Why enhancing, not diminishing the value accorded to people with learning disabilities must be our starting point

Unemployment amongst people with learning disabilities is far from inevitable.

In the State of Vermont USA, almost 40 per cent of adults with learning disabilities are in employment, paid at least the minimum wage, in the open labour market.   The backstory to this success involves the state closing down its sheltered workshops, where people were paid below the minimum wage, and redirecting the savings and other resources towards support to participate in the community, via direct payments, placing people with learning disabilities and their advocates in the driving seat, to spend on employment, training and other community support.  The minimum wage has proved no impediment to significantly increasing employment opportunities for people with learning disabilities.   Arguably it is central to this story of success, for it signals the equal worth attached to people with learning disabilities, without which real inclusion cannot hope to prosper.

In Britain, fewer than 2 in 10 adults with a learning disability are in paid employment. Among people receiving long term support from their council the figure is an appalling 5.8%.  There is zero evidence that this is a consequence of the national minimum wage, or its recent increase.   There is plenty of evidence that it is a product of low expectations, barriers experienced during common recruitment practices and a lack of often basic and cost free workplace adjustments. More appallingly, there is also evidence that these factors can be overcome through effective, personalised employment support of a sort that both local councils and the DWP continue to fail to invest in.  The recent Work, Health and Disability Green Paper holds little promise.

Of course the size of the learning disability employment gap, coupled with chronic under-investment in effective support has not stalled benefits reform, with ever increasing numbers of people with learning disabilities forced to survive on incomes that the European Committee on Social Rights has described as ‘manifestly inadequate’, while subject to ever more draconian, yet entirely unproductive conditionality and sanctions.   This is a system that robs people of agency and hope; where despondency sets in and becomes ever more difficult to escape.

I sense that the challenge of living on benefits, or for that matter on an income below the national minimum wage, was not front of mind when Rosa Monkton and Libby Purves wrote their respective articles. In response to criticism on Twitter Purves replied:

‘The problem you furious people have is thinking “worth” only means money. ‪@MoncktonR is talking of lives, happiness, reality.’

Of course it’s so much easier to say ‘worth’ doesn’t only mean money when your reality is one where you rarely if ever worry about having it.  Money might not bring happliness, but not having enough money to eat or pay the bills, let alone live any sort of life, certainly has a habit of getting in the way. Most people’s reality is day-to-day survival.   Lives, happiness and reality’ are ‘free to those who can afford it….very expensive to those who can’t.’*

One senses Monkton and Purves’ reality is somewhat removed from the majority. They argue that people with ‘serious’ learning disabilities need not be paid the minimum wage because ‘Most people involved, will be living with parents or in sheltered communities and have benefits help.’ That is to say, in their view, most people already lead a comfortable life, with all the money and support that need. Nothwithstanding the huge inaccuracy of this statement, it also shows utter disregard for people’s desire for financial independence, their own home, social status, a relationship and family of their own, a job that rewards them fairly….for, err, ‘lives, happiness…’  But then, the fact that Purves prays in aid the views on disabled peoples rights of Tory MP Philip Davies, presently to be found filibustering legislation to improve protection for women from domestic violence, reveals how devoid her outlook is of any commitment to equality and inclusion for people with learning disabilities.  

Monckton and Purves argue that demanding the minimum wage is ‘denying them (people with learning disabilities) the fulfilment of work by making them unaffordable.’ This is an astonishing statement for many reasons, not least that there is not a shred of evidence to support it, but particularly because it perpetuates the very foundations of prejudice and discrimination that lock people with learning disabilities out of the labour market and society more generally: low expectations. The act of employing a person with a learning disability is reduced to one of charity. They should not expect the minimum wage because they are worth even less than the minimum. They will be alright financially because their parents will look after them (until they die) and if not they can be looked after in ‘sheltered communities’ and live off £73 a week, which they don’t need anyway. In fact, according to Purves money doesn’t matter because ‘Some — not all — don’t quite understand money’ (translated: they lack the wherewithal to enjoy equal rights).

This ‘soft bigotry of low expectations’ often masquerades as care and compassion and through doing so masks the causes of injustice and inequality. We live in a country where the recently bereaved parents of adults with learning disabilities who have died are told by medical professionals that their death was ‘probably for the best,’ where local councils have no idea as to the employment status of a third of people with learning disabilities that they support, where a prime-time BBC programme shows people with learning disabilities being tortured in institutions and yet five years on just as many people are stuck in them.

This soft bigotry also clouds our judgment of the parents of people with learning disabilities. In her article Purves decried how ‘the voice of close experience gets shouted down by formulaic pieties.’ Yet accepting without question the views of parents about their adult children’s best interests is itself a manifestation of prejudice and inequality. Society sees only sacrifice and presumes only good intentions, even when parents are calling for their adult children to be legally regarded as worth less than everyone else.

In truth all parents are fallible and all parents are capable of prejudice about their own children’s capabilities and potential, whether disabled or not. As parents we can also project our own fears and insecurities onto our children in ways that limit them now and in the future. And as parents we are not isolated from the prevailing social attitudes around us, whether in relation to disability, gender or homosexuality for example.

Many parents are strong advocates of their adult children’s rights to equality and full participation, yet are often frustrated by a lack of resources, choice and opportunities. Others respond to these constraints by striving to replicate what they consider to be the protective shield of family life via a ‘custodian model’ of care. This has historically often involved people with learning disabilities being denied the right to self-determination, to live independently, to have relationships and a family and so on under the rubric of protecting their ‘best interests.’ In the past, many parents opted for the institutionalisation of their adult children with learning disabilities, sometimes for want of any other support but also sometimes out of shame and to evade stigma.   Monckton herself has been an opponent of moves from institutional care to community-based living, albeit under the banner of promoting ‘choice.’

Monckton is of course absolutely correct to identify the isolation, loneliness and lack of identity and purpose many people with learning disabilities continue to experience. In a seemingly hostile society, manufacturing alternatives to full inclusion can seem like the kindest response. But the successes in Vermont show that there is another path to overcoming these realities if we really want to take it.  Institutionalising inequality and low expectations will set us in the wrong direction.  According people with learning disabilities equal value, and raising our expectations, has to be the starting point.

*courtesy of Bruce Robinson, from ‘Withnail and I’

Why it’s time to be patriotic about equality

brexit-blog

Britain’s equality law story certainly features some important chapters involving the European Union. It is clearly important to consider the implications of Brexit for equality and non-discrimination and to strive to mitigate any risks resulting from our departure.   Yet in truth, Britain has on the whole gone far faster and much further on equality and non-discrimination law despite, not because of our membership of the European Union.   This is as a result of highly effective civil society activism, pioneering Parliamentarians, shifting social attitudes and inspiration drawn not for the most part from Europe but from the USA.

Britain’s first race discrimination laws came onto the statute book in the 1960’s and were inspired by US civil rights law. The Americans with Disabilities Act 1990 provided the template for the Disability Discrimination Act 1995. Both in turn are widely held to have provided inspiration for the anti-discrimination Directives of the European Union, which only appeared in 2000.

Importantly, the Employment Equality Framework Directive 2000 did expand the range of protected characteristics to be covered by anti-discrimination law to include age, sexual orientation and religion.  Further, the Coleman v Attridge law case in the CJEU saw those discriminated on grounds of their association with disabled people, such as carers, brought within the protection of the law.  Yet in implementing the Directive Britain went further than required by protecting people from discrimination not only in employment but also in relation to goods and services. A draft EU Directive to extend protection from discrimination beyond the field of employment has made little progress for almost a decade. Britain did not wait for the EU: the Equality Act 2010 harmonised all of Britain’s anti-discrimination law, providing parity of protection in relation to race, gender, gender identity, disability, age, sexual orientation and religion and belief.

British equality law also goes way beyond the ‘formal equality’ demanded by the EU Directives.   The intention of the Public Sector Equality Duty is to get at those causes of discrimination and inequality that are institutionally bound through a model of ‘enforced self regulation’ by public bodies, aimed at their taking steps to eliminate discrimination and advance equality.  And we have gone further in other ways too, first with civil partnerships, then with Equal Marriage, for example.

Conversely, under the rubric of de-regulation, the 2010-15 coalition government rowed back on key features of employment protection in the Equality Act 2010, introduced employment tribunal fees and imposed huge cuts in the budget of the Equality and Human Rights Commission without once facing censure by the European Commission.

In sum, while Britain has had to comply with the EU law it has helped to create, equality and non discrimination policy and law has largely been a domestic matter.

I’ve no doubt legal and constitutional law experts (of which I am not one) will point out that it is loss of the ‘constitutional underpinnings’ of our membership of the EU that really matter and which require attention. Specifically, that the protection and promotion of equality will be weakened once our laws operate outside of EU principles, the Charter of Fundamental Rights and cease to be directly shaped by the jurisprudence of the Court of Justice of the European Union. One way to mitigate this has been proposed by the House of Commons’ Women and Equalities Committee:

‘Leaving the EU provides an opportunity to return to Parliament its role to ensure that equalities are robustly protected. The Equality Act 2010 is the culmination of decades of development of domestic protection of equalities. An additional clause in that Act adding a function of a declaration of compatibility into the Equality Act would act as an entrenchment of these rights that were enacted by Parliament. (Paragraph 42)

4.The Government should give strong consideration to bringing forward an amendment to the Equality Act 2010 to mirror provisions in the Human Rights Act 1998. The purpose of that amendment would be to set out that public authorities must not act in a way that contravenes the Equality Act unless required to do so by another Act of Parliament; that ministers, when presenting any Bill, must make a declaration of compatibility with the Act; that interpretation of legislation by the courts must take account of the Act and be read as far as possible to comply with its provisions; and that, if any legislation is incompatible with the Act, a declaration of incompatibility should be made by the court. (Paragraph 43)

The case for ‘constitutionalising’ equality in this way was made during debates about the Equality Act in 2010. Specifically it was proposed that the Act offered a vehicle for the UK to ratify Protocol 12 of the European Convention on Human Rights (establishing a freestanding right to equality). The proposal was rejected by the then Labour Government and enjoyed little if any support from the Conservative Party.

In making this proposal the drafters of the Women and Equalities Committee report have clearly tried to sing in harmony with the mood music by presenting the idea as restoring or reaffirming Parliamentary sovereignty. The wording ‘return to Parliament its role’ is curious. Return from where? Was Parliament robbed of its role, and if so, by whom – the European Commission? The Court of Justice of the EU?

This is ‘taking back control of equality’ and it has unsurprising echoes of ‘bringing rights home’ – the branding in 1998 of the Human Rights Act as bringing home the ECHR. But therein lies the problem. First, the positioning of this proposal as necessitated by Brexit and – in effect – involving further incorporation of the ECHR – suggests that it is in practice about constitutionalising not just equality, but ‘European’ equality. Second, it is ultimately about binding Parliament, not empowering it and will be seen as handing further power to the Courts at a moment where judges are being cast as ‘enemies of the people.’

In any case, with a government committed to repealing the Human Rights Act, a Prime Minister keen to take the UK out of the ECHR and the general antipathy towards ‘judicial activism’ this is a proposal that seems very likely to be ‘dead on arrival’.  And while objectively I can see its merits, politically I fear it will be a disaster if equality activists invest their energies in pursuing it now.

I think the future of equality in post-Brexit Britain has to be won politically, not via binding legal measures as attractive as they may seem.   We have much to build on. Britain has been able to go further and faster than the EU has demanded because in time a general political consensus has evolved which regards discrimination as an unacceptable and a socially and economically undesirable feature of modern British life.

Brexit is an inflection point, where we will be forced to ask ourselves who we are and what we stand for.  Our challenge now is to set out a compelling story of equality, not as a hangover of our membership of the EU, but as a proud part of our national story and as central to a thriving future.

 

Postscript

I’m advised that the measure proposed by the Women and Equality Committee could be achieved without ratifying Protocol 12 of the ECHR, for example by amending the Equality Act 2010 to insert provisions similar to those in the Human Rights Act regarding the obligations of Ministers and the respecting obligations and powers of the Courts and Parliament.   That provides a way around the ECHR Protocol 12 obstacle, but it still begs the question: if our equality laws are home grown, why is Brexit the moment to do this?

 

 

 

 

How can liberals defend human rights in the era of Brexit and Trump?

Brexit was declared word of 2016 by the Collins English Dictionary and is defined as ‘the withdrawal of the United Kingdom from the European Union.’ As one wag suggested, it would have been bolder had they simply defined it as ‘a noun meaning….Brexit’.   This in all fairness remains as accurate and comprehensive description as can be provided at this stage.

That obviously makes the job of anticipating the risks to fundamental rights somewhat difficult for without such details how can we assess its significance and what we can do about it?   Well I was a cub- scout in my youth and the cub-scout motto is ‘be prepared’.

We can prepare by understanding and making sure people recognise what is at stake.   And make no mistake – rights, equality and social justice are at stake, as Angela Patrick’s report for the Thomas Paine Initiative makes plain.  We can also prepare by envisioning strategies and actions now to strive to shape the most fertile environment for rights, equality and social justice to thrive through and beyond Brexit.

This is about defending the legal rights and the means by which they are protected. But it is equally about shaping our values and outlook as a country, what it means to live in the UK and our place in the world today and in the future.

In Brexit, the election of Donald Trump, and recent and ongoing developments in Austria, Hungary, France, the Netherlands and elsewhere we see right-wing populism on the rise.  These are not fringe movements – they are movements and political parties seizing power and defining the political landscape. The slogans ‘take back control’ and ‘make America Great Again’ speak to the fact that:

  • Authoritarianism is winning over liberalism
  • Nativism is undermining support for universalism
  • Fair treatment is something that many believe must be earned: equality is not typically regarded as an inalienable right

Brexit and Trump did not come out of the blue.   In Britain, the debate regarding a British Bill of Rights has been bubbling under for over a decade. Insofar as we know anything about the proposed Bill it is clear that it – and the rhetoric surrounding it – is calibrated to satiate these ever more dominant values, not to uphold those we have understood to underpin the advancement of human rights since the mid 20th century. If reports are to believed, Theresa May will strive to go one step further and take the UK out of the European Convention on Human Rights altogether if her Party wins the 2020 General Election.

So the lesson of 2016’s seismic events is that the challenge ahead of us cannot be reduced to one of rational arguments about which policies and laws are good for our country to maintain. It is going to require a huge effort to engage with, marshal and to strive to shape the values that are necessary to secure support for them in future. And that is going to require us to do things differently.

Against this rising tide of populism, those who espouse liberal, progressive values have largely failed to articulate alternatives in a manner sufficiently compelling to frame public debate or win political arguments. Too often they have also managed to alienate potential support, unwittingly or otherwise pressing authoritarian buttons (prisoner votes, Abu Qatada), appearing to equate patriotism with racism or by seeming to have disregard for the social contract of rights and responsibilities.   In the populist narrative where the ‘will of the people’ trumps representative democracy or the role of the judiciary, human rights can easily fall prey to being characterised as inherently undemocratic.

The danger right now is even greater polarization between ‘liberals’ and ‘authoritarians’ as each retreat into a ‘culture war.’   It seems highly likely that in the current climate liberals will lose. As one observer said of the Democrat’s failure to confront Trump ‘we have brought a sheet of parchment and a set of abstract principles to a knife fight. And we’re going to get cut.’

But how can we navigate these destructive values without appearing to endorse them? We already know some of the answers, but have shied away from others. I believe our challenge is to develop communications strategies that:

  • Pivot away from issues that press authoritarian buttons, without conceding to the notion that ‘bad people’ should have fewer rights
  • Embrace patriotism without indulging the notion of different classes of rights for nationals and non-nationals/at home or abroad
  • Demonstrate how human rights reaffirm rather than undermine the social contract, without deepening the notion of deserving or underserving groups

This is of course easier said than done.   We may need to accept that in the short term our task is simply to ‘de-fuse’ the debate around human rights – to neutralise hostility – not to anticipate (or even strive) a wholesale shift in support for the values underpinning human rights. Does this justify a shorter-term communications strategy that appears on the face at least to be more ‘in tune’ with values that human rights defenders have tended to find uncomfortable?   What could be the longer-term cost of such a strategy? Would it take the wind out of the sails of those seeking regressive reform, or risk aiding their cause?   I find it interesting that up until relatively recently ‘health and safety’ attracted similar levels of political and media hostility to human rights (a byword for ‘nanny Statism’ and intrusive regulation) but appears to have largely lost its political potency, without major reform to health and safety law or regulations, so there is perhaps hope.  What brought this about?

Values in opposition to human rights have helped secured major victories and the ramifications of those victories will be considerable for years to come. Nevertheless, the implications of Brexit, Trump’s victory and other developments are yet to be fully secured – legally, politically and socially. Human rights laws, institutions and values will provide a critical bulwark against right wing authoritarianism, helping to contain potential abuses of power. The opportunity and challenge for human rights defenders in this context is to make clear that it is human rights that stand up for the common good. There is a receptive audience: half of the voting public did not support Brexit (or Donald Trump). Many more did not vote. Of those who did vote leave, or for Trump, many fall under the ‘conflicted’ banner. They are not rabid authoritarian right-wingers. Longer-term trends lean towards more open, tolerant and rights respecting societies.

Right now and for many years to come Brexit provides a moment of national reflection. It will force us to contemplate who we are and what we want to be as a country, how we want to live together and to treat one another, how we related to the wider world and how we want the wider world to view us.  It will force liberals – including human rights defenders – to confront factors that led us to this point: rising inequality, narrow identity politics, disenfranchisement, ceding the public narrative.

This is as much an opportunity for liberalism to renew itself as it is a threat.   Learning how to communicate effectively and to command public support for the values we hold dear needs to be at the heart of that renewal.

Five big challenges for British disability rights in 2017

2017

Norman Kirk, Prime Minister of New Zealand from 1972-74 famously said “people don’t want much: just someone to love, somewhere to live, somewhere to work and something to hope for.”

Millions of disabled people in Britain lead lives in which the reasonable, ordinary expectations Kirk spoke of are a part.  Many are beneficiaries of battles fought by disability rights campaigners over the past half century or more – campaigns which led to advances in accessibility, public service reform, anti-discrimination law and tackling poverty for example.  Progress does continue to be made everyday.

But many millions also continue to lead lives in which the ordinary is made extraordinary by prejudice, discrimination, under-investment and more recently rapid disinvestment.

I spent late last year helping draft ‘shadow reports’ – that is, independent accounts – concerning Britain’s compliance with the United Nations Convention on the Rights if Persons with Disabilities, supporting and working with Disability Rights UK, Disability Wales and Inclusion Scotland.   The reports, to be formally submitted to the UN Committee on the Rights of Persons with Disabilities and published at the end of January,  span huge ground and go into considerable detail.   But what emerges are a number of common themes, which I believe together present five major strategic challenges for British disability rights activism to navigate in 2017 and beyond.

Policy, practice and legislation in England and Wales is not consistently grounded in the principles and paradigm shift heralded by the UNCRPD. For example, access to social security benefits for disabled people is defined by highly medicalised or functional criteria, while welfare to work policy and practice takes little or no account of external barriers hindering participation. There is increasing evidence of coercion across a range of policy areas, including welfare to work and the treatment of people with learning disabilities, mental health problems & dementia, contrary to the CRPD’s emphasis on dignity, autonomy and independence.  Public attitudes to disabled people are grounded in low expectations and this translates into public policy and spending decisions.

There has been stalling progress and in some cases reversal of past successes. For example, there are more disabled children being educated in special schools than a decade ago, poverty among disabled adults is rising and the number of public appointees who are disabled is half what it was in 2010.  There are as many adults with learning disabilities in Assessment and Treatment Units as at the time of the Winterbourne View scandal and there has been a large increase in the number of adults detained under the Mental Health Act.

There has been a general disinvestment in the rights and opportunities of disabled people. Significant reductions in public spending under the rubric of austerity have had a disproportionate impact on the rights and opportunities of disabled people.  The impact is felt not only in the overall quantum of financial and practical support available but also in the way financial controls are heralding more restrictive practices such as in relation to the freedom of people to choose how to spend personal budgets.  Centrally important measures to protect and advance the rights of disabled people such as the Equality Act 2010 have been characterised by the UK government as burdens on business and public bodies. Looking ahead, Brexit will remove a ‘double lock’ on existing rights while depriving disabled people in the UK of progressive EU measures in areas such as accessibility and independent living. In a festive announcement, Theresa May has reaffirmed her conviction that the UK should withdraw from the European Convention on Human Rights. The government’s response to the recent UNCRPD Committee inquiry into the impact of austerity measures was dismissive of the Committee’s jurisdiction.

There is a lack of strategy, oversight, coordination and involvement – the UK government’s strategy on the rights of disabled people ‘Fulfilling potential’ does not include concrete, targeted and measurable actions. The status and role of the Office for Disability Issues as a ‘focal point’ and ‘coordinating mechanism’ for disability rights in Britain is unclear. There do not appear to be meaningful and consistent modes of involvement of disabled people in policy making nationally or locally. National commitments and plans concerning disabled people’s rights in England and Wales have not translated into consistent local action. The promise of local accountability resulting from local government and NHS reforms has not materialised and has been undermined further still by a loss of funding for local DPOs.

Promotion, enforcement and redress have become weaker. Rights without redress are no rights at all. It has become far more difficult for disabled people to access remedy for rights violations through the courts and tribunals. Since the Disability Rights Commission closed its doors in 2007 there have been major cuts in the resources devoted to the promotion and enforcement of the rights of disabled people. Far reaching reforms, distributing accountability away from central government to local government and the NHS have made it far harder to hold the State as a whole to account.

Over the coming months I’ll write more about each of these challenges and share my thoughts and ideas about how a new disability rights agenda can rise to them.   I welcome all opportunities to discuss this with others (including of course whether I have identified the correct issues) on and offline (ideally off as I’d like to get out and meet more people this year).   You may of course not consider that they even are the major challenges, in which case please say so!

In the meantime, let’s remember the progress that has and continues to made and by doing so try to ‘make hope possible rather than despair convincing’.

A Happy New Year to all

Neil

Stop playing Mind games

Disabled People Against the Cuts and others are trying to force a choice upon organisations such as Mind that provide or might in future provide services under contract with the government: stop doing so or forego your voice in debates about policy.

In a piece written by John Pring of the Disability News Service, Linda Burnip, the founder of DPAC, is quoted as arguing:

“It is clear to everyone that organisations taking money from the government to provide services of any kind will not be in a position to campaign in any effective way against the policies on welfare reform…These contracts are rumoured to be worth between £2 million and £30 million and once part of propping up the system, any independence to criticise it will be lost…It is shameful that organisations supposedly existing to benefit disabled people are willing to sell them out in such an abhorrent way.”

The irony of the position being taken by DPAC and others is that it is exactly the same as some of the most right wing figures in government: that charitable/not for profit organisations providing public services under contract with the State should play no role in ‘lobbying’ with respect to policy.   There have already been many steps in this direction. As the Panel on the Independence of the Voluntary Sector found:

‘‘Gagging clauses’ are being used more widely, the new Lobbying Act has had a silencing effect on many charities and further restrictions have been placed on the ability of NGOs to support individuals challenging government decisions in the courts.”

In fact, the majority of disability organisations, from the ‘large charities’ such as RNIB, Mind, Mencap and Action on Hearing Loss through to small local Disabled People’s Organisations provide services often under contract with branches of national government such as Job Centre Plus and with local government.   Were voluntary organisations providing public services prohibited from engaging in advocacy, it would in practice mean local DPO’s providing services such as direct payments support under contract with the council not being able to challenge local authority cuts, just as national charities providing employment support under contract with DWP would be prohibited from challenging government policies on welfare reform.

This would of course suit national and local government just fine, as despite being service providers most of big national disability charities have and continue to use their considerable power and influence to very publicly challenge the government, whether in relation to welfare reform or its failure to fund social care adequately for example. They have not, to the best of my knowledge, adopted positions which differ radically from those of grassroots campaigners when it comes to questions such as the WCA, cuts to PIP or the use of sanctions and they have been robust in their opposition.  The effect of their not doing so would be catastrophic for those campaigning against punitive and ineffective welfare reform.

The alternative option is to stop providing services under contract, in which case the landscape of disability charities and organisations would soon look very empty indeed. Moreover, government contracts will continue to be issued, but they will be won and run solely by the Atos’s, G4S’s and Maximus’s of this world.

What this dispute really seems to be about is modes of influencing. Where some disability campaigners adopt protest, and believe that any form of engagement amounts to ‘collaboration’, others – including DPO’s as well as national charities – continue to believe engagement to be a more productive approach to securing change.   That includes seconding staff into government departments in the hope that their insight and expertise might help shift policy in a more positive direction.   It also includes striving to secure government funding to invest in more evidence based approaches to supporting disabled people, led by people with expertise and experience in the hope that this will influence practice more generally.

I believe that both protest and engagement each have a vital role to play.  Both can be successful and both can fail.

What is certain in my mind is that disability campaigners turning on other disability campaigners over tactical disputes is a sure fire way to hand victory to those who have only one agenda – to disinvest in disabled people.

Conditions for conditionality

Today Parliament debates the government’s plan to cut benefit payments from £5000 to £3500 per year for those it assesses as presently unable to work.  Meanwhile, the Green Paper on Work, Health and Disability ventures a system of discretionary conditionality regarding those assessed as entirely unable to work.  The government, it says, wants in pursuing these reforms to ‘improve lives.’

In thinking about this I was reminded of the approach we took at the Disability Rights Commission with respect to our work to influence the then Labour government’s welfare reform policies (work led by Marilyn Howard in my policy team).   It’s so easy to get lost in the complexity of welfare reform as not to take a step back and ask simply ‘why’?  For the DRC, the answer was clear – welfare reform could only have purpose and validity if it advanced equal citizenship.   Thinking about citizenship allowed us to think beyond only ‘rights’ and to consider the importance of disabled people accruing corresponding responsibilities.   How could disabled people enjoy the rights and practice the responsibilities that equal citizenship implied?   One such responsibility was the responsibility to earn a living through paid work if one was able.  But clearly many disabled people did and do face significant barriers that would need to be overcome – as a matter of rights – before it would be just for the State and wider society to impose equal responsibilities.  Hence various tests needed to be met before the State could seek to leverage unfair or unreasonable expectations, impose conditionality and sanctions attached to benefit entitlement or change the levels of out of work benefit payment recognising long term disadvantage, as was the case with Incapacity Benefit and its successor ESA.

So we came up with a framework, which we called ‘conditions for conditionality.’  It included four principles:

  • Reforms should ensure human rights and equality of opportunity are promoted;
  • more flexible system that supports participation (the fact that a person is unable to assume paid employment should not prevent them engaging in public life);
  • A fair balance between individual and employer responsibility;
  • and that disabled people have access to the support they need in order to take up their responsibilities.

It was our position that these tests needed to be met before government could equalise the obligations or rates of benefit payment of those on Incapacity Benefit and those on Job Seekers Allowance. This submission to the Work and Pensions Committee from 2006 gives you a flavour or how these principles shaped the DRC’s policy response.

It’s painfully obvious that these conditions have not been met and yet have served as no impediment to the government extending – and planning to continue to extend – equality of obligation to disabled people and people with long term health conditions.  I share this only because it offers a way to think and talk about the inherent unfairness – and ineffectiveness –  of the government’s policy and proposals, without resorting to ideas and language around ‘cruelness’ and ‘vulnerability’ which simply add to the damage already being done to disabled people’s status in society.   At the same time, it offers a framework through which disabled people and their allies, including sensible employers, public services and providers of support can go about charting a principled and effective alternative.

 

 

 

 

Following the UN Disability Committee report – it’s time to focus

“This dithering is unacceptable” Mark Harper, Shadow Minister for Disabled People on the then Labour government’s delay in ratifying the UN Disability Rights Convention, January 2009

At the heart of this report lies an outdated view of disability which is patronising and offensive. We strongly refute its findings.”  Damian Green, Secretary of State for Work and Pensions, responding to the criticisms of the UN Committee on the Rights of Persons with Disabilities November 2016

green

Some have concluded that the government has complacently dismissed an  inquiry report by the UN Committee on the Rights of Persons with Disabilities into the devastating impact of austerity measures since 2010.   I believe they are wrong and the government is on the run.

The clue is in the government’s considerable efforts to pre-empt and then sink the report. The work, disability and health Green Paper had been in preparation for over 2 years and was still highly speculative and vague when it was finally published on Monday 31 October having been heavily trailed in the press as including plans to reform the Work Capability Assessment.  While the details – insofar as they can be described as details – pointed in a very different direction, the overall tone of messaging around the paper seemed designed to signal the arrival of a more measured and benevolent tone.  Various disability charities were (unwittingly? foolishly?) co-opted for the press effort and the government ruthlessly exploited this.   Damian Green described the Green Paper as  “a turning point in our action to confront the attitudes, prejudices and misunderstandings within the minds of employers and across wider society.” By publishing something so seemingly significant and appearing to signal a change of approach, the government was striving to distance itself from what had gone before while pre-empting and striving to submerge what was about to come.

The UNCRPD inquiry – also in train for two years – was leaked by the government to the Daily Mail on 6th November, apparently forcing the the Office for the High Commissioner on Human Rights’ hand to publish it without any notice or fanfare on 7 November.  Anyone with even a basic knowledge of the media would have known that the prospects for coverage would be very slim indeed as the outcome of the US Presidential Election loomed large.   The government’s official response to the CRPD report was to dismiss it, with Damian Green arguing ‘The UN measures success as the amount of money poured into the system, rather than the work and health outcomes for disabled people. Our focus is on helping disabled people find and stay in work, whilst taking care of those who can’t.’ A spokesperson was quoted in the Daily Mail as saying ‘Their evidence period runs up until the end of 2015, so it is already out of date.’ (the article doesn’t mention that the government was sent the report in early 2016 and has only just got ’round to responding to it).

Why try so hard to bury bad news if you are so confident that the news is inaccurate, or its implications so light?

Perhaps it’s because this is the beginning not the end of a process, one that will refuse to go away for some time and which will become tougher as time goes by.  While officially a confidential inquiry, we were always likely to find out by stealth what the Committee had concluded.  Published or not, when it comes to conducting its public examination of the UK’s implementation of the Convention in 2017 the Committee will rely on its findings and subject the government to even deeper scrutiny.   But published it is, and moreover so is the government’s very detailed and lengthy response.  As such, one might argue that DWP’s media management will ultimately backfire.

Armed as we are with the government’s response to the findings and conclusions put before them we are now much better equipped both to scrutinise the Green Paper and to support the UNCRPD Committee in its public examination in 2017.   As President Obama would say, now is the time to focus.   Complaining to the government, or to the Secretary General of the United Nations, about the tone of the government’s response is wasted energy.  Did anyone really expect them to say ‘its a fair cop’ and to embrace the criticism?  Instead our focus has to be on unpicking the government’s arguments:

  • Yes, money isn’t everything and there’s more to life than social security, so let’s shine the light on how well government is supporting people to escape poverty, to exercise choice and control and to participate fully in practice – what is happening to people’s everyday opportunities?  Just how far will the proposals in the Green Paper, or action to implement the Care Act go to address these issues?
  • But with respect to the money, let’s not let the government get away with its glib claim to be spending more today than in 2009-10. Let’s ask how much it would have been spending were it not for cuts, count the human cost of those cuts, and also scrutinise just how well the considerable amount of public money is being spent in support of human rights.

In forcing publication of the UN Committee’s findings and its own response and publishing the Green Paper the government has provided a major opportunity to put it to the test.  Let’s not waste it.

All eyes on the ‘pipeline of innovation’

There was moment during my speed-read of the Work, Health and Disability Green Paper that I felt I had entered either the world of ‘W1A’, the BBC’s almost documentary about itself or perhaps that of Nicola Murray-era The Thick of It and her brainchild ‘Fourth Sector Pathfinders’.  At paragraph 69 the Green Paper says ‘We are committed to building a pipeline of innovation to rapidly improve support for individuals.’

Actually, that commitment is probably the best bit about the Green Paper.  I’ve long advocated a shift away from top down commissioning to a model of promoting, speculating for and investing in innovative practice to support disabled people into work.  I welcome the shift towards localism and personalisation and the recognition of the value of peer support.  But the ‘innovation pipeline’ is also aimless, unattached to any measure of success or progress save the grand ambition to halve the disability employment gap. It’s not made clear what sort of resources could ever be committed to ‘rapidly scale up’ initiatives that prove effective.   It reminded me of the Department for Health’s ambitions to reduce the number of people committed to and stuck in Assessment and Treatment Units – masking the impotence of government to really make a difference.

There do not seem to be any plans to tackle prejudice or stereotypes, beyond the Disability Confident programme.  At this morning’s launch at Scope, Minister for Disabled People Penny Mourdant referred to ‘finding imaginative ways to ensure compliance with the Equality Act other then suing employers.’  I’d welcome that – measures such as Stonewall’s equality index and transparency measures concerning gender equality on company boards have proved powerful.  But the introduction of Employment Tribunal Fees has seen a 54% drop in disability discrimination claims and the EHRC does not systematically enforce the Act.  Enforcement and redress has to be part of the mix, albeit used creatively and proportionately.  Rights are not rights without redress and weak enforcement merely says to employers that they can get away with it.

While the paper talks about personalisation and integration, there is not a single mention of personal budgets or personal health budgets, which is strange to say the least.  If the government really want to reach those facing the most complex barriers then the wider public service support infrastructure (including the role of Personal Independence Payment) has to factor into this strategy.  It’s not clear that it does.

When asked how the government would manage to get 1.2 million disabled people into work by 2020 when the OBR reports that the government aims to secure jobs for 900,000 more people overall, the Minister pretty much confirmed that ‘halving the Disability Employment Gap’ was little more than a distant aspiration.  It is of course a more attractive and apparently noble way to frame policy than ‘cutting benefits for disabled people’ and my sense is that it is little more than a new frame, as cutting benefits expenditure – and the costs to business and the NHS of ‘sickness’ –  appears to remain the primary driver.

Already we have the £30 per week cut in ESA from 2017 to those assessed as belonging to the Work Related Activity Group – that is people the government accepts are presently unable to work, but capable of some work related activity who will receive the JSA rate, presently around £73 per week.  Given the real ‘innovation’ in this paper is the link drawn between promoting health and employment, it’s worth reminding ourselves of the much more definite link between poverty and ill health.  With the WRAG cut the government is undermining its own professed aims and objectives.

Paras 130-137 of the Green Paper are opaque to say the least, but under the rubric of ‘personalisation’ appear to envisage some people who might presently be assessed as falling into the Support Group being subject to some degree of conditionality:

‘establishing entitlement to financial support could still be decided by an assessment, but that assessment could be used solely to determine whether an individual should get additional financial support. Decisions on whether someone should engage with Jobcentre Plus or specialist programmes could then be made through a separate process. This would avoid the current situation where someone’s entitlement to additional financial support can also result in them being given no employment support.’

That appears to separate the question of how much money a person should receive – which would I assume be an assessment based on common criteria –  from whether they should be under any obligations to engage with job centre plus, which would be on a case by case basis (‘personalised’) and at the discretion of a ‘Work Coach.’  Conditionality and sanctions are not mentioned by name, but the section refers to ‘requirements’ and to ‘safeguards’, neither of which indicate voluntary participation.

There’s an infographic to help explain the proposed process but it reminded me of this optical illusion and made my head want to explode:

escher

Ben Baumberg-Geiger very adeptly nailed the danger of this shift when he said:

‘We are therefore moving away from the dangers of an iron cage of bureaucracy – but this introduces a new danger, the danger of discretion.’

As I said on Sunday, the benefits-reform-cart has long zoomed way ahead of the increasing-employment-opportunity-horse.  Again here, the timeline for implementation of the Green Paper’s proposals puts reforms to the benefits system at the front of the queue.  While claiming that there was nothing in the Green Paper involving more cuts to the benefits budget, Mourdant also said this morning that the government hoped that they might be able to legislate to reform the WCA ‘during this Parliament.’  As others more knowledgeable about the WCA than me have pointed out – the government doesn’t really need legislation to reform the WCA.  What seems to be on the cards then is legislation reform the current categories and the rules attached to them that make up ESA, so opening up the scope for deeper cuts in the next Parliament.

The government’s apparent good intentions to ‘halve the disability employment gap’ cannot be allowed to obscure the ineffectiveness of its proposals to do so, or to mask any duplicity regarding the true purpose of its actions.  I promise to contribute towards this debate with an open mind, but on first reading I’m afraid an even worse deal for disabled people seems to be coming down the pipeline.

Let equality be our measure of the employment, disability & health Green Paper

ad_223719451

Noelia Garella, 31, Argentina’s first qualified nursery teacher with Down Syndrome Picture: Getty

 

The much awaited Employment, Disability and Health Green Paper will finally be published on Monday. One might welcome the fact that government has chosen to consult on a Green Paper rather than push ahead with a White Paper had it not already decided that from 2017 it will cut by £30 a week the benefits of those who in future are assessed as not presently capable of work.  Where welfare to work is concerned, the benefits reform cart has long since run far ahead of the employment support horse.   The long-term promise of support into work is continually used to justify immediate term increases in coercion and cuts.  The massive failure of the government’s work programmes for disabled people are attributed to the recalcitrance of those who have to endure them.  This in turn is used to justify more coercion and cuts, presented as ‘incentives to work’ and on it goes. As if to prove this point, news headlines clearly based on DWP pre-briefing of the Green Paper this evening are majoring on a planned ‘overhaul of the Work Capability Assessment’.  The benefits cart rushing off into the distance once again?

Nothing will change until this formula is turned on its head. The only way to do that is by rejecting the dead hand of ‘welfare to work’ as the framing of policy and discourse.  The opportunity to do so has come in the form of the government commitment to halve the disability employment gap – the gap being of course that in equality between disabled and non- disabled people.

If we take equality of opportunity as our focus and measure we can begin again to cast light on the genuine barriers to disabled people getting in, staying in and getting on at work – the things that should form the focus of an employment green paper worth the megabytes it will take up on our laptops.

So what should be in a employment strategy focused on equality of opportunity?  I think it should include the following ingredients:

Sweeteners and sanctions for employers

Employers need to recognise clearly the benefits of employing, developing and retaining disabled talent. But they also must face a clear cost when prejudice, discrimination and destructive convenience gets in the way.  Theresa May recently celebrated the good things that government can do. Well why not pick up where the last Labour government left off and create a new version of the future jobs fund, targeted at the employment of disabled people and people with long term health conditions?    At the same time, government should emulate legislation in the Netherlands, creating clear financial incentives for employers to support people who have developed an impairment or health condition to come back to work, such as extending the period of statutory sick pay and should promote and strengthen rights to flexible working for disabled people. It should also abandon employment tribunal fees, properly support the EHRC to promote and enforce the Equality Act and extend its audit of public services regarding race discrimination to other grounds, including disabled people.

Skills and qualifications

The one group to have seen little change in their employment prospects over the past 20 years is people with no or low formal qualifications. A large percentage of that group have a disability or health condition. Yet the gap in educational attainment between children with and without Special Educational Needs has actually grown since 2009. Skills rarely features in any discussion about supporting more disabled people into work and disability rarely features in discussions about improving the skills of our workforce.   In 2007, the Social Market Foundation estimated that bringing disabled people’s skills levels up to the national average would generate £13 billion for the economy.   Improving skills offers a clear win win and should be at the heart of an effective strategy.  This will also demand that skills and training programmes are genuinely accessible and inclusive.

Workplace adjustments

Access to work should be given a major financial boost and radically overhauled (as part of a wider reform set out below).   A personalised system of employment support will pre-assess people for potential workplace adjustments and support, providing people with a ‘in principle’ commitment to provide them which can be shared with prospective employers and that commitment must be honoured in the fastest time possible once a job offer has been made. Once in employment, access to work should follow the individual, with people able easily to transfer items of equipment or the costs of support workers from one job to the next, as appropriate.   Administrative costs must be kept to a minimum to ensure that the budget is spent efficiently.   Employers and individuals should be able to access high quality information and advice, including a ‘Pinterest’ for workplace adjustments where people can go for inspiration and guidance and access to expert advice via a specialist online or telephone helpline.

 Public service reform and investment

James Purnell was on the right path with the Right to Control in the Welfare Reform Act 2009, integrating public services around the individual through personal budgets that can include employment support, support with long term health needs, social care and costs related to education and skills.   The government has continued along some of these paths, through personal health budgets, personal budgets in the Care Act and talk of personal budgets in relation to Access to Work. But it is still a fragmented system, and social care in particular is unfit for purpose as regards working age disabled people who require its support to hold down a job. My suggestion? Be brave and truly radical: a single integrated system of support for disabled people from age 16 to retirement. Let’s call it the ‘Access to Living Scheme.’ Building on the blueprint of the National Disability Insurance Scheme in Australia, it would represent a major investment in and change of approach to disabled people by a Conservative government, echoing and building on its past radicalism in areas like Disability Living Allowance and Direct Payments, while ensuring scarce public resources are spent in the most efficient and effective ways.

We live in hope…

Reflections on ‘Who are we? Hate, Hostility and Human Rights in a post Brexit world’ by Martha Spurrier

Just back from a lecture by the new(ish) Director of Liberty, Martha Spurrier at the LSE, chaired by Professor Connor Gearty titled ‘Who are we? Hate, Hostility and Human Rights in a post Brexit world.’  You can listen to it here and a video will be available soon.

First of all, to say what a wonderful public speaker Martha is – clear, authoritative but infused with humanity and humility. I don’t know how long Martha spoke for but it flew by. And to answer so masterfully questions which spanned deeply complex ethical, philosophical and legal matters was deeply impressive.

Martha began by reference to her background in history, rather than law, quoting Benedict Anderson’s concept of nations as ‘imagined communities’ founded on ‘horizontal comradeship’, venturing that human rights could offer the ethics, values or principles on which such comradeship could be rebuilt at a time of such apparent social division. In doing so she echoed her predecessor Shami (now Baroness) Chakrabarti, under whose leadership Liberty launched its ‘common values’ campaign and long time Liberty Associate and LSE luminary Professor Francesa Klug author of ‘values for a godless age’.

In building on this argument, Martha went on to talk of her time at the Bar, speaking movingly about the family of a woman who had committed suicide following detention in a psychiatric institution. Martha noted how their intuitive sense of injustice – of the idea that the organization responsible should lead an investigation of itself and that it should have taken all steps to eliminate risk while their daughter was in their care – meant that they already understood human rights. This put me in mind of Mary Robinson’s observation that ‘human rights are inscribed in the hearts of people’.

On this basis, she argued, human rights were not ‘toxic’ or unpopular as the Conservative Party argued.

This is where, for me, her argument came unstuck.

First, the polling Martha referred to was not commissioned by the Conservative Party but by the Equality and Diversity Forum to inform the development of its ‘Equally Ours’ initiative and carried out by YouGov. It found that 80% of the British public possessed either negative, conflicted or ambivalent attitudes to human rights.   Far from offering a platform on which to build a new ‘horizontal comradeship’ it appears human rights are today a focus of division. Only once these negative attitudes are overcome might human rights offer the framework of values for any future ‘imagined community.’   Doing so needs to go hand in hand with the other major challenge Martha identified – shifting from a sense of national identity founded on the existential threat of conflict, to one where we are differentiated by shared values of, inclusion, openness and tolerance.   As Professor Gearty argued at the close of the event this is ultimately a battle between and for values (he actually used the phrase ‘culture war’ which I think is deeply unhelpful, risking falling into the trap of being seen as metropolitan liberals going to war with members of some of the most deprived communities in Britain over their lack of support for human rights).

Second, human rights are being used to challenge and resolve injustices faced by everyday people, all the time. But these stories are rarely told, told well or heard as having any relationship with human rights.   As a result, while notions of justice may be inscribed in people’s hearts, people do not intuitively connect this to human rights.

Martha’s answer to this was for human rights champions to take every opportunity to set out the facts when confronted with myths and misunderstanding.   I’ve heard other human rights advocates suggest the same. But most evidence about how attitudes form and what it takes to challenge them points to the ineffectiveness of rational argument as a primary strategy.   Indeed, YouGov having carried out the polling work for EDF concluded that:

‘At present, the debate is both too rancorous and too alien for people to engage with the subject matter in the considered and rational manner required to emphasise the benefits human rights can have for society.’

The only answer in my view, if we are serious about ensuring that human rights are regarded as in the common good, is, through empirical research to find a new narrative with which to situate human rights as part of our past, present and future national story. It must navigate what the Frameworks Institute refers to as ‘the swamp’ of public opinion and discourse, understanding the most fruitful values to strive to command and the most effective metaphors and simplifying models to employ.   This does not, incidentally, mean pivoting away from talking about groups or issues that parts of the public or media do not like, but rather finding better ways to talk about why their human rights are of equal importance.

It needs to be as potent as ‘taking back control’ was in commanding support to vote to leave the EU. Not ‘protecting and promoting the right to life of large sub aquatic mammals’, but ‘Save the Whale.’*   And it should not, in my view, be frightened of invoking patriotism, just as the Labour government was not afraid to when it coined the phrase ‘Bringing Rights Home’ to frame the ECHR as a British innovation and the HRA merely our ‘taking back control’ of it. Tradition, patriotism and strong notions of national identity need not be enemies of openness and tolerance, as Danny Boyle’s 2012 Olympic opening ceremony so ably demonstrated.   When YouGov tested various messages about human rights they found that by simply referring to the ‘British Human Rights Act’ support rose. Of course, this may not work well in parts of the UK, but those are on the whole not the parts of the UK where problematic public attitudes, political or media hostility to human rights prevail.  This is about finding messages to suit and command the support of target audiences, not wholesale rebranding.

Strategic communications is going to have to enjoy equal status with strategic litigation if we wish to see an imagined future come to pass where human rights bind us together rather than push us apart.

* Thanks to Lucia Nader for this last example.

These ideas are explored in more depth in my recent post Building public support for human rights – where next?