Today the Labour Party published the report of the taskforce it established in 2013 to look at ways to break the link between disability and poverty. The press release announcing the setting up of the taskforce by Anne McGuire MP and Liam Byrne MP is below and the report can be downloaded here.
We are advised that there will not be a press release to accompany the launch of the report as it is not the policy of the Labour Party to do so in relation to ‘policy submissions’ (a somewhat interesting and loaded description, given the report was commissioned by Labour shadow Ministers to advise them) hence we are left to promote the report ourselves. This is deeply disappointing and the obvious inference is that Labour does not wish to promote discussion or to engage with its proposals. As the taskforce had no resources it was unable to consult with disabled people and their organisations and we anticipate that the Labour Party will do so in forming its own policies in the coming weeks and months. To these ends it is also deeply disappointing that an easyread version has not been produced, denying the opportunity for people with a learning disability to read our ideas.
Of course Kate Green MP and Rachel Reeves MP did preempt publication of the report last week in a newspaper article (which is not current available on-line) in which they announced that they would reform the Work Capability Assessment. It will be interesting to hear more about the detail of their plans in addition to their response to the other proposals in our report regarding employment support, access to work, costs of living and beefing up our approach to equality.
I hope that disabled people and their organisations will read, discuss, comment and improve upon our proposals and ensure that these critically important issues are not brushed under the carpet.
Labour takes aim at disability poverty (from June 2013)
Labour today launched a new taskforce led by Sir Bert Massie, to look at ways to
break the link between disability and poverty.
Launched as Disability Living Allowance is abolished nationally, the taskforce will
review ways of helping disabled people meet the extra costs that disability
imposes and recommend changes to the social security system to maximise
disabled peoples’ control over their own lives. The taskforce will focus on better
use of existing resources.
The launch of the taskforce follows Ed Miliband’s speech on modernising social
security in which he said a Labour government will reform the government’s
failing programmes to help support more disabled people into work.
Recent figures revealed disabled people are twice as likely to live in low income
households than non disabled people – yet the government’s ‘strivers tax’ will
push 50,000 more disabled people into poverty while the DWP’s Work
Programme is failing to get 98.7 per cent of disabled people into jobs.
The taskforce will be headed by Sir Bert Massie CBE. Sir Bert is disabled and was
previously the CEO of The Royal Association for Disability and Rehabilitation
(now Disability Rights UK) and Chairman of the Disability Rights Commission. He
is currently a Governor of Motability and of Liverpool John Moores University.
Anne McGuire MP said:
“Many of the Government’s changes to social security aren’t helping disabled
people, they are pushing them into poverty. I am delighted that Bert Massie has
agreed to chair the taskforce. The members of the group bring a wealth of
experience, either as disabled people or those who have worked with disabled
people. I am sure they will throw down some interesting challenges to us as we
seek to improve the lives of disabled people.”
Sir Bert Massie said:
“Even in an age of limited resources there are more humane and better ways of
supporting disabled people than this government’s unprecedented assault which
has left millions of disabled people facing greater poverty. I welcome the
determination of the Labour Party to seek ways of enabling disabled citizens to
play a full role in society and to provide the support to bring this about. The
report of the taskforce will suggest ways forward.”
Notes to editors
1) Other members of the taskforce are:
Dr Roger Berry – is a former Member of Parliament and is heavily involved in disability
issues. Prior to becoming a Parliamentarian he taught economics at Bristol University.
Agnes Fletcher – advises organisations on equality law, policy and practice. She was a
Director at the Disability Rights Commission for five years, has provided consultancy to
the Equality and Human Rights Commission and other public bodies and has worked as
an advisor to government. She is a disabled person.
Neil Crowther – is an independent expert specialising in human rights, equalities and
disability rights. He was previously Director of Human Rights at the Equality and Human
Rights Commission. Before joining the EHRC he was Head of Policy at the Disability
Kaliya Frankin – is a disability activist with a deep interest in social security issues.
Disabled herself, she campaigned against changes to disability benefits introduced by the coalition government.
Ian Greaves – is the principle author of the highly respected Disability Rights Handbook.
2) Ed Miliband announced this week that the Labour will reform tests for disability
benefits so that they aren’t just about the benefits people get but about supporting
people to work.
Labour introduced tests for ESA because those that can work should do so. We support
tests for DLA & PIP to ensure the benefit goes to those that need it.
But the test needs to improve. When 42 per cent of people are winning their appeals,
the Government are clearly not getting it right.
But we want to go further and deliver real savings by supporting disabled people into
work and raising the employment rate for disabled people in the UK. We would do that
by making the tests as much about what work people could do and the support that
would be needed to make that happen, as they are about whether or not someone gets
a given benefit.
3) On Monday 10 June new claims for Personal Independence Payment will start in all
parts of Great Britain. There will be no new claims to DLA for people aged 16 to 64.
Sent by email from the Labour Party, promoted by Iain McNicol on behalf of The Labour Party, both
at One Brewer’s Green, London SW1H 0RH. Website: http://www.labour.org.uk to join or renew call 0845
Just something I’ve been musing on for a while. Two self-perpetuating cycles, one of exclusion, the other inclusion. The latter is of course the one we must strive to generate. Such theories of change inform the work of disability organisations in other countries (especially those promoting the right to community living of people with intellectual disabilities) but I’m not sure whether they do or ever have informed the approach of disability organisations in the UK. Welcome comments.
Cycle of exclusion
Cycle of inclusion
How can UK organisations make the most of the opportunity presented by the UK’s examination by the UN Committee on the Rights of Persons with Disabilities?
Keep all eyes on the prize
The primary goal of this process for disability rights advocates in the UK is to secure a range of ‘concluding observations’ (findings and recommendations) which command the attention of and action by future government’s (and other actors) to advance disabled people’s rights.
Using it solely to protest at the current government is a wasted opportunity – think broad, and think long term
There is generally little value in seeking only for a Committee to censure an existing government and this is especially the case with the upcoming examination under the UNCRPD as a general election will follow within weeks which could lead to a change in administration. The examination is as much an opportunity to win support for a future programme as it is one of securing criticism of past or current policy. Hence it’s important to be thinking about influencing the agenda of an incoming, different government and not by stealth allowing it off the hook by concentrating all attention on the sins of the current administration. Moreover, while government’s come and go, problems have a habit of traversing different government’s and of proving persistent over time with policy very often changing gradually between and across administrations rather than radically – for example, Employment and Support Allowance and the Work Capability Assessment built on previous policy, were designed by the last Labour Government, taken forward by the current Coalition Government and are unlikely to be replaced by the next government, whatever Party or Party’s win the next election. Meanwhile, levels of unemployment and poverty among disabled people have not been improved by these policies, which means that the policies of all Party’s are failing. The examination is an opportunity to level pressure on all Party’s to up their game and a lost opportunity if used only to protest about the existing administration.
The Committee will not give equal weight and time to each and every issue raised by those submitting evidence. In September 2014 the Committee will choose to focus on a number of issues, perhaps breaking them down in terms of grave and systematic human rights abuses, areas requiring small tweaks and some long term strategic aims. These are called ‘the list of issues’ and the Committee will issue a list of questions the UK Government and invite other interested parties to submit evidence related to these questions. It will help the Committee if those submitting evidence have established consensus about what their priorities are. It will not help the Committee if they have to second guess these and it could result in things being overlooked which UK disabled people’s organisations regard as of vital importance.
In deciding these key factors are:
- Gravity – how serious is the issue you are raising for the rights of disabled people? This may mean relatively few people are affected but that the risks are grave – an example would be the deaths of people with learning disabilites in ‘assessment and treatment units’
- Scale – how many are affected? For example, the scale of poverty and unemployment and the risks posed by welfare reform and austerity or the numbers of disabled people being deprived of their liberty.
- Direction of travel/persistence – is the issue getting better or worse and at what pace? For example, progress on inclusive education is stalling and support for inclusion shows signs of weakening, the employment rates of some groups including people with a learning disability or those with mental health problems have been persistently low for many years with little sign of concerted effort to address them.
- Policy or legislative compliance: are areas of UK law so obviously at odds with or insufficient to meet the requirements of the Convention? For example, Northern Ireland’s equality law has not been reformed since the Malcolm Judgement in the House of Lords, the recent House of Lords inquiry into deprivation of liberty has concluded that Deprivation of Liberty Safeguards require reform, is the codification via the Care Bill of state provision of care and support for those deemed to have critical and substantial needs in conformity with the duty to progressively realise the right to independent living?
Disabled people’s organisations should play a leading role in the examination process and the more the Committee can feel confident that disabled people are speaking with one voice the better. This does not mean all DPO’s must act in concert with one another, but when dealing with different groupings the Committee needs to know who it is dealing with, who those organisations represent and who they do not. Further, the more groupings there are covering the same ground the more complex a task is faced by the Committee in determining who it should listen to and which evidence it should pay attention to. If organisations are for whatever reasons struggling to work together, it is in their interests to be as open and transparent as possible about what they are or are not planning to cover and say so that others can at least have the opportunity to fill any gaps.
Remember who and what you’re dealing with
Finally it is helpful to recall that – though disabled people’s organisations played a central role in drafting the Convention, have a key role to play in its implementation, and can expect a key role in the examination process, the UN is a body of States, not civil society. States give their consent to be bound by international human rights treaties by ratifying them. The primary means by which they are held account is through examinations by Committee’s, the members of which are nominated by States. These Committee’s can sometimes be challenging and radical, but they cannot act beyond their mandate – to assess compliance by States with what States have agreed voluntarily to comply with. The credibility of the committees, and the willingness of States to pay attention to them rests heavily upon the credibility of the evidence on which the Committee relies to carry out its examination. Furthermore the UN Committee is examining the action and performance of States possessing wildly different political traditions, cultures, economic policies and at vastly different stages of progress around the world. It must examine the performance of States objectively based on accurate evidence and will do so proportionately. Although the UN High Commissioner for Human Rights (and the Council of Europe Commissioner for Human Rights) have raised concern about the impact of the policy of austerity on human rights, it is not within the gift of the Committee to critique or criticise the ideology of democratically elected governments, only the impact of their policies on the enjoyment of human rights.
Hence, shadow reports which are based upon weak or anecdotal evidence, which do not ground their analysis in the Convention principles and articles or which are dogmatic in nature are unlikely to find currency with the Committee, just as such evidence submitted to a Parliamentary Inquiry in the UK would not do so.
Disabled people and their organisations have been accorded the right to participate in the monitoring process by Article 33.3 of the Convention. They have also been given the duty to do so, and to do so as effectively as possible. By doing so they can help ensure a potent and influential first examination by the UN Disability Committee which should help set the disability rights agenda for years to come.
Last year I drafted this concept note, proposing a Commission on the Future of Disability Rights in Britain and shared it with a few people – there was lots of positive comments but little sense that anyone was in a position to pick it up and move it forward at that stage. I’m sharing it on here to see if any organisations would be interested in hosting and/or funding such an important and timely project. Although I would welcome involvement, I am not precious about the idea and welcome its development and being taken forward by others. I certainly cannot make it happen working alone. If you’re interested, don’t hesitate to get in touch using the contact form at the end of the post. Best wishes, Neil
1. Aims, objectives and outputs
The aim of the project is to critically review and report on the state of disability rights in Britain and to make recommendations for priority action to ensure continued progress in implementing the United Nations Convention on the Rights of Persons with Disabilities with a view to influencing both domestic debate and the examination of the United Kingdom by the United Nations Committee on the Rights of Persons with Disabilities expected in 2015.
The objectives of the study are to:
a) Map the state of disability rights in Britain and identify, via research, consultation and engagement, key priority themes
b) Critically evaluate the British government’s performance in relation to implementation of the United Nations Convention on the Rights of Persons with Disabilities across key priority themes
c) Identify priority areas for action and develop recommendations
d) To consider how greater receptiveness by the public, media and other actors to the rights of disabled people might be achieved and to make recommendations regarding new frames and narratives
a) The establishment of a short-life commission on the future of disability rights
b) An evidence map identifying the key priorities for action on disability rights in Britain
c) A report identifying positive and negative features of government policy and practice in relation to these priority areas for action
d) A report identifying recommendations for future policy and practice
e) Framework analysis, narrative and message development, including the output of public polling and focus group, to further to implementation of the identified recommendations
2.1 Rights, then
When the United Nations Convention on the Rights of Persons with Disabilities was adopted in December 2006, the landscape regarding disability rights in Britain looked radically different to today.
A diverse alliance of organisations of and for disabled people helped ensure that the previous decade was bookended by two Disability Discrimination Acts (1995 & 2005), and punctuated by a series of legal developments which together prohibited disability discrimination in almost all areas of life. In December 2006, new positive duties on public bodies to proactively eliminate discrimination and promote disability equality came into force.
The Human Rights Act 1998 had begun to reach the parts discrimination law could not, securing dignity and autonomy for disabled people using or requiring health or social care. The Mental Capacity Act 2006 introduced a new presumption of mental capacity, aiming to safeguard rights to liberty and self-determination.
The Prime Ministers Strategy Unit report on the Life Chances of Disabled People (2005) saw the adoption of independent living as official government policy, with a new Office for Disability Issues established to oversee its development and implementation across government. This was accompanied by a commitment to involve disabled people in policy-making, piloted in initiatives such as Equality 2025, an advisory group to government made up of disabled people, the co-productive approach by which the Independent Living Strategy (2009) was developed between disabled people and government officials and other mechanisms such as the Disability Employment Advisory Committee and the Disabled Persons Transport Advisory Committee. The Disability Equality Duty also helped transform the relationship between disabled people and public bodies by requiring duty-holders to involve disabled people in meeting the duty.
The Disability Rights Commission, established in 2000, played a critical role in promoting the implementation of the new legal duties as well as promoting good practice and public awareness and understanding. In its final full year of operation 2006-7 its annual budget was £22 million. It – and the then separate organisations regarding race and gender discrimination – was replaced in 2007 by the Equality and Human Rights Commission (EHRC, which also has responsibilities in relation to age, sexual orientation, religion and belief and human rights. The EHRC’s founding statute included a statutory decision-making Disability Committee (an arrangement not extended to the other ‘equality grounds’) which was conceived to ensure continuity regarding the ongoing implementation of disability discrimination law and expert advice to the commission regarding the distinctive technical aspects of both the law and its application in practice. The Equality Act 2010 replaced the Disability Discrimination Acts, consolidating them with other non-discrimination law.
Areas of policy and public services of central importance to disability rights, such as social care, suffered under-investment and required reform, and the seeds of the divisive and unsuccessful welfare reforms underway today were being sown. While the UK may have been a trailblazer in relation to disabled people’s civil and political rights, little if any progress was made in embedding economic and social rights to support and resources, with benefits and public services continuing to be designed and allocated as ‘welfare’ to be distributed at the discretion of the benevolent State. This reflected a broader lack of willingness by the UK government to move beyond codifying the civil and political rights contained in the European Convention on Human Rights.
However, the overall direction of travel was aligned to a commitment to disabled people as equal citizens, with both the commensurate rights and responsibilities that such status endows. It was unsurprising that the UK Government felt able to confidently sign and then ratify the UN Convention on the Rights of Persons with Disabilities in June 2009. In the government’s own words ‘After signing the Convention in 2007, the UK reviewed its existing legislation for consistency with it. Because of the approach to disability equality that had been developed over a number of years, and the progress already made, it was able to ratify the Convention successfully.’
2.2 A ‘lost decade’ for disability rights?
It seems that the mid 2000’s may have been the high watermark in relation to progress on disability rights in Britain. It is of course important to recall that these developments took place against a backdrop of continuous and unprecedented economic growth (which may also have generated some degree of complacency about continuing expenditure on public services and jobs growth). Nevertheless, it appears not only that further progress has stalled in the context of the UK’s post-crash political and economic climate; a number of the key building blocks put in place before the crash are now being dismantled, undermined or neglected. Moreover, in 2013 ‘disability rights’ as a concept appears to have diminishing purchase on public and political debate, government policy, the action of public bodies or even in framing the advocacy of disabled people and their organisations.
Disabled people without doubt look set to be major losers as a consequence of the public spending cuts being implemented by the coalition government. There will be less money in many disabled people’s pockets and fewer public services available. While programmes of ‘de-institutionalisation’ are underway in parts of Eastern Europe, disabled people in parts of Britain face the prospect of ‘re-institutionalisation’ with residential care the only option offered to people requiring care and support. Many of those able to remain living in their own homes will find themselves without the financial or other support to participate in the community. For many disabled people rights have little meaning at all where civil and political rights become divorced from economic and social rights, such as the assistance needed to get out of bed and eat, to go the polling station, get an education or to go to work, yet that is the reality many will face in the months and years ahead. The impact of the cuts also extends beyond simply the availability of resources and support. It appears to be undermining reforms designed to accord disabled people greater autonomy over their lives with stricter rules being imposed over how resources are used or money spent. Further, a general climate of suspicion regarding the authenticity of those claiming disability related benefits risks forcing disabled people in need of support having to enter a state of suspended animation lest their entitlement be brought into question, reflecting and compounding pre-existing stereotypes and prejudices that equate disability with dependency and lack of productivity. Civil and political rights to dignity, respect and self-determination are also being undermined by austerity.
It is unsurprising that the most vocal campaigns being led by disabled people are those, such as the Spartacus Campaign, resisting such spending cuts. However, these campaigns have typically employed frames and narratives which predate the focus of disability rights campaigners during the 1990’s, drawing instead on caricaturing disabled people as ‘our most vulnerable’ citizens who are deserving of society’s benevolent support rather than as equal citizens whose rights are being violated. On the other side of the debate the focus of political parties and the media is almost overwhelmingly that of using welfare as an instrument of social control via ever more punitive sanctions in order to restore ‘fairness’ to the system. Here the narrative is one of ‘welfare dependency’ resulting not from economic failure but from a lack of moral agency among those seeking support from the State.
Debates regarding welfare reform, local authority spending cuts or abolition of schemes such as the Independent Living Fund are conducted as though the State possesses no duties or obligations under international law to respect, protect or fulfil rights. The Joint Parliamentary Committee on Human Rights has been a lone voice in describing these developments as at risk of breaching the UN Convention on the Rights of Persons with Disabilities. The failure to have embedded rights in the way welfare and public services are debated, designed and allocated has left disabled people’s rights fatally exposed.
However, it is not only outcomes which are threatened. In its initial report to the UN Committee on the Rights of Persons with Disabilities, the government said that ‘The UK supports the obligation of Article 4(3) that disabled people should be involved in implementation of the Convention, and in other decision-making processes on issues that relate to them so that their views, experiences and expectations are taken into account in policy development and delivery. This approach already informs the development of UK policy, and the report refers to a number of examples. Equality for disabled people can only be achieved by disabled people themselves and all parts of society working in partnership with Government.’ However, in practice what progress that had been made in securing disabled people a seat around the table in relation to the policy and decisions affecting their lives is being steadily eroded. The Public Sector Equality Duty did not carry forward the duty under the Disability Equality Duty to involve disabled people, Equality 2025 has been rationalised, the Disability Employment Advisory Committee was abolished and the EHRC has recommended that its Disability Committee is disbanded in early 2014. The Disabled Persons Transport Advisory Committee was earmarked for closure but has recently been given a reprieve. Disabled people’s organisations are struggling financially to survive, with the UK Disabled People’s Council recently losing its only paid member of staff and facing closure.
In its initial report to the UNCRPD Committee the UK Government positioned the Public Sector Equality Duty as a core vehicle for implementation of the UNCRPD arguing that: ‘With ratification achieved, new or reformed legislation and policies that may affect disabled people are considered in the light of Convention obligations, including the concept of progressive realisation to which Article 4 (2) refers. The requirements of the Equality Act 2010 (further described below) already mean that public authorities must have regard to the impact of new policies on disabled people. The Convention adds additional impetus to this.’ However, in its inquiry into disabled people’s right to independent living (March 2012) the Joint Parliamentary Committee on Human Rights said: ‘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). In a speech to business in December 2012 Prime Minister David Cameron announced that the government was ‘calling time in equality impact assessments’ characterising the process as red-tape which got in the way of the priority business of government which was to bring about economic growth. The Public Sector Equality Duty has since been the subject of a government-sponsored review. Despite little supporting evidence, the Chair of the review, aided by government spin cast the duty as often amounting to little more than ‘red-tape.’
The Office for Disability Issues, which was described by the government as the UK’s ‘focal point’ and ‘coordinating mechanism’ for the implementation of UNCRPD can no longer be described as a standalone cross-government agency. Though it has overseen production of a recently published cross government disability strategy and led some important work regarding the capacity of disabled people’s user led organisations, the Office itself been assimilated into the Department for Work and Pensions and rendered largely subservient to the welfare reform agenda, with little budget or influence.
The Equality and Human Rights Commission, which acts as an ‘independent mechanism’ under the UNCRPD and which as a national human rights institution is tasked with protecting and promoting its implementation, has struggled to combine its various responsibilities and was the subject of Parliamentary criticism. Despite delivering important programmes of work regarding disability related harassment and actively promoting UNCRPD many disability stakeholders do not view it to have provided the focus of the Disability Rights Commission. Further, its budget has been progressively cut, from pro rata £70 million per annum in its first year of operation to less than £26 million in 2014-15. With a further cut of 10% recently announced for 2015-16, its budget – covering all areas of equality and human rights – will be lower than that of the Disability Rights Commission a decade after it closed for business, without even taking inflation into account. Along the way the Commission has shed some of the functions which had successfully been deployed by the DRC, including the provision of a public helpline and providing mediation.
The Human Rights Act – and lately European Convention on Human Rights – is now subject to open criticism from senior politicians on left and right, including the present Prime Minister, Justice Secretary and Home Secretary. The Conservative Party has indicated that it will repeal the Act if it wins an outright majority at the next election and explore withdrawal from the Convention.
As for the UNCRPD itself, it has made some inroads into the law and policy debates in the UK and Europe. As a monitoring mechanism however it has been seriously hampered by the initial under-resourcing of the UN Committee on the Rights of Persons with Disabilities. The consequent backlog means that though the UK delivered its initial report on implementation of the CRPD to the Committee in 2011, it has taken until 2015 for the UK’s examination to be timetabled. At present no organisation is filling this gap in holding government to account for its adherence to the Convention.
2.3 Disability rights, now?
What is the state of disability rights in Britain today, by reference to the standards contained in the UN Convention on the Rights of Persons with Disabilities? What are the big priorities and what prospect is there of addressing them in the years to come? How can a disability rights agenda negotiate a path between the myths and realities of austerity Britain? Can it finally bridge the gap between civil and political rights and economic and social rights to forge a new comprehensive disability rights agenda? How receptive is the public to the attitudes of disabled people? To what degree to disabled people view rights as a means to negotiate improved life outcomes? What should be the priorities of a new rights agenda and what are its modern ‘theories of change’? What institutional architecture and mechanisms are required to promote and protect disability rights in Britain into the future? What lessons can be drawn from the experience in other comparable countries, including those undergoing austerity? These are some of the questions that this project would set out to answer.
It is proposed that in order to achieve the necessary profile and focus a short-life ‘Commission on the future of disability rights’ is established with expert members drawn from different areas of British life (emulating the National Disability Council, the Disability Rights Task Force and the Disability Rights Commission before it) including law, business, economics, public services, media and communications. The Commission will have a dedicated secretariat team, access to academic support and to resources to commission such work as it deems necessary, such as in relation to public attitudes to disabled people’s rights. It will actively engage and involve disabled people and other key stakeholders in its work. Although such a process will be necessarily iterative, the key stages involved are outlined in the methodology below.
- 3. Methodology
The following stages are proposed over a 18 month period:
(a) Establishment of a Commission
(b) Identification of priority themes via desk-based analysis, consultation and engagement
(c) Analysis and consultation regarding government policy, practice and performance in relation to key themes
(d) Development of recommendations via open process of deliberative debate, consultation and inviting submissions
(e) Work on public opinion, framing and narrative development
(f) Publication and launch of final report
So we’ve reached that annual day on DWP’s media calendar when it pumps out misleading statistics regarding the numbers found ‘fit for work’ following the Work Capability Assessment (1 million since 2008 allegedly).
I’ll leave the critique of the statistics to others, for whatever their accuracy within the internal logic of the absurd system created by the DWP, they are meaningless as an indicator of actual employment prospects.
In the BBC article, Minister for Disabled People Mike Penning MP is quoted as saying ‘it is only fair that we look at whether people can do some kind of work with the right support – rather than just writing them off on long-term sickness benefits, as has happened in the past.’
I couldn’t agree more. Yet that is not what the Work Capability Assessment does at all. It is an abstract measure of functional capacity, not a ‘real world’ exploration with an individual regarding whether the ‘kind of work’ they might be in a genuine position to do is a realistic prospect and whether the ‘right support’ they would require can be sourced and sustained. The fact that the government’s flagship ‘Work Programme’ – the ‘carrot’ justifying the ‘stick’ of increased conditionality and sanctions – has a 95% failure rate for those on ESA suggests that the ‘right support’ is as ubiquitous as the Loch Ness Monster.
As Liz Sayce, Chief Executive of Disability Rights UK recently noted:
‘Whether you can or cannot ‘raise either arm to the top of the head as if to put on a hat’ (one of the WCA descriptors), or mount or descend two steps unaided by another person, or cope with change, has no known correlation to your employment prospects. This depends not only on the job (you might be sitting all the time, with no need to get up and down steps) but most particularly on whether the employer will make adjustments, whether you have the support you need (for instance, to ‘cope with change’) and how motivated you are: how much you feel you could do it. External factors – whether an employer is prepared to give you a chance, whether you can as a deaf person get the communications support you need to do the job –are far more significant than whether you are or are not deaf or living with a long-term health condition.’
Liz’s analysis is grounded in the modern understanding of disability, set out in the UN Convention on the Rights of Persons with Disabilities whereby disability ‘results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’.
This is the understanding of disability and long term health conditions that needs to underpin a real world approach to assessment. It does not ‘write people off’ on the basis of their impairment or health condition – it constantly drives us towards the objective of barrier removal – yet nor does it shy from recognising the prohibitive barriers that some people may presently encounter in moving wholly or partly into sustainable paid employment (including those intrinsic barriers which arise from a persons impairment or health condition). It would create a much fairer, positive and proactive system than we presently have, allowing us to better determine who needs the greatest social protection while at the same time identifying the barriers that need to be removed and the support that needs to be provided if we are to make real progress once again in increasing the numbers of disabled people in paid employment.
At present, it is both Employment and Support Allowance and the DWP that are failing the fitness test. It’s time for a radical rethink.
I believe that there is a case to be made for a standalone Disability Rights Commissioner for England as part of a wider reform of our equality and human rights infrastructure. The post (and its supporting infrastructure) would be akin to our existing Children’s Commissioners or Older Persons Commissioner in Wales. The post-holder would be appointed by and report to Parliament.
I would suggest that the Commissioner has powers of inquiry and investigation (including powers to enter institutions), to carry out research and policy development, promote ideas and good practice, make grants and otherwise support innovation, was able to make submissions to the Courts, Parliament and government, the Council of Europe and the United Nations, and to conduct public campaigns. Its frame of reference would be the UN Convention on the Rights of Persons with Disabilities.
It would not have powers to assist individuals or to enforce domestic equality or human rights law – both would remain the mandate of Britain’s national equality body and national human rights institution (presently the Equality and Human Rights Commission), with which it would work closely.
There can be little doubt that, while the Equality and Human Rights Commission has made a number of important and welcome contributions to advancing the rights of disabled people (and disability rights has fared comparatively well in terms of the overall allocation of resources within the EHRC), the benefits of allocating disability rights in its entirety to a single body as a replacement for the previous Disability Rights Commission (DRC) have been seriously outweighed by the costs. The chief benefits that have accrued to disability rights derive not from incorporating disability rights within a wider equality perspective, but from the addition of powers to promote human rights – powers which could and should be provided to a Disability Rights Commissioner were one to exist.
The transition from the DRC to the EHRC has – despite many people’s (including my own) best intentions and effort – resulted in a catastrophic loss of focus on disability rights in Britain – both at the level of practical action and wider public and political discourse, leaving disabled people exposed at a moment of extreme vulnerability following the financial crisis of 2008 and the subsequent pursuit of austerity measures.
The one size fits all experiment has failed and the massive decline in resources and autonomy experienced by the EHRC (the EHRC is only today marginally better funded than the Disability Rights Commission was in its final year of operation 7 years ago) has weakened it even further. A single equality and human rights body (or for that matter, a separate single equality body and human rights body) would continue to play an important role in promoting and enforcing equality and human rights law, but disability rights requires in addition a strong independent champion.
Although Britain can count much progress, the challenges facing disability rights remain profound, diverse and complex. This is why a Disability Rights Commissioner, and an Office for the Disability Rights Commissioner, should be given active consideration
‘It always seems impossible until it’s done’ Nelson Mandela
More disabled people with qualifications, in jobs, out of poverty, healthy, in control of their lives, living in safety and security, included and taking part in all areas of society… the goals remain the same, but how might the disability rights agenda be renewed in the light of the tectonic social and economic changes facing Britain and the world?
A future imagined…..
A renewed commitment to ‘equal citizenship’
The vision of the Disability Rights Commission of a society in which all disabled people can participate fully as equal citizens will be restated. The UN Convention on the Rights of Persons with Disabilities will provide the foundational principles, a programme for action and a framework for State accountability.
There will be a redrawing of the relationship between disabled citizens, the State and society – with disabled people empowered to exercise individual agency and self-direction, expected to participate in all areas of life, to enter into reciprocal relationships and networks, and with the freedom and support to do so.
Social connectedness will be a key success measure of policy and practice.
It will be widely accepted that disabled people have the right to be in the world. All forms of congregate living, working, learning and leisure which segregate disabled people from the wider community will be viewed as temporary and ultimately undesirable. Action to open up communities, workplaces, schools and colleges and cultural life will be centre stage in a purposive disability rights agenda. This will not simply be about transactional matters of institutional accessibility: it will equally be about the opportunity for disabled people to gain access to social networks – to relational and associational life. Through doing so we will begin to make genuine social inclusion real and secure the social embeddedness via which self-directed lives can be fully realised.
To do so we will develop or scale up ways to promote receptiveness to disabled people’s inclusion among the wider community and to move from models of support which seek to supplant everyday relationships with ones which facilitate their development. Networking and connecting people will be a core objective with social connectedness between disabled and non-disabled children and adults and the receptiveness of the wider community (measured in terms of attitudes and behaviours) a key success measure.
Investment, not welfare
Disability rights has always required more than a safety net, which is why despite so many positive developments in the UK over the past two decades there was, even before austerity, a major weakness in our approach.
The deficit based welfare state will be replaced by a strength based approach which brigades together resources to invest in human development. It will concentrate on building people’s resilience and readiness, nurturing their willingness and interests, investing in their capabilities and supporting people to participate, contribute and grow.
This will require a profound set of changes in the assumptions underpinning the way public resources are understood and in how they are organised and targeted, a process of transition which will be managed via a partnership between disabled people and government and which will require particular effort to build wider public support (see below regarding values and frames).
Power will be exercised by disabled people and their appointed advocates to self-direct their own support in order to be the author of their own lives. The State and professionals will get out of the way, we will improve on existing approaches such as personal budgets and there will be investment in choice and control infrastructure including advice, peer support, advocacy and social networks (coordinated by local access to living centres – see below).
An investment State will nurture individual agency and through doing so harness the innovations of individuals and their appointed advocates to generate new solutions, about which there will be few restrictions. People requiring public service support will be actively involved in commissioning it, in its delivery and its evaluation, monitoring and inspection.
A decisive shift from the high costs and perverse incentives imposed by the liability-driven culture of adult safeguarding will give way to a liberating model of ‘supported risk taking.’ The right to make mistakes will guide policy and practice. Active consideration will be given to bringing the Mental Capacity Act into line with Article 12 of the UNCRPD.
Integration integration integration…
To facilitate this, we will re-purpose and then integrate health, social care, benefits and employment support around an individual unified ‘access to living’ scheme, over which disabled people should have control.
New institutional architecture will be established to support this in the form of local access to living co-operatives, led by a partnership between disabled people and local statutory partners. They will coordinate the ‘choice and control’ infrastructure mentioned above, help people to manage their support and finances and offer opportunities for people to pool their budgets to create their own collective solutions.
To both optimise the use of resources and promote autonomy there will be a major drive to de-regulate, cutting back the current web of red-tape and bureaucracy which plagues disabled people’s lives and which wastes £millions of public resources. All existing and proposed assessments, monitoring regimes and other forms of red-tape will have to meet stringent tests of justification, in the same way as those concerning business. Public spending cuts will take an ‘administration first’ approach.
Inclusive growth strategies
‘Welfare to work’ as an organising principle will be abandoned in favour of the development of ‘inclusive growth strategies.’ These will focus on tackling the strong relationship between disabled people’s unemployment and poverty and regional disparities in economic performance and growth.
Such strategies will be localised, connecting the agendas of economic regeneration, support for business, job creation, skills and employment support. They will be led locally by partnerships of local councils, businesses, education and training providers and disabled people’s organisations, with support from regional growth agencies and nationally by the Department for Business, Information and Skills or its replacement. Should plans for Universal Credit press ahead, the remaining elements of DWP might be merged with HRMC.
All ‘Employment support’ should be tailored to the individual, overwhelming while ‘in-work’, with disabled people and employers fully involved in shaping and commissioning the support, as required.
Tackle the causes and consequences of the extra disability-related costs of living
The extra costs of living faced by many disabled people, that create significant barriers to participation, will be the focus of a comprehensive strategy which aims to address both their causes and consequences.
This will include action to regulate costs disproportionately faced by disabled people such as high energy bills, as well as to reduce disability specific costs such as expensive disability related aids and equipment, for example through the use of government buying power (as happened with digital hearing aids), or the promotion of greater market competition via initiatives such as Really Useful Stuff. Opportunities to reduce or cut VAT altogether on some products and services will be explored.
There will be a major national drive to develop inclusive, affordable travel options, reflecting the different circumstances of urban, suburban and rural environments.
Local councils will be prohibited from taking account of benefit income provided to disabled people to cover extra living costs in their charging policies. Serious consideration will be given to making integrated public service support (see above re the Access to Living scheme) free to everyone first requiring it under the age of 65. Disabled people receiving public service support will no longer be unfairly financially penalised for saving, building up a pension or accepting a redundancy package.
A major review will investigate in detail the nature and scale of the additional costs of disability and propose how they should be addressed. This will lead to a new disability-related costs allowance which will be a priority for future investment.
The inclusive Innovation nation
Continuing the inclusive growth theme, government will seek to position the UK as a European and world leader in inclusive products and technology, supporting research, development, innovation and start-ups. Mainstream British manufacturers and service providers will be given incentives to develop inclusive products and services, such as a specific kite mark or tax breaks. It is expected the European Accessibility Act will make progress this year – the UK will get ahead of the curve in promoting and supporting its implementation, with British experts providing advice internationally.
Changing behaviours and understanding why change happens
A major investment will be made by disability organisations, think tanks and public bodies in understanding how to change behaviours and make change happen across a range of issues and areas. This will include changing employer behaviours, promoting inclusive environments, goods and services and tackling prejudice and hostility.
The present, lightweight, ‘Disability Confident’ programme will be replaced by an approach employing behavioural science and mirrored on initiatives such as ‘Trading for Good’ which seeks to foster positive behaviours among small employers through a platform offering clear market advantages for doing so.
Comparative analysis will be conducted to understand the reasons some service providers, or local councils, have gone much further in adopting inclusive design and practices than others, to identify what promotes or inhibits good practice and a ‘change management programme’ will be developed and delivered to motivate progress.
A major study will seek to get under the skin of attitudes towards disabled people and to understand what influences them. The Equality and Human Rights Commission will carry out a major programme focusing on public bodies, including government, with respect to their duties under s149 Equality Act 2010 to promote understanding and tackle prejudice (also see below regarding a positive story of change).
The big disability organisations will collectively invest in a programme of strategic litigation, spanning access to goods and services, employment discrimination and independent living.
Be the change you want to see in the world
It’s time for the big charities and providers to walk the walk, not just talk the talk. They must ‘be the change they seek in the world’, and make a decisive shift from institutional forms of provision to leading the way on designing, piloting, evaluating and promoting empowering and inclusive services and practices.
Yes that means you Scope, Leonard Cheshire, Mencap, RNIB……. Leading by example and showing what’s possible should be your primary role in the 21st Century, just as it was when you were founded.
Likewise, some professed campaigners for disability rights need to get their story straight and stop confusing paternalistic welfare or segregating arrangements with rights and equality.
A positive story of change – new narrative, values and frames
A new positive story of change will be developed and communicated in a coordinated fashion by disability organisations and their allies. It will be grounded in values and a deep appreciation of how to influence public opinion through the use of compelling narratives, messages and frames.
It will speak of disabled people as equal citizens, with rights and responsibilities, use the language of investment and contribution, raise expectations and challenge stereotypes and prejudice.
UN Committee examination
Starting this September (which means getting ready yesterday) the UN Committee on the Rights of Persons with Disabilities will commence its first examination of the UK, which it is likely to complete in advance of the 2015 General Election. This truly is a window of opportunity not to be missed, making legitimate a public debate between now and the election regarding the state of disability rights in the UK, placing rights (rather than welfare) back on the agenda, and ensuring that the UN Committee makes the best informed appraisal of the situation facing disabled people at this most optimum of moments.
Disabled people’s organisations will rise to the challenge and the 2015 examination will be a major turning point for disability rights in the UK.
In the meantime, a very Happy New Year
In recent weeks two events have highlighted the intuitive sense of deep injustice people on all sides of the political spectrum feel when presented with stories of segregation related to race or gender. The first of course was the death of Nelson Mandela, who spent much of his life fighting the evil of apartheid before going on to father a new nation founded on the recognition of common humanity and committed to inclusion. The second was the policy advice of Universities UK to permit gender segregation on religious grounds during lectures and tutorials, which was met with howls of disgust and derision.
Yet the routine and in some cases growing segregation of disabled children and adults from their wider community in congregated living arrangements or treatment centres, educational and training establishments, workplaces, and places of leisure appears to pass largely unremarked, save those instances where such facilities are under threat of closure.
Almost half of all children with statements of special education needs (SEN) continue to be educated in segregated special schools. On ratifying the United Nations Convention on the Rights of Persons with Disabilities in 2009, the last government insisted upon an ‘interpretative declaration’ in relation to Article 24 – Education to the effect that special schools be considered ‘part of the general education system’ and that there were sound reasons for some children to be educated in residential special schools away from the communities in which their families lived. The Conservative Party promised in its manifesto to ‘remove the bias towards inclusive education’ and just last week the government rejected a proposed amendment by Lord Low to the Children and Families Bill to include a principle regarding “the need to continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children.” While the Equality Act 2010 prohibits discrimination against disabled children in the admissions policies and practices of schools, there is no statutory commitment to promote inclusion, which appears to have been trumped by the religion of parental choice, now finding expression in so called ‘free schools’ including the opening of new special schools.
Many were horrified by the torture, inhuman and degrading treatment of people with learning disabilities exposed by the BBC’s Panaroma programme at the private hospital Winterbourne View. ‘Never again’ said Ministers and committed to ending inappropriate placements by 2014. Yet recent figures show that while there was a decline in learning disabled inpatient numbers from 4435 in 2006 to 3376 in 2010 the figure has remained more or less static since (the programme was televised in 2011). Local council cuts in spending on social care are already enormous, yet only reflect the tip of the iceberg. Existing figures show that cuts are falling hardest on support for disabled people to live in the community. While the numbers of people receiving community-based social care services fell by 10 per cent between 2011/12 and 2012/13, the reduction in those receiving residential care was only 2 per cent, with a less than a 1 per cent change in the numbers receiving nursing care. Stories are emerging of disabled people living in the community being required to undergo reassessment by their councils and being advised that this will include an assessment ‘for residential care.’ People living in the community also report being allowed less autonomy regarding the organisation of the support they receive or how they are able to spend a direct payment. While the UNCRPD is providing a spur for de-institutionalisation across the world, is England now seeing the beginnings of a trend towards ‘re-institutionalisation’?
The previous Labour government oversaw an extensive closure programme of Remploy’s sheltered factories, starting the process that this government has continued. Such transition is always painful, but it is not wrong. The Remploy factories were never originally intended to provide jobs for life, but to be part of a national system of rehabilitation from which people would renter open labour market. Stories of people having been employed in the factories for 30 years or more are testimony to the approach simply having not worked. Not only did it fail to equip people with marketable knowledge and skills, just like special schools and congregated living arrangements, it segregated them from the wider community. And yet parts of the disability community ostensibly committed to disability rights have opposed the factory closures.
By this point I am quite sure a number of readers will have various ‘yes, buts…’ Yes, but mainstream schools can’t fully cater for all disabled children. Yes but, challenging behaviours mean adults with learning disabilities sometimes need to be placed under restrictive supervision in hospitals. Yes but some disabled people can’t compete in the open labour market.
Yes but…. until 1970 it was lawful to deem disabled children who today are passing their GCSE’s ‘ineducable’, to classify them as ‘idiots’ and ‘imbeciles’ and refuse them an education. Yes but, until 1996 it was perfectly lawful for an employer to turn down an applicant because they were disabled, or a restaurant to ask a family with a disabled child to leave if the proprietor felt they were upsetting other diners. Yes but, until 2000 people detained under mental health laws could not vote in elections. Yes but, before each of these things changed people argued to maintain the status quo, or said change was impossible. But as Nelson Mandela himself once said: ‘It always seems impossible until it’s done’
We delude ourselves if we believe we are making progress on disability rights if we cease to make progress on reducing segregation of all kinds. There is no hope of building an inclusive society where disabled and non-disabled children and adults are not fellow pupils, neighbours, colleagues, or do not enjoy the same leisure and cultural experiences. Congregated, segregating provision of all kinds – however justified – robs disabled people of the opportunity to enter into the reciprocal relations of citizenship, diminishes individual identity and underpins prejudice, and denies the interaction between disabled and non-disabled people that is not just the end-game for disability rights, but the means to that end.
So why are people so fired up about racial and gender segregation yet able to rationalise the segregation of disabled people? The human rights academic Luke Clements has suggested that ‘disabled people are not yet considered ‘ripe for freedom’ in the same way that women, serfs and southern blacks once weren’t.’
Attitudes change. Progress is made. Justice is finally done. But the struggle is never fully over. We are in serious danger of backsliding towards the practice and acceptance of segregation when we should be unremitting in our efforts to open up schools, workplaces and communities and to brigade the resources and support for disabled people to thrive in them.
In 2014 we must renew our commitment to disabled people’s right to be in the world and once again campaign – however progressively – to bring segregation in all of its forms to an end.
The government published the Disability and Health Employment Strategy – or rather the discussion of a disability and health employment strategy thus far – on Tuesday.
Before getting to the details, a message to Mike Penning: you should note that the reason the Joint Committee on Human Rights said the UK was a world leader on disability rights was to highlight the risk of your government squandering such a well-earned status with bad policies.
Now onto the substance….
…First it is creditable I think that the report looks at the role and obligations of employers, government and disabled people. For far too long (under this government and the last) the emphasis has been almost entirely on ‘employability’ – the attitudes, behaviours and ‘human capital’ of the individual – with (poorly enforced) anti-discrimination law and (the largely unheard of by many small employers) Access to Work scheme being the limited interventions in seeking a more open and receptive labour market. The fact that the strategy recognises that the task of improving disabled people’s employment prospects must be one of reciprocal obligations and actions is important, welcome and something to build on.
However, I find its proposals in relation to employers rather uninspiring. First on Access to Work it is certainly helpful to make it available for various forms of work experience, to increase awareness of the scheme and make applying for it easier for employers and individuals. However, the scheme currently enjoys only 0.6% of DWP’s budget, despite evidence showing both its transformative effect and that it pays for itself with a £1.48 return to the Treasury for every £1 spent. This is an obvious candidate to be the beneficiary of increased invest to save spending. One way to find money do so would be de-bureaucratise the system itself, allowing more large employers to administer the scheme directly, while channelling support to SME’s and their disabled staff/prospective staff via a system of personalised budgets, with advice and support. That is to say, keep the middle-man at bay. A ‘strengthened pre-employment eligibility letter’ is a step in the right direction but as the Sayce review also recommended, support should be centred on and travel with the individual, rather than on individual employers, thus avoiding individuals having to re-apply each time they move jobs. This could be part of the overall shift to truly personalised employment support that Liz and I began setting out in Taking Control of Employment Support.
An information portal for employers is welcome, though it makes me sad that the well-established Disability Rights Commission helpline and suite of evidence based advice and guidance it developed with and for businesses was allowed to be run into the ground – I hope the creators of this new portal will be minded to go back just a few years and be inspired by (or even recycle rather than recreate some of) this work.
Regarding the flagship ‘Disability Confident’ scheme (a title which has echoes of an advert for a sanitary product), I’m sure it will deliver some results, but I’m afraid that in its presentation it feels to embody the shallowness of CSR posturing and in practice it is relying on approaches to nurture the engagement and willingness of employers that have been around for the last 10-15 years or more. Compare it to ‘Trading for Good’ for example, developed by Kay Allen OBE in liaison with the behavioural insight team (Nudge team) in the Cabinet Office and it feels positively parochial. Given the investment that has been made by DWP in theorising incentives and sanctions for individual disabled people, a similar investment in discovering how to genuinely change employer behaviours and instituting the means of doing so is long overdue and I hope will emerge in the next stage of development.
With respect to support for individuals, the gateway proposal is initially very welcome recognising as it does that functional limitation does not alone predict employment opportunity and suggesting that tailored assessment and support is the answer. But it instantly falls apart by drawing a distinction between ‘a basic universal offer of support’ and ‘specialist support’. The former clearly implies DWP’s intention to maintain investment in the uniform, pointless and wasteful Work Programme – which has achieved a success rate with ESA claimants which by the government’s own measures amounts to worse than doing nothing at all. At a time of eye-watering spending cuts this is nothing short of scandalous and appears to have little interest in evidence of what works in helping people into jobs. If it doesn’t work then stop spending money on it (which could of course be the point – the payment by results approach means that the more it succeeds, the more it costs).
I come back to the argument made by Liz Sayce and I in ‘Taking Control of Employment Support’ – scrap the Work Programme and focus the money directly on employers and disabled people, with specialist advice and support as necessary, working with partners at the local level. Everyone should receive ‘specialist’ (for them) support.
Secondly, the report explores the question of rationing specialist support. I think it is right to focus all forms of employment support on those who exhibit a keenness to embark on entering or re-entering the labour market – evidence shows that motivation and self-efficacy are critical to success (which is why the constant pursuit of more conditionality, sanctions and other forms of hounding is so pointless and unhelpful). But focusing support on those deemed by government or its agents to be closest to the labour market is a central problem in the existing system and will simply perpetuate and deepen existing inequalities and deny support to those who need it most. Moreover, by what analysis would such distance be gauged when it may very well be a product of the inadequacies of existing approaches or the extent of prejudice and discrimination by employers? This seems particular relevant when it comes to people with mental health problems for example? This idea is grounded in the spurious notion of ‘hard to reach’ groups, which allows those responsible for reaching them to be let off the hook. We need to reject this and recognise that these are people ‘not yet reached’ otherwise we will collude with discrimination and labour market disadvantage.
Having read the report now it feels as though – to bastardise the words of the great Steven Patrick Morrissey – heavy words are (being) so lightly thrown. The promise of personalisation is rendered almost immediately empty by saying most will be channelled to the useless uniformity of the work programme, while a rationed ‘specialist offer’ may provide some degree of self-directed support but only to those ‘nearest to the labour market.’ The welcome focus on employers is unfortunately swept under the banner of ‘Disability Confident’ which offers nothing that hasn’t existed before and doesn’t attempt anything at the cutting edge of changing employer behaviours. There is nothing of any significance regarding what all evidence confirms could be the most significant game changer for many disabled people – improved skills and qualifications. The section on transitions merits little mention at all so lacking as it is in serious propositions and at a time where youth unemployment is so tragically high.
DWP appear to be unable to escape the self-interested grip of the prime contractors and other providers of ineffective support. They have deluded themselves that this model is capable of offering personalised support when all the evidence shows the exact opposite. They are beholden to the ‘no win, no fee’ commissioning model, which creates perverse incentives for a government department under immense pressure to find savings to allow things to fail.
Fortunately this is ‘the discussion so far’ which suggests opportunities for refinement.
I would like to close by making one big recommendation if not for this government for a future Labour government: take employment support away from the Department for Work and Pensions and align it with the skills agenda, led nationally by BIS and delivered locally through partnerships between local government, employers, colleges and community groups (including DPULO’s).
Until we do, DWP will continue to design behavioural management regimes to fulfil the political ends of ‘being tough’ on benefit claimants under the guise of the Work Programme. It will know at the same time that the Work Programme’s failure to secure people jobs is DWP’s way to save money. And the failure of the Work Programme is already being blamed by DWP Ministers on the individuals who have been failed by it, which in turn is used to make the case to deepen sanctions and cut benefits.
It’s time to stop this race to the bottom and get serious about the business of securing disabled people jobs.