By Neil Crowther & Jenny Morris*
“My view is that ….it would be crazy to move around [disabled people], for whom we have already tried to provide assistance through things like disability facilities, disability grants, adaptation.” Q260
Grant Shapps MP, oral evidence regarding the potential impact of Housing Benefit reform on disabled people’s human rights to the Joint Parliamentary Committee on Human Rights, October 2011
Within hours of United Nations Special Rapporteur, Raquel Rolnik, issuing a press release warning of the impact of the “bedroom tax” on disabled people’s right to an adequate standard of living, the Conservative Party Chairman Grant Shapps MP appeared on the BBC Radio 4 Today programme to denounce her as a ‘woman from Brazil’ who had no right to contradict the UK courts who he said had already determined that the policy was in compliance with ‘human rights.’
Two years ago the Joint Parliamentary Committee on Human Rights (JCHR) launched an inquiry into implementation of disabled people’s right to independent living, as set out in Article 19 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) which the United Kingdom ratified in June 2009. Article 19 CRPD requires States who have ratified the Convention to recognise the rights of disabled people ‘to live in the community, with choices equal to others’ and to ‘take effective and appropriate measures to facilitate full enjoyment by [disabled people] of this right and their full inclusion and participation in the community.’
The Committee received hundreds of items of written and oral evidence from disabled people, their allies and from government Ministers, considered this evidence in the light of the UK’s obligations under UNCRPD and published its final report in March 2012.
Regarding the then proposed ‘housing benefit cap’ the Committee welcomed: ‘the Government’s statements that they do not wish to see people forced to move from houses which have undergone adaptation’ but noted that ‘the interaction between where a person lives and other elements of the right to independent living go further than the issue of adaptations alone.’
Importantly, this cross-Party Committee of British MP’s and Peers went on to make clear the risk of a cumulative impact of welfare reforms on disabled people’s human right to independent living ‘The range of reforms proposed to housing benefit, Disability Living Allowance, the Independent Living Fund, and changes to eligibility criteria risk interacting in a particularly harmful way for disabled people. Some disabled people risk losing DLA and local authority support, while not getting support from the Independent Living Fund, all of which may force them to return to residential care. As a result, there seems to be a significant risk of retrogression of independent living and a breach of the UK’s Article 19 obligations.’
The Committee’s report drew attention to the warning by the UN Committee on Economic, Social and Cultural Rights that “a general decline in living and housing conditions, directly attributable to policy and legislative decisions by the States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the International Covenant on Economic and Social Rights“.
Risks to rights are becoming a reality
Evidence is now emerging that the risks to independent living identified by the Committee are becoming a reality. Between 2011/12 and 2012/13 there was an overall drop of 9 per cent in the total number receiving any social services. While the numbers of people receiving community-based social care services fell by 10 per cent between 2011/12 and 2012/13, the reduction in those receiving residential care was only 2 per cent, with a less than a 1 per cent change in the numbers receiving nursing care. These significant reductions in the numbers receiving services represent a sharp acceleration in a longer term trend. In total, 25 per cent fewer people received social services in 2012/13 compared to 2007/8.
Of all councils in England, only four provide care for people with low to moderate needs, 16 councils fund those with “moderate” needs while the majority – 130 – only fund those with “substantial” or “critical” needs. A small number of councils have gone so far as propose only providing services to people with ‘extra critical’ needs. Other local councils have addressed the financial pressures they find themselves under by announcing that they will only fund support equivalent to the amount required for a person to accept residential care, effectively obliging a person requiring support to choose this option. Should such practice become commonplace it would herald a process of re-institutionalisation, turning back the clock on 40 years of progress.
The Committee also warned of the possible consequences of the closure of the Independent Living Fund (ILF). Since 1988 the ILF has enabled people with the highest levels of support needs to live in their own homes. It was closed to new applicants in 2011 and responsibility for current recipients will be passed to local authorities. It is generally acknowledged (including by the government) that local authorities will not be able to make up the shortfall resulting from the loss of ILF funding. These are people who in previous generations were consigned to institutional care and may well be again – as the National Association of Financial Assessment Officers (the people who carry out the means-test to determine whether disabled and older people should be charged for their care) told the government “some councils may determine that residential care would be a less expensive option than a high cost homecare package.”
The Committee highlighted concerns that the specific aim of replacing Disability Living Allowance with Personal Independence Payment was to reduce the numbers of people receiving help with disability-related expenditure. The government estimates that, in order to achieve a 20% cut in the budget, there will be a reduction of 500,000 people who receive such assistance. The New Policy Institute estimates that there will be around 607,000 fewer individuals in receipt of PIP compared to what would have happened under DLA by May 2018. 450,000 of those currently on DLA are expected to lose entitlement. This can only mean that fewer people will have access to the financial support that makes their Article 19 rights to independent living a reality.
Lack of regard to disabled people’s rights
The Committee reserved particular criticism for the apparent lack of regard to Article 4 (1) (c) of the Convention which requires the UK government ‘To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes’. The then Minister for Disabled People Maria Miller MP told the Committee that the Government’s equality impact assessment of the changes to housing benefit had found that the policy “did not disadvantage any particular group“. Yet in July 2012 the Department for Work and Pensions produced a new equality impact assessment of the proposed reforms to cap the amount people could be paid in Housing Benefit in which it revealed that its own modelling anticipated that ‘of the households who lose from this policy, based on internal modelling, we expect roughly half will contain somebody who is classed as disabled under the Equality Act.’ In its equality impact assessment of the planned ‘bedroom tax’ the DWP estimated that ‘370,000 (56%) of working age social rented sector HB claimants or their partners affected by the size criteria would be classified as disabled.’
Rights not adequately protected by domestic law
In arguing that the UN had no place to contradict the UK Courts’ judgement that the bedroom tax did not breach human rights, Shapps inadvertently revealed the gap in our domestic legal protection of human rights. Only those rights protected by the European Convention of Human Rights (ECHR) are incorporated into UK law by the Human Rights Act 1998. These do not include economic and social rights such as the right to adequate housing – which Raquel Rolnik was investigating – or the full scope of the right to live independently and to be included in the community. The rights in the ECHR are largely concerned with preventing States from interfering with rights – they are about leaving people alone. For many disabled people, even these rights such as the right to liberty, to self-determination or to private and family life have little meaning without support.
As Arnardóttir and Quinn (2009) argue that ‘In truth, all persons (whether disabled or not) depend on social supports at least at some point in their lives (especially when young or at the onset of old age) to make freedom and choice a reality. This underlying reality is simply more obvious in the case of persons with disabilities (though not for all of them). If one sought tangible proof of the interconnectedness of both sets of rights [i.e., civil and political, on the one hand, and economic, social and cultural, on the other] then disability is the obvious example. It is plainly not enough to enact anti-discrimination laws to break down arbitrary barriers. It is also necessary to assist people in getting past those barriers. The deeper paradox — one that obtains for all persons — is that personal freedom ultimately relies on social solidarity’
While the UK Courts may have determined that the ‘bedroom tax’ is not in breach of the ECHR, it seems highly probable that it will be held to be in violation of both the right to adequate housing in the Covenant on Economic, Social and Cultural Rights and the right to live independently and to be included in the community in the CRPD.
The JCHR noted with regret that: ‘the (disability) Convention has not been incorporated into UK law and no underpinning legislation exists specifically to protect and promote the right to independent living. While we consider the existing matrix of human rights, equality and community care law to be instrumental in the protection and promotion of the right to independent living, we do not consider it sufficient.’ In response, the government pointed to the Care Bill as the vehicle through which this gap might be addressed. The Bill, which at the time of writing will soon return back to the House of Commons from the House of Lords contains many positive features which are in strong alignment with the approach of the CRPD. However, it contains nothing to transpose the UK’s duty to ‘progressively realise’ the right to independent living into domestic law. Local authorities will only be required to assess and then meet ‘eligible needs.’ As we note above, the threshold for eligibility is now set so high as to preclude high numbers from access to support. Moreover, while access to social care is for many disabled people instrumental to living independently, it only one part of the wide social, financial, economic, environmental and technological infrastructure that facilitates inclusion.
The previous government initially rejected the case for legislation to protect and promote the right to independent living, but committed to take stock of progress on implementing its Independent Living Strategy in 2013 and review the case afresh. The current government has made it clear that it has no intention to carry out such a review despite the view of the Independent Living Strategy Scrutiny Group in February 2011 that “As we move to the midway point of the five year Strategy we would expect to be seeing indications of the positive impacts of the action plan. Unfortunately, this has not really been the case.”
The JCHR recommended last year that ‘all interested parties, governmental and non-governmental, immediately start work on assessing the need for and feasibility of free-standing legislation to give more concrete effect in UK law to the right to independent living’ and that “the Government publish their assessment of the need for and desirability of such free standing legislation implementing the right to independent living in the light of the forthcoming first report of the UN Committee on Disabilities.” It is expected that the United Nations Committee on the Rights of Persons with Disabilities will begin its examination of the UK in 2014.
Conclusion – disabled people’s rights are in reverse
The UN Committee on economic, social and cultural rights has emphasised the particular responsibilities of States to ensure that the ‘most vulnerable’ do not bear disproportionate burden at times of public spending cuts. Yet this is precisely what many disabled people – often already impoverished and disadvantaged – are facing in Britain today. Certainly, the aggregate effect of various reforms and spending decisions affecting disabled people – not only those mentioned in this article but also others such as cuts to legal aid – look to have set the right to independent living back enormously.
The question the government will have to answer when examined by the UN Committee on the rights of persons with disabilities is whether and to what degree these various reforms and spending decisions have been necessary and proportionate.
During the JCHR’s oral evidence session with Ministers, Lord Morris of Handsworth asked Grant Shapps MP ‘Do you get a lot of letters from members of the public complaining that you are treating disabled people much too generously and giving them too much resource?’ Grant Shapps replied simply: ‘No’.
*Jenny Morris and Neil Crowther acted as specialist advisers to the Joint Parliament Committee on Human Rights’ independent living inquiry. However, they write here in an entirely personal capacity.
The Equality and Human Rights Commission has launched a consultation regarding their report to the United Nations Committee on the Rights of Persons with Disabilities.
 See General Comment 3 of the Committee on Economic, Social and Cultural Rights