On employment support, only genuine experts need apply

It surely follows that an organisation bidding for public contracts to provide employment support to disabled people on the basis of its expertise in doing so should have an exemplary record of employing disabled people?  This would provide evidence of their belief in disabled people’s potential, their own organisation’s commitment to the goal of halving the disability employment gap and be a powerful signal both to the disabled people they support and the employers they strive to engage.   Moreover there is growing evidence of the powerful role peer support can play in successfully supporting disaled people into sustainable employment (see the forthcoming report from Disability Rights UK and the Work Foundation).

Yet as far as I am aware there is no requirement for organisations bidding to run such services to demonstrate any of the above.  Moreover, I have struggled to find information on the numbers of disabled people employed by some of the main specialist employment support providers or the role of peer support in their methodology (the subject, I hope, of a future bit of research).

We are advised that the Work Programme and Work Choice are no more where disabled people are concerned, but we await the Disability, Health and Work White Paper to discover what if anything might replace them.  This strikes me as an opportunity to secure criteria in future tender specifications to run employment programmes that give preferred contractor status to organisations with a demonstrable record of employing disabled people, especially in front line roles.





What did the person want?

In 1995, the French Counseil d’Etat ruled that ‘dwarf throwing’ (lander de nain) was incompatible with ‘ordere public’ because the persons involved compromise human dignity by allowing themselves to be used as ‘mere things.’[1] The people of restricted growth in question had contested that it was both the manner via which they made their living and furthermore that they chose to do so freely.   The case, alongside others, raises deep philosophical questions regarding the meaning and nature of human dignity and in particular the balance to be struck between individual autonomy and wider conceptions of the public good.

Fast forward to 2016 and ‘that photo’ of a man with a learning disability using a wheelchair piled high with shopping bags while his support worker talks on the phone and smokes a cigarette. Like many others I reacted with revulsion at what appeared an image of outright callous disrespect for human dignity at best, calculated abuse at worst.

But then someone gave me cause to question what I had seen, and it is that account that Mencap now appear to have concluded, following ‘an independent review’ and that of the safeguarding authorities, to be correct. Namely, the individual asked for the bags – his shopping bags – to be placed on his wheelchair table, while the support worker made the phone call.   Mencap has censured the support worker for making the call and for smoking while ‘on duty’ and we might wonder whether, had she not done so, the bags would have needed to be placed there at all. But safeguarding authorities and an independent investigator for Mencap have concluded that the image does not depict what many of us concluded it to because, in essence, the man was exercising autonomy and the support worker was respecting it.

As with the French case above, responses to the image and the actual events surrounding it (insofar as we have a reliable account) centre on the trade off between ‘objective’ and ‘subjective’ conceptions of human dignity. That is to say, between what a person deems acceptable for themself in accordance with their own will and preferences and what we deem acceptable for the person and society more generally.  But they also raise questions about our belief in the capacity of people with a learning disability to exercise autonomy sufficient to have a reliable sense of subjective dignity.

In our initial reaction to the image, how many of us stopped to consider that the man may have asked to have his shopping bags placed on his wheelchair tray? Why didn’t we? Was it because in the picture he looked swamped and uncomfortable and hence couldn’t possibly have asked to be placed in such a situation? Or was it because irrespective of his will and preferences we believe that the support worker shouldn’t have allowed such situation to occur (which we have concluded, from the photo, only took place because of her decision to stop for a cigarette and a phone call, despite the fact that we know nothing of what happened immediately before or after, or on other occasions, as far as I know).  Might it also be because the dominant framing of disability widely and learning disability more specifically has been for some time now that of victimization and abuse that we are led to interpret such images in this way?  That even if he did ask for the bags to be placed there that we do not accept that he would not have done so freely but as a result of fear or pressure?

In many ways we might take heart from widespread reaction to the photograph. Isn’t it positive that an objective conception of dignity exists sufficient for people to be alarmed by an image such as this one and to demand action? Certainly in many cases of disability hate crime there have been reports of passive bystanders who could have intervened but who chose not to or who became complicit by, for example, watching and laughing as a gang caused a man with learning difficulties to drown at Lakeside Shopping Centre.   We might also be acting from an instinctive sense that there exists a power imbalance – that as a result of both the person’s impairment and their dependence on the support worker and others the person is limited in their power to exercise free will. This might arguably have helped inform our interpretation of the image.  Conversely the image reinforced that interpretation: here was a person with a learning disability being ‘done to.’   It also seems to be why many still continue to feel that harm was done and that justice has not been served in Mencap’s response: isn’t the man’s reported perspective a little too convenient and how can we trust it, coming as it does from Mencap itself?

Alternatively our reaction might in reality be another case of what was once described to me as ‘malevolent benevolence.’ While we would like to believe it came from a place of kindness and concern, what lay beneath is our prejudicial view that people with a learning disability lack the capacity to exercise choice and control, especially where we might take issue with a persons choices as here. Here, objective conceptions of dignity continue to trump subjective ones: the desire to protect people with a learning disability from themselves and others trumps our commitment to respect people’s will and preferences.

Isn’t it precisely such denial of voice and choice in the name of protection that has placed and which continues to place so many people with a learning disability at risk? It underpins institutionalization and restrictive social work practice in areas such as personal relationships or the opportunity for people to be parents.   It is the basis for so-called ‘diagnostic overshadowing’ by medical professionals which is responsible for avoidable ill-health and mortality.   It helps explain the institutional failure of the criminal justice system to respond to disability related harassment and hate crime.

Via Twitter a colleague said to me of Mencap’s decision: ‘I’m just worried about the signal this sends to society at large’. But I think that unless there is evidence or indication of harm (and this image did of course appear to indicate harm), that we should be equally worried about sending a signal that a person’s will and preferences should be ignored and a support worker punished for respecting them.   By prioritizing objective conceptions of dignity over subjective ones, don’t we just perpetuate the myth of ‘protection’ and the denial of choice and control? Don’t we encourage people not to listen and help prevent people with a learning disability from being heard?

While I understand that they have a duty of care both to the man concerned and to a member of staff, I think that Mencap’s statement explaining the decision has left too many questions unanswered. I expect Mencap want to put the whole incident to bed now. But a brave organization will see it as an opportunity to open up a debate with the public about the attitudes, behaviours and practices that this event raises for them as an organization that is dominant in the life of people with a learning disability, for those commissioning, delivering and inspecting services, for people with a learning disability and their families and for society at large.

And the rest of us, however professed our commitment to the human rights of people with a learning disability, will always remember to ask: what did the person want?

[1]Conseil d’Etat (1995) req nos 136-727 (Commune Du Morsang-Sur-Orge and 143-578 Ville D’Aix-en-Province

The choice ahead on protecting and promoting investment in disabled people’s lives

For those affected by cuts to benefits, the effect is far less money to live on and to pay for the things that allow one to live a life.   It doesn’t really matter where the money came from or why.

It is perfectly understandable that those opposing cuts to disability related benefits draw few distinctions in their advocacy between cuts to out of work disability benefits, cost of living benefits, support for housing costs and payments in lieu of services such as the Independent Living Fund when calling for a ‘cumulative impact assessment.’ Austerity is a political choice from which these various cuts derive.  It has closed in on a great many disabled people’s lives from all sides.  It has often not felt as though government draws any distinctions either.  As a result, many battles have become one almighty war.

In recent weeks we have though witnessed a deeply contrasted debate over the future of Employment and Support Allowance on the one hand and Personal Independence Payment on the other. MP’s fully supportive of the former now express deep concerns about the latter.  Is this just politics, or does it run deeper?

Both ESA (and its predecessor Incapacity Benefit) and Personal Independence Payment (and its predecessor Disability Living Allowance) are rooted in the principle of social security: ensuring that everyone has an income sufficient to enjoy an adequate standard of living.   Both are paid for via general taxation and exist as a form of social insurance.

However, that’s where their similarities depart.  IB/ESA is paid to people not currently in paid employment who are assessed either as unable to work or as unable to work now but who may be in future.  It is built on a recognition of the disability related ‘income penalty’ experienced by people who face significant impairment or health related barriers in earning an adequate income through paid work.   DLA/PIP is paid to people whether or not they are in paid employment, is not means tested and is built on the recognition of the disability -related ‘extra cost of living penalty’ encountered by some people with an impairment or health condition.

Both are critical to addressing poverty and its consequences, yet where IB/ESA recognises the cost of not being able to participate, DLA/PIP is designed to address the costs incurred by disabled people of striving to participate on an equal basis with others.

As I say at the beginning of this post, this distinction means little once we come down to how much is in people’s pockets.   £30 less a week for people in the Work Related Activity Group is £30 less a week with which to spend on participation. Despite assurances apparently given to or by Tory MPs, PIP will not make up the difference for a whole host of reasons.  People who the government deems not currently able to achieve a living income through paid employment will be poorer and less able to participate because of the cut to WRAG.

However, realities aside, the political legitimacy of these two benefits rests upon the distinction above.  PIP is regarded as an ‘active’ benefit, whereas ESA is seen as inactive ‘welfare’.  Take away PIP and people become inactive. We saw a similar argument over Osborne’s previous plans to cut Working Tax Credits: because they were seen to punish ‘strivers.’   This might help explain why the same MP’s that voted for a cut in the WRAG could less than fortnight later be so opposed to the prospect of further cuts to PIP.    Of course one could mount an argument that the cut on WRAG also punishes strivers, but we seem unable to get past the orthodoxy that ‘extra’ out of work benefits act as a work disincentive.

This situation presents campaigners with a dilemma: is it best to seek to restore the good name of ‘social security’ in the round, or to accept, harness and build on these distinctions?

On balance – and mindful of trends in public attitudes, the fiscal pressures that will be felt by governments of all political persuasions over the coming decades, coupled with the need to get back on track progress towards equality and independent living – I think the more fruitful long term strategy is the latter approach.

On the one hand we have to ensure that people who cannot work for reasons related to an impairment or health condition are socially protected. Defending the principle of adequate social insurance against work limiting illness, injury or impairment must remain high on the agenda. But at the same time I believe it is in the interests of disability rights to position as ‘active’ as much public investment in financial and practical support for disabled people as possible.

The lesson of the past few weeks is arguably that by drawing out the distinctive histories, purposes and functions of the various systems of disability-focused financial and practical support we stand a chance of fracturing and diminishing public and political support for cuts and making a fresh case for investment in disabled people’s lives.









Disinvesting in Personal Independence Payment will punish strivers

Changes to Personal Independence Payment that will see 400,000 people receive significantly less financial support to overcome barriers to freedom and opportunity are expected to be announced in George Osborne’s hole in the public finances-plugging budget today.

At the same time under the rubric of investing in growth and opportunity, Osborne will announce plans for high speed rail across the Pennines, Crossrail from North to South London and for every school to become an academy.

The former is justified as getting ‘welfare spending under control’.  The latter are cast as investment in the future.  It reveals a great deal about Osborne’s attitudes that disabled people’s contribution to the future is not regarded as a worthwhile investment.

But here’s a thing: I think this could horribly backfire for him if campaigners and their allies play this well.   While the government may in the end have pushed through reforms to ESA, it faced a huge battle.  And a key reason for that was that it had a great deal in common with Osborne’s previous plan to scrap Working Tax Credit: it would punish ‘strivers’ for doing ‘the right thing’.

Personal Independence Payment and its predecessor Disability Living Allowance exists to help people overcome barriers so that they can participate in and contribute to society.  In this sense one can align it to areas of government investment such as childcare for example, or working tax credits.   It is investment with return.  What Osborne is proposing therefore amounts not to a ‘spending cut’ but as massive disinvestment in the freedom and opportunities of disabled people and their families and in the contribution they would otherwise be supported to make to Britain.

Ministers argue that they are focusing resources on the ‘most severely disabled.’  This argument might hold water in relation to out of work benefits.  But Personal Independence Payment forms part of the opportunity infrastructure that will prove necessary to halve the disability employment gap, like Access to Work support or Disabled Students Allowance.  Removing this support from those deemed ‘less disabled’ will recreate barriers to employment for individuals and to the government in achieving its professed goal that PIP had previously helped overcome.  In short, the reform will actually make more people ‘more disabled.’

The consequence will be huge costs and opportunity costs for future generations: because people won’t be able to go to work, will become unwell and draw more heavily on the NHS, and because they will have less money to spend in the economy.   Which of course makes no sense at all.

As the crowd at the Paralympics so rightly proclaimed of Osborne:



What if?

Let’s imagine a disabled person and their support worker go on a bit of a shopping spree.  They have a great time finding clothes and trying things on and by the end of the afternoon have quite a haul.  But the disabled person is aware that the support worker is anxious about the wellbeing of her ageing mother, who has been ill, and suggests that she take a break to call home.   It’s raining.  They find some shelter but the ground is wet so the disabled person suggests to the support worker that she place his shopping bags on his wheelchair table while she makes the call and has a quick fag.  Across the road an iPhone camera records the image.  It is uploaded to Facebook and….. boom.

None of us actually know what the image that circulated via social media and found its way into the mainstream press really showed.   It may show an act of abuse.  It may not.  But most of us, me included, have taken the characterisation of the picture at face value.  In doing so we have assumed that the person using the wheelchair is a victim, without agency and we have assumed that the support worker is exploiting their power to abuse them.  What does this say of our own attitudes and prejudices about the rights of people with learning disabilities?

Now, if it transpires that this was not in fact an act of abuse then an apology is certainly owed both to the accused member of staff and to the persons using the wheelchair.  And at one level Mencap deserve an apology, because the photo does not in fact show a member of their staff abusing a person with a learning disability.  On the other hand, Mencap issued a statement saying ‘We are appalled by what is happening in the picture’ which suggested that they believed it to be abusive practice.  Their subsequent response can be therefore be taken to be to an illustration of how they respond to an image of a member of staff abusing a ‘beneficiary’ of their services.  On that basis I stand by my reflections and the questions posed at the end of the post, to which I might add one more:

If there is a possibility that this image does not depict abuse by a member of Mencap’s staff, why did the organisation issue a statement that reenforces the idea that it does?

Mencap – a case of ‘them and us’?

A truly appalling image of contempt and abuse by a member of Mencap’s staff towards a person they were employed to support found its way online and into the press yesterday. It shows a ‘support worker’ talking on the phone and smoking a cigarette while beside her under a mountain of shopping bags is the person she is supposedly supporting.

A one-off? Just a bad apple? This is certainly what Mencap’s crisis communications seems keen to stress:

Mencap response to image on social media

‘We are appalled by what is happening in the picture. After seeing it we immediately took action, and have suspended the support worker in question and reported the issue to the relevant local authority safeguarding team. We take the wellbeing of the people we support extremely seriously, and we expect and train our staff to deliver high quality care and support services.  What we see here would fall well below that standard. Our priority now, as always, is ensuring that we offer the highest quality of care to our beneficiaries so they live the lives they choose.”

I know good people at Mencap. I expect lots of their staff will feel deeply ashamed by the image.  I’m sure that thousands of people have had their lives changed for the better with the organisation’s support. Its origins lay in campaigns which, in their day, bore the hallmarks of campaigns such as Justice for LB today: parents fighting for a better life for their children.

But if a picture paints a thousand words then the choice of words in this press statement paints a deeply worrying picture.

It suggests a culture in which the rights of people with learning disabilities are not paramount and hence one in which such behaviours are more likely to find expression. That is to say, it suggests a deep organisational problem, not simply a one-off.

The headline ‘Mencap response to image on social media’ contains such evident distancing and nowhere in the statement is there any explanation as to what it is referring to. Mencap need to own that image and wear it as a badge of dishonour – one which says to its own staff and anyone else concerned ‘we will not be this.’ Instead it has sought to reduce it to ‘an image’ and disassociate itself from it.   The fact that the statement is attributed to the Regional Director of Services, not the Chief Executive also suggests a worrying attempt to downplay its seriousness.

The use of the term ‘beneficiaries’ should raise loud alarm bells.   It smacks of a bygone era in which disabled people were reduced to regarding themselves and being considered fortunate objects of charity. It speaks of services ‘done to’ or ‘for’ people, not of working alongside people to realize their human rights.  It is precisely such attitudes that predict cultures of abuse, because they allow power differences to prevail.   The fact that the statement does not include an apology to the person concerned is also perhaps telling in this respect.

Of course, the language of ‘wellbeing’ is in the Care Act, but used here it again fails to convey the idea of people as anything other than service recipients, not human beings with rights to be treated with dignity and respect.   Moreover ‘taking wellbeing seriously’ is also not the same as saying ‘our only legitimate role is to protect and promote wellbeing and if we fail, we have failed absolutely’.

And a particular stinger is the description of the behavior in the image as falling ‘well below that standard.’   Not as utterly violating Mencap’s values and principles, but as falling quite a long way below an expected standard.

It is a poor response by any measure, but taken together it also suggests a deeply ingrained psychology of ‘them and us’ at Mencap.

Of course we should look beyond the language of one press statement in arriving at such a conclusion. By way of example, I would point to the research Mencap published earlier this year which argued that employers lack the confidence to employ people with learning disabilities. As Chris Hatton then dutifully identified from Mencap’s annual report, less than 1% of its own 8000 plus staff have a learning disability.   Even in its external advocacy, people with a learning disability are ‘over there’ while Mencap doesn’t practice what it preaches to others.

So what of Mencap’s capacity to ‘be the change it seeks in the world’? I think that Mencap is still to some extent trapped by its origins as an organization led by and for parents of people with learning disabilities. For every Mark Neary or Sara Ryan that place the rights of their adult children in the foreground, there are several Rosa Monckton’s favouring a ‘custodian model’ of often segregating ‘care’.  For all the talk of personalization, for many people with a learning disability agency and autonomy are denied through lack of resources, oppressive practice or the attitudes of guardians.  While the long stay hospitals may be gone, small-scale institutional provision persists like chickweed.    Mencap are at the mercy of NHS and local authority commissioners (though they could of course refuse to run certain services or to accept contracts which drive standards below that which they consider acceptable).  Given such pressures, is Mencap capable of even becoming a genuinely rights-respecting organisation?

But I also fear that organisations such as Mencap come to internalise society’s perception of their essential ‘goodness’ (characterised by fun runs & coffee mornings etc) based on prejudicial paternalistic attitudes towards the groups that they exist to serve.  As a consequence they risk losing the institutional capacity for genuine self-reflection, regulation and for meaningful change. And like any large institution, in time self preservation risks overwhelming all other concerns.

So I’ll finish on some genuine questions for Mencap arising from what we saw yesterday:

  1. What policies and practices does Mencap have in place to respect the will and preferences of people with learning disabilities who draw on its services?
  2. How many people buy Mencap’s services using a personal budget or direct payment versus receiving services commissioned by the NHS or local authorities?
  3. How many people using Mencap’s support services have access to a self advocate?
  4. Can people who use services hire and fire staff and what say do they have in the running of services?
  5. Can people who live in Mencap supported living come and go as they please, have whatever visitors they choose, decide what to eat and when to get up and go to bed?
  6. What involvement do people with learning disabilities who use Mencap services have in internal monitoring, evaluation and improvement?
  7. What targets and strategies does Mencap have to increase the number of paid staff with a learning disabilities?
  8. How many complaints of abuse or poor treatment has Mencap received in the past 5 years? How many have been upheld? How many were referred to safeguarding teams or to the police?
  9. Is Mencap confident that the image in the press is of isolated behaviour, not behaviour which may be prevalent or at risk of being prevalent in some of its services?  What steps is it taking to determine this?

The need to change the public narrative on human rights has never been greater

So, as Tim Shipman suggested at the time, the ‘sovereignty rabbit’ that David Cameron planned to pull out of the hat to win over Boris Johnson to the ‘stay’ side of the EU debate was ‘dead on arrival’. Appearing on Andrew Marr yesterday morning Johnson said that the workable (have your cake and eat it) plan he was prepared to sign up to was killed dead by government lawyers. Number 10 is still suggesting that proposals to restore or safeguard UK sovereignty will be published before the referendum, with Oliver Letwin in the driving seat, but they have lost their primary political utility: buying Boris.

So what does all this mean for the ‘British Bill of Rights’? In late 2015 Justice Secretary Michael Gove advised Parliamentarians that publication of the proposals were delayed because the Prime Ministers had asked that they include proposals concerning the supremacy of the Supreme Court over the European Court of Justice i.e. the Boris clause.   Do the two continue to be intertwined? And if so, can we expect the British Bill of Rights proposals alongside those for UK sovereignty before the referendum?

I think we can be almost 99.9% certain that the answer is ‘absolutely no way’. Michael Gove would be in charge of any such consultation, along with his fellow avid ‘outer’ Justice Minister Dominic Raab MP. While Cabinet Ministers have been permitted to declare their personal position and to campaign for it, Number 10 is going to great lengths to weaken Ministers opposed to official government policy, for example by blocking their access to official papers and intelligence on EU matters. Number 10 is not going to give Gove and Raab – two highly effective political operators and communicators – an official platform from which to launch damaging attacks on ‘Europe’ (even if it’s a different Europe to the one in contention).   Proposals for a British Bill of Rights will not then – in my estimation – appear before 23 June.

So what future for a British Bill of Rights? If the UK votes to leave the EU, Cameron will presumably resign, there will be a leadership election and possibly a General Election (assuming Parliament can change the Fixed Term Parliament Act 2011).  It would therefore become a question of the next Conservative Party manifesto and the outcome of that election.  If Britain votes to stay, I think it’s possible Cameron will step down early, followed by a leadership election and possibly an early General Election, with the same conditions applying.  I certainly cannot imagine Cameron – having secured both the Union and the UK’s place in Europe – wanting to open up new battle-lines with both in pursuit of repealing the Human Rights Act. Then again, it is said that repeal is a deeply personal matter for Cameron so he may wish for it to be part of his legacy.

Ultimately though I feel the greater political utility to the Conservative Party lies in threatening to repeal the Human Rights Act than in actually striving to deliver on that threat. As with Cameron’s sovereignty proposals, the reality will naturally deliver short of the rhetoric. Moreover, the threat is deeply damaging in its own right, creating a chill effect that damages rights protection without ever having to change the law itself (and not only in the UK but globally).

NGOs that would ordinarily embrace human rights (and which do in say Northern Ireland) won’t even utter the words for fear of being either singled out or infected by the toxicity of public and political discourse. It has been suggested that the judiciary, domestically and at the European Court of Human Rights has become more conservative in response to accusations of judicial activism.   Stories which scream ‘human rights abuse’ such as the unexplained deaths of people with learning disabilities in NHS hospitals are reported in the media without any reference to human rights at all, while in any story concerning the frustrated deportation of a foreign criminal the words ‘Human Rights Act’ will be up in lights.

The reality is that the threat to repeal the Human Rights Act is helping to erode our human rights protection by stealth. It is part of a wider trend that is weakening our power as citizens to hold government to account, either through the Courts, via Parliament, the media or through organisations of civil society that represent us or advocate on our behalf.

This is why, even if the threat of law reform has once again gone on the back burner, the need to assert our human rights and to go about transforming the public narrative has never been greater.

Abolishing the Work Related Activity Group makes no sense even by the government’s own illogic

When the proposals to reform Employment and Support Allowance were first touted by Ian Duncan Smith following the spending review he argued that:

‘ESA may have been designed with the right intentions, but at its heart lay a fundamental flaw.  It is a system that decides you are either capable of work or you are not. This needs to change – things are rarely that simplistic.’

In fact, the very category Duncan Smith’s Welfare and Work Bill has been trying to abolish – the Work Related Activity Group – was designed precisely to overcome such simplicity, removing the binary ‘can work/can’t work’ test by including a ‘may be able to work sometime in the future’ option.   The result of getting rid of the WRAG will be to reenforce a binary fitness to work test that Duncan Smith claims to want to solve – placing people in either a ‘can never work’ or ‘ready and able to work right now’ box.  Which is, one might argue, somewhat simplistic.

A particular obsession of DWP and assorted think tanks is the effect of benefit levels on ‘incentives’ to work.  By their own admission the evidence to support this assertion is weak at best and largely non existent, but it serves the case for cutting benefits where all else fails.   So let’s take the issue of incentives and disincentives seriously for a moment.  Writing in 1974, Vik Finkelstein, one of the most significant architects of modern disability rights argued that proposals for a ‘disability income’ would:

‘immediately create for us a vested financial interest in claiming what becomes our main asset “disability”. In addition, since the amount of (State) charity will be determined by the degrees of disability, physically impaired people will also have a vested interest in playing down our abilities. The best financial contribution we could make to our families would be to become, or pretend to become, more dependent……The State, of course, will automatically be in conflict with us for it will seek to limit its handouts, otherwise there would be no one at work. State Charity, therefore, creates a conflict of interests between the State and its social administrators on the one hand and physically’ impaired people on the other.’

Now, the planned reforms to ESA may be a milestone on a journey towards there being no disability related out of work benefit at all (David Freud has hinted that this is the government’s goal).  Whatever one thinks of that aim (see my view below) abolishing the WRAG appears a very odd way to get there because it provides a powerful incentive for people to emphasise the barriers and impairment/health related limitations they face – that is, it create a powerful incentive for people to seek to be placed in the ‘can never work’ group.  This incentive is not simply borne of an extra £30 a week, but of avoiding the punitive, inflexible and insensitive sanctions regimes that, combined with entirely ineffective ’employment support,’ do nothing to help people find sustainable employment.  Moreover, we are being asked to support these reforms without having seen the government’s proposals to halve the disability employment gap.   One might argue this is somewhat putting the cart before the horse.

As for the idea being ventured by think tanks such as Reform that disability related costs should be met via Personal Independence Payment, not out of work benefits, this is something that I have floated in the past.  But once one looks deeply at the idea it quickly falls apart.

Disabled people and people with long term health conditions are more likely to live in poverty (and hence require assistance) because they face both an ‘income penalty’ and a ‘cost of living penalty’.  The income penalty is a result of reduced opportunities to raise a living income through paid employment, either as a result of the effects of ill health or impairment or because of discrimination and disadvantage, or more commonly a combination.   The cost of living penalty results from the additional costs of having an impairment or health condition.   ESA and its forerunners recognise the income penalty and additional payments are made in lieu of this.  PIP and its forerunners recognise the cost of living penalty.

As a result, PIP as presently designed would not cover the income that people who presently fall into the WRAG receive in recognition of their income penalty, and trying to amend PIP so that it addressed both the income penalty and cost of living penalty would I would argue not only be too complex a task even for Ian Duncan Smith and David Freud, it would needlessly muddy waters.

As welcome a goal as halving the disability employment gap is, committing to do so cannot justify benefit reforms that should only ever be implemented on the back of real success.  The amendment secured by the House of Lords is a helpful delay and I hope MPs will see sense and support it.  Now for the Disability, Health and Work White Paper.


















A commissioner for the rights of people with learning disabilities and/or autism?

In Sir Stephen Bubb’s progress report on action in response to his 2014 report commissioned by the head of NHS England, Simon Stevens, Bubb expresses disappointment that the post May 2015 Conservative government has not codified a ‘charter of rights’ for people with learning disabilities (a charter that the organisation for which I am a Trustee, CHANGE, helped prepare working with people with learning disabilities).  Rather than recommend again that it is, he instead proposes a Commissioner for the rights of people with learning disabilities and/or autism to protect and promote rights, based on the model of the Children’s Commissioner.

I have been calling for a Disability Rights Commissioner for some time, so was disappointed to see people I respect on Twitter dismiss the idea out of hand.  I would not for one moment venture that it alone offers any sort of solution, but I do think as part of the mix it could be valuable.   However, I would caution yet again against allowing this to be positioned solely as a ‘response’ to the issues raised by Winterbourne View, and instead  begin from the basis that Winterbourne View highlights much wider and deeper issues for our society to contend with regarding its respect for the human rights of disabled people – the solutions to which lack any coherent strategic leadership.  I’ll not repeat the case for a Disability Rights Commissioner here but refer readers to my previous post on the matter.

The Human Rights Act – a pawn in the EU referendum game

Some legal experts believe the non-appearance of the Bill of Rights consultation is sign of the inability of officials and Ministers to work out how to achieve their professed policy aims.  Others are calling time on the Tories ‘attack on human rights’, suggesting both that the policy aims are now incredibly modest while the price of pursuing them, especially in the context of a ever more federalised UK, too high.

Personally I believe the decision on timing – and content – of the consultation is a matter solely of political strategy related to one issue and one issue only: the referendum on the UK’s membership of the European Union.   The question that political strategists in Number 10 will be asking is how can the content and launch of this consultation exact optimum impact in relation to ensuring the UK remains in the EU and/or conversely how can anything that might detract from that goal be avoided?

A major clue to this was the somewhat surprising shift in focus early in the new year from the European Convention and Court of Human Rights to the Charter of Fundamental Rights of the European Union and the European Court of Justice.  A Bill of Rights would now, we were told, restore UK sovereignty by clarifying the non-applicability of the Charter to domestic UK law.

As with Cameron’s current negotiations in Brussels, it is clearly hoped that by being seen to wrest powers back from ‘Europe’ that the Prime Minister can persuade the voting public that we are better off in a reformed European Union than outside of it.   Given most of the media and no doubt large swathes of the public draw no distinction between the institutions of the European Union and those of the Council of Europe, anything that is seen to be giving two fingers to Europe might be deemed beneficial.  In this context, simply promising a Bill of Rights that professes to stop Europe from telling us that we can’t deport terrorists, that we must give our prisoners the right to vote or that we can’t decide who comes in and out of our country and so on all forms part of the ‘retail offer’ designed to win over sceptical voters to the ‘stay’ campaign.   As with Chris Grayling’s paper of October 2014, it matters little how ‘legally literate’ such proposals are, because legal accuracy really matters not one jot.  What matters is political advantage in relation to communicating a policy objective which the proposals themselves have little or any bearing.

But I also find this logic curious as a matter of political strategy. Surely lobbing proposals into the public realm ahead of the EU referendum that have the power to reenforce or potentially even drive people towards Euroscepticism by reminding them of all the awful things that Europe allegedly forces us to do risks being an entirely avoidable own goal?   This could explain why Gove appears to be playing the proposals down, offering vague promises that the consultation will appear ‘soon.’  Perhaps recent focus groups have suggested that all this talk of European human rights judges makes them more likely to vote leave than stay?

Hence there seems a possibility that we may only see proposals regarding a Bill of Rights before the referendum if (a) Cameron’s current negotiations on EU reform fail to deliver a shift in political support and voter intention sufficient to offer confidence of a majority vote to ‘stay’ in June and (b) polling suggests that publishing proposals will help win some much needed support and/or (c) the consultation would not hand votes to the leave campaign.

If this is the calculation – and I’d bet it is – then a further question emerges: if the consultation doesn’t appear before the referendum, what will happen after the referendum?  Will they appear at all, or die a death as Ian Dunt – prematurely in my view – has predicted?

If the UK stays in the EU, then what would it offer to the legacy of an outgoing Prime Minister having not only kept the Union together but kept the UK in the European Union to start an avoidable battle pitched against both?   If Britain leaves, then it seems likely Cameron would be forced to step down earlier than planned and the future of the UK’s human rights laws will be in the hands of Prime Minister Johnson, Osborne, Gove or an as yet unknown quantity.  Would Euroscepticism have been satiated sufficient to leave the HRA and the ECHR alone?

As for the likely proposals themselves – insofar as we have read about them –  I would caution against regarding them as modest simply because they no longer include withdrawing from the ECHR.  As a package, and in the context of wider reforms, they potentially mark further erosion of judicial power, executive accountability and the scope of rights protection.  By playing them down as modest or by framing it as largely technocratic (as was the strategy over judicial review for example) their constitutional significance and their impact for people’s everyday lives risks being overlooked.

Whatever the outcome though, it seems that, for now at least, the fortunes of the Human Rights Act rest almost entirely with the political strategists hoping to keep the UK in the European Union.

UPDATE 8 February 2016

Reports over the weekend suggest that a measure to ‘restore Parliamentary Sovereignty’ is a deal-sealer in winning the support of Boris Johnson to back the ‘stay’ campaign.  While this focuses on supremacy of the Supreme Court over the European Court of Justice rather than the European Court of Human Rights, it seems likely, given the Justice Secretary attributed the delay in the Bill of Rights consultation to the Prime Minister’s ask that this idea be included, that it will be included in the overall Bill of Rights ‘package’.  Moreover, it now seems probable that we could see this in a matter of days rather than months, and before the close of the current negotiations, in order to appease Boris.   However, Tim Shipman of the Sunday Times yesterday tweeted that:

‘Dave’s “rabbit” on parliamentary sovereignty not impressing Gove or Boris. “Rabbit will be dead on arrival”‘

Others have pointed out the irony of legislating to hand power to the courts to determine matters of Parliamentary Sovereignty, but as I say above, legal literacy is not the name of the game here.