour mps abstained from the vote. I didn’t watch the whole debate but from what I’ve gathered the reasoning appeared to be: we disapprove of Workfare but we approve of sanctions generally and we don’t want to see £130 million being spent and oh, by the way, incidentally, we have no problem with the idea of retroactive legislation. The fact that I don’t agree with Workfare isn’t why I vehemently disagree with this particular piece of legislation. I vehemently disagree because every time a retroactive law is made we chip away at the edifice of the rule of law. Maybe next time another multinational will suffer as a result, maybe some of the poorest in our society, maybe people like me. One of the things which never ceases to amaze me when it comes to civil liberties is how complacent people can be. It’s not just wrong, for example, to detain people without trial, torture, unlawfully search and surveil. It’s a threat to our civil liberties. All of them. All of ours. The same thing can be said (and I would argue with even greater strength in terms of the practical likelihood of abuse) about retroactive laws. Yesterday Barclays, today Workfare, tomorrow who knows? Both Barclays and people wrongly sanctioned under Workfare were subjected to retroactive laws because it’s financially expedient to the Government to sidestep the rule of law. A myriad of other decisions could become financially expedient and they could affect any one of us.

UN Convention on the Rights of Persons with Disabilities

In 2009 the UK ratified the UN Convention on the Rights of Persons with Disabilities, not just to protect disabled people but to actively promote the rights of disabled people to participate fully in society and to live with dignity. A fundamental aspect of this is the right to independent living. These principles had cross party support, although it was a Labour government which actually ratified the Convention. On 1 March 2012 the Joint Select Committee on Human Rights reported on the implementation of the right to independent living. I’ll come back to the detail of that report another time but for now I want to emphasise what the Convention actually says. The Committee explained that its purpose is to:

“promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”

The Convention doesn’t just reaffirm the existing human rights of disabled people but:

“sets out the practical action that is required to remove barriers and put in place the support to make the human rights of persons with disabilities an everyday reality.”

Because the emphasis of the Convention goes beyond protection of rights to actively promoting them, it goes further than human rights treaties normally do by requiring States to actively:

“establish a domestic framework to promote and monitor implementation of the Convention including designated leadership within the Government, an independent framework to promote, protect and monitor implementation, and the active involvement of civil society—and disabled people’s organisations in particular—in both implementation and monitoring.”

A quick reminder. Our Government has just published a response to the WOW Petition saying it can’t be expected to conduct a full impact assessment of its social security reforms on disabled people. Michael Meacher MP has also reported that he found it impossible to arrange a meeting between interested parties and Iain Duncan Smith or Mark Hoban.

The Convention includes (Article 3) general principles and governments’ interpretation of the rest of the Convention should have regard to these principles:

– “Respect for the inherent dignity, individual autonomy (including the freedom to make one’s own choices), and independence of persons;
– Non-discrimination;
– Full and effective participation and inclusion in society;
– Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.”

Next, Article 4 lays out the obligations member States agree to abide by. These general obligations “explicitly recognise that States are under an obligation to take positive actions in order to comply with the Convention” and include obligations:

– “To ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability;
– To adopt all appropriate legislative, administrative and other measures for the implementation of the rights in the Convention;
– To take all appropriate measures (including legislation) to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
– To take into account the protection and promotion of human rights of persons with disabilities in all policies and programmes;
– To ensure that public authorities and institutions act in conformity with the Convention;
– To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organisation or private enterprise;
– To take measures to the maximum of its available resources with a view to achieving progressively the full realisation of the economic, social and cultural rights in the Convention;
– To consult closely with and actively involve persons with disabilities, through their representative organisations, in the development and implementation of legislation and policies to implement the Convention, and in other decision-making processes concerning issues relating to persons with disabilities.

Are you finding it hard to believe that not only did the UK sign this Convention but it actively campaigned for its signature by other countries, let alone that it was a cross-party effort?

Article 19 is more specific:
“States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”

The Committee says:
“Of particular importance is the elimination of living arrangements that segregate and isolate people with disabilities (e.g. institutionalisation), unless that choice is made by the disabled person. Article 19 thus requires States Parties to ensure that people with disabilities are able to live in the community with accommodation options equal to others, and that these options support the inclusion and participation of people with disabilities in the life of the community. Article 19 requires that States ensure that disabled people have the opportunity to choose with whom they live on an equal basis with others.”
and
“In order to realise these freedoms, States Parties are obliged to ensure that disabled people have access to a range of support services that they may require in order to live freely in the community, and to avoid isolation and segregation from the community. The Convention also requires that steps are taken to ensure that mainstream community services and facilities must be available to disabled people on an equal basis with others and responsive to their needs.”

The UK Government itself has defined independent living as
“all disabled people having the same choice, control and freedom as any other citizen—at home, at work, and as members of the community. This does not necessarily mean disabled people ‘doing everything for themselves’, but it does mean that any practical assistance people need should be based on their own choices and aspirations”.

The Committee discovered that the Government didn’t understand the legal status of the Convention. I’m going to indulge myself by going into this issue a bit further. The then Disabilities Minister (Maria Miller) said that she thought that the Convention was “soft law” in oral evidence. Her reply to the question “Is it hard law or soft law?” was

“the UN Convention is soft law—if one uses those terms—because it is a Convention that does not have legal standing, but it is very much a Convention which every Department is signed up to […] it does drive at the heart of our approach although technically […] it is a soft law approach.”

That’s absolutely incorrect and the Committee took the step of taking legal advice on the question. It summarised its advice and conclusions following that advice. I won’t quote it because I’m not so self-indulgent as all that. To sum it up:
– The Convention is binding international law—i.e. “hard” law.
– It is an international treaty willingly entered into by State Parties and is subject to the law of treaties and the principle that States enter into international agreements and implement those obligations in good faith.
– Since Parliament ratified the Convention on 8 June 2009, the UK has had “hard” international law obligations under it.
– The European Court of Human Rights has begun to take note of the Convention when it interprets the European Convention on Human Rights.
– The UK Courts are required by the Human Rights Act 1998 to take account of ECtHR case law and the Government is bound by its judgments in cases against the UK.
– The Convention wasn’t just ratified by individual states. The EU ratified it as a separate body and is therefore required to interpret EU law and regulation compatibly with the Convention.

Very much hard law. In a generous move, the Committee suggested that perhaps Maria Miller’s mis-step arose out of her not understanding what the terms “hard law” and “soft law” actually mean. The Committee suggests that her confusion over whether the treaty is “hard law” which must be complied with lies in her department’s failure to grasp that the lack of an individual right to bring a claim under it is an entirely different thing to “soft law”. It’s true that it’s not possible to just sue the Government for non-compliance with the Convention. If you bring another claim (say for judicial review of a particular policy like the Bedroom Tax) the UK Courts are required to have regard to the provisions of the Convention in deciding the claim though. It’s the fact that the Government is required to comply with the Convention that makes it “hard law”. The status of the Convention and the way in which is can be enforced are the same as the status of the European Convention of Human Rights and the method of its enforcement before the introduction of the Human Rights Act 1998. Since the Human Rights Act was introduced, it has been possible for individuals to bring direct claims in the UK Courts for breach of the European Convention of Human Rights but that doesn’t mean the Government wasn’t required to comply with the ECHR before 1998 or that UK Courts didn’t take it into account when deciding cases which rose human rights issues before 1998. My inner lawyer finds it hard to believe a Disabilities Minister could make such an obvious mistake when we have decades of international treaties in the human rights sphere to look back on. In practice though, I’m beyond being surprised by the utter stupidity of statements coming out of Government. Anyway, the bottom line is that the Government does have to comply with the Convention and UK Courts are required to have regard to the Convention in any cases involving human rights which fall within its remit.

The Committee went on to consider the obligations of “progressive realisation and non-retrogression”. These are extremely important issues due to the nature of the “reforms” the Government is making:

“As we pointed out in our recent Report on the Welfare Reform Bill, where international human rights treaties protect social, economic and cultural rights, the State is under a particular type of legal obligation: it must take deliberate, concrete and targeted steps towards the realisation of those rights ‘to the maximum extent of their available resources.'”

So, the UK is required to keep up forward motion and not slip backwards in its treatment of disabled people. In the era of austerity, the issue of available resources is vitally important and the Committee wasn’t about to simply assume that the argument that the UK needs to save money justifies departure from the Convention. I couldn’t put this any better than the Committee so I’m just going to quote the whole explanation:

“the duty of progressive realisation entails a strong presumption against retrogressive measures. In its General Comment on the scope of the UN Committee on Economic Social and Cultural Rights right to an adequate standard of living and to social security, the ICESCR explained:
‘There is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party. The [ICESCR] will look carefully at whether:
(a) there was reasonable justification for the action;
(b) alternatives were comprehensively examined;
(c) there was genuine participation of affected groups in examining the proposed measures and alternatives;
(d) the measures were directly or indirectly discriminatory;
(e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and
(f) whether there was an independent review of the measures at the national level.’
So, while the principle of progressive realisation within available resources affords States a degree of flexibility in achieving the objectives of the Convention, it does not absolve States of the responsibility to take active steps to protect and fulfil those rights. “Retrogressive” measures, that is, measures which represent a backwards step in terms of the realisation of the rights concerned, require strict justification and even then are not permissible if they are incompatible with the “core obligations”. Although States are free to secure their minimum obligations through a variety of means, those obligations have a “minimum core”, and any failure to meet the minimum standards envisaged will be in violation of the international standards which the United Kingdom has accepted.”

Both the Joint Select Committee and the ICESCR have considered the extent to which social security is an element in achieving the aims of the Convention and the Committee quoted the ICESCR again:
“The right to social security is of central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realise their Covenant rights. To demonstrate compliance with their general and specific obligations, States parties must show that they have taken the necessary steps towards the realisation of the right to social security within their maximum resources, and have guaranteed that the right is enjoyed without discrimination and equally by men and women”.

Violations of this principle would include, for example:
“the adoption of deliberately retrogressive measures incompatible with the core obligations […] the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to social security; […] active denial of the rights of women or particular individuals or groups. Violations through acts of omission can occur when the State party fails to take sufficient and appropriate action to realise the right to social security. In the context of social security, examples of such violations include the failure to take appropriate steps towards the full realisation of everyone’s right to social security; the failure to enforce relevant laws or put into effect policies designed to implement the right to social security […]”

The Committee also noted that the ICESCR had made a statement on the right to housing:
“a general decline in living and housing conditions, directly attributable to policy and legislative decisions by the States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant”.

Finally, the Committee reported that the ICESCR:
“has also emphasised the particular responsibility on states to ensure that the most vulnerable do not bear a disproportionate burden at times of public spending cuts:
‘The [ICESCR] wishes to emphasize, however, that even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints […] Similarly, the [ICESCR] underlines the fact that even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes.'”

I can’t speak for all disabled people (and I’m fortunate not to be affected by the cuts themselves at the moment, although I’m conscious they could form part of my future) but I don’t think we expect fairytale lives. What disabled people are losing now are some of their most basic rights and there is no way it could be said that many disabled people will be able to live independent, fulfilling lives as all of the “reforms” take effect. On 1 March 2012, this was the reported reality for disabled people in the UK:
“The most recent evidence, from the ODI’s Life Opportunities Survey, confirms that… 16% of adults with impairments experienced barriers to education and training, 57% experienced barriers to employment (compared with 26% of those without impairments), 75% experienced barriers to using transport (compared with 60%), 44% of households with at least one person with an impairment experienced barriers to economic life and living standards (compared with 29%) and 82% experienced barriers in leisure, social and cultural activities (compared with 78%).We note the significant disadvantage to disabled people which persists in relation to choice and control and levels of participation in economic and social life and the impact this has on their economic and social well-being, and on what many of our witnesses considered to be their enjoyment of basic human rights. We therefore welcome the Government’s recognition that more progress is required to promote disabled people’s right to independent living.”

Nearly exactly a year later Zoe Williams drew a stark picture of what life is becoming for the most severely disabled people in the UK today. It seems to me that the Government’s continued failure to engage with disability rights activists and even interested mps and to take measures to assess the impact of its reforms on disabled people can’t be justified in the context of the Convention. If you’re wondering why I haven’t said that the reforms themselves breach the Convention, I believe that some or all of them probably do but the proper first step is engagement with disabled people and a full impact assessment to prove it. That’s the bare minimum the Government should be doing right now, today, and it should suspend all further reforms until it has done so. I believe that if the Government took that step, it would have to change course.

Workfare – a fair judgement?

Reports, tweets and blogs on the Court of Appeal judgement on Workfare are contradictory so I went for a look at the Judgement. The Court of Appeal was asked distinct questions and one of the Judges says:
“I emphasise that this case is not about the social, economic, political or other merits of the Employment, Skills and Enterprise Scheme. Parliament is entitled to authorise the creation and administration of schemes that, in the words of section 17A(1) of the 1995 Act, are designed to assist the unemployed to obtain employment, and provided that the schemes are appropriate for that purpose, it is not easy to see what objection there could be to them. Parliament is equally entitled to encourage participation in such schemes by imposing sanctions, in terms of loss of jobseekers’ allowance, on those who without good cause refuse to participate in a suitable scheme. This appeal is solely about the lawfulness of the Regulations made by the Secretary of State in purported pursuance of the powers granted by the 1995 Act as amended.”

The key question for the Court of Appeal was a technical one, whether the Workfare Scheme met the statutory requirement (in the Jobseekers Act 1995)
for the Regulations to make provision for schemes of a prescribed description
The Court of Appeal decided that too much was left to be dealt with outside the Regulations. Their decision was based on the specific wording contained in the JSA.

Caith Reilly and Jamie Wilson had already won their individual cases before the matter was appealed up to the Court of Appeal to look at the technical question. In Jamie Wilson’s case he wasn’t required to participate in the Workfare scheme because he’d never been given proper notice of it. In Caith Reilly’s case, she was wrongly told that participation was mandatory (which was wrong in her circumstances).

The Court wasn’t asked to decide whether the JSA, Regulations and Scheme breach the European Convention of Human Rights but referred to a European Court of Human Rights judgement, quoting it:-
“the court held that there could be a breach “if the service imposed a burden which was so excessive or disproportionate to the advantages…that the service could not be treated as having been voluntarily accepted beforehand.”
(in this context, “service” meant work) and giving a reminder that:-
“Provided the arrangements made serve the statutory purpose stated in section 17A, they need not infringe article 4.”
So, the Court actually said there’s nothing inherently wrong in making people work without pay on Workfare. The burden of doing so would have to be excessive or out of proportion to the benefits of doing so.

So, there you go. The Court of Appeal did its job. Looking at it from a philosophical perspective, this isn’t a win for people opposed to Workfare. It’s an embarassing rap over the knuckles for the DWP for its failure to implement it properly. Going back to the drawing board to comply with these requirements will require the DWP to comply strictly with section 17A of the JSA by preparing new Regulations (amending the Act would be another possibility). It could help people who’ve been sanctioned previously but it won’t stop the Scheme continuing.

My lawyer head believes that the Court made the right decision for the right reason. My personal philosophy is a different matter. I believe that people should be paid for a days work. By all means, offer voluntary placements and allow jobseekers like Caith Reilly to do relevant unpaid work but don’t force people to do it. If the Government wants to incentivise working, telling people they aren’t even worth minimum wage seems like a shabby way to go about it. 

I believe training and education should be a greater priority than clocking in. I don’t mean everyone should have a degree, just that schemes should serve a real purpose. Even accepting the argument that people get out of the habit of working, telling people to clock in for free seems self-defeating. I read a fair bit about returning to work from maternity leave when I returned from sick leave and it’s pretty well acknowledged that confidence is a major factor on returning to work. How does forcing people to work without pay help confidence?

Finally, I believe the Government shouldn’t tell us the private sector is picking up the slack and hiring whilst giving free workers to large businesses. Subsidies to encourage workplace training are one thing but why do shops need free shelf stackers? What good does that do “UK plc”? A steady stream of free workers doesn’t provide an incentive to fill a role with a paid worker when unskilled work is involved.

How many elephants can you get in the DWP?

For the first time, last week, I heard that an MP had stood up in the House of Commons and asked, in relation to Work Capability Assessments and Employment Support Allowance, “what about the elephant in the room.” It’s about time someone said it. There is an elephant in the room when it comes to the government’s reforms of disability benefits. Quite rightly, much attention is paid to the strategy of declaring people medically fit to work and the role of Atos in doing so. I sympathise. I’ve been through assessments like that. The levels of benefits paid are also focused on. Again, quite rightly. Remploy…ah now we’re getting there.

Many disabled people are fit to work to some degree. Not everyone by any means (and nobody should be forced to work beyond their capacity to do so) but there are a lot of us. Making this possible was a key purpose of the Disability Discrimination Act. Like the Paralympians, disabled people need a level playing field to achieve our potential on. Outside the world of elite sports, this means we need reasonable adjustments. For me, for example, this takes the form of special office equipment, greater secretarial help and reduced hours. The reality is that these can be hard to get. I’ve fought for my adjustments and I’m still not managing my condition effectively as a result of the battles I just couldn’t face, one of which resulted from my second run-in with a private industry “Atos”. Rather than fight that battle, I started looking for a new job. That was three years ago. I’m still looking. I can’t tell you how frustrating it is to have the door slam whenever the words “part time” enter the conversation. An agent told me a while back he could’ve placed me at least a dozen times over the past three years, if only I was able to work full time. Unfortunately, working part time doesn’t seem to be considered a reasonable adjustment within my profession. To my dismay a feature on part time and flexible working in the Law Society Gazette not so long ago even talked about women and people wanting to work part time or flexibly for religious reasons or due to age without once mentioning disability. In that case, discrimination wasn’t the elephant in the room. Disabled people were. With my history, you wont be surprised that I’m calling “cooee. Can anyone else see that bloody great big elephant?” I decided to go looking to see if I could find out the extent to which discrimination is being dealt with in the context of the Government’s reforms of disability benefits and schemes like Remploy.

In 2006, the Leonard Cheshire Society Scotland published a report, Discrimination Doesn’t Work (which is also mentioned in other sources cited in this post). The Report addressed the then Labour Government’s proposals to move away from Incapacity Benefit to ESA and get 1 million disabled people back to work. The Background to the Report stated:

“Disabled people are more than twice as likely to have no educational qualifications as non-disabled people. They are over three times as likely to be economically inactive – and when they are in work, they earn less on average than their peers. By age 30, around a third of young disabled people expect to be earning less than non disabled people of their own age.”

“Leonard Cheshire fears that [the Government] has not taken sufficient account of the availability of suitable work, local unemployment levels or employer’s attitudes towards disabled people. Without a willingness by employers to take on disabled people and to see their skills rather than their impairment, the Government’s ambitions will not be met.”

They set about finding out how real these perceived barriers to working are for disabled people. They sent CV’s in response to 120 vacancies advertised in the national and local newspapers, online recruitment sites and online adverts. Each time they sent with 2 CV’s of equal experience, education and skill sets that met the advertised job specification. They received 98 responses from employers, and concluded that:

“Employers were twice as likely to discriminate in favour of a non-disabled applicant as to treat both candidates equally.

Less than one in three employers responded to both applicants equally.

7% of employers positively discriminated in favour of the disabled applicant.

Employers invited non-disabled applicants to twice the number of interviews than disabled applicants.

Disabled applicants were 36% more likely to be rejected for an advertised post than non-disabled applicants were.”

When I first read the Leonard Cheshire Report a few years ago, none of this surprised me. Nor did the fact that:

“From the responses we did receive we found that there was no pattern to the types of organisations likely to discriminate against disabled applicants. Large and small companies, from household names to small community businesses, demonstrated apparently discriminatory behaviour towards potential employees because of their disability.”

Oh, and the punchline? All of the jobs applied for were graduate jobs. The Report suggested that those without a higher education and work experience were likely to face even greater difficulties. They went on to survey disabled people for more information and the feedback reflected the results of their own study. The Report was addressed both to the Scottish Executive and to Westminster. It’s there. On record. In view of what’s been going on over the past couple of years, I wondered whether it really is being ignored.

In 2009 the Leonard Cheshire Society produced another report, Disability and the Downturn, which considered the impact of the recession on disabled people. The Report dealt with Finance and Income, Public Services and Benefits, as well as Employment and is well worth reading for its broader context. For now, I’ll stick to the section on Employment. Their annual review survey on discrimination found:

“Over half (52%) of respondents had experienced discrimination in the workplace in the past year, an increase of 11% since 2007.

43% of respondents also reported they have been turned down for a job or jobs because of their impairment, an increase of 7% since 2008.

Topline employment rates for disabled people have remained relatively stable to date, but, given disabled people’s profound pre-existing employment disadvantage, this must not obscure major continuing inequality. Nor should it obscure the fact that thousands of disabled people have lost, and will continue to lose, their jobs during the downturn.”

The Report noted that disabled people are often employed in the public sector (37% of disabled people). Since it was written, of course, public sector cuts have increased and are continuing. The Report also noted that the Government does not have a standard measure for monitoring discrimination in the workplace. As far as I can see, that situation is unchanged. Finally, the Report concluded:

“Narrowing the employment gap, safeguarding those disabled people in work and tackling discrimination in the workplace should be a priority for policy-makers. Employment is not the only answer, however, and urgent action is also required to ensure that existing inequalities are not exacerbated in areas such as social care provision, benefit eligibility and quality of life.”

The TUC also reported in 2011 ( Disability and Work) that no further progress had been made in improving the number of disabled people in work since 2008 and that:

“People with mental illness issues have an employment rate of little more than 10 per cent and people identified as having severe or specific learning difficulties only 15 per cent. Disabled people are disproportionately likely to have fewer qualifications, as a result of discrimination faced during childhood, and only 18 per cent of disabled people without qualifications have jobs.”

A Qualitative Study Exploring Employers’ Recruitment Behaviour and Decisions: Small and Medium Enterprises, was published in 2011 by the DWP and considers the employment of disabled people in the context of employer attitudes. In addition to mentioning the Leonard Cheshire Society Scotland’s findings in the 2006 study mentioned above, it also says, setting the scene:

“Employers are part of the wider population of the UK and hence subject to the same dominant discourses and prejudices around disability, which research has found can arise from misconceptions, ignorance and poor understanding about health conditions and impairments (see for example, Grey et al., 2009; Grewal et al., 2002).”

“Previous research on employers’ attitudes to disabled people highlights that employers can perceive disabled people to be more of a health and safety risk than non-disabled people and to be less productive. Employers may also be reluctant to confront the wider discriminatory attitudes of staff (Duckett, 2000). In the UK, Kelly et al. (2005) found that small employers thought that provided a disabled person ‘could do the job’ they might be recruited. The authors also found however that employers held the perception (rather than having gained experience) that people with what they termed ‘severe’ sensory, physical or psychological impairments would be the most difficult to employ because of worries about reduced efficiency and potential disruption to the workplace. Employers in some small companies have been found to have very narrow perceptions of disabled workers as wheelchair users and people with physical impairments (DRC, 2004)”.

“Research further suggests that employers perceive a range of barriers to making workplace adjustments, including the financial implications of doing so, the nature of the work premises and possible resentment from other staff members (Kelly et al., 2005).”

“Other research highlights that perceptions of whether disabled people would be able to fulfil a role depends on what exactly is involved in that role. For example, physical impairments were considered more of a barrier by employers in transport companies than they were by employers in IT based businesses (Stevens, 2002).”

This Report considered SME attitudes in some detail but only used a very small sample of 30 SMEs and chose them from among businesses advertising through Jobcentre Plus and local newspapers. The Report formed the basis of recommendations made to the DWP. It found a failure among some to appreciate the meaning of disability in the context of the DDA and that employers were more worried about people with “health conditions” and mental illness because they considered them to be unreliable than they were about people with what they considered “disabilities” such as people in wheelchairs and/or with missing limbs. SMEs reported that they didn’t feel that they had enough information about “health conditions” to be able to assess their impact on the job. They also felt the need to get the best possible value from employees during a recession. They believed that they couldn’t get this from disabled employees and that hiring disabled employees could create resentment in existing staff, who were expected to feel that the disabled employee wasn’t pulling their weight. It’s not surprising then that one of the recommendations in the summary to the Report is:

“concerns about productivity could, it might be suggested, be tackled by the policy suggestions made above. Educating the wider society about the capabilities of disabled people and about health conditions may help to tackle discriminatory attitudes based on ignorance.”

Where disabled people had been hired by SMEs interviewed in the study, they were candidates who:

“were thought to have stable and manageable conditions and to be able to ‘do the job’ without any adaptations being made”.

I was also interested to note that in this study, outside of the legal profession, SMEs reported that they were more likely to consider adjustments to hours worked than physical adjustments or adjustments to the job description for disabled candidates (my impression, from the examples running through the Report and the method of selection is that the SMEs selected for the survey weren’t “professions”).

The Report found a lack of awareness of existing schemes such as Disability Employment Advisers in Jobcentre Plus and the availability of financial help in order to assist the employer in making adjustments. The summary of the SMEs’ concerns and the recommendations for the DWP is contained on page 49.

The economic context at the time the study was carried out is, at best, unchanged now. I’d go as far as to say it is worse. The Report says:

“employers’ recruitment decisions are made with a consideration of the economic and labour market context which can be seen to act to constrain their choices in relation to the recruitment of disabled people. Employers focus on flexibility, maintaining productivity, lowering costs and maintaining and increasing profit margins and it is this labour market context that drives the employers’ quest for the best person for the job, or someone who can ‘do the job’. To this end they argued that they would consider a disabled applicant for an employment position on the same basis as anyone else. One interpretation of this finding might suggest that such a labour market context can be seen to demand more of disabled people in that they do not just have to be as good as their non-disabled counterparts, but in some cases, they need to outperform them. This poses questions as to the ability of DWP policy to influence this wider context: to make business less competitive, increase profit margins and mitigate the effects of the recession.”

One of the measures suggested to deal with SMEs’ expectation that disabled candidates need to have better skills than able bodied candidates to mitigate the effects of their disability is to “invest in the education and training of disabled people”. In particular, it says that:

“this might be especially so for people who may have been on Incapacity Benefit or ESA for some amount of time.”

I’ve checked Hansard (searching against disability discrimination) from the publication of this Report right up to date and, as far as I can see (I also searched through Google), the Government have provided no new answers on discrimination since the Report. The Government has made a great deal of its £320 million “investment” in disabled people but that money is directed at a scheme solely focussed on individual disabled people and doesn’t address the broad problem of discrimination. In fact, in the DWP’s response to the Consultation on the Sayce Review (The Government’s response to the specialist disability employment programme consultation), the issue of employers’ attitudes to disability was given one page:

“There were few suggestions for improving or changing specialist disability employment support that were not covered by any of the existing questions. One of the most common was the need to tackle society’s negative attitude towards disability, which was felt to act as a barrier to disabled people fully participating in the labour market. Some respondents cited the need for better engagement with employers and training, as well as incentivising organisations to employ a disabled person. Often this was felt an essential component to improve upon if the changes proposed in this consultation are to prove successful.”

That’s it. That’s all they said, despite their own previous report and the fact that the Equality and Human Rights Commission had also published a report in the interim acknowledging the need to deal with discrimination in order to ensure disabled people have access to work (to be honest with you, that report is a 108 page word document and I’ve only skimmed it thus far a lot of reading has gone into this post!).

The DWP Response to the Consultation on the Sayce Review was published on 7 March 2012. A week previously, the Human Rights Joint Committee had reported on the Implementation of the Right of Disabled People to Independent Living It’s likely I’ll come back to that report in another context in another post but, for now I’ll just draw your attention to the section in which it acknowledged:

“The most recent evidence, from the ODI’s Life Opportunities Survey, confirms that… 16% of adults with impairments experienced barriers to education and training, 57% experienced barriers to employment (compared with 26% of those without impairments), 75% experienced barriers to using transport (compared with 60%), 44% of households with at least one person with an impairment experienced barriers to economic life and living standards (compared with 29%) and 82% experienced barriers in leisure, social and cultural activities (compared with 78%).

We note the significant disadvantage to disabled people which persists in relation to choice and control and levels of participation in economic and social life and the impact this has on their economic and social well-being, and on what many of our witnesses considered to be their enjoyment of basic human rights. We therefore welcome the Government’s recognition that more progress is required to promote disabled people’s right to independent living.”

I believe ATOS is causing unnecessary harm by claiming that people are fit to work when they’re not but I also believe that, even if the DWP put their and ATOS’ house in order in relation to WCAs, we would still find that the majority of those assessed as capable of working would either not be able to find work at all or not work up to their skills capacity. They face discrimination and negative stereotyping at a time when able bodied people are losing their jobs and struggling to get back into work. My blood is absolutely boiling over this issue. I was exceptionally lucky that my job was left open for me to return to after my own period on Incapacity Benefit. That was five years ago. I can honestly say, I don’t think I’d have ever worked as a lawyer again if I hadn’t been able to go back into that job. As it is, it often feels like a trap because I “strive” and I “aspire” and it feels like I will forever be held back and pinned to this one position in this one job so how are people who have been unable to work for years going to find work? All disabled people struggle against able bodied people in the jobs market. My experience has been that, although more recruitment agents are willing to try to argue my case on my behalf now than five years ago, there has been no real improvement among employers. On the broader stage, there has reportedly been some improvement for graduates. More disabled graduates find work within six months of graduating than previously. However, every other statistic I’ve seen suggests this is an anomaly. I suspect that this improvement has much more to do with the support graduates now receive from the careers services within the universities themselves than an overall improvement in the attitudes of employers. I’d be interested to know the outcomes for people when they try to find a new job without the safety net of a dedicated careers service.

If the Government wants to be taken seriously when it claims that it only wants disabled people to have better lives and that that disabled people will feel better if they are working, it must stop the rhetoric which reinforces negative stereotyping. It must enforce disability discrimination laws. It must educate but it must also come down hard on anyone who fails to offer a disabled candidate a level playing field. I’m waiting but I’m not optimistic.

Proper consideration of disability discrimination should be one element of a full impact assessment over changes to disability benefits. If you want to support the campaign calling for a full impact assessment, visit Wow Petition.