Tag Archives: ESA

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.

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.

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.”
“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.

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.