After the UNCRPD examination – what now?

crpd room

So, 8 years in the making, the United Nations Committee on the Rights of Persons with Disabilities finally conducted its examination of the United Kingdom.   Their findings and recommendations – and in particular their view that UK government policy has led to a ‘human catastrophe ‘ received huge coverage, being the second story on the BBC’s Ten O’Clock News bulletin and featuring on Newsnight, Channel 4 News and across print media.   Disabled and Deaf People’s Organisations played a vital role in providing expert advice and evidence to the Committee and should rightly celebrate their success in influencing the outcome.

Having been involved in drafting two of the reports submitted to the Committee, I’m pleased to see a significant number of our recommendations included in the Committee’s final report, not least its calls for reform of mental capacity law and practice, the elimination of detention and deprivation of liberty on disability grounds, to refrain from the use of restraint in mental health settings and schools and to ensure evidence based practice to improve the employment of disabled people (and disappointed to see others – such as in relation to the unacceptable number of unexplained deaths of disabled people in State care, or the treatment of people with mental health problems in the immigration system, overlooked).

But it is now, as the dust settles, that the real challenge begins. Neither the Convention or the Committee’s findings and recommendations are self-executing. The Committee has been highly critical, but it has no powers of enforcement. To have any effect they will need to be embedded in strategies for social change.

Despite the devastating impact of austerity measures taking centre stage in both DDPOs own advocacy and the Committee’s criticisms, this is where achieving change is going to prove deeply, deeply challenging. Brexit is going to deliver a further deep blow to the UK’s economy, squeezing public resources further still and making spending choices ever more difficult, whatever Party or Parties are in government. At the same time, public support for spending on working age social security has been in decline for a quarter of a century, hence it will be a very brave party that spends scarce political capital taking a radically different course any time soon.  In turn there is a real risk that, having turned to the Committee as a last resort in fighting cuts, DDPOs and disabled people more generally will judge the Convention to be impotent, as this article by Mark Lambert appears tacitly to confirm.

So where might the Committee’s concluding observations offer opportunities, and how can those opportunities be leveraged? Here, we need to break things down into principles, structures and specific policy goals.

On principles, it’s vitally important to take heed of the Committee’s observation that the UK has failed consistently to incorporate ‘the human rights model of disability across all policy areas and all levels and regions of all devolved governments, and jurisdictions and/or territories under its control.’  This is not just a message to government, but to opposition Parties, disability charities and campaigners. As the godfather of British disability rights Mike Oliver noted in 1990:

“It is perhaps ironic that many of us spent the 1970s criticising the welfare state, only to find that these arguments were built upon and taken much further by a government determined to reduce state expenditure. Consequently we spent the 1980s defending what we had previously attacked. In sum, we defended the indefensible and I do not propose to spend the 1990s doing the same.”

Britain’s welfare state was not rooted in a ‘human rights model of disability’ nor was it ensuring an adequate standard of living and social protection prior to the austerity measures pursued since 2010, or the advent of Employment and Support Allowance. Framing the goal now as ‘system restore’ – to simply return to the pre-2010 situation, as some campaigners and the Labour Party appear to be doing – may have some short term expedience, but it will not address the fundamental disconnect between the outdated principles underpinning social security policy and that of modern day disability rights.   To Labour’s credit, it does appear to have at least begun to contemplate the idea that benefit eligibility assessments should centre on the interaction between people with impairments and health conditions and the external factors shaping their opportunities, as opposed to isolated assessments of functional capacity. Yet at the same time, it refers to disabled people as ‘our most vulnerable in society’, positioning disabled people as passive objects of State spending, not equal citizens whose rights and opportunities are suffering from disinvestment.

There are bigger debates in play about the future role of the State that have profound implications for disability rights, with which disabled people and their allies should be centrally engaged rather than – as Mike Oliver said – defending (or being used to defend) ‘the indefensible’. In sum, disability rights demands investment in disabled people’s right to live independently and to be included in the community – a springboard, not just a safety net.

That is why the most important set of recommendations by the Committee in my view concern Article 19 – the right to live independently and to be included in the community – and it is around the right to independent living that I believe all with a commitment to disability rights should coalesce. The Committee recommends that the State enacts a freestanding, enforceable right to independent living, conducts impact assessments to ensure policies support – and do not undermine – independent living, ensure adequacy of funding and have plans to ensure a full and sustainable transition from institutionalisation to community based living.   But a focus on independent living – and the principles that underpin independent living – offer a chance to create much needed cohesion across different policy areas (as the last Labour government had begun to understand). Independent living synthesises civil and political rights – governance over ones own life and equal participation in the community – with economic and social rights – access to the financial and practical support to make these rights a reality.   These same principles can apply from cradle to grave and create coherence between policy and practice in relation to children and education, employment, social security, health and social care, transport and planning and so on. Indeed the ’12 pillars’ of independent living were designed to do just that.   In her excellent new blogpost, Jenny Morris explores how the right to independent living can be given effect.

This leads to the question of structures to achieve policy coherence. The Office for Disability Issues was conceived specifically to address this but is woefully under-resourced and seems to lack the political support it enjoyed at its inception. The status of the government’s ‘Fulfilling Potential’ strategy is unclear, while its content appears to be a series of moving targets with no clear end game in sight. While a cross Ministerial group was in existence, it’s unclear whether it has made a difference. The deep involvement of disabled people which marked the early life of the ODI appears to have been replaced by passive, infrequent consultations, while DDPOs, so central to the enterprise of advancing disability rights have faced severe resource constraints. The EHRC and its sister organisations in Scotland and Northern Ireland lack sufficient, sustainable resources to promote and enforce the law independently.

One can look at fixing the above simply as a set of costs. But it is the absence of this structure that is costly: policies conflict and cancel one another’s intended benefits; employers and service providers discriminate with impunity, with costs born by the benefits system or social care; where civil society is weak, the State picks up the bill.   The disinvestment in structures for implementation is a false economy.

So, independent living and the principles underpinning offer guiding principles to a create a coherent, human rights based approach for implementation, while structures for implementation and monitoring must be re-built or made new, taking account of the sometimes radical changes in the machinery of government over the past decade.

Sadly, with Brexit proving all consuming politically, the chances of central government leading a radically new agenda do however seem slim, even if the political will is there. To those ends, I found it interesting that the Committee felt able to celebrate (albeing somewhat questionably with little equivocation) efforts in Scotland and Wales and the lesson there is that positive change can happen, both because of and despite devolution and localisation.   In the week we mourn the passing of one of UK disability rights’ greats, Lorraine Gradwell, who helped chart a course for disability rights in Manchester way before the rest of the country caught up and who continued to spearhead innovative approaches in areas such as employment support despite the corrosive effect of welfare work policies, it’s always worth remembering that independent living began, just as it should end – in the ‘small places close to home’.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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In memory of Jan Sutton, a ‘striver’

Jan

 

For all the recent talk of online abuse it’s easy to forget the awesome positive power of social media to include, to connect, to mobilise and democratise, providing platforms and access to those who have historically been locked out of the ‘public square’.

Jan Sutton knew that power well and used it to huge effect. Jan’s MS and the fatigue it caused made participation in the physical world extremely difficult, yet as people have come to hear of her death last month, it’s clear that Jan was nevertheless everywhere.   Whether on posters around the country for Act for the Act, on videos for Equally Ours, at conferences, taking part in training sessions, and with me delivering them via Skype, in the blogosphere and of course on Twitter.

Jan’s chief passion was to promote the importance and value of human rights to all of us and to defend the legislation that protects them here in the UK, the Human Rights Act, which she did with every shred of her spare energy. Jan’s contribution also enriched human rights campaigns, clearly and authentically demonstrating why human rights matter so much in the ‘small places close to home’.   As Jan said in a blog for Authors of Our Lives in 2014 ‘I choose to out myself as a ‘striver.’ For her striving Jan won the Liberty ‘small places close to home’ award in 2015

Social media has transformed disability rights activism.   Despite the language of inclusion, it’s increasingly clear that many had been left on the margins or excluded altogether – their voices and lived experience given little or no attention. Social media has changed that, completely transforming the landscape, by opening up activism through networks such as Disabled People Against the Cuts, Spartacus Network, Justice for LB and Crip the Vote and to individual voices such as Jan’s.   I’ve little doubt established disability rights campaigners would have challenged austerity. But the combination of austerity and the emergence of social media has also challenged disability rights activists to think differently about disability rights, in particular by paying more attention to long term health conditions, their effects and the specific barriers experienced.

As the Seven Days of Action campaign recently showed, social media based campaigns, led by those with direct experience and often with little or no financial resources, are achieving what the best resourced charity communications departments often fail to do. This has re-balanced power, away from the well-funded charities, has enriched the debate and resulted in better-informed campaigning.

Writing in 2014, Jan said of disability rights ‘I believe it’s time for us to help society to write a different story.’  In bidding a sad farewell to one of its chief authors, I nevertheless look forward to reading the next chapters online as well as off.

Incorporating the UN Disability Rights Convention into UK law – what would it mean?

UN

At the recent UK General Election the Labour Party made the following commitment:

‘We will build on the previous Labour government’s commitment to people with disabilities in 2009 as signatories to the UN Convention on the Rights of Persons with Disabilities, and incorporate it into UK law.’

When I asked the shadow Minister for Work and Pensions Debbie Abraham MP what this meant on Twitter she replied:

‘It means we take it seriously Neil unlike Tories who UN found to have committed ‘grave…systematic violations ‘ of UN CRPD.’

Pressed further she replied:

‘Ltd on twitter so come along to one of our next Disability Equality Roadshow events so we can discuss.’

I will certainly take Debbie up on her offer as her answers provide no real clues.  In the meantime, it’s worth noting that different countries around the world take different approaches to meeting their international treaty commitments.  Broadly they fall into one of two categories ‘monist’ or ‘dualist’.

In a pure monist state, on ratification international law is just incorporated and has effect automatically in national or domestic laws.  A person is then able to assert international law in domestic courts in the same way they might national law.

In a pure dualist state, for international law to become national law it must first be ‘translated’ into national law.  This means old laws have to be repealed or reformed and any new policies or law proposals examined to ensure compliance.  Failure to do so amounts to a violation of international law.  However, a person cannot assert the international law in domestic courts (though Courts can refer to international law for guidance as to the meaning of rights).

With respect to international human rights law, with the partial exemption of the European Convention on Human Rights ‘translated’ into UK law by the Human Rights Act, the UK has adopted the dualist approach.  Hence the UN Convention on the Rights of Persons with Disabilities is not part of UK law and compliance is achieved via ensuring consistency between domestic law and policy and the Convention.  The process involved in such translation can be seen in debate surrounding the development of the Care Act 2014 or in the recent report by the Law Commission on reforming Deprivation of Liberty Safeguards where the CRPD’s meaning and significance is analysed.

Hence Labour’s commitment to ‘incorporate’ the Convention may mean no more than committing to do what it accepted to do when ratifying the Convention in 2009: to be  rigorous in ensuring compliance of existing and future law and policy.  Or in Abraham’s words ‘to take it seriously.’   That would of course be a very welcome thing.

But Labour could signal its seriousness by going a step further and introducing a duty of ‘due regard’ on Ministers and public bodies, similar to ‘The ‘Rights of Children and Young Persons (Wales) Measure’ 2011 which placed a duty on all Welsh Ministers to have due regard to the substantive rights and obligations within the UN Convention on the Rights of the Child and its optional protocols.  The Joint Parliamentary Committee on Human Rights has recommended a similar approach with respect to the UK’s economic, social and cultural rights obligations.

Or Labour could be truly radical and depart from the UK’s ‘dualist’ approach and to adopt a ‘monist’ one, with the UNCRPD enjoying equal status to our domestic law.   One would assume if it did so, that it would at the same take this approach with respect of all international law to which the UK was a party.   This would enable a disabled person in the UK to, for example, assert their right to an adequate standard of living under Article 28 of the CRPD in a UK Court, which may subsequently find prior welfare reform legislation, or a government budget, or a decision of a DWP assessor, to have been non compliant.

My prediction would be that Labour is promising just to meet existing commitments. I think the third option – monism – is way off the agenda.  The bold, fresh, but pragmatic move would be the second option – strengthening the domestic legal obligations of Ministers and public bodies to ensure compliance.

I look forward to hearing more.

 

 

 

 

 

 

Disability rights in the ‘post Truth’ era

‘The role of fake news’ and ‘alternative facts’ is arguably dwarfed by the general elevation of feeling over thinking as the benchmark for truth.’  Jamie Bartlett

Last week I made the mistake of alerting a person on Twitter, and the person who had just retweeted her tweet to several thousand others, that the article she had just posted was factually inaccurate.   Sometimes inaccuracies are minor and unimportant, but this one concerned the suggestion that 4000 people died within a few weeks of being declared ‘fit for work’ by the Department for Work and Pensions, latterly debunked by the independent organisation Full Fact.  In reply I was accused of defending the Tories and then blocked.

Now, I’m not sure it would be fair to refer to the initial misreporting of these statistics as ‘fake news’. More accurate and reasonable would be to call it ‘confused news’. The statistics on which the articles were based were released by the DWP following a Freedom of Information (FoI) request and are not clear. But while there is anecdotal evidence of benefits administration and decisions being linked to avoidable deterioration in health and possibly hastening death, the FoI data does not itself provide any conclusive evidence to these ends. In sum we presently have no way of quantifying how many people may or may not have died for reasons connected to the administration of their benefits claim (see this letter from the Statistics Authority to government recommending government carries out research to these ends).   The numbers provided by DWP are essentially meaningless in this respect. Despite this, the fact that the evidence also fails to prove that people didn’t die for reasons related to the administration of benefits has allowed belief to fill the gap.   Such is the deficit of trust between campaigners and government that the latter stands guilty until it can prove its innocence. The bigger the gap in the evidence, the greater the belief that it is guilty as charged.

Hence it is in the circulation and recirculation of these reports, even after they had been debunked, that so called ‘post truth’ has taken hold. ‘Post-truth’ was the Oxford Dictionary’s word of the year for 2016, defined as an adjective “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.”

We have seen this elsewhere in the disability world in recent times.  For example, the belief that disability hate crime is rising exponentially and as a result of ‘scrounger rhetoric.’   Official statistics from the Crime Survey, analysed by EHRC, show overall incidence of disability hate crime has declined – including through the period when so called scrounger rhetoric was most prevalent in the press – from an average of 77000 per year to an average of 56000 per year.   At the same time there has been rise in disability hate crimes recorded by the police from 1748 in 2011-12 to 3629 in 2015-16.   It is the statistics regarding recorded crime that are seized upon and misrepresented. For example, in 2015 the Scotsman reported a 270% rise in disability hate crime in Scotland. In fact this wildly overstated a pretty paltry increase of 129 more reports in 2015 than 2011.

It is said that truth is the first casualty of war and I’m quite sure some consider themselves justified in peddling untruths in order to hurt the government.   Sadly, I believe the only people they are hurting are themselves and other disabled people.

The pre-occupation of campaigners with deaths and violence is about crafting a narrative of a ‘cruel government’. It rests on an assumption that by emphasizing the alleged gravity and scale of what is happening to disabled people then the media, politicians and public will be persuaded – or shamed – into action. In fact, evidence suggests it has the opposite effect, as the Frameworks Institute have explained:

‘Crisis framing emphasizes the overwhelming scope of a problem, using numbers, facts, and vivid examples as evidence of great urgency. Using crisis language is a common strategy; communicators assume it will boost people’s sense that an issue must be solved and increase support for solutions. Communications materials in this sample used crisis language to emphasize the extent to which people with disabilities face discrimination, disadvantage, and abuse.

FrameWorks research and other social science studies have consistently found crisis language to be ineffective. Rather than causing people to want to fix a problem, crisis frames actually immobilize people leading them to conclude that the problem is too big and too overwhelming to solve and that no viable solutions exist. In this sense, crisis language is likely to depress, rather than elevate, issue engagement and support for solutions.’

At the same time as being an ineffective way to win support, it is also hugely destructive to disabled people themselves while undermining the ability to hold the responsible to account and to focus on solutions.

It is well known for example that people’s fears about being a victim of crime tend to exceed the actual probability of their becoming a victim of crime and that these fears act as a constraint on their lives. Headlines erroneously screaming about 270% rises in disability hate crime needlessly compound its impact on the lives of disabled people, while obscuring the real problem: the gap between overall incidence and that reported to and recorded by the police.   That is to say, the real issue that must concern us about disability hate crime is not that incidence is rising – it isn’t – but that over 95% of all incidents continue to go unreported and hence not enough is being done to bring incidence down. That’s where the focus of campaigners should be.

Similarly with respect to policy and the administration of social security benefits, very real problems clearly exist which have and continue to cause deep anxiety among those who are the object of the Work Capability Assessment.   There is evidence implicating the tests with respect to people’s subsequent decision to take their own lives.   But let’s imagine then that a person with mental health problems, already anxious about their upcoming test reads the following quote in an article about the DWP’s policy on suicides:

‘This (the WCA) is now the most concerted attack on disabled people in western Europe since Germany’s Chancellor Hitler signed the executive order Aktion T4 in 1939 to murder disabled people the state judged ‘unworthy of life’

A supposedly credible source of disability news carries a quote suggesting that the WCA is not simply a flawed mechanism to determine benefit entitlement, but a deliberate attempt to kill people, albeit by their own hands, of equivalence to the action of the Nazi’s and it purports to be concerned about people’s mental wellbeing and anxieties? Circulating the unsubstantiated claim that 4000 (or sometimes it is suggested 10400) people died following a determination that they were fit for work also seems likely to cause untold damage while having marginal impact on policy or public opinion.

What does hurt government is the twin facts that (a) the WCA has cost taxpayers a fortune while not reduced public spending and (b) fails to ensure that the right people get the support that they need.   That again is where campaign communications should focus.

As I have written before, the connective tissue in these narratives is of disabled people as  victims – as vulnerable objects.  They invite pity where once disability rights proudly rejected it in the pursuit of equal citizenship.

This is not to disregard the indignities suffered and harm done to people by a botched welfare reform agenda or by disability hate crime. It is not an argument to hide terrible things under the carpet or to not press government to provide the evidence to answer our questions. It is plea simply to be responsible, to focus on solving the problems as they are and to avoid making bad situations far worse.

On defending human rights, let’s get to work

Oh where to start…..

….Corbyn has defied his critics – this writer included – and denied Theresa May the majority she clearly anticipated securing via the snap election.  So far so hurray.  Britain has not lurched to the right.  UKIP voters came back to the Labour rather than moving their votes to the Tories and Labour’s manifesto was able to attract both the young and middle class voters.

But May has clung onto power, for now, via a so called ‘confidence and supply’ agreement with the Democratic Unionist Party.   So where does this leave the Human Rights Act and the UK’s ongoing commitment to the European Convention on Human Rights?

Despite May’s personal desire for the UK to leave the ECHR, the Tory manifesto ruled this out for the duration of the next Parliament (however long or short that might be), said that a Tory government would not repeal or reform the Human Rights Act until after Brexit, but promised to review the domestic human rights framework.   Given her slimmest of majorities, the diversity of views within her own Party on the matter and the fact that the lack of specificity in the manifesto offers free reign to the House of Lords to oppose reform proposals, it would seem highly unlikely reform will be on the agenda.  The DUP has in the past given public support to the Conservative policy of repealing the Human Rights Act, but as with Brexit, it seems likely adherence to the Good Friday Agreement would prove an obstacle to their supporting actual reforms.

Nevertheless, as we saw in the days leading up to the election following the terrorist attack at London Bridge, the lack of real intent to repeal or reform does not stop the posturing that has characterised her and her Party’s position on human rights for the past decade or more.  Indeed, should the arrangement between the Tories and DUP prove unsustainable and a further election takes place soon, it seems highly likely the Tories would offer a combination of ‘one nation’ policies alongside ‘enough is enough’ policies on law, order and security, with reform of human rights law centre stage once more.

The toxic public discourse this long run phoney war has helped nurture has done deep damage to public confidence in our human rights laws and the institutions that exist to protect them, setting the stage for regressive reforms down the line.  It will continue to do so without concerted action by human rights defenders and their allies to change the narrative and build and mobilise new alliances across society and the political spectrum.

As someone has just said, let’s get to work

 

 

 

 

 

 

 

 

 

Advancing disability rights under a Conservative government – bring on the negotiators

It’s actually quite incredible to see positive, rights-focused mental health proposals be the first policy announcement of the Conservative Party at a general election. It shows just how far our culture has changed with respect to mental health, and it’s testimony to campaigns such as Time to Change and the work of people like Paul Farmer that political parties feel both motivated and permitted to advocate such change. It’s not so long ago that mental health policy was primarily about public safety and driven by fear.

Two lessons emerge out of this for me. The first is that some aspects of disability rights chime strongly with a Conservative worldview and are deemed to offer electoral advantage. Here they are proposing to reduce detention, non-consensual treatment and to strengthen protection from discrimination by amending the definition of disability in the Equality Act.   All of these issues were raised in the UNCRPD Committee’s list of issues for the UK. If carried though and carried through well they will mark a step forward for disabled peoples human rights.   The Party also announced a further 10000 specialist mental health nurses by 2020. While the latter involves a commitment of public money (albeit not necessarily ‘new’ money), the overall thrust of the policies is strongly in line with Conservative values of individual liberty and opportunity – of keeping an overreaching State in check and focusing resources on supporting individual agency and enterprise.   A look back to the last time the Conservatives held a majority in Parliament reveals progressive disability policies also rooted in these values: the Direct Payments Act, the Disability Discrimination Act and the introduction of Disability Living Allowance.   It interests me today that, while the cut to the Employment and Support Allowance Work Related Activity Premium passed largely unopposed by Tories in Parliament, many expressed deep opposition to further cuts to the Personal Independence Payment.   Of course, PIP was and is designed to constrain spending on disability benefits, but it seems that Tories intuit it in a different way to out of work benefits and those intuitions can be harnessed to positive effect (while perhaps having to accept that there will be little if any out of work disability benefits by the mid 2020s).   If we are to achieve further progress, understanding these intuitions and finding ways to appeal to them through strategic prioritization and framing will be key. Policy asks focused on and framed as extending freedom, nurturing agency and supporting people to get on in life are much more likely to find currency than those framed simply as being about the amount of social security money in people’s pockets.   While opportunities to secure higher spending may be few and far between, opportunities to secure smarter spending, in line with these values could help for example in resisting the forces of re-institutionalisation at play among local councils and CCGs.

There are also significant signs that May is shifting her party away from the economic liberalism that has dominated politics for the past 30 years – and indeed one can regard the EU referendum vote and support for Brexit as endorsing such a shift. The policy announcement on capping energy prices is a concrete sign of intent. Will this see the deregulatory zeal of those on the right of her party kept at bay? Does this create a space for a renewed discussion about tackling disability discrimination in the labour market, led perhaps by the scrapping of employment tribunal fees? Will May’s government be prepared to wield both carrot and stick when it comes to employers?  How about service providers?  Might we anticipate stronger action on accessible goods, facilities and services?  What about the proposals of Scope’s Extra Costs Commission that focus on market regulation to reduce the disability related costs of living?

Of course the Tories’ agenda on disability will be seriously wanting in many respects, particularly where it comes to spending on financial and practical support.   This has and continues to be the historic fault-line when it comes to securing progress on disability rights. Labour may be the party of the NHS and more generous State support for poor people, but it is also the party of community treatment orders, of putting public sector workers above those relying on services and of often being deeply suspicious of measures to accord people more control over services and support, such as via personal health budgets, all of which undermine disabled people’s right to autonomy.

All human rights are ‘interdependent and interrelated’ in theory, but in practice different political systems and parties always tend to emphasise one class of rights above another: civil and political rights or economic and social rights. As I have said before, this creates a ‘Hobson’s choice’ for disability rights which makes little sense unless one abandons these distinctions altogether. The right to independent living for example relies on meaningful freedom to make choices about where and with whom to live on an equal basis with others.   Legal safeguards and administrative mechanisms such as direct payments may accord a degree of control, but if a person has insufficient resources or options from which to choose the right is rendered fairly meaningless.   The same point has been made about the Conservative proposals on mental health – how can we expect to reduce detention when support to live in the community has been so eviscerated?

Clearly disability rights campaigners have to continue to defend and pursue more generous and more effective investment of public resources and to expose the impact of disinvestment in disabled people’s opportunities and wellbeing. But they also need to get much smarter about the way they do so. The lesson of the announcement on mental health policy is to avoid the trap of wholesale political opposition, as has so often been the case among some of the noisier members of the new school of disability activism since 2010 (see DPAC’s current election campaign against ‘Tory vermin’ for example).   There will always be a role for protesting outside the tent. But there is an equally valid and important role for the ‘negotiators’ who find opportunities to work respectfully with government and political parties of all sides to secure progress, while also being clear about red lines.

With the likelihood of at least a decade of Conservative government in front of us, the negotiators are needed more than ever before.

Wot no disability Commissioner?

A quick post, away from the limited and needlessly heated confines of Twitter, about the question of whether the post of ‘Disability Commissioner’ has or has  not been ‘scrapped’ by the government or Equality and Human Rights Commission following the recent appointment of (Lord) Kevin Shinkwin as a Commissioner.

Firstly, unlike say the Children’s Commissioner, or Information Commissioner there is, nor ever has been, in reality a post of ‘disability Commissioner’ at the EHRC.   The Equality Act 2006 – the law establishing the EHRC – obliges the Secretary of State to appoint Commissioners, at least one of who must be a person who is or has been a disabled person.  This requirement is designed to ensure representation of disabled people on the Board.  There could be more than one person fitting this criteria.  It does not demand that any person or people meeting this criteria are experts in the field of disability rights or that they specialise in disability rights once appointed.  Nor does it confer any exclusive powers to the person or people meeting this criteria with respect to disability issues.   The government fulfils its obligations solely by ensuring this representation on the Board.

Separately, the 2006 Act required the Commission (not the Secretary of State) to appoint a  Disability Committee, the Chair of which and at least half of the members had to be a have been disabled people.  The Act did not require that the Chair was a Commissioner, although in practice its three formal chairs Jane Campbell, Mike Smith and Chris Holmes all were (with Alun Davies and Rachel Perkins – both non-Commissioners – performing brief ‘caretaker roles’ while Commissioner appointments were filled).  This made sense as the Committee enjoyed exclusive statutory decision making powers with respect to some areas of the Commission’s duties and powers as they related to disability, such as decision’s about which legal interventions to pursue in the area of goods, facilities and services.

As a result, an alignment came into being between the government’s statutory obligation to ensure representation of disabled people on the Board of the Commission, the Commission’s obligation to establish a Disability Committee and its ongoing preference to appoint a Commissioner as Chair of the Committee (who had to be or have been a disabled person).  The result was a disabled Commissioner with delegated powers on disability issues through their chairmanship of the Committee, or in shorthand a ‘disability Commissioner.’

Following an independent review in 2014, the Commission took the decision to extend the Disability Committee’s life for two further years, and to wind it down this year.  This in effect brought to an end any statutory delegation of powers regarding disability (and hence to a ‘disability Commissioner’).  While the Commission has powers to establish non statutory Committee’s and to delegate powers to them (e.g. its regulatory committee) it is not doing so on disability.  Instead it plans to establish a ‘Disability Advisory Committee’, the chair of which need not be a Commissioner or enjoy the status of public appointee.

Meanwhile, (Lord) Chris Holmes stepped down as Commissioner – and Chair of the Disability Committee –  late last year.   In order to meet its statutory obligations regarding the Board, the government advertised for a Commissioner who is or had been a disabled person.  As I have already said, in law this obligation concerns only representation – it confers no specific powers, nor creates any unique expectations of any persons that are appointed to fulfil any obligations related to disability specifically.

However, while I have not seen the recruitment pack, a report by John Pring suggests that it implied the person would act as the ‘Disability Commissioner’ and that upon his questioning the Commission and the government about this, it is unclear whether the person appointed – Tory Peer, Kevin Shinkwin – will be assigned this status.  Pring concludes this means that the government has ‘secretly scrapped the post of disability commissioner.’  Upon my pointing out that such a post had never existed and querying why it was advertised as such Pring accused me of  ‘either trying to defend government or EHRC’, a curious accusation as I was in fact defending neither, merely pointing to the legal fact that the government has no obligations or powers to appoint or anoint at disability Commissioner.

So legalities aside, why might there be a reluctance to describe Shinkwin as the ‘Disability Commissioner’ despite a recruitment process that apparently indicated this was the role advertised?

Well, perhaps the EHRC, which has been striving hard to rebuild bridges with the disability community given the distrust caused by having had as ‘disability Commissioner’ a Tory Peer who voted in support of damaging welfare reforms in the House of Lords, preferred another candidate to a Tory Peer who voted in support of damaging welfare reforms in the House of Lords.  And perhaps, given the delay in the appointment, the Commission had been battling behind the scenes to secure its preferred candidate, but on failing to do so realised it has an ace in the pack: to deny the person appointed by government the status of ‘disability Commissioner’ given it is under absolutely no statutory obligation to confer such status and the government has no powers to do so either.   By doing so, it can avoid the appearance of special authority on disability having been conferred to Shinkwin, which would have needlessly undermined trust further still.  That is to say, the least damaging course of action following Shinkwin’s appointment is not to have a dedicated disability Commissioner.  None of which is to say that Skinkwin doesn’t bring valuable insight and experience to the Commission, including on disability.  I’m sure he does and personally believe its extremely valuable to have a plurality of political views and affiliations on the Board.

This,  I can assure you, is idle speculation. I have no inside track.  But if I am right, it suggests to me that Pring is misreading the lack of clarity about a disability Commissioner.   What it – and recent positive signs from the Commission suggest – is that we have a Commission that is prepared to fight for disability rights, not one that is striving to dilute it.

How to talk about disability & human rights

Thanks to Catherine Townsend from Wellspring Advisers for allowing me to share this fascinating and incredibly useful report by the Frameworks Institute on how to talk about disability and human rights.   The report is the first stage in a longer exercise in finding more effective ways to communicate about disability in more persuasive ways.       Perhaps the most challenging question posed in the report is whether the language of rights is particularly helpful at all where disability is concerned….

In summary, the report found that disability organisations (those working in the international sphere) typically:

  • Blitzed on unframed facts and numbers which only experts understand
  • Described the situation of disabled people without explanation
  • Concentrated on problems while offering few if any solutions, removing any sense that problems could be fixed
  • Relied on crisis stories, which also tends to overwhelm (or excuse) any sense that problems can be addressed
  • Employ vivid stories, which counterproductively locate problems at the individual rather than systemic level

I expect we can all recognise these fault-lines in communications around disability and other areas.   Frameworks recommend that effective communication demands:

  • Using thematic stories, not individual stories, to foreground the systemic factors shaping outcomes
  • Leading with values, not facts/information
  • Combining urgency with efficacy – people must feel a problem can be solved.  Set out the solution
  • Avoiding crisis language
  • Developing and deploying examples that emphasise solutions, not problems
  • Connecting outcomes to society as a whole – explain how the positive or negative outcomes facing disabled people affect everyone
  • Contextualising numbers – don’t expect them to speak for themselves
  • Avoiding myth busting – it tends to affirm the myths, not overcome them.

Fully adopting the lessons herein can be deeply challenging, but the rewards could be enormous.

Care crisis, what crisis? £10 a week should do it….

So Labour’s burst of policy announcement’s over Easter included its plan to increase Carers Allowance by 17% (or £10 per week), at a cost of £538m, to be funded by reversing George Osborne’s cut to inheritance tax. It’s a good bit of politics, aimed at cementing Labour’s claim to be the true party of fairness. Very Milibandian even….

I’ve no doubt many families would welcome a 17% increase in their benefit income. The income penalty associated with disability – whether born by disabled people or those who support them – is high and it is right that this is recognized via redistributive measures.

At the same time, such policies, absent of any wider plans for social care, further consolidate the normalization of unpaid care-giving, while negating to offer anything to address it.   Listen to the rhetoric from Corbyn surrounding the announcement.

“Britain’s social care crisis was made in Downing Street by cutting £4.6bn from council care budgets. Millions of unpaid carers have been forced to fill the gap and put under even greater pressure as a result.

“We believe these unsung, unpaid heroes not only deserve our praise and recognition – they deserve better financial support. That’s why Labour is convinced it’s both morally and economically right to give the carer’s allowance a boost of £10 a week.”

First, the ‘social care crisis’ has been made worse by austerity – significantly worse. But its cause is a result of decades of political failure, including 1997-2010.   Labour offers nothing here to address its own past failings or in terms of future vision. Increasing Carers Allowance by £10 per week is the cheap and easy route politically, while leaving millions of people without the support they urgently need.

The reality is unpaid care-givers are over-sung and over-heroised by politicians in order to create a smokescreen. Only politicians benefit. The Association of Directors of Social Services estimates that a third fewer older people receive any statutory support than a decade ago. Who picks up the slack? Are they willing heroes?

We need a revolution in the area of adult care and support, one with equivalent transformational political force as that which has taken place in relation to childcare over the past 20 years. Care and support needs to be recognized as part of the public infrastructure, linking together goals of health and wellbeing, increasing employment, promoting good family life and stronger communities.   That is, like childcare, it needs to be viewed not as a cost, but as an investment. Until then the crisis will not be averted, it will just continue to be ignored.

 

 

 

 

 

Summary of the UN Committee on the Rights of Persons with Disabilities ‘list of issues’ for the UK

On Tuesday 4 April 2017 the UN Committee on the Rights of Persons with Disabilities published its ‘list of issues’ for the UK. This followed a meeting with DPOs and equality and human rights bodies in Geneva in March to discuss the evidence that they submitted to the Committee concerning the state of UK disability rights.

The ‘list of issues’ sets out the areas where the Committee believes there may be shortcomings in the UK’s action to implement its obligations arising from the question and takes the form of a number of questions to the government(s) of the UK, which it is asked to answer before the full examination which will take place at the end of August. DPO’s, wider civil society and the equality and human rights commissions are also all invited to respond, most likely by sometime in June (date to be confirmed). The Department for Work and Pensions has said that it will consult on its own response during May

Below is a summary of the headline issues. The Committee has asked the UK:

  • To set out how policy on disability is based on a human rights approach

  • About the mechanisms for coordinating implementation of the Convention across national, devolved and local government
  • In particular it inquires about the status and outcomes resulting from ‘Fulfilling Potential’, the UK government’s disability strategy
  • About measures taken to protect the right to life and to address inequalities in life expectancy
  • About gaps in the Equality Act 2010 and in relation to parts of the Act not yet implemented concerning reasonable adjustments
  • About ‘Measures to prevent discrimination on the basis of potential impairment as regards pregnancy termination
  • How intersectional discrimination is being addressed and in particular about steps to tackle violence against disabled women
  • 
About action to address high levels of poverty among families with disabled children
  • How disabled children and their families are involved in decision-making about their support
  • About steps to tackle disability related harassment and bullying of disabled children in schools
  • How the UK is tackling negative attitudes, in particular towards people with dementia or learning disabilities

  • What steps are being taken to implement, coordinate, monitor and sanction in relation to advancing accessibility
  • What steps are being taken to repeal discriminatory legal capacity laws and to provide access to supported decision-making
  • For evidence regarding the impact of legal aid reforms and employment tribunal fees on disabled people’s access to justice
  • What training has been provided to the judiciary regarding the rights of persons with disabilities
  • How measures concerning deprivation of liberty are rooted in the principle of supported decision making
  • About steps taken to eliminate involuntary detention of disabled people in hospitals, institutions and residential homes on the basis of disability
  • About steps to eliminate the use of restraint in all settings
  • About the scope and efficacy of the governments strategy and action to eliminate disability hate crime

  • To identify the legal protection of the right to independent living and the means by which disabled people can enforce it
  • About sufficiency of budget allocation to ensure realisation of the right to live independently and to be included in the community
  • ‘How the State party calculate the costs of independent living vis-à-vis institutionalization of persons with disabilities’
  • About the legal mechanisms to ensure the availability of support based on choice, control and inclusion

  • About the availability and funding of sign language interpretation

  • For data on numbers in mainstream or segregated education and for info on measures to promote inclusive education
  • About measures to mitigate any negative impact on  access to education to young persons with disabilities in particular from low income households vis-à-vis the reduction in the Disabled Students’ Allowance (DSA) in England;
  • How health inequalities are monitored & eliminated
  • 
What mechanisms exist to address the suicide rate among disabled people
  • About measures to eliminate disability poverty and for evidence of outcomes of any strategies to do so
  • How government monitors impact on the right to an adequate standard of living of policies and programmes, including cumulative impact
  • How the government ensures the Work Capability Assesment is individualised and based on the social not medical model of disability
  • About steps to ensure equal access to voting in elections
  • For updated information on the coordinating mechanism (the Office for Disability Issues) and the involvement of disabled people


The list is a good outcome for all who have been contributing to the examination and helpfully frames the chief challenges facing disability rights in the UK.  This will provide a benchmark for future examinations, irrespective of which party or parties form the governments of the UK.

The chief task now is to secure some sharp, actionable findings and recommendations in the Committee’s ‘concluding observations’ that can underpin advocacy efforts in the months and years ahead, and in particular to ensure that they speak to the ever more devolved context of the UK.