Apr 302015
 
Public Interest Research Unit Logo

Public Interest Research Unit is a small registered research charity (1071919) which focuses on employment and equality research. http://www.piru.org.uk/

– unlawful discrimination, problems with zero hours contracts, fewer legal rights, and disintegrating long-term job prospects –

A study by the Public Interest Research Unit, commissioned by DPAC, indicates that in the last four years there has been a deterioration in the workplace experiences and long-term job prospects of disabled workers.

Read the report here: DPAC-PIRU Report-Impact of the coalition government on disabled workers-workplace experiences and job quality

The study collected information from 137 disabled workers and from 141 organisations; and was produced for Disabled People Against Cuts (DPAC). The study covers the private, public and voluntary sectors. Principal findings include:

  • Employer attitudes towards disabled workers have deteriorated in the last four years.

  • Zero hours contracts are causing particular problems for disabled workers, including as result of the high levels of ill-treatment associated with these contracts.

  • Unlawful discrimination, including harassment and unlawful dismissal, appears to have been increasing.

  • There has been a reduction in organisational support for disabled workers and an increased emphasis on discipline.

  • The study identified 24 major cuts to equality and employment law protections since 2010. These cuts were starting to have adverse impacts on disabled workers.

  • With the introduction of tribunal fees, disabled workers were finding it hard or impossible to enforce the rights which remain.

Responding to the report, Debbie Jolly of DPAC said: “While more research is needed, the initial findings here show a woeful regression of support for those disabled people able to seek work. The recent cap on Access to Work adds to this, exposing the coalition government rhetoric to the stark realities and discriminations disabled people face”

Rupert Harwood, the report’s author, said: “The study suggests that disabled individuals have been the hardest hit in work as well as out of work”.

SUMMARY OF THE FINDINGS (with quotes from participants)

Deteriorating attitudes, unlawful discrimination, and dismissals

  • Employer attitudes. Employer attitudes towards disabled workers appear to have become more negative during the last four years. One worker, for example, reported that there was – “Much less compassion for staff who are unwell …”

  • Zero hours contracts. The unpredictability of the working hours, and the higher levels of ill-treatment associated with zero hours contracts, had damaging effects on the health of disabled workers. For example, a woman who worked in retail wrote – “I had a zero hours contract … I had to be on call any and every day for a shift … no adjustments made despite quoting the disability Act till I’m pink in the face. Zero hours are not good for ADHD or OCD, it turns you into a complete wreck. If its not the money, its the mental health and constant worry that does”.

  • Unlawful discrimination. Unlawful discrimination against disabled workers, including harassment and unlawful dismissal, appears to have been increasing. Among examples of possible discrimination, one worker stated – “when my boss thought I had terminal cancer she stopped speaking to me”.

  • Benefit cheat narratives. Contributing to the increase in negative attitudes, government rhetoric about disability benefit cheats seems to have spilled over into the workplace. A particular problem was that some line managers were said to have started regarding disabilities (especially mental health ones) as exaggerated or “faked”.

  • Redundancies and dismissals. Being disabled appears to have put some workers at particular risk of being made redundant. In some cases, for example, it appears that employers would not make the adjustments (such as allowing time off for medical treatment) which would have enabled a worker selected for redundancy to be redeployed to an alternative post.

  • Reduction in proportion of disabled staff. In the majority of organisations, looked at for these purposes, the proportion of disabled workers in their workforce had gone down since 2012 (albeit to a small degree in most cases). The proportion had gone down in 15 organisations looked at and up in 7.

Cuts to legal protections, cuts in enforcement, and spending cuts

  • Cuts to legal protections. From almost the word go, the Coalition government has been cutting equality and employment law protections and weakening enforcement. The report sets out 24 of the major cuts. These included, for example, doubling the normal qualification period for protection from unfair dismissal and abolishing employer liability for failure to take reasonably practicable steps to prevent third parties (such as customers) repeatedly harassing an employee.

  • Cuts damaging organisational performance. The study suggests that cuts to basic employment protections could be damaging individual and organisational performance. This is in part because some legal cuts make it easier to fire workers, and so reduce an organisation’s incentive to develop employee skills and knowledge through training and development.

  • The impact of the cuts on disabled workers. It appeared that the cuts to legal protections were having adverse impacts on disabled workers. One respondent, for example, indicated that, as a result of the Coalition weakening the Public Sector Equality Duty, – “disability equality training is now all but non-existent and recruitment of disabled people is now even lower than it was before 2010”.

  • Legal protections no longer carrying the same weight. There were indications that the government’s disparagement of legal protections, including framing them as “unnecessary red tape”, could be leading some employers to take their legal obligations less seriously. For example, according to one respondent, – “DDA (Disability Discrimination Act) afforded some protection, but they became less leery of it after 2010.”
  • Becoming harder to enforce the rights which remain. Disabled workers seemed to feel that enforcing their rights was becoming more difficult or had become impossible. The problem which appeared to be standing in the way of legal action in the most cases was the newly introduced tribunal fee. For example, referring to legal action, one respondent stated – “I haven’t taken any, and know I could never afford it now huge fees are involved”.
  • Impact of the public sector spending cuts. The cuts appear to have contributed to a reduced willingness to make adjustments in the public sector; and, in some cases, to disability equality being regarded as “a luxury” that it was now difficult to afford.

Recommendations

The report makes 22 recommendations. These include, for example, –

  • Abolish tribunal fees. It cannot be fair that only those with deep pockets can enforce their legal rights. Therefore, tribunal fees, introduced under the Coalition, should be scrapped.
  • Unfair dismissal. The qualification period for normal protection from unfair dismissal should as a first step be returned to the six months that it was in 1974. There seems to be no good reason why workers should have less protection than their parents and grand parents had.
  • Combined discrimination. Our study indicates that combined discrimination is a problem, such as discriminating against someone for being a “disabled woman” or a “gay disabled worker”. Therefore, the Equality Act 2010 combined discrimination provision should now be brought into effect.
 Posted by at 23:58
Apr 292015
 

Another Daily Mail big lie: £13million NHS bill for suncream

On 8th April 2015, the Daily Mail published the following article: £13million NHS bill for suncream: Millions also wasted on prescriptions for toothpaste, Yakult and Calpol http://www.dailymail.co.uk/news/article-3031124/13million-NHS-bill-suncream-Millions-wasted-prescriptions-toothpaste-Yakult-Calpol.html

The claim being made by the Daily Mail is that the NHS has wasted £13 million on prescriptions for suncream, and more millions on toothpaste, multivitamins, treatment for indigestion etc., items described as bathroom cabinet items or household essentials, which the Daily Mail says can all be bought over the counter. The Daily Mail bases its ‘analysis’ on the 2014 Prescription Cost Analysis, a document published annually by the Health and Social Care Information Centre, the national provider of information, data and IT systems for health and social care, and which provides details of the number of items and the net ingredient cost of all prescriptions dispensed in the community in England:  http://www.hscic.gov.uk/searchcatalogue?productid=17711&q=title%3a%22prescription+cost+analysis%22&sort=Relevance&size=10&page=1#top .

Let’s first have a look at the language used by the Daily Mail before looking at the validity of the Daily Mail claims:

‘The NHS is spending millions on prescriptions for suncream and toothpaste, a damning analysis has found’.‘It has prompted concern that patients are abusing the system by demanding prescriptions for household essentials which are cheaply available at their local chemist’.‘Other bathroom cabinet items routinely being prescribed by GPs include Calpol, Vaseline, Strepsils and toothpaste, according to the Health and Social Care Information Centre’.‘Every week we hear of patients being denied another cancer treatment or refused cataracts while others are being prescribed toothpaste’.

‘Doctors admit that some patients abuse the system and arrive at surgeries with shopping lists of toiletries and remedies. But their contract states they must prescribe any medication they think is ‘necessary’, meaning patients can claim that most remedies are needed even if they are cheaply available from a chemist.’

‘Jonathan Isaby, of the TaxPayers’ Alliance, said: ‘The vast majority of hard-pressed families have to pay for their own everyday essentials, and taxpayers will be furious if others are gaming the system’. 

 

One point which is not explicitly made, but which has been picked up in the readers’comments, relates to the groups of people most likely to ask for a prescription for items which can be bought over the counter and which cost less than the prescription charge of £8.20. Although people over 60, under 16, or over 16 and in education etc. are all entitled to get free prescriptions, Daily Mail readers were very quick to pick on benefit claimants, which may all along have been one of or indeed the sole objective of the Daily Mail.

But do the Daily Mail claims stand up to scrutiny?

The information which follows is based on the 2014 Prescription Cost Analysis, and a special explanatory spreadsheet (found at the bottom of this document) has been compiled in order to provide forensic analysis of the Category Suncream. It is quite complicated, but it is this very complexity which allows the Daily Mail to get away with almost anything.

In the Category Suncream, which has incidently been subsituted by the Daily Mail for the term Sunscreen used in the Analysis (and words matter, as suncream obviously evokes for one commentator people taking holidays in sunny countries), there are 43 medicines, and the only thing that the Daily Mail gets right is the number of prescriptions:  404.556 (non rounded figures) and their cost £13,018.160 (approx. £13 million).

4 out of these 43 medicines (Actikerall Cutaneous Solution, Efudix Cream, Picato Gel 150mcg/g and Solaraze Gel 3%) are prescribed for actinic keratoses, which are pre-cancerous patches of thick, scaly, or crusty skin, and they are all Prescription Only Medicines.  The total cost for these 4 medicines is £11,648.280 (almost £12 million of the £13 million supposedly wasted on Suncreams or 89% of the £13m).  These medicines are highlighted in yellow in the Excel table below.

2 other medicines (Sunsense and Uvistat with different formulas and strengths) are only prescribed within very strict guidelines from the Advisory Committee on Borderline Substances (ACBS). They can only  be ‘regarded as drugs when prescribed for skin protection against ultraviolet radiation in abnormal cutaneous photosensitivity resulting from genetic disorders or photodermatoses, including vitiligo and those resulting from radiotherapy; chronic or recurrent herpes simplex labialis.  Anything outside of this is not permitable’. http://www.bnssgformulary.nhs.uk/138-Sunscreens-and-camouflagers/. They account for 99,230 prescriptions at a cost of £1,177,580 (approx. £1.2million). There is no indication that these medicines were inappropriately prescribed. These medicines are highlighted in pink in the Excel table below.

Which means that of the ‘404,500 prescriptions for suncream at a cost of £13 million’ quoted by the Daily Mail, only 16,670 prescriptions are not linked to a specific medical condition (which does not mean that there wasn’t one), and their cost is £174,140. Or to put it differently, £12,825,860 of the £13m are financially and medically accounted for, as the vast majority are Prescription Only Medicines.

 

A similar analysis could be done for the other categories of medicines, but this would be very time consuming. But it is worth noting that the medicines prescribed for ‘indigestion’ as selectively described by the Daily Mail (under Tab Totals_for_BNF_Sub_Paragraphs, Cell A8) and accounting for £29 million are also prescribed for Gastro-oesophageal reflux disease (GORD) http://www.nhs.uk/Conditions/Gastroesophageal-reflux-disease/Pages/Introduction.aspx

A common complication of GORD is oesophagitis, a less common one is oesophageal cancer, and there is no indication that these medicines were inappropriately prescribed, although they can be bought over the counter. Most importantly, they are prescribed to treat chronic/long term conditions in order to prevent the occurrence of more severe illnesses.

Other examples include, in the Category Multivitamins, Dalivit_Dps (Davilit drops) which are given to premature babies:  http://www.gosh.nhs.uk/health-professionals/clinical-guidelines/nutrition-enteral-nutrition-for-the-preterm-infant/, Nephro-vite, prescribed for renal patients under dialysis:  http://www.nbt.nhs.uk/sites/default/files/filedepot/incoming/Renal%20Haemodialysis.pdf, or in the Daily Mail’s category of toothpaste, most if not all preparations or solutions are medicated.

Even for common items like Strepsils, there were only 5,329 prescriptions at a cost of £16,222 (Tab Individual_Preparations, Cells A11212- A11224), Vaseline 6,718 prescriptions at a cost of £ 18,147 (Same Tab A11388-A11389), Calpol, 13,437 prescriptions at a cost of £ 80,249 (same Tab Cell A3684-A3694), Yakult, 15 prescriptions at a cost of £458 (same Tab, Cell A9672). These are items described by the Daily Mail as routinely prescribed although the only represent 25,499 prescriptions out of 1.1billion prescriptions written in 2014, i.e. 0.0025494% of all prescriptions.

So if there is waste or abuse in the NHS around prescriptions, the amount is negligible. Once again, the Daily Mail has been caught red-handed, lying and distorting facts and statistics, in the same way it abused and manipulated facts and figures in its article: ‘75% of incapacity benefit claimants are fit for work’ in order to smear Incapacity Benefits claimants.

 

Instructions for using the PCA table which can be found on HSCIC webpage (see the screenprint below to identify the link):

Prescription Cost Analysis England 2014

http://www.hscic.gov.uk/searchcatalogue?productid=17711&q=title%3a%22prescription+cost+analysis%22&sort=Relevance&size=10&page=1#top .

There are 4 tabs, but only 3 are used for the purpose of this analysis.

1: Totals_for_BNF_Sections. This is where Sunscreens may be found, at Cell A99, which also includes Camouflagers. This sheet gives the BNF Chapter and the BNF Section for both medicine categories, and identifies the path leading to specific medicines included in these categories and their costs. In the case of Sunscreens and Camouflagers, this is Chapter 13, and Section 8.

2: On Tab Totals_for-BNF-sub-Paragraphs, Sunscreens and Camouflagers have been split into 2 distinct categories, and Sunscreen (Cell A303) can now be found at Paragraph 1 of Section 8, of Chapter 13.

3: Finally the Tab Individual_Preparations details the medicines and their costs, and Sunscreens can be found in the Chapter 13, Section 8, Paragraph 1, from Cell A11950 to Cell A11991

They are summarised in the Table below.

 Individual_Preparations details the medicines and their costs, and Sunscreens can be found in the Chapter 13, Section 8, Paragraph 1, from Cell A11950 to Cell A11991

 

 

 Posted by at 11:17
Apr 282015
 

Here are some of the pictures from the first two revenge tour dates:

April 23rd DPAC went to Wirral to Join with Wirral TUC’s Sack Esther McVey campaign:

Mary Anne (from Unite Community Ealing) with Linda Burnip, co-founder of Disabled People Against Cuts, wearing blonde wigs on Esther McVey protest in Hoylake (in Esther McVey's constituency)

Mary Anne (from Unite Community Ealing) with Linda Burnip, co-founder of Disabled People Against Cuts, wearing blonde wigs on Esther McVey protest in Hoylake (in Esther McVey’s constituency)

Outside Hoylake job centre. left to right: Andy Greene (DPAC) holding DPAC banner, Sue Taylor, Steve Higginson (Unite Community 357) branch, Alec McFaddon (Wirral TUC President) with Wirral TUC member speaking on mircophone and Laura Southern (Ealing Unite Community Member)

Outside Hoylake job centre. left to right: Andy Greene (DPAC) holding DPAC banner, Sue Taylor, Steve Higginson (Unite Community 357) branch, Alec McFaddon (Wirral TUC President) with Wirral TUC member speaking on mircophone and Laura Southern (Ealing Unite Community Member)

Outside Hoylake Conservative Club

Outside Hoylake Conservative Club

Steve Higginson (Unite 357 branch Wirral) dressed up as Jester Muckvey

Steve Higginson (Unite 357 branch Wirral) dressed up as Jester Muckvey

Pat millership (Liverpool Bedroom Tax Campaign, Laurence Clark, Comedian, with paula peters (DPAC) with don't let Esther Fester placard

Pat millership (Liverpool Bedroom Tax Campaign, Laurence Clark, Comedian, with paula peters (DPAC) with don’t let Esther Fester placard

Sack Esther McVey poster pasted onto a conservative election placard

Sack Esther McVey poster pasted onto a conservative election placard

April 25th It was Iain Duncan Smith’s turn, when DPAC had a grand day out in Chingford:

On the way to chingford wearing Iain Duncan Smith mask and holding IDS placard about the MP's expenses

On the way to chingford wearing Iain Duncan Smith mask and holding IDS placard about the MP’s expenses

Ziggy the squirrel on the IDS chingford protest as part of DPAC revenge tour Ziggy the squirrel is holding a placard which says IDS is nuts.

Ziggy the squirrel on the IDS chingford protest as part of DPAC revenge tour

Annie (DPAC) holding the line of pants to protest about Iain Duncan Smith claiming for his underwear on expenses

Annie (DPAC) holding the line of pants to protest about Iain Duncan Smith claiming for his underwear on expenses

The pants are on the move!  IDS protest on its way to chingford Conservative Constituency office

The pants are on the move! IDS protest on its way to chingford Conservative Constituency office

Martin Tolley (Ipswich and Suffolk DPAC) with Harry, and TUSC leafletter with Ipswich and Suffolk DPAC banner in Chingford

Martin Tolley (Ipswich and Suffolk DPAC) with Harry, and TUSC leafletter with Ipswich and Suffolk DPAC banner in Chingford

Paula Peters (DPAC) speaking outside Chingford IDS constituency office

Paula Peters (DPAC) speaking outside Chingford IDS constituency office

 Posted by at 17:29
Apr 092015
 

Please see below the news release from Joe Whittaker, Anthony’s friend and steadfast supporter and advocate, without whom, none of this would have happened.

 

Anthony Kletzander Wins his Right to Independent Living.

8th April 2015

We are delighted to inform all Anthony’s supporters that The Health Service Executive have agreed, on Friday 6th April 2015, to fully support Anthony’s return to sustainable independent living.

Discussions have already started with ‘Possibilities Plus’ in Dublin to manage Anthony’s support requirements, each of which will be directed by Anthony. Anthony will be selecting his own accommodation, with his own staff to start again his lifestyle in his local community, with a view to further university study and reconnecting his friends at Quiet Riot in, Manchester.

We want to thank all Anthony’s friends for their active support.The success of this campaign would not have happened without this support – thank you to everyone of you.

We want to thank, in particular, Disabled People Against Cuts (DPAC) for their commitment and guidance, who were not deterred by the threat of legal action against DPAC website for publishing details of abuse against Anthony.

Now the hard work starts to ensure we listen and listen and listen again to Anthony to ensure his Rights are fully realised.


 

This is fabulous news and all at DPAC are delighted, for Anthony, Anthony’s parents, Linda and Sigi, for Joe and Anthony’s friends.

We are also delighted because it shows that big organisations, such as Ireland’s HSE and Nua, are not invulnerable to pressure.

Protesting works, public shaming works, fighting back works.

We want to thank all the people who tweeted, facebooked, signed and shared petitions and posts, donated, wrote letters and emails,  and sent Anthony good wishes, you all played a vital role in this victory, it would not have happened without YOU!

And now our thoughts turn to all the other people who  have been wrongly incarcerated for the ‘Crime” of having Autism. We don’t know how many tens? hundreds? thousands? We don’t know the number but we do know its Wrong. And we will continue the struggle for Independent Living for them all.

You can learn more about what Anthony has had to go through by watching this video of Anthony’s mother, Linda speaking at a meeting organised by Finian Mcgrath TD (equivalent of MP). He organised the meeting about the treatment of disabled people in institutions which grew to about 60 people.

Yes we know that much of the video is on it’s side but its still worth seeing to learn about what people like Anthony have to go through.

 Posted by at 13:13
Apr 042015
 
Occupy Democracy will be returning in full force to occupy Parliament Square from the 1st to the 10th of May – during the General Election 🙂

On each of the TEN DAYS of this occupation there will be a DIRECT ACTION… and we need your ideas and energy included to ensure that the election period is truly spectacular!

All levels of experience are welcome – you don’t have to have taken part in direct action before to participate and get your voice heard. Everyone will be encouraged and supported to work within their own limits and at their own pace within a diverse group.

Want the voice of your campaign amplified during the election period?
Want to protest about corrupt politicians and lack of real democracy?
Want to highlight alternatives?
Show people the beauty of the future world we can create together?

No matter which protest, action group or issue you are interested in/working on, tackling the state of our democracy is crucial to getting your aims fulfilled and the needs of your community met.

Join Occupy Democracy over the election period in ensuring that the people’s voices are REALLY heard as the country goes to the polls. We  need as many disabled people involved  as  possible

Where: SOAS, room TBC (central London)

When: Sunday 12th April 11am – 5pm

Join the Facebook event for the action planing day https://www.facebook.com/events/877584405638513/
 Posted by at 16:30
Apr 022015
 
Thanks to Steve Broach Reblogged from https://rightsinreality.wordpress.com/2015/03/30/disabled-peoples-legal-rights-if-we-cant-saveilf/

Follow him on Twitter 

Although the Independent Living Fund operates in Scotland and Wales, the post is focussed on the transfer to Local Authority support in England.The government has decided to close the Independent Living Fund (ILF) with effect from 30 June 2015. The description of the ILF on the gov.uk website (link above) is that the ILF ‘delivers financial support to disabled people so they can choose to live in their communities rather than in residential care’. The contradiction between closing the ILF and the aims of the No Right Ignored green paper is stark and obvious. The sum being transferred to local authorities is less than the current funding through the ILF and is not ringfenced.

Disabled people and organisations are campaigning under the #SaveILF banner to try to reverse the closure decision. The first judicial review challenge to the closure decision succeeded in the Court of Appeal. The second judicial review challenge failed after the government re-made the closure decision. This is a rare example of a fundamental weakness with judicial review – that a challenge to the process which succeeds may just result in the decision being taken again lawfully. The most recent legal step in the campaign was a complaint to the UN Disability Committee launched last week by two disabled women.

It goes without saying that I strongly agree with all those challenging the closure decision. The ILF has been closed to new applicants since June 2010 and doesn’t support anywhere near enough people – but you deal with the unfairness this creates by providing better community support for all disabled people, not by taking away vital funding from those whose lives have been fundamentally changed for the better by the ILF. The numbers involved are also significant – the ILF currently supports around 18,000 people. How realistic is it to expect that local authorities will manage well the transfer of responsibility for this group of severely disabled people at a time of deep cuts to their budgets across the board?

However there has been no clear promise that I have seen from any of the major parties to reverse the ILF closure decision after the May election. It seems that only Caroline Lucas for the Greens has expressly supported retaining the ILF. Hope that Labour would reverse the closure decision if in government after the election appears to have been dashed. I hope this changes – but given the Fund closes at the end of June we can’t afford to wait to work out what happens next if (as seems highly likely) the closure decision stands.

The headline message is that the responsibility for providing support for disabled people who have received ILF funding will transfer solely to Local Authorities. My view is that the law is likely to require in most cases that a very similar level of support is provided after transfer – although that may well not be what happens in practice without challenge from disabled people, advocates and friends, families and allies. In particular it will be unlawful if the closure of the ILF results in disabled people being forced into residential care. I’ll explain my thinking on this below – but first we need to look at what the official guidance says on the ILF closure process.

The starting point is the statutory guidance issued under the Care Act 2014, as it will be unlawful for Local Authorities not to follow this guidance in the absence of a considered decision not to do so. There is also non-statutory guidance on the ILF transfer programme issued by the Fund in April 2014 and aimed at current ILF recipients. This guidance describes a six stage transfer process which should be followed.

The Care Act guidance deals with issues relating to ILF closure in chapter 23 on ‘Transition to the new legal framework’. The section on the ILF starts at para 23.26. In the second paragraph (23.27) the guidance states ‘Local authorities will have to meet all former ILF users’ eligible needs from 1 July 2015. Funding in respect of former ILF users will be distributed to local authorities on the basis of local patterns of expenditure following transfer, to allow them to meet users’ care and support needs’ (emphasis added).

It is therefore essential that there is a proper determination of which needs are ‘eligible’before the ILF closes for every current ILF recipient. As the guidance states at 23.28, ‘Local authorities will need to plan for the transfer of adults currently receiving ILF payments to ensure that their care and support continues and is not interrupted during this period’.

To do this Local Authorities will have to complete an assessment under the Care Act and apply the new national eligibility criteria to determine which needs are eligible for support.  As I have blogged previously, I think that the new national eligibility criteria are more generous that the current ‘substantial’ band. Importantly the outcomes which can make a person ‘eligible’ include:

  • Being able to make use of the home safely
  • Maintaining a habitable home environment
  • Developing and maintaining family or other personal relationships
  • Accessing and engaging in work, training, education or volunteering
  • Making use of necessary facilities or services in the local community
  • Carrying out caring responsibilities for a child

These are the kind of independent living outcomes which the ILF has previously funded.

The duty under section 18 of the Care Act 2014 is to ‘meet needs’, not provide a particular service. This raises the possibility that a Local Authority would purport to meet a person’s needs by a means which does not promote an independent life for them – at its most stark by offering only a package of residential support in a care home on grounds of cost. We know some local authorities are already operating ‘maximum expenditure policies’ where the cost of care at home is capped at the level of the cost of a care home placement for that person.

Para 10.27 of the guidance is of great importance in cases like this:

In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value. (emphasis added)

This final sentence is obviously key. Needs should be met in the way which delivers the desired outcomes for the best value. None of this will be achieved by forcing a disabled person into a care home or other residential accommodation against their will. This is reinforced by a later paragraph of the guidance, para 11.7:

At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option. (emphasis added)

So in addition to this clear message in the Care Act guidance, what are the ‘related public law duties’ that local authorities will have to comply with when someone transfers from ILF support? As well as the general requirement to act rationally, reasonably and fairly, one of the central requirements will be to respect the person’s human rights. This includes the ECHR rights directly incorporated into English law by the Human Rights Act 1998, most notably Article 3 concerning freedom from inhuman and degrading treatment and Article 8, which mandates respect for the individual’s family and private life and their home. Article 5 ECHR is also important, as it protects a person’s liberty which may be deprived if they are placed in a care home against their will. These rights bring with them ‘positive obligations’ on the state to take steps to avoid them being breached.

However the recent Supreme Court judgment in the Benefit Cap case (R (SG) v Secretary of State for Work and Pensions) makes clear that in interpreting the ECHR rights incorporated by the Human Rights Act 1998 the rights under the other human rights conventions may also be highly relevant (blog post on what the Benefit Cap judgment means for international human rights in English law to follow). The most obviously relevant right in the UN Convention on the Rights of Persons with Disabilities (CRPD) in ILF transfer cases will be Article 19, headed ‘Living independently and being included in the community’. The essence of Article 19 is that disabled people should be able to choose where they live on an equal basis to others, not to be forced into particular living arrangements (this is also the principle behind the#LBBill being promoted by the Justice for LB campaign). So any decision taken by a local authority which requires a former recipient of ILF funding to live in a place or in a way which is different than they would choose may well breach Article 19 of the CRPD, read with Article 8 ECHR.

Would such a decision breach the Care Act itself? Possibly, depending on how the courts interpret the well-being duty in section 1. This duty states that in carrying out their Care Act functions in an individual case the local authority must ‘promote that individual’s well-being’. ‘Well-being’ is then defined in a lengthy list of factors, including ‘personal dignity’ and ‘control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)’.

It may well be that the courts hold that forcing a person into residential care against their will breaches the well-being duty. However notably absent from the list in section 1(2) is the principle of choice which is so central to the Article 19 CRPD obligation. This is why there must be some degree of caution about the optimistic words of the Care Act guidance at paras 1.18-1.19; ‘Although not mentioned specifically in the way that “wellbeing” is defined, the concept of “independent living” is a core part of the wellbeing principle…The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention)’. However the guidance should be read at face value until a court expresses a different view.

The link between the well-being duty and the ILF transfer process is expressly made in the Care Act guidance at 23.29. However the guidance also makes clear not only that resources are generally relevant to local authority decisions (see para 10.27 cited above), but also that direct payments may not be made ‘where the costs of an alternate provider arranged via a direct payment would be more than the local authority would be able to arrange the same support for, whilst achieving the same outcomes for the individual’ (para 11.26). We may well therefore need the full force of the human rights obligations to stop disabled people’s right to independent living being undermined by the ILF closure.

The Care Act guidance describes a ‘Transfer Review and Support Programme’ being run by the ILF to assist users to transfer to local authority support. This should involve a face-to-face meeting with an ILF assessor and a local authority representative. However this cannot take the place of a full assessment by the local authority and a determination of eligible needs under the Care Act eligibility regulations. This is plainly required given that the closure of the ILF will be a highly relevant change of circumstance for those who currently benefit from it.

I hope that everything I have written above will become entirely irrelevant because the next government will heed the call to reverse the ILF closure decision. If it doesn’t, given the overall pressures on local authority budgets it seems likely that many post-ILF cases will be fought out between disabled people and their local authorities, including in the courts. This does not seem to be the most auspicious of likely starts for the new Care Act era.

The need to save ILF has been highlighted powerfully recently by Tom Shakespeare onRadio 4’s A Point of View. The Independent Living Strategy group – a group of disabled people and allies from a range of organisations concerned about independent living – are about to launch a survey about people’s experiences of independent living and specifically the ILF transfer. This film by Kate Belgrave and Ros Wynne-Jones shows disabled people making the case for why ILF should be retained. As Daphne Branchflower states in the film, ‘everyone…deserves to be able to reach their full potential. The ILF definitely helped me to reach my full potential’. Will we be able to say the same about the Care Act in five or ten years time?

I hope this post is some help for disabled people and their allies who are planning for the transfer from ILF to local authority only support from 1 July 2015. We must not let the dire (and understandable) predictions that local authorities will breach disabled people’s human rights after ILF transfer come to pass. Comments on how the process is working and any observations on these legal issues most welcome below.

NB: The details of the Care Act mentioned in the article only applies to England and may differ in other devolved nations of the UK

#SaveILF

 Posted by at 18:48
Apr 012015
 

So we tried an open letter but so many of you tried to sign at once, that you jammed our technology!!! Never deterred, we’ve come back with a petition.

Fingers crossed that change.org can cope ….. Sign the Petition here (you can view the text below the picture or on the petition itself):

https://www.change.org/p/politicians-ian-duncan-smith-come-clean-about-cuts-affecting-disabled-people

** Every time someone signs – an email is sent to IDS – so sign sign sign, lets clog his inbox **

 

Picture with campaiging banners, with the text "Disabled People have had enough"


Petition Text:

Disabled People have had enough…..“I say to those watching today and who are genuinely sick, disabled or are retired. You have nothing to fear. This government and this party don’t regard caring for the needy as a burden. It is a proud duty to provide financial security to the most vulnerable members of our society and this will not change. This is our contract with the most vulnerable.”Iain Duncan Smith – October 2010 http://www.conservative-speeches.sayit.mysociety.org/ speech/601437As disabled people we’ve spent the last five years enduring attack after attack-we’ve fought back in any way we can. But fear and anxiety are now part of everyday life. Over the past five years we’ve seen our support and whatever security and peace of mind we once had being slowly and methodically being stripped from us .Through a combination of ‘reform’ and the notion of austerity we have been hit by cuts and have borne the brunt of the Coalitions ideological determination to reduce the welfare state.

There’s plenty of statistical evidence to show how the abolition of the Disability Living Allowance, the proposed closure of the Independent Living Fund, the Work Capability Assessment, sanctions and savage cuts to local authority budgets have removed our basic human rights and tried to remove our dignity and fight-and these are just some of the cuts. We’ve also been hit by cuts to our rights to inclusive education,cuts to legal aid,cuts impacting on the right to a home,cuts to our travel support,NHS cuts and many more.

We have been dismayed at the lack of opposition to these cuts, from some politicians and from some of our fellow citizens. However, we believe the public has fallen prey to a propaganda campaign which has led them to believe that many of us are scroungers and fraudsters. Remember when Grant Shapps said that almost a million people had dropped claims for disability benefit to avoid being assessed, the implication being that they were all fraudsters? This was headline news in the Daily Mail, but when the UK Statistics Authority rebuked Shapps for completely misrepresenting the situation,there was very little coverage, so people were left with a totally false impression. http://www. newstatesman.com/politics/ 2013/05/grant-shapps-rebuked- uk-statistics-authority- misrepresenting-benefit- figures

In 2014 we learned that the United Nations Committee on the Rights of Persons with Disabilities is said to be conducting a confidential inquiry into the “grave and systematic violations” of the human rights of disabled people in the UK. https://www.opendemocracy. net/ourkingdom/stuart-weir/ britain-faces-un- investigation-over-systemic- violations-of-disability- rights

Every week we learn of more people who have lost their lives due to government policies. We try to keep a records  http://blacktrianglecampaign. org/2014/10/21/uk-welfare- reform-deaths-updated-list- october-21st-2014/ although we know there must be more, and we know that these deaths represent just the peak of a mountain of misery that is being heaped upon people whose lives are already difficult. We believe that if they knew the truth, the ordinary people of this country would be appalled at these policies and their results.

We know there are more cuts to come, both the Tories and Labour have vowed to continue their notion of austerity. The Tories have said there will be 12 billion pounds of further cuts

​The IFS have said we face cuts of 21 billion by 2020.​ Leaks say that again these will target disabled people and what’s left of the vital welfare support that many of us have contributed to so that there is a welfare state and safety net in place for all when they need it. We’ve had enough…

Its time all political parties came clean on further cuts to disabled peoples support,instead of false promises and lies

Please, oppose any further cuts to vital support for disabled people and those with chronic health conditions by signing with us below.

https://www.change.org/p/politicians-ian-duncan-smith-come-clean-about-cuts-affecting-disabled-people

 Posted by at 23:09