Mar 312015
 

Sign in support of the campaign now! 

Email Henrietta.doyle@inclusionlondon.co.uk with the name of your organisation or as an individual.

Ultimate aim of the campaign

Motability agrees to reverse the changes to eligibility criteria for Motability’s Special Vehicles Fund for Drive-from-Wheelchair/Internal Transfer (DFW/IT) vehicles used by disabled people with complex needs. 

Other aims:

·        Motability agrees to conduct a formal public consultation on the changes, including a face to face meeting with current grant users. Until this consultation is concluded and a consultation response report publicly published the changes should be immediately reversed.

·        Motability agrees to publishes  their equality impact assessment of the changes

·        Motability agrees to publish clear and full information about the changes on their website. 

Why the need for the campaign?

Motability has changed the eligibility criteria for their Special Vehicles Fund (SVF) for Drive-from-Wheelchair/Internal Transfer (DFW/IT) vehicles used by disabled people with complex needs. We believe these changes could destroy the ability to live independently and be included in the community of those affected. 

What are the changes?

From June 2014 ‘a usage test’ was introduced by Motability regarding DFW/IT vehicles.  This test applies to those applying to the SVF first time and current users when renewing their contract (see statement provided by Motability attached). Below is information on how the changes are being implemented in practice.

Current users are telephoned some months in advance of the renewal date of their contract and asked if the vehicle is to support ‘substantive employment, education, volunteer working or to enable the disabled driver to provide vital and sole care to another, for example, a school-age child or children or a disabled loved one who resides with the disabled person.’  About 12 hours a week seems to be considered ‘substantive’. It appears that those that do not fulfil this criterion are no longer eligible for a vehicle.

We are very concerned that disabled people who rely on access to such vehicles will no longer be eligible for grants from the scheme and therefore unable to replace vehicles, which are essential to their independence. These vehicles are often used by disabled people with the highest support needs, who for a range of reasons relating to their impairments, are unable to access public transport because it unavailable or not possible because of pain levels or the need to carry equipment such as hoists or oxygen or a particularly large vehicle as illustrated in the case study below:

Case study

Because of the specialised seating on my wheelchair, it is too large to travel on bus.  Only 3 weeks ago I couldn’t go to hospital Emergency A&E because the ambulances can’t take me!  I was severely dehydrated, they ended up sending a doctor to my home and doing 48-hour IV just because I couldn’t go to hospital.  

There is NO way I am every going to be employed which is depressing enough, I can’t get  voluntary work because I can’t even go and see anyone to consider it (no transport!).  I really am so depressed over these changes. 

These new changes mean I am confined to the distance of my own wheelchair with no access to public transport, and no access to Motability.

The impact

The independence given to disabled people to drive their own vehicle often means they can become involved in their community and do voluntary activities. Without a DFW/IT vehicle many disabled people will be excluded from visits to families and friends and will be unable to take part in any aspects of social, religious, community, wellbeing activities and political life.  In addition these changes will prevent disabled people getting into education, obtaining employment or volunteering unless already involved in these activities and therefore will never fulfil the new criteria for a DFW/IT vehicle.

Motability did not conduct a consultation before implementing these changes and as far as we are aware they did not carry out an Equality Impact Assessment regarding the impact of the change, also there was no public announcement or any information published concerning the changes.   Disabled people only become aware when asked the questions on the telephone. There is still only limited information given by Motability at: http://www.motability.co.uk/understanding-the-scheme/financial-help/eligibility-for-financial-help

Motability administers government funds, yet they seem to be ignoring the Equality act and the UN Convention on the Rights of Persons with disabilities, which states the duty to facilitate:

·        ‘the personal mobility of persons with disabilities in the manner and at the time of their choice’

·        access to ‘quality mobility aids’

·        disabled people’s right to ‘full inclusion and participation in the community’.   

Disabled people’s organisations are acting together with other voluntary sector organisations to ask Motability to reverses the changes to the eligibility criteria for the SVF for DFW/IT vehicles.

What can you do?

·        Sign in support of the campaign by emailing Henrietta.doyle@inclusionlondon.co.uk

·        Sign the petition at: https://www.change.org/p/stop-unfair-and-secret-changes-to-motability-grants#petition-letter   2,500 people  signed in the first 3 weeks!

·        Promote petition, email, Facebook, Twitter etc.

·        Send letter of protest and case examples to Motability.

·        Survey members on their experiences of Motability reviews

·        Contact your local MP, and relevant Ministers

Join the coalition of disabled people’s organisations and voluntary sector organisations supporting the aims of the campaign above, to do this please email Henrietta.doyle@inclusionlondon.co.uk with the name of your organisation. 

Please forward this email to your contacts. 

Many thanks,

Henrietta

Henrietta Doyle

Policy Officer

Mobile: 07703 715091

Direct line (Wednesday’s only) 020 7036 6033

Office Tel: 020 7237 3181, SMS: 0771 839 4687

www: http://www.inclusionlondon.co.uk/

 Posted by at 19:07
Mar 312015
 

For a while DPAC has been aware  of ESA claimants in the Support Group receiving letters from the DWP asking them to attend a Work Related Interview. Although the letters say that attendance is on a voluntary basis, these letters have created much anxiety  and uncertainty among claimants.

ESA claimants in the Support Group do not have to attend these interviews, and DWP should not send claimants any communication likely to cause them distress.

DPAC has now learned through a Freedom of Information request that this practice is undertaken throughout the country:

https://www.whatdotheyknow.com/request/256573/response/634832/attach/3/FOI%20889.pdf

You will find below a template letter you can send to your Job Centre BEFORE being invited to attend an interview or a group session, to make sure DWP is aware that any contact initiated by DWP is damaging to your health and is a distressing experience .


 

Address

Town/City

County

Post Code

Name of Person or Organisation

Address

Town/City

County

Post Code

Date: <DATE>

Ref: <Your NINO>

 

 

Dear Sir/Madam,

 

ESA Support Group – Invitation to Attend Work Focused Interviews

I understand that the DWP has decided on a national policy of inviting people who have been assigned to the ESA Support Group (“SG”) to attend meetings or interviews that obviously qualify as Work Focused Interviews (“WFI”), as defined in the Welfare Reform Act 2007 (section 12(7)). Section 12(1) of the Welfare Reform Act 2007 specifically forbids the Secretary of State from imposing WFI on anyone allocated to the SG.

Please accept this letter as formal notification that I do not wish to receive any invitations to attend meetings or interviews that could reasonably be considered to be WFI.

Any interaction with the DWP or its contractors is invariably a distressing experience for me and usually exacerbates my medical condition. Therefore, should the DWP ignore this letter and contacts me, I shall consider it to be harassment as defined in the Protection from Harassment Act 1997 and reserve the right to make a criminal complaint to the police. I also reserve the right to take legal action against the DWP should its actions, in respect of WFI, result in me sustaining any loss or suffering.

I also wish to make it clear that I will always comply with the legal obligations arising out of my ESA claim.

Please confirm, in writing, that I will not be invited to attend any WFI activities. Please do not attempt to contact me by telephone as I find the benefit system far too complex and distressing to deal with on the telephone.

Please be aware that I have retained a copy of this letter (including the address used) and proof of postage.

Your faithfully

Your Name


 

You can download a copy of this letter to amend with your details and send to DWP here: Template Letter – Regarding Invitation to Attend Work Focused Interviews


 

Thanks again to John Slater. Follow him on Twitter 

 Posted by at 14:29
Mar 312015
 

With thanks to John Slater for this – follow him on twitter : @AmateurFOI

This post contains guidance about what to do if you need more time to fill in your forms for ESA/WCA or you are unable to make your WCA within the DWP Time Limits.

Parts 1 & 2 of the post give the legal basis for the advice, parts 3 onwards give practical advice on what claimants need to do, and part 9 gives 3 template letters that you can copy and paste or download, and then amend for your own circumstances and send to DWP.

Table of Contents (click on the title to go directly to each section)

  1. ESA Deadlines and Rules
  2. Legislation and DWP Decision Makers Guides
  3. What Does This Mean For Claimants?
  4. ESA Questionnaire Deadline of 4 Weeks
  5. Only Reschedule WCA for a Maximum of 4 Weeks and Only Reschedule WCA Once
  6. Possible reasons for not being able to meet conditions
  7. Sending Information to the DWP in the Post
  8. “Belt and Braces” Approach
  9. Letter Templates
    9.1 Responding to receiving ESA Questionnaire in the post
    9.2 Need to reschedule a WCA for more than 4 weeks (first time)
    9.3 Need to reschedule a WCA having done so previously

1. ESA Deadlines and Rules

If you have had to claim Employment and Support Allowance (“ESA”) you may have come across two deadlines and one rule that you were told you had to abide by. For the purposes of this article these will be referred to as the “Conditions”. These are:

You must return your ESA application form within 4 weeks.

You can only defer your Work Capability Assessment (“WCA”) for a maximum of 4 weeks.

You can only defer your WCA once.

The legislation (primary and secondary) that specifies how ESA works does not mention any time limits and doesn’t state that WCA can only be deferred once.

The DWP and Atos Healthcare (and no doubt Maximus will do the same) have always presented the Conditions as having a statutory basis and that if you don’t follow them to the letter you could have your claim refused. Are we being told the whole truth?

I don’t think we are. The Conditions are actually just internal DWP policies. This means that someone in the DWP simply invented them and imposes them on ESA claimants.

In response to an FOIA request made on 30th December 2012 the DWP stated:

Appointments may be deferred for up to four weeks from the date of request, for any circumstance, including the non-availability of recording equipment. After this time the case will be withdrawn from the system by Atos Healthcare and returned to DWP to make a decision.

https://www.whatdotheyknow.com/request/143605/response/352517/attach/html/2/Slater%205188%20Response.pdf.html

When challenged that it hadn’t explained how it came up with the 4 week deadline it eventually responded:

“… the 4 week deferment was simply a concession made by the Department to acknowledge that claimants may have a pre-existing appointment or commitment which may prevent them from attending the original appointment.  This was an operational not ministerial decision and documentation on how this four week period was derived is not available.”

https://www.whatdotheyknow.com/request/143605/response/360746/attach/html/2/IR%200078%20Mr%20Slater%20Final%20Response.pdf.html

It seems that whoever made this Condition up within the DWP didn’t bother to document the reason why 4 weeks was selected. It’s appalling that one of the biggest Government Departments makes and documents decisions that have such a huge impact on people in such an unprofessional manner.

The following was found on the Atos Healthcare Blog web site:
If you’re not able to make your appointment, you can call us to rearrange it, but it’s important to note that we aren’t allowed to rearrange your appointment more than once. If for any reason you’re not able to attend your rearranged appointment, we’ll need to send your information back to Jobcentre Plus. They will then let you know whether or not you can rearrange your appointment a second time.”

http://blog.atoshealthcare.com/tag/employment-and-support-allowance/page/2/

The following section looks at what the legislation and the DWP own Decision Makers Guides (“DMG”) says about the DWP imposition of the three Conditions. This is important as departments such as the DWP are reliant on legislation to prescribe the powers that they operate by.

2. Legislation and DWP Decision Makers Guides

For people that may not be familiar with DMG, they are the official DWP publications that tell DWP Decision Makers what the law is and how they should apply it. Using the DWP own words the DMG are “… for DWP staff who make decisions about benefits and pensions. It helps them make decisions that are accurate and consistent.”

DMG are published online and can be found at the following link:

https://www.gov.uk/government/collections/decision-makers-guide-staff-guide

Without boring you by repeating lines of legislation, ESA claimants can be required to provide information and evidence to determine that they have limited capability for work (“LCW”) and/or limited capability for work related activity (“LCWRA”). You would expect this to be the case as that’s how applications are made for ESA.

Claimants can also be required to attend and submit themselves to a medical examination to determine their capabilities against criteria defined in legislation.

The DMG are very illuminating in respect of the Conditions. The table below shows the relevant clauses taken from Volume 8 (amendment 4 February 2010). Each clause in the DMG usually refers to the specific legislation that allows the DWP to behave in specific ways. For example clause 42222 below cites the Employment and Support Allowance Regulations 2008 No. 794  (using the abbreviation “ESA Regs”).  However, as we see later, in respect of the conditions being discussed this isn’t always the case.

Emphasis to text in the table below (bold and colour) has been added in by the author. Please note that the grammatical and typographical errors which appear below in this table are not mine! They appear in the original DWP documents.

Table 1: Extracts from volume 8 of the DMG

Clause Guidance
42221 A claimant can be treated as not having LCW if1.     they fail without good cause to provide information, attend or submit to examination (see DMG 42224)
42222 A claimant can be required to1.    provide certain information asked for by the DM including the return of the questionnaire (see DMG 42224)
42224 A claimant who is subject to the LCWA can be asked to provide information relating to their ability to perform activities referred to in Appendix 1. This information is usually asked by sending the claimant a questionnaire.
42227 A claimant is treated as not having LCW for failure to return the questionnaire without good cause if the Secretary of State can show that1.     the questionnaire was sent and2.    there is no response after six weeks to the first requests for the information       from the day following the date of issue and3.    a further request was sent at least four weeks after the first letter and at leasttwo weeks have passed since then and4.    good cause has not been accepted for delay beyond the period stated in 2. and

3. above.

 

42228 The DM needs to make sure that the Secretary of State has complied with the duty set out in the legislation to send the questionnaire and the reminder to the claimant. The DM can accept that it has been sent if there is a record of issue and no indication that it was not properly addressed, stamped and posted.
42232 As in DMG 42228 the law imposes time limits on the Secretary of State in relation to the sending of the questionnaire and the reminder. However, there is no law imposing a time limit on the claimant for the return of the questionnaire. Sometimes the questionnaire is returned after the time limit imposed on the Secretary of State but before the DM has considered whether there was good cause for the earlier failure to return the questionnaire. In these circumstances, the determination cannot be made because it cannot be held that the claimant has failed to return the questionnaire. Instead, normal WCA action should resume.
42247 Only one rescheduled appointment can be offered during a WCA referral. If the claimant cannot attend the rescheduled appointment, medical services will record that the claimant failed to attend. The DM will have to consider the reasons why the claimant cannot attend and consider good cause (see DMG 42261).End of ClauseComment by the AuthorSurprisingly this entry in the DMG does not refer to any primary or secondary legislation. This seems to support the view presented here that imposing a single reschedule for a WCA is nothing more than a DWP internal policy. However, it seems sensible to get the DWP to clarify if its approach is backed by specific legislation or it just decided to impose the condition. Therefore, the following FOI request was submitted:https://www.whatdotheyknow.com/request/rescheduling_wca_more_than_once#incoming-622625
42261 When a claimant fails to return the questionnaire of fails to attend or submit to examination, consideration of good cause includes1. whether the claimant was outside GB at the relevant time and2. the claimant’s state of health at the relevant time and3. the nature of any disability the claimant hasNote: this is not exhaustive (see DMG 42262-42276 for further guidance on good cause)

The abbreviations used for primary and secondary legislation within the actual DMG are defined in the documents that can be found here:

https://www.gov.uk/government/publications/decision-makers-guide-abbreviations-staff-guide

So, in respect of the deadline to submit your ESA questionnaire the DMG is very helpful. It explicitly confirms that there is no law imposing a time limit on the claimant for the return of the questionnaire.

In respect of only being able to defer a WCA for a maximum of 4 weeks the DMG is completely silent. This supports that this is an arbitrary limit imposed by the DWP.

In the matter of only being able to reschedule a WCA once the DWP response to the FOI request (at same link as given above) confirmed that only allowing a WCA to be rescheduled once is simply a DWP policy (one that apparently dates back to the days of Incapacity Benefit).  This raises the question about how lawful it is for the DM to treat people as ‘failing to attend a WCA’ simply for wanting to reschedule a WCA more than once. Interestingly the DWP attempted to side step this part of the FOI request. An internal review request has been submitted to see if the DWP can provide any information to support its view that by asking for a WCA to be rescheduled more than once a person is ‘failing to attend a WCA’. I suspect this will turn out to be another example of the DWP simply imposing Conditions which it has invented

3. What Does This Mean For Claimants?

If these Conditions imposed by the DWP are not prescribed in law does that mean we can simply ignore them? The answer is no, we can’t. If a case came before a Tribunal dealing with these conditions it is highly likely that it would look at what is reasonable in that particular case. It would also consider the actions of the person claiming ESA. If you simply ignored the DWP whilst being in a position of being able to contact them I doubt the Tribunal would be particularly sympathetic to your case.

However, if you did everything that could reasonably be expected of someone in your position to engage with the DWP and your specific circumstances meant that the conditions imposed by the DWP were not reasonable, then it is highly likely that the Tribunal would find in your favour.

However, the best outcome would be to avoid having to take your case to a Tribunal in the first place. The following sections look at the sort of actions you could take to protect yourself if you can’t meet the DWP imposed Conditions.

4.     ESA Questionnaire Deadline of 4 Weeks

As soon as you receive the questionnaire in the post you need to do something, don’t just ignore it.

Make an appointment to see your GP, Practice Nurse or other Healthcare Professional that you normally deal with and explain what is going on and the negative impact the situation is having on your health. Ask them to make a note about the situation in your health record and ideally see if they will give you a letter/note explaining that the 4 week deadline is unreasonable. If you can’t get an appointment with your GP or others, then ask one or two people (family or close friends) to write you a letter (signed and dated) explaining how unwell you are and why the 4 week deadline is unreasonable for your particular circumstances.

Write back immediately (including copies of any letters supporting your position) explaining that you won’t be able to meet the 4 week deadline and that you have made an appointment to see your GP/Nurse/Other Healthcare Professional as receiving the questionnaire has made you feel so unwell. Personally I wouldn’t try to do this over the telephone as it is much harder to prove what you said.

Be totally clear that you are not refusing to provide the requested information. Explain that you will comply with your statutory obligations within fair and reasonable timescales that are appropriate to your specific circumstances.

Explain why the 4 week deadline isn’t reasonable for your circumstances (see later for possible examples).

Explain that you are aware that the law does not impose a deadline on the return of the questionnaire (you could cite the relevant DMG clause 42232 if you feel comfortable doing so).

Suggest your own deadline. If you do this it needs to be reasonable and most important of all you need to be able to meet it. Don’t replace their unreasonable deadline with another one of your own.

Explain why your deadline is fair and reasonable for your specific circumstances.

State that unless the DWP challenges your revised deadline in writing within 7 calendar days of posting your letter it will have been deemed to have accepted it.

Keep a copy of all letters you send along with proof of postage (see section about writing to the DWP later).

5.     Only Reschedule WCA for a Maximum of 4 Weeks and Only Reschedule WCA Once

As soon as you receive the questionnaire in the post you need to do something, don’t just ignore it.

Make an appointment to see your GP, Practice Nurse or other Healthcare Professional who you normally deal with and explain what is going on and the negative impact the situation is having on your health. Ask them to make a note about the situation in your health record and ideally see if they will give you a letter/note explaining that the 4 week limit / only one reschedule is unreasonable. If you can’t get an appointment with your GP or others, then ask one or two people (family or close friends) to write you a letter (signed and dated) explaining how unwell you are and why the 4 week limit is unreasonable for your circumstances.

As soon as you know that you cannot attend your WCA you should write (including copies of any letters supporting your position) to the appropriate organisation (Maximus) to notify them that you cannot attend. If the date of the WCA is a week or less away it would be sensible to notify them by telephone (you or someone you authorise) and explain that an explanatory letter will follow shortly. Regardless of whether you are able to comply with the DWP imposed conditions, it is always sensible to notify changes in writing in order to protect yourself. It is important to make a written record of when the telephone call took place (date and time), the name of the person you spoke to and what, if anything, was agreed.

Be absolutely clear that you are not refusing to attend or submit to a WCA. Explain that you will comply with your statutory obligations within fair and reasonable timescales that are reasonable and appropriate for your specific circumstances.

Explain why you need to reschedule your WCA and why rescheduling is fair and reasonable for your specific circumstances (see later for examples).

Explain that you are aware that the law does not impose a maximum limit of 4 weeks for rescheduling a WCA or set a limit of only one reschedule (as appropriate to your circumstances).

Suggest your own revised date and time, if it is appropriate for your condition, for the rescheduled WCA. If you do this your suggestion needs to be reasonable and most important of all you need to be able to meet it. Don’t replace their unreasonable deadline with another one of your own.

Explain why your deadline is fair and reasonable for your specific circumstances.

State that unless the DWP challenges your revised deadline in writing within 7 calendar days of posting your letter it will have been deemed to have accepted it.

Keep a copy of all letters you send along with proof of postage (see section about writing the DWP later).

6. Possible reasons for not being able to meet conditions

Whatever reason(s) you cite you need to be able to explain why it is appropriate to your specific circumstances, e.g.

  • The current state of your health is such that it is not reasonable to expect you to comply with the relevant Condition imposed by the DWP.
  • Your specific condition means that the imposed deadlines are unreasonable. For example:
  • Mental health conditions that make it hard to complete the questionnaire.
  • Side effects of medication mean it takes you longer to complete the questionnaire.
  • Aspects of your physical condition, e.g. pain, exhaustion etc, mean it takes you longer to complete the questionnaire.
  • You are in hospital or receiving treatment that means that it is not reasonable to expect you to comply with the deadline imposed by the DWP.
  • You will be out of the country or on holiday within the UK at the time of the appointment or during the 4 week deadline to complete the questionnaire.
  • Attempting to comply with the deadline will exacerbate your condition and therefore cause you actual physical and/or psychological harm.
  • You need to be accompanied to attend the WCA and it isn’t possible to get someone within the current timescales.
  • You need help to complete the questionnaire (e.g. the CAB, other organisation or family member) and that won’t be available to you in adequate time to allow you to meet the deadline.
  • You have other appointments (e.g. treatments, seeing Consultants, tests etc) which clash with the imposed dates.
  • It could be that you are suffering from something unrelated to your health condition such as the flu.
  • You are waiting for the results of tests that will be key evidence for your ESA claim and want to be able to include them in your questionnaire or present them at your WCA.

By refusing to change the deadline or reschedule WCA the DWP places you at a significant disadvantage and could be breaching of your human rights. This is likely to be applicable alongside the other reasons.

7. Sending Information to the DWP in the Post

A common problem when dealing with the DWP seems to be information going missing. This includes information delivered by hand to JCP buildings and documents sent through the post. The scale of the problem via the postal route suggests that there is something else going on other than the odd letter going missing. I am aware of letters being ignored (or not arriving at the right person’s desk!) until they are resent using the very expensive Royal Mail Special Delivery Guaranteed® service which means a signature must be obtained. It seems that using the much cheaper Royal Mail Signed For® service doesn’t guarantee that your letter is ‘signed for’.

It’s not reasonable to expect people to pay over £5 to be sure a letter is delivered to the DWP. Is there anything you can do to protect yourself? I think there is. Once again the DWP DMG has been helpful. When addressing proof that letters from the DWP have been sent it refers to the Interpretation Act 1978. Clause 7 states:

Where an Act authorises or requires any document to be service by post. Served by post (whether the expression “serve” or the expression ” give ” or ” send ” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

In plain English this means that if it can be shown that the envelope was properly addressed, contained the letter in question and the correct stamp was applied then the law considers the letter delivered unless it can be proved otherwise. If this is good enough for the DWP then it is good enough for the rest of us.  So how do we do this is practice?

Keep a copy of all documents you send to the DWP

It is always good practice to keep copies of everything you send to the DWP as it does have an unfortunate habit of losing things! This is relatively easy if you have access to a computer, printer and a scanner. If you don’t have access to such computer equipment then your smartphone or digital camera can help. Take photographs of every page of each document you send to the DWP and try to store it in a location where it won’t get deleted accidentally. Many smartphones allow you to write to memory cards so you could use one of these to store photographs of your correspondence with the DWP. You could also ask family or friends for help if they own a computer and a scanner.

Properly addressed and correct postage

If you are not sure about the correct postage you can use a set of digital kitchen scales to weigh your letter and you can find the correct stamp rates on the Royal Mail website. Another alternative is to take your letter to the post office and ask them to weigh it for you. You can then take a photograph of the envelope with the correct address and stamp.

Once you have addressed the envelope and affixed the stamp either scan it or take a photograph. You can also include the front page of your letter in the picture or scan to show a clear link between the letter and the completed envelope.

Proof that it has been posted

Whilst it costs money to send letters using the Royal Mail’s special delivery services it doesn’t cost you anything to get proof of postage at the Post Office. If you take your letter to your local Post Office they will print you off a proof of postage receipt. This serves two purposes. It proves you actually sent the letter and it shows that you put the correct value stamp on (otherwise the Post Office counter would not accept it).

One thing to be aware of is that the receipts may be printed on heat sensitive paper and these fade over time or turn black if left in sunlight. When you have your proof of postage always make a copy by using your scanner or your camera.

8. “Belt and Braces” Approach

If you want to adopt a “belt and braces” approach to corresponding with the DWP then you might consider the following. The next time you write to the DWP explain that you are aware of clause 7 of the Interpretation Act 1978 and that you always retain copies of any documents sent to the DWP along with proof that the correct address was used, the correct postage affixed and proof of postage. You could always add that you retain the right to seek financial compensation if due to the negligence of the DWP (i.e. losing your correspondence) you suffer financial loss. This would amount to the costs for paper, ink, envelopes, stamps etc.

9. Letter Templates

9.1 Responding to receiving ESA Questionnaire in the post.

Your Name
Address
Town/City
County
Post Code

Name of Person or Organisation
Address
Town/City
County
Post Code

Date: <DATE>
Ref: <Your NINO>

Dear Sir/Madam,
Submission of ESA50 Questionnaire

I received an ESA50 questionnaire on <DATE RECEIVED>. I understand that the DWP imposes an internal policy of a 4 week deadline for the return of the questionnaire. I am aware that in the DWP own decision makers guide, clause 42232 states “… there is no law imposing a time limit on the claimant for the return of the questionnaire.”

For my circumstances this internal policy is manifestly unreasonable for the following reasons:

<Explain the reason(s) why it is not reasonable to expect you to meet the 4 week deadline here. Include that you have made an appointment(s) to see your GP, Nurse, etc due to the impact of receiving the questionnaire. If you are going to include letters from people supporting you say so here.>

I believe that the <Enter Date> is a reasonable date for me to submit the completed questionnaire given my particular circumstances. Unless I hear to the contrary within 7 calendar days of posting this letter, the DWP will be deemed to have accepted my proposed submission date. My proposed submission date is appropriate to my circumstances for the following reasons:

<Enter the reasons why your proposed submission date is fair and reasonable given your circumstances>

I wish to be absolutely clear that I am not refusing to complete and return the questionnaire and will always comply with the legal obligations arising out of my ESA claim. I am aware that should a DWP Decision Maker seek to obtain “Good Cause” from me in this matter they are likely to be acting unlawfully as they will be acting in their own cause, i.e. judging against an internal DWP policy. The relevant precedent in this matter is R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233).

Failing to give me reasonable time to submit evidence via the questionnaire could constitute a breach of my human rights.

Please be aware that I have retained a copy of this letter (including the address used) and proof of postage.

Yours faithfully

Your Name


You can download a copy of this letter in word document format here Template Letter 1 – Responding to receiving ESA Questionnaire in the post


9.2 Need to reschedule a WCA for more than 4 weeks (first time).

 

Your Name
Address
Town/City
County
Post Code

Name of Person or Organisation
Address
Town/City
County
Post Code

Date: <DATE>
Ref: <Your NINO>

Dear Sir/Madam,
Rescheduling of Work Capability Assessment

I need to reschedule my Work Capability Assessment (“WCA”) that is currently arranged for <enter date & time> at <enter location>. I understand that the DWP imposes an internal policy of only permitting a WCA to be rescheduled for a maximum of 4 weeks and that this has no statutory basis.

For my circumstances this internal policy is manifestly unreasonable for the following reasons:

<Explain the reason(s) why it is not reasonable to expect you to attend a WCA within the next 4 weeks. Include that you have made an appointment(s) to see your GP, Nurse, etc due to the impact of the date of the WCA. If you are going to include letters from people supporting you say so here.>

I believe that the <Enter Date> at <Enter Time> is a reasonable date and time for me attend for a WCA given my particular circumstances. Unless I hear to the contrary within 7 calendar days of posting this letter the DWP will be deemed to have accepted my proposed date for my WCA. My proposed date is appropriate to my circumstances for the following reasons:

<Enter the reasons why your proposed date to attend for a WCA is fair and reasonable given your circumstances>

I wish to be absolutely clear that I am not refusing to attend and submit to an examination (WCA) and will always comply with the legal obligations arising out of my ESA claim. I am aware that should a DWP Decision Maker seek to obtain “Good Cause” from me in this matter they are likely to be acting unlawfully as they will be acting in their own cause, i.e. judging against an internal DWP policy. The relevant precedent in this matter is R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233).

Failing to give me the opportunity to attend a WCA to present relevant evidence within a timescale that is appropriate for my particular circumstances could constitute a breach of my human rights.

Please be aware that I have retained a copy of this letter (including the address used) and proof of postage.

Yours faithfully

Your Name


You can download a copy of this letter in word document format here Template Letter 2 – reschedule a WCA for more than 4 weeks (first time)


9.3 Need to reschedule a WCA having done so previously.

Your Name
Address
Town/City
County
Post Code

Name of Person or Organisation
Address
Town/City
County
Post Code

Date: <DATE>
Ref: <Your NINO>

Dear Sir/Madam,
Rescheduling of Work Capability Assessment

I need to reschedule my Work Capability Assessment (“WCA”) that is currently arranged for <enter date & time> at <enter location>. I understand that the DWP imposes an internal policy of only permitting a WCA to be rescheduled once and that this has no statutory basis.

For my circumstances this internal policy is manifestly unreasonable for the following reasons:

<Explain the reason(s) why it is not reasonable to allow you to reschedule your WCA again. Include that you have made an appointment(s) to see your GP, Nurse, etc due to the impact of the date of the WCA. If you are going to include letters from people supporting you say so here.>

I believe that the <Enter Date> at <Enter Time> is a reasonable date and time for me attend for a WCA given my particular circumstances. Unless I hear to the contrary within 7 calendar days of posting this letter the DWP will be deemed to have accepted my proposed date for my WCA. My proposed date is appropriate to my circumstances for the following reasons:

<Enter the reasons why your proposed date to attend for a WCA is fair and reasonable given your circumstances>

I wish to be absolutely clear that I am not refusing to attend and submit to an examination (WCA) and will always comply with the legal obligations arising out of my ESA claim. I am aware that should a DWP Decision Maker seek to obtain “Good Cause” from me in this matter they are likely to be acting unlawfully as they will be acting in their own cause, i.e. judging against an internal DWP policy. The relevant precedent in this matter is R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233).

Failing to give me the opportunity to reschedule my WCA such that I can attend to present relevant evidence within a timescale that is appropriate for my particular circumstances could constitute a breach of my human rights.

Please be aware that I have retained a copy of this letter (including the address used) and proof of postage.

Yours faithfully

Your Name


You can download a copy of this letter in word document format here Template Letter 3 – reschedule a WCA having done so previously


 Posted by at 13:01
Mar 302015
 

In relation to the complaints process generally, we have compiled these instructions, which I hope you will find useful:

In order to make a complaint, you should:

  • Check the contact details at the top of letters you have received from the DWP’s Disability and Carers Service. This local office is where to send your letter of complaint to the DWP.
  • If your claim has been forwarded to ATOS or Capita, you will also need to send a letter of complaint to that local ATOS/Capita office.
  • If you are not sure where to send your complaint, call the PIP helpline on 03458 503 322 to find out.

Within your letter of complaint, ensure that you:

  • Include your name, date of birth, national insurance number, and all your contact details;
  • State your PIP claim reference number;
  • Call the letter “a formal complaint”;
  • State the date you first called the DWP to make a PIP claim (this is the date of your claim);
  • Say how long you have been waiting;
  • Explain how many times you have chased your application, how and when;
  • Say that you want the letter to be dealt with a formal complaint under the complaints procedure; and
  • Ask them to confirm receipt as soon as possible and explain how your PIP application will be processed in a timely manner.

If you are not happy with the response (e.g. it does not explain how your PIP claim will be resolved quickly) then you can:

  • Ask for your complaint to be sent to the Director General of Operations for the DWP, who aims to deal with complaints within 15 working days; and
  • If you are unhappy with the response of the Director General of Operations, you can ask for an Independent Case Examiner to investigate; and
  • If you are unhappy with the ICE’s response, you can then ask your MP to make a complaint to the Parliamentary and Health Service Ombudsman.
 Posted by at 21:11
Mar 252015
 

A complaint to the United Nations was today launched on behalf of disabled people in the UK whose rights have been breached by the closure of the Independent Living Fund (ILF). The ILF, which is the subject of an on-going and desperate battle between disabled people and the Department for Work and Pensions (1), is high on the priority list for disabled people deciding how to vote at the forthcoming election. The complaint brought by Inclusion London (2) on behalf of two disabled women, Nicky Baker and Dr Melanie Wilson Jones, alleges that the government has violated Articles 17, 19, 20, 30 and 31 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), ratified by the UK in 2009 (3).

The Independent Living Fund was set up in 1988 to support disabled people with high support needs to live in the community when the alternative was residential care. Since then it has helped thousands to live active and full lives, contributing to their communities and participating in education, employment and volunteering, family and social life. It is an effective way to provide support with both low cost overheads and extremely high user satisfaction rates (4).

On 13 December 2010 without any consultation or impact assessment, it was announced that the ILF would be closed permanently to new applicants. A ministerial statement was made referring to “informal consultation with disability organisations” but there is no record of this consultation (5). Since then, disabled people who missed out on the Fund have been left without the support they need to take part in day to day life and disabled people’s life chances have dramatically fallen. Meanwhile the government has failed to monitor the impact of the closure.

Nicky Baker, age 30, is a qualified auditor working within a disabled people’s organisation as well as studying part time for a degree. Although eligible for support from the ILF, the Fund was closed the day after she telephoned for an application form. The social care package she receives from her Local Authority does not provide the support she needs to live an independent life, for example to go on dates with her boyfriend without having her parents there or to take part in sufficient training for the high level of powerchair football she reached.

Dr Melanie Wilson Jones received a substantial amount of support including from the ILF after sustaining a brain injury. She made such progress that her needs decreased and thus her support was reduced. However following a road traffic accident in 2011 she sustained a further brain injury requiring someone to be with her constantly. Now unable to get support from the ILF, she is reliant on her husband who works full time and her 16 year old daughter to make up the extra hours of support she needs for evenings and weekends.

Linda Burnip, co-founder of Disabled People Against Cuts, who are supporting the challenge, said: “It is the pooling of resources and collective solidarity that has allowed this to happen. We’re grateful to DPAC supporters for their financial support towards travel costs, to the solicitor and barrister who gave their time pro bono, to Inclusion London for their staffing resources and of course to the two disabled women willing to put themselves forward to make a complaint on an issue that affects all disabled people in the UK. Without all of these factors this could never have been brought to fruition.”

Tracey Lazard, CEO of Inclusion London, who authored the complaint said, “The closure of the Independent Living Fund signals the end of independent living for disabled people. It took many years for disabled people to fight their way out of the institutions and to have the same chances as anyone else to live in the community alongside family and friends. At the current time Local Authorities are simply not able to provide the level of social care support required to uphold disabled people’s fundamental human rights”.

Sophie Partridge, a current ILF recipient, said: “The ILF has played a huge part in supporting me to have equal access to an independent adult life and a level playing field alongside non-disabled people. Without the ILF being re-opened to new applicants, I worry that young disabled people will never get the same life chances as I have had.”

Solicitor Louise Whitfield, from law firm Deighton Pearce Glynn, who is representing the complainants said: “From a legal perspective, I cannot see how the UK Government can justify closing the ILF to new applicants with no consultation or consideration of the rights protected under the UN Convention. Under Article 19, those rights include the fundamental right to independent living which has clearly been breached by this decision and I hope that the UN Committee takes appropriate action to recognise these very significant breaches”.

For more information or to speak to either the complainants or other disabled people affected by the closure of the ILF contact: ellen.clifford@inclusionlondon.co.uk or call 07505144371.

Notes for editors:

1) The future of the ILF has been the subject of two legal challenges: the first was won by disabled claimants at the Court of Appeal in November 2013 and the second was lost in the High Court in December 2014. There have been continued protests and direct actions led by disabled people and their supporters since 2010, including in June 2014 the attempted occupation of the grounds of Westminster Abbey.

2) Inclusion London is a pan impairment pan London Deaf and Disabled People’s Organisation (DDPO) which provides policy, campaigning and capacity building support for London DDPOs. Inclusion London promotes disability equality and has been working with the disabled people led campaign Disabled People Against cuts to support ILF recipients in the campaign to keep the ILF open.

3) The UK is signed up to the UNCRPD Optional Protocol. This means that individuals can take complaints to the UN disability committee for breach of the UNCRPD if all domestic avenues have been exhausted. If the committee find the complaint admissible, they will investigate. and produce a set of recommendations for the State in question. One previous complaint was made to the UN disability committee but found inadmissible as the incidents in question which related to employment discrimination occurred before the UK ratified the convention. For more information about the UNCRPD: http://www.un.org/disabilities/default.asp?id=150

For more information about previous uses of the Optional Protocol: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeCategoryID=6

4)

5)

 Posted by at 21:42
Mar 242015
 

DPAC is extremely disappointed by the Work and Pensions Committee’s report on the use of sanctions[i].

It seems that the Committee has many worries, concerns, and disquiet about the use of sanctions, but does not go further than recommending a full inquiry for the next Parliament.

Meanwhile, claimants are being threatened and bullied in jobcentres, driven to destitution through the use of sanctions and denied final recourse by the disinclination of jobcentres to advertise or award hardship payments. Others are driven to desperation and suicide.

Perhaps this outcome is not entirely unexpected. After all, both Tories and Labour agree there is a need to use sanctions in the benefits system, although evidence showing their effectiveness is patchy and unconvincing. The first sentence of the Report’s Summary spells it out clearly: ‘Unemployment benefits have always been conditional. A system of disallowances where claimants do not meet the underlying entitlement conditions, including being involuntarily unemployed, available for work, and actively seeking work, has existed with some variations since the introduction of Unemployment Benefit in 1911’.

What is omitted and plays on the current understanding of conditionality, is that initially conditionality meant that claimants had to look for work in order to get their benefits. It is only more recently that sanctions have been used. Study after study have been undertaken to prove the effectiveness of sanctions, in vain. Although some studies have found that they can lead to a move into work, it is accepted that these jobs are low skilled, short term and badly paid.

The question the Work and Pensions Committee did not ask itself is whether this small gain in employment is worth all the suffering deliberately inflicted on claimants. Everybody seems to agree that claimants playing the system represent a tiny minority, but it is the vast majority of claimants who are trying very hard to find a job, who have mental health problems or other serious issues, who get caught up in this web of punishment, bullying and threats.

The Work and Pensions Committee was presented with clear evidence of sanction targets but is still asking for an inquiry.

The Work and Pensions Committee was presented with clear evidence of hardship payment denial but is still asking for an inquiry.

The Work and Pensions Committee was presented with clear evidence of people’s suffering but is still asking for an inquiry rather than demanding an immediate moratorium on sanctions, before an inquiry is undertaken.

Furthermore, the Work and Pensions Committee recognises that evidence presented by Esther McVey relied on data pre-dating the new sanction regime:  ‘It is a concern that the Minister provided evidence to us on destinations of JSA, Income Support and ESA claimants from 2011, that pre-dated the new sanctions regime (NSR) introduced in 2012, in an attempt to challenge the findings of the University of Oxford/LSHTM study on the effects of the NSR on getting JSA claimants offflow.  This was regrettable’.

It is not the only time Esther McVey has been economical with the truth during this inquiry.  During her session with the Work and Pensions Committee, she stated: ‘But we know it [sanctions] is acting as a deterrent from the claimants themselves, who say they are at least 70% more likely to follow it because that deterrent is there.  We know it works.  Again, the vast majority of people adhere to the system because that deterrent is there’[ii].

A Freedom of Information request was made to elicit the evidence on which this statement was made. The response of DWP[iii] led to this document[iv]: (page 157). Although it looks good on the face of it, there are huge discrepancies in compliance because of sanctions between the different types of claimants, and also one very important sentence had been omitted by Esther McVey:  ‘However, there was no evidence from the survey that knowledge of JSA conditions led to actual movement into work. Respondents who said they were more likely to look for work because of their knowledge of JSA conditions were no more likely than other respondents to have moved into work when they left JSA’.

For all these reasons, DPAC is disappointed by the Work and Pensions Committee’s report  and DPAC remains totally opposed to the use of sanctions, not only because they are ineffective (if not counter productive),  but because they represent institutional abuse by the state against its citizens.

 

[i] http://www.publications.parliament.uk/pa/cm201415/cmselect/cmworpen/814/814.pdf

[ii] http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/work-and-pensions-committee/benefit-sanctions-policy-beyond-the-oakley-review/oral/17970.html

[iii] https://www.whatdotheyknow.com/request/252642/response/623750/attach/2/FoI%20488.pdf

[iv] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/261656/rrep852.pdf

 Posted by at 00:06
Mar 242015
 

Beyond – UKIP Cabaret

Dear gang. hope your so well. If anyone has received any
abusive messages / death threats please email leavethegaydonkeysalone@gmail.com
with all documentation and testimonials.

Ive got an interview with the police this evening.

We have amazing lawyers to support us too. Everything will
be passed on.

All part of the package. Please look after each other and
don’t get disheartened this is how bullies work.

Let me know anything I can do

Lots of love,  X

Pictures of the ‘terrifying’ UKIP Cabaret below

fake breast feeding in public, but not in a corner as Farage suggests

fake breast feeding in public, but not in a corner as Farage suggests

Terrifying scenes in the street

Terrifying scenes in the street

Maybe more terrifying were these on Facebook 


Facebook threats, similar were posted on twitter
 Posted by at 00:04
Mar 222015
 

Press Release

Anti UKIP campaigners are staging a protest now in the local pub of UKIP leader Nigel Farage in the village of Downe, Kent.

Nigel Farage’s local pub the George & Dragon where he has been pictured many times going for a drink has been invaded by about 80 people protesting against UKIP.

Campaigners include those who have been targeted by UKIP such as migrants, HIV activists, gay people, disabled people and breastfeeding mums.

Protest organiser  said:

UKIP are a con. They pretend to be anti-establishment but this couldn’t be further from the truth. By wrongfully shifting the blame for the economic crisis onto immigrants they have let the bankers off the hook. That is why so many diverse communities have taken our cultures to the heart of where they exist – Nigel Farage’s local pub. We will not succumb to their prejudice. We will create the world we want to live in. A world beyond UKIP.

We sympathise with people who feel alienated with the political system but a vote for UKIP really is the worst thing you could do to protest about the current state of this country.

a social worker from London said:

“The alliance of people here today shows that there are clear targets of UKIPs hate filled agenda. We want to live in a society in which we are all valued and our different contributions, talents and cultures are acknowledged. 

We want politicians to stop using the language of divide and rule, xenophobia, racism and fear and instead speak up to the 99% to challenge the corporate greed and massive inequality that exists in this country and globally”.

ENDS

Notes to Editors

  • Full address of the Pub: George & Dragon, 26 High St, Downe, Orpington, BR6 7UT
  • We have photographers on the protest who will be able to provide photos in the next few hours.
 Posted by at 12:32
Mar 212015
 

This article has been reblogged from Realfare; http://realmedia.press/2015/03/21/the-daily-mail-disability/ A website dedicated to Real reporting, not distorting. Follow on twitter: @RealMediaGB

To say that disabled people have been the target of most coalition government welfare cuts would be to state the obvious, but in order to comprehend how the British public came to accept these cuts, it is essential to understand the role of the Daily Mail, which has been instrumental in the vilification of disabled people and in the rise of disability hate crime.

The Daily Mail’s modus operandi has been very simple:

  • Only focusing on disability benefit fraud, which accounts for a small fraction of the 0.7% of all benefits fraud
  • Publishing DWP figures without question or checks
  • Selective use of data or statistics
  • Giving data or statistics out of context or without context
  • Distorting the facts, using disparaging language

It is easy to understand how this works by dissecting this article:  http://www.dailymail.co.uk/news/article-1324035/75-incapacity-claimants-fit-work-Benefits-test-weeds-workshy.html which is based on the following 2010 DWP statistical release https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/203051/esa_wca_26102010.pdfFront page DM

The title is very blunt: ‘75% of incapacity claimants are fit to work: Tough new benefits test weeds out the workshy’

The scene is set and we know immediately that the new test which has been devised, the infamous Work Capability Assessment, is very effective at ‘weeding out’ people who prefer a life on benefits to working.

This is developed in the first paragraphs, which present numerous figures and statistics to bring some credibility to the claims made by the Daily Mail: ‘Three-quarters of people who applied for new benefits for the long-term sick failed tests to prove they were too ill to work’. So far so good, although in the second sentence the Daily Mail starts to run into difficulty: ‘Out of about 840,000 who tried to obtain the £95-a-week Employment and Support Allowance, 640,000 were told they were fit for work, or withdrew their applications before they took the tests – suggesting they were ‘trying it on’.

Of these 640,000 people, some failed the test while others withdrew their applications, therefore they did not all undergo or fail the test (Lie No1). The Daily Mail does not tell us the split between the 2 groups although it is mentioned in the DWP document: 331,100 claimants closed their claims and 306,200 were found fit for work.  Therefore when we look again at the percentage of people found fit for work following an assessment, it is no longer 75% but 60% (Lie No2). In case some brighter spark Daily Mail readers spotted this discrepancy, the Daily Mail suggests that the people who withdrew their claims were ‘trying it on’ (Lie No3).  There is no evidence suggesting that withdrawn claims are due to people ‘trying it on’, and according to DWP https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214543/rrep762.pdfAn important reason why ESA claims in this sample were withdrawn or closed before they were fully assessed was because the person recovered and either returned to work, or claimed a benefit more appropriate to their situation’, added to the fact that some claimants have to wait over one year to be assessed, and therefore had the time to recover. In fact the DWP document gives this information: ‘A large proportion of people claiming ESA cease their claim before assessment is complete (for example, if they have a short term health condition)’ so this information was available to the Daily Mail.

The third sentence is a paragon of manipulation, given that at the time DWP had not published any statistics related to these 2 specific medical conditions: ‘Incredibly, 7,100 tried to claim because they had sexually transmitted diseases and nearly 10,000 because they were too fat. Only 178,000 – one in four – were given the payment after convincing doctors they were actually unable to work’.

The 2 medical conditions as used by the Daily Mail article were not randomly chosen, as they both evoke for the right wing press self inflicted illnesses caused by lifestyle choice, making the claimants somehow less deserving. But the sin of the Daily Mail is even greater as these 2 conditions are a complete invention, as seen later in the article: ‘Nearly 10,000 people have applied for the ESA because they are too fat – a condition which is labelled ‘endocrine, nutritional and metabolic diseases’. This has to be one of the most astonishing fabrications ever made, alongside the Sun’s ‘Freddy Starr ate my hamster’.

Firstly, we are told that these 10,000 people who were ‘too fat’ have ‘tried’ to claim, implying that they did not succeed. In fact over 3,000 claimants were entitled to ESA, and 2,400 withdrew their claims. Secondly, ‘endocrine, nutritional and metabolic diseases’ encompasses a wide variety of conditions affecting the thyroid, pancreas, pituitary and adrenal glands etc[i]. which can sometimes, but not necessarily, be associated with obesity (Lie No4).

Likewise with the 7,100 claimants who ‘incredibly tried to claim because they had sexually transmitted diseases’. Only one medical condition in the document shown below is associated with 7,100 claimants:  ‘Diseases of the Genitourinary System’, and it would take a huge leap of the imagination to describe them globally as sexually transmitted diseases, as they encompass viral or bacterial illnesses affecting the urinary system, the kidneys, the bladder and the ureter, calculus or cysts, renal failure etc.[ii] which are not, for the majority, sexually transmitted (Lie No5). (Click on the Table to see better).

Tables for Annie

 

And the Daily Mail continues its agenda of disinformation: ‘The disclosure by the Department for Work and Pensions raises fresh questions over how many of the 2.6million people on the existing incapacity benefit are really incapable of being employed. 

The figures suggest that if they were tested to the same extent the number would fall as low as 650,000 ‘ (Lie No6). This refers to Incapacity Benefits claimants, who, as part of the Welfare Reform, had to be reassessed in order to determine their eligibility for ESA. The majority of these claimants have now been reassessed and the latest 2015 DWP figures show that 90% of them are entitled to ESA.

Finally to show how a lack of contextualisation coupled with selective use of statistics can distort the picture to the extent that disabled people are painted as fraudulently claiming benefits, we are told that ‘Since October 2008, just 51,000 people have been put on the new sickness benefit indefinitely’ and that ‘Only 178,000 – one in four – were given the payment after convincing doctors they were actually unable to work’ the implication being that very few people should in fact be entitled to disability benefits. The figure of ‘one in four’ is calculated from the total number of claims, including withdrawn claims from claimants who never underwent an assessment or tried to convince a doctor that they were unfit to work. (Lie No5)

Very conveniently, the Daily Mail overlooked the section of the document dealing with Appeals. Table 5 below shows that 209,200 claimants have appealed a Fit For Work decision but that only 69,000 appeals were heard. The total number of claimants found Fit For Work being 331,100, it means that 63% of them appealed the decision. The number of decisions in favour of claimants at appeals was 40% (it is closer to 50% currently), which means that of the 139,700 appeals remaining to be heard, 55,880 claimants would have a decision reversed in their favour. Therefore based on the 509,400 Work Capability Assessments undertaken, 234,100 claimants should be found entitled to ESA, and 275,220 claimants should be found to be Fit For Work, hence 55% of new ESA claimants are Fit For Work and not 75% as claimed by the Daily Mail. As a proper, professional and objective journalist would have found.

For annie II

 

 

 

 

 

 

 

 

In fact, what the Daily Mail has done (and certainly assisted in this enterprise by DWP) is to conflate 2 different sets of claimants and to apply the Fit For Work figures found for new claimants to claimants already on Incapacity Benefits. The percentage of new claimants found Fit For Work following a WCA has always been around 50%, even before the introduction of the WCA, while claimants on Incapacity Benefits, some for several years, are the most severely disabled and 90% of them, as mentioned above, are entitled to ESA after being reassessed. To suggest, as the Daily Mail has, that 75% of these most severely disabled claimants could be fit for work and have been wrongly claiming benefits explains why some wheelchair users are now attacked in the streets, sometimes physically, as cheats and scroungers.

The Daily Mail has a direct line to the DWP and vice-versa, as shown by a Freedom of Information request[iii]. The newspaper has obligingly helped the DWP to demonise disabled people in order to make the benefit cuts acceptable to the British public, using lies, distortion, slurs, smears and all their arsenal of propaganda.

For more about media coverage of disabled people, see: https://dpac.uk.net/wp-content/uploads/2014/05/DPAC-Report-on-DWP-Abuse-of-Statistics-Final-22-June-2013.pdf?a8fae4

And also a very good report on the media treatement of disabled people: Bad news for disabled people. How the newspapers are reporting disability: http://www.gla.ac.uk/media/media_214917_en.pdf

And for more Daily Mail manipulation about disability claimants: https://dpac.uk.net/2013/05/the-daily-fail-workshy-map-with-the-not-fit-for-work-map/

[i] http://en.wikipedia.org/wiki/ICD-10_Chapter_IV:_Endocrine,_nutritional_and_metabolic_diseases

[ii] http://en.wikipedia.org/wiki/ICD-10_Chapter_XIV:_Diseases_of_the_genitourinary_system

 

[iii] https://dpac.uk.net/2014/12/dwp-caught-giving-disability-propaganda-to-daily-mail/

 

 Posted by at 22:45
Mar 202015
 

Neil Crowther writes in his blog Why it’s time disability rights activism got its mojo back.”

Its well worth a read for those unfamiliar with Neil’s work. Those who are already familiar with his work will recognise his trademark stunning ignorance of the lives of disabled people in the UK today.

Only someone so insulated from the effects of government policy could have that level of blissful non-empathy.

But in this piece, Neil excels himself. He not only displays an ignorance of disabled people’s lives but an ignorance of the disability rights movement that he claims to be a part of.

Where was Neil when :

  • We launched the UK Disabled people’s ‘Reclaiming Our Futures’ Manifesto

  • We've been campaigning to keep the Independent Living Fund Open?

  • We've been campaigning to get Anthony Kletzander out of an institution and back into an independent life?

  • We've been campaigning for Accessible Transport?

  • We've been campaigning on Access to Work?

  • We've been campaigning for Inclusive Education?

  • We have been supporting Operation Disabled Vote and running our own Who2Vote4 campaign?

So where were you Neil ? When we were marching, protesting, writing, petitioning, lobbying, occupying, tweeting.

Where were you?

Neil, the disability rights movement's Mojo is thriving.

Maybe the reason you don't know it, is that you haven't taken part in it.

 Posted by at 23:22
Mar 192015
 

Here is the official campaign song for Wirral TUC’s Sack Esther McVey Campaign. Written and performed by Alun Parry, see his site here

The name of the song is simple: Sack Esther McVey.

She has presided over the appalling benefit sanctions regime, and she can be booted out of Parliament altogether on May 7th.

The song is available  to hear in three ways. There is a video which was put together by Julian Talbot (see below). There is a song that you can stream on the internet.

Finally, there is a free download so you can download it to your own computer and device.

Please share the song on YouTube, Facebook, Twitter and amongst your friends.

 

 Posted by at 12:54
Mar 172015
 

This is a repost as we’ve been made aware that DWP are sending out a new crop of letters to those in the ESA support group

We ‘ve had increasing numbers of emails from those in the ESA support group facing constant harassment from local job centres. Harassment takes the form of letters and phone calls ‘inviting’ people to work focused interviews, chats with job coaches or other ‘helpers’. Another type of ‘invite’ suggests that the job centre need to check you’re getting the right amount of benefit they advise you to take in bank statements and other documents. Often these letters and phone calls wrongly state that your benefits are at risk if you do not attend. All such interviews are voluntary according to the regulations, not mandatory. Its sounds like a scam warning from some dodgy company doesnt it, but this is the DWP Job Centre, supposedly public servants, causing anxiety and misery.

We have reproduced two template letters to use if these scams happen to you -with thanks to John Slater

Your Name

Address 1

Address 2

County

Post Code

Name JCP Manager

Address 1

Address 2

County Post Code

Date

Ref: NINO

Dear JCP Manager   I received your letter of <insert date> stating that you have arranged a work‐focused interview for me on <insert date> at <insert time> without my knowledge or consent.

The DWP is aware that I have been placed in the Support Group for Employment and Support Allowance and therefore exempt from activity of this nature. S.19 of the Welfare Reform Act 2012 specifically forbids the Secretary of State from imposing any work‐related requirements on anyone allocated to the support group.

This letter has caused me considerable distress and has exacerbated my illness. Should the DWP persist in sending me further letters of a similar nature I can only conclude that it does so knowing that it will cause me alarm or distress. Such actions are a criminal offence under section 2 of the protection from Harassment Act 1997 and I retain the right to make a criminal complaint to the police.

As the DWP is acting contrary to the Welfare Reform Act 2012 please regard this letter as notification to cease and desist all such activities immediately.

I will not be attending the work‐focused interview and in doing so I will not be placing my entitlement to ESA at risk. Any suggestion by the DWP to the contrary will be considered harassment.

I remind the DWP that I will continue to comply with all lawful requirements in respect of my ongoing claim for ESA.

Yours sincerely

A. N. Other

Your Name

Address 1

Address 2

County

Post Code

Name JCP Manager

Address 1

Address 2

County Post Code

Date

Ref: NINO

Dear JCP Manager

I received your letter of <insert date> stating that you have arranged an interview for, without my knowledge or consent, on <insert date> at <insert time> because my circumstances may have changed and the DWP need to ensure my payments are correct.

The DWP is aware that I have been placed in the Support Group for Employment and Support Allowance and therefore exempt from any work‐related activity. S.19 of the Welfare Reform Act 2012 specifically forbids the Secretary of State from imposing any work‐related requirements on anyone allocated to the support group.  It also makes no provision for people allocated to the Support Group to be summoned to attend random benefit interviews.

On the .GOV website the DWP states:

You’ll then be placed in 1 of 2 groups if you’re entitled to ESA:

work‐related activity group, where you’ll have regular interviews with an adviser

support group, where you don’t have interviews

In fact the DWP has the Benefit Centre network that contains benefit integrity centres and performance measurement to undertake this type of review by appropriately qualified officers. Therefore, this interview appears to be incompatible with the DWP own processes.

In respect of payments the DWP knows that I am in the Support Group and the amount I am in receipt of. Therefore, it can easily determine if this amount is correct without recourse to a face to face review.

To the best of my knowledge my circumstances have not changed. If the DWP has evidence to the contrary please address them to me in writing as I find the benefit system far too complex and distressing to deal with on the telephone or face to face. I also rely on extensive support from other people when dealing with the DWP.

This letter has caused me considerable distress and has exacerbated my illness. Given that the proposed review is incompatible with the DWP own business processes and published guidance I can only assume that its purpose is to cause me alarm or distress.  Should the DWP persist in sending me further letters of a similar nature I can only conclude that it does so with the same intent. Such actions are a criminal offence under section 2 of the protection from Harassment Act 1997 and I retain the right to make a criminal complaint to the police.

Please regard this letter as notification to cease and desist all such activities immediately.

I will not be attending the interview and in doing so I will not be placing my entitlement to ESA at risk. Any suggestion by the DWP to the contrary will be considered harassment.

I remind the DWP that I will continue to comply with all lawful requirements in respect of my ongoing claim for ESA.

Yours sincerely

A. N. Other

Templates can also be downloaded at the links below

Correct Detail or Support Invite Reply Template (1)

WFI reply template

 Posted by at 19:20
Mar 172015
 

Today, the Guardian published an interview of Rachel Reeves, in which she says of the Labour party: “We are not the party of people on benefits. We don’t want to be seen, and we’re not, the party to represent those who are out of work,……. Labour are a party of working people, formed for and by working people.”

This is a huge disappointment for those who had been expecting the Labour party to take a principled stand against what the Coalition is doing to unemployed and disabled people who cannot work, lone parents, carers and pensioners who rely on benefits and to voice their concerns and anger.

Forget it. The Labour Party does not represent you.

But that is not even the worst. Rachel Reeves seems to think that you cannot be claiming benefits and working at the same time, although some disability benefits like the Independent Living Fund, Disability Living Allowance,Personal Independence Payment and Access to Work are designed precisely with this in mind. All parents raising children are entitled to Child Benefit, although it is now mean-tested. Do we have to assume that Rachel Reeves will forfeit her allowance when she has her baby? Should we assume that neither David Blunkett nor Ann Begg had or have to rely on some form of disability benefits to support them in their Parliamentary life?

Is the assumption that claiming benefits only happens to others, slightly apart from the rest of the human race, and who don’t deserve to be represented although they are already the most politically marginalised and unrepresented group?

Maybe before speaking, Reeves should have had a chat with Yvette Cooper. Yvette Cooper could have told her that when she was struck by ME, she had to claim disability benefits during six months because she was too sick to work. She was lucky to totally recover after 4 years, but when she needed it, the state was there to support her, and I am not sure she would have been very pleased to be told at the time that her own party did not represent her anymore because she could not work. (see below for more information)

Rachel Reeves made a huge faux-pas today, which might not gain the Labour Party any extra votes from the Tory party, but which has lost for Labour the last hopeful voters who still believed that the Labour Party was the party of compassion and solidarity and who discover that it has lost its soul.


On 21st October 2009 while Work and Pensions Secretary, Yvette Cooper made the following statement to the All Party Parliamentary Group on ME. Of particular interest are Yvette Cooper’s comments about her uncertainty about if she would have qualified for ESA at the time, when she knew she was unable to work, and also a recognition all the way back in 2009, six years ago, that the WCA was flawed when dealing with fluctuating conditions.

I am happy to say a few things first. It is a pleasure for me to be here. Tony Wright MP and I first discussed setting up the all party group on ME back in 1998. I obviously have a strong personal interest in it, having been an ME sufferer back in 1993. I was off work for about a year. I had to work part time for a year or two after that, and then it was another couple of years before I stopped getting any relapses.

I obviously have a personal interest in this, and although it is true that I am the third Secretary of State to come before the group, I think I am probably the only Secretary of State from the Department for Work and Pensions who has actually claimed sickness benefits. As well as having statutory sick pay for six months, I also claimed what was then invalidity benefit for six months, before going back to work. I was lucky to have a supportive employer who allowed me to work part time — I worked alternate days, as that was the best way for me to do it when I started back at work — and who was very considerate when I had bad days. I am very conscious of the difficulties and challenges that people can face. That includes both those who have the condition and can work, although they can only work certain times and need it to be flexible — that was the position I was in for some time — and those people who cannot work at all.

I am happy to listen to the concerns that the group wishes to raise. I have also been through the new work capability assessment, from the point of view of how I felt and the condition that I had at the time. I know that I was not able to work; I was desperate to get back to work, but would I have passed the work capability assessment in terms of getting the ESA?

I have been through all those sorts of questions because I have a personal interest in it, but I am interested in hearing your views too.

We have done a lot of work to try to ensure that the whole approach to the employment support allowance takes account of fluctuating conditions and fatigue, not only inability to do things. It should look at those conditions where someone is able to do something, but it wipes them out for the rest of the day. It is not that someone cannot do a particular thing because they are incapable of doing it, but it wipes them out.

That must be taken into account in the assessment process. A lot of work has been done to try and do that, and to build that in to the assessment process. I obviously have personal experience of how that is going, but we are keen to keep trying to do that, and ensure that we respond to what I know is a difficult condition.

We are pleased to note that Yvette Cooper is restored to health, not only being able to hold down a demanding job, but also now having the spare energy to be able to run away from difficult questions about WCA:


Video courtesy of Kate Belgrave

 Posted by at 13:45
Mar 162015
 

Who 2 Vote 4 Logo

The UNCRPD and our human and civil rights must be fully implemented, promoted and enforced.

Disabled people are affected by the cuts 9 times more than everybody else. The most severely disabled people are affected by the cuts 19 times more than everybody else. This discrimination against disabled people must end.

Disabled people are affected by the cuts 9 times more than everybody else. The most severely disabled people are affected by the cuts 19 times more than everybody else. This discrimination against disabled people must end.

Manifesto Pledges we are seeking from Parties

A Legal Right to Independent Living and Self-Determination:

The creation of a specific independent living law: a legal right that fully enacts and enforces, as domestic law, the UNCRPD incorporating the 12 pillars of independent living as its key goals and ensures provision of independent living support is free at the point of need and paid from general taxation.

There should be a single nationally transportable social care system and an end to localism and the current postcode lottery that exists. Funding for care should return to a 4 tier rather then a 2 tier system with low and moderate needs being met for all as well as substantial and critical.

Stop the closure of the cost effective Independent Living Fund (ILF) and set up an Independent living task force, co-produced with ILF users, to review independent living and specifically the Independent Living Fund in order to identify how best to improve, develop and extend independent living support building on the successful model of ILF provision.

Legislation to end 15 minute home care visits and any move to replace face-to-face visits with telecare options.

An end to zero hour contracts for home care staff.

Serious changes should be made to how family carers are better supported both financially and practically.

Access to Health and Support Services: NHS funding must be protected and all forms of privatisation of our NHS should end with immediate effect.

Funding for mental health services including crisis teams should be protected and where necessary increased to former and safer levels. There should be an end of rationing of primary MH care services and treatment tailored to needs.

More funding investment is needed for children’s adolescent mental health services.

GP and nurse training should include compulsory training on mental health conditions and treatment.

There must be changes made to the Mental Capacity Act which is failing people it is supposed to protect. The Best Interests concept means that substitute decision making has become the default position rather than supporting people who are disabled or have Learning Difficulties to make their own decisions.

Welfare Support : There must be a publicly run welfare system and an end to paying private firms massive amounts of public money to carry out disability assessments badly. Instead that money should be invested into providing decent, liveable benefit levels.

An end to the Work Capability Assessment which is too flawed to amend.

An immediate end to benefit sanctions which have led to deaths and increasing poverty. Ensure that there is no conditionality of JSA or ESA WRAG on seeking treatments and no linkage with treatment and receipt of benefits.

Engagement with any back to work services must be optional for all claimants.

An end to replacing Disability Living Allowance with Personal Independence Payments which even now is in complete chaos.

A total rethink on any move to Universal Credit and instead serious consideration to be given working with disabled people and DPOs to a move to a single system of welfare support based on the concept of a disabled person’s citizens income.

Policy recognition that there will always be disabled people who are unable or too ill to work. These individuals must be supported by a publically funded system.

Housing: A strategic and sustained programme of building social housing to the standards of universal design and accessibility is carried out.

An end to bedroom tax and the Benefit Cap.

Until there are adequate levels of social housing available an increase in LHA rates to fully reflect the real costs of housing to meet the needs of disabled people and disabled children.

Access, Inclusion and taking part in society: The creation of legal status for British Sign Language, and disabled people’s access on an equal basis with others to the physical environment, to transportation, justice, family life, the arts, to accessible information and all forms of information technology.

Enact and maintain a fully accessible public transport system with free transport available for disabled people.

Fully Inclusive Education: Education is the key to creating an inclusive society. This can only be achieved by having one fully inclusive mainstream education system, funded by the state. Without inclusive education you will not get an inclusive society

Planned cuts to Disabled Students’ Allowance should be reversed

All Disabled People have a right to Work and get a Job:

A comprehensive plan of action is developed with disabled people and our organisations to tackle the discrimination and exclusion disabled people face in work and employment.

Access to Work (AtW) must be extended to include unpaid voluntary positions and recent changes that limit and reduce the support provided through AtW should be reversed.

The recently introduced (August 2013) fees for taking an employer to Employment Tribunal must be repealed.

Ensure that all government contracts, at a national, regional and local level, are only awarded to companies that are fulfilling measurable targets for the employment of disabled people.

Access to Justice: All legal aid changes must be repealed and disabled people’s rights to access justice must be restored.

Disability Hate Crime laws and sentencing must be strengthened.

Reversal of the watering down of disabled people’s rights with the move from DDA to the Equality Act.

Restoration of funding for advice advocacy services such as CABs.

Legislation to prevent assisted dying.

Local Authority Statutory Services: There must be no redefining of Local Authority Statutory Services to reduce their obligations even further.

Real and Effective Co-Production with user-led Deaf and Disabled People’s Organisations across the UK: Ensure meaningful, well-resourced and accessible co-production with disabled people and their organisations at local, regional and national levels on all issues affecting us.

Disabled People Against Cuts (DPAC)

www.dpac.uk.net

mail@dpac.uk.net

@dis_ppl_protest

The above come from the UK Disabled Peoples Manifesto

Full manifesto, summary of manifesto and Easy Read versions are available in both PDF and Word version.

UK Disabled People’s Manifesto – Reclaiming Our Futures. PDF

Download Easy Read versions below

Easy Read versionas are below in both PDF and Word versions.

UK disabled people’s manifesto – Easy Read. PDF

 Posted by at 23:12
Mar 162015
 

Who 2 Vote 4 Logo

The current situation now is that England will be the only UK nation which no longer has an ILF as Scotland, Wales and Northern Ireland have pledged to open replacement ILF funds so this will lead to what can only be described as the biggest postcode lottery ever. If you are fortunate enough to live in a devolved nation then you will still be eligible for this additional funding but if you are unfortunate enough to live in England then you won’t be.

Obviously it may seem to those who have no real experience of the way the care system operates that it makes sense to devolve all funding to local authorities even if it will not be ring-fenced either to current recipients or even to the adult social care budget however ILF funding covers essential support for independent living which local authority care will not. (even with the introduction of the new care Act from April this year).

Labour says it strongly agrees that independent living is crucial to ensuring that disabled people have the same rights, choices and chances as any other citizen. They tabled an amendment during the Committee Stage of the Care Bill which would have enshrined in law the right of disabled people to live independently. Unsurprisingly the government chose to vote against and defeat this amendment. Ed Miliband has said recently Labour also opposed the government’s plans for closure of the Independent Living Fund in the absence of a comprehensive strategy for a system of social care that protects people’s ability to live independently. Yet in spite of this if Labour is elected in May it will be a Labour government that allows the ILF to close.

Kate Green/You have said “it’s not Labour’s position to retain the ILF “

We have asked Labour to commit to keeping the ILF open for current recipients even if only in the short term until something better can replace it so that a generation of disabled people do not lose the right to continue to live independently in the community.

The Labour front bench have said they will allow the ILF to close because there is a real opportunity to develop a sustainable model of provision for the most severely disabled people within the integrated health and social care landscape that Andy Burnham and Liz Kendall have been articulating rather than continuing with a standalone fund. These proposals are based on a report by the Oldham Commission which clearly states that it will take the 5 years of a new parliament and an extra £10 billion of funding to achieve these changes. In the meantime there will be no protection for disabled people in England who need their needs funding now and not at some date far into the future. For them any new integrated care system will simply be too late to help. Moreover, as respected experts in the field such as Professor Pat Thane have pointed out, the current system is simply not functioning at the necessary level. Relying on the integration of health and social care as a solution to the crisis in social care is thus an irresponsible gamble to take with people’s lives.

In the original ILF consultation over 50% of local authorities said that the loss of ILF was likely to lead to disabled people having to move from the community back into Care homes, something that is not only morally wrong but which will cost Local Authorities, who by 2015 will have had social care budgets cut by £8 billion, or by about 33%, considerably more.

Already since 2008 over 90,000 disabled people or 1 in 6 have lost their care and support for independent living.

While it is true that the fund is now being wound down, and staff numbers are already reducing it is not true that it is too late for Labour to commit to keeping the ILF open in England as well as will be the case in other parts of the UK. PCS and a former manager at ILF have both given the Labour front bench detailed reasons of why this is the case.

As the devolved funding will not be ring-fenced in any way to either individuals or adult social care budgets Ed Miliband has said that Labour will put in place guidance for Local Authorities to encourage them to meet the needs of severely disabled people in their areas but this will not be mandatory and we have no reason to believe that cash strapped councils will have either the political will nor the financial ability to implement such guidance. They are very aware of the dangers of setting precedents for providing levels and types of social care support to some individuals and not for others. A Local Authority could easily consider itself to have more to risk by following than not following the guidelines. In order to ensure equity between all adult service users they may well feel they have no choice but to level down..

As emerged from formerly undisclosed documents from DWP during one of the court cases the devolved funding for ILF recipients is only in place until April 2016 and no additional funding was requested beyond that date by DWP. What will happen to the real people stuck in the middle of this chaos then has not been addressed by any political party.

Further Labour also cite “inconsistencies” in delivery as a reason to remove the right to live independently from severely disabled people but these are the result of unequal take up between different local authorities  and is symptomatic of the failings of local authority administered social care support. As a national model of service delivery the ILF is far more successful and cost effective than local authority administered social care. The latest ILF annual report records a user satisfaction rating of 97%. Overheads for the ILF come in at just 2 % of the budget in comparison with an average of 16% for local authorities. It is in fact a model of service delivery that should be built upon rather than shut down. We understand that provisions in the Care Act are aimed at reducing inconsistencies between local authorities, nevertheless the inconsistencies Labour cite as a problem of the ILF are many times worse in the current system upon which ILF users will now be solely reliant as a result of the closure.

Since the closure to new applicants in December 2010 disabled people who missed out on the ILF have suffered dramatically worse outcomes than existing ILF recipients with equivalent support needs. We have provided Kate Green with a number of case studies showing the reality of independent living for disabled people who would have been eligible for ILF but are now only receiving LA social care support. We are not just talking about disabled people no longer being able to go to work, or ever have a holiday or go to university, we are talking about people unable to leave their homes, left without access to food or water, unable to go to the toilet and unable to wash more than a couple of times per week. We know there is also an urgent need to address this inequity, so do not believe that the right answer is to level everyone down to the lowest levels of support.

In the short term we are asking that the ILF be retained as the only way to realistically guarantee protection for existing recipients. Disabled people are aware that this is not a big ask: the ILF represents a relatively small amount of money – only £32 million and the ILF will not be wound down beyond easy repair before May 2015.

Moving on from these moral aspects of retaining the ILF the political situation now is that the Labour Party is the only main opposition party unwilling to commit to keeping the ILF open if elected. We find it very difficult to understand why Labour continues to take this position and not avail themselves of the support of the 12million plus disabled voters,and their families and friends

 Posted by at 23:06
Mar 152015
 

Many thanks to the brilliant Kate Belgrave – @hangbitch  Website: http://www.katebelgrave.com/

Interviews with Yvette Cooper (sort of), Andy Burnham and Liam Byrne 

To the Labour Spring conference in Birmingham yesterday! – where a group of Independent Living Fund recipients, Disabled People Against Cuts and me did our best to get answers from Labour worthies about the party’s plans for disabled people’s benefits and funds. The aim was to hear from various horses’ mouths what will happen if Labour forms part of whatever monster administration we end up with in a couple of months, etc.

So.

It wasn’t a bad day out if you fancied a mid-morning cake. There were croissants, piles of those great little pastries with jam and icing, and awesomely big chocolate squares laid out on oddly morgue-y concrete slabs. Answers to the funding questions were a little harder to come by. The people I tried to speak to either ran away, stamped off when compared with Tories, or said they had families to get home to. Not to worry. Plenty of time left before the election (54 days they kept saying yesterday). I think I might get along to a few more of these junkets and hustings. Even the most committed MPs and parliamentary hopefuls can’t spend 54 days legging it from the rabble.

But let’s not carp about that. Let’s go to some of yesterday’s responses. The electorate requires a few decent responses on these issues. Disabled people have taken the brunt of austerity cuts. I personally feel that Labour needs now to be offering something a bit more substantial than “That’s Sad,” or “How Awful” (heard both yesterday) on the topic of this government’s disability funding slaughter. A rigorous commitment to social security from a party that ought to see the point of it would be nice.

We had two questions for MPs:

1) Would Labour scrap the hated and dangerous Work Capability Assessment for Employment and Support Allowance?

2) Would Labour change its mind and keep the Independent Living Fund (ILF) open – the ILF being an all-important fund that profoundly disabled people use to pay for the extra care hours that they need to live independent lives? The current government plans to close the fund by the end of June this year.

You’d expect a reasonably straightforward set of responses, given that the answer to both questions ought to be a resounding Yes. Unfortunately, things weren’t quite as simple as that, as you’ll see.

Out of the blocks (literally) in the video below was Yvette Cooper. I asked her for her views on the WCA and whether Labour would scrap it. She said to talk to Rachel Reeves, because she, Yvette, was in hurry for her next meeting. To be fair, this may have been true, although I noted that she went from walking to her next meeting to sprinting for it very fast when I tried to talk to her. I was asking “Will Labour get rid of it [the WCA]?” as she went. Not a lot of joy there as you’ll see:

Transcript for video (pdf)

No luck finding Rachel Reeves back at base, either. But not to worry, as I say. Am already on the search for a next time.

Onto Andy Burnham next. The great man was in the NHS corner in the top assembly room. In the video below, he speaks with DPAC’s Linda Burnip about the fast-approachingclosure of the Independent Living Fund.

Burnham agreed that the profoundly disabled people who rely on the ILF needed protection when/if the funds closes. Which they do, to say the very least. Without the ILF to pay for the extra care hours they require, those disabled people will either be pushed into care facilities, or left at home to try and get by with dangerously low levels of care. It is no exaggeration to say that many won’t get by. The big problem now, of course, is that the ILF is due to close in a matter of months. It’s very late in the day for politicians to be wafting on in a non-specific way about protections for people whose lives will depend on those protections. As DPAC says in the video, Burnham’s integrated health and social care plan is still a long way off. There are also those of us who feel that in a general sense, Labour council attempts to protect social care budgets and facilities in the past five years have been beyond woeful, so putting further hope in widespread protection for disabled people could be a bit – hopeless. Burnham did commit to a meeting with DPAC and Inclusion London about the ILF/these “protections”, so I very much look forward to that:

Transcript for video (pdf)

Next up – I spoke with Liam Byrne about the Work Capability Assessment. God only knows why I decided to do this to myself. I’m starting to think that I may need to re-nose this aspect of my approach. Quite a lot of my life has already been wasted on conversations with fading worthies. You can actually hear my will to live leaving me via my voice in this one. Needless to say, Byrne thought that outsourcing assessments for disability benefits was still a good idea, despite the Atos experiment ending up as a pile of turds. One thing I will say for modern politicians – once they’ve chosen a disastrous ideology, they stick with it. They don’t flail through life looking for new ways to fail like the rest of us. I raised the ILF with Byrne, but didn’t get anything there, because he had to go and talk to some (possibly more important) blokes and also remembered he had to get home to the family:

What next. Oh yes. There was a “conversation” with Angela Eagle near the start where one of our number made a comment about Labour’s approach to WCA not being far removed from the Tories’. She apparently got all upset about that and left because she was a) genuinely angry or b) quietly delighted because she felt that the Tory comparison gave her an excuse (it didn’t) to leave, and on her high horse. Her Spad person told us to “send an email” as Angela marched off. I think I’ve got an audio from that one, but might go for a drink before subjecting us all to it. Definitely let me know if you’ve got hustings coming up in your area, though. Am right up for more of these face-to-face chats.

 Posted by at 17:29
Mar 152015
 

The Deaf  community in North Staffordshire region have had all funding  for Hearing Aids withdrawn!
This means  if people can’t pay £ 400, they can’t hear. We need to fight this not just as deaf  community and supporters but as an entire disabled community.
This despicable behaviour is likely to spread to withdrawing funding of equipment and resources for other impairments  too. Please like and share our new dpac page for North Staffordshire and Cheshire East.

https://www.facebook.com/pages/DPAC-North-Staffordshire-and-Cheshire-East/1568667403389619?fref=ts

if you are unable to access Facebook but would like to get involved in this area email us at mail@dpac.uk.net with your contact details which we will pass on.

 

 Posted by at 15:01
Mar 152015
 

The Ministerial statement issued this week by Mark Harper, Minister against Disabled People, announced measures which will discriminate against Deaf BSL users and those with higher cost support needs by introducing a cap on Access To Work packages. The statement mentions personal budgets and the idea of giving greater flexibility and choice in how ATW customers use their packages. Deaf and disabled people are under no illusions that this will mean anything but a further driving down of support costs. There is no recognition within the statement about the value of investing in Deaf and disabled people’s employment or the proven economic benefits for the state of Access to Work. Instead there are references to taxpayers money and the implication, consistent with the cultural shift we have seen within ATW over the last year or so, that Deaf and disabled people don’t have a right to aspire to equal life chances due to cost.

Campaigners at this week’s StopChanges2ATS meeting commented that the government may as well just send us all back to the workhouse. Already the changes to ATW have pushed Deaf and disabled people out of professional positions, careers and businesses they have spent decades building. The pressure on employers to “redesign” jobs to reduce support needs is pushing Deaf and disabled people into unskilled, lower paid work.

Harper’s statement also confirms the introduction of a framework agreement which will mean the outsourcing and privatisation of BSL interpreting. A similar framework adopted four years ago in the Ministry of Justice has been a categoric disaster. The framework for translating and interpreting currently being proposed is entirely unworkable, will drive down standards and leave Deaf BSL users without the communication support they need not only day to day but also in life or death situations interacting with for example hospital or social services. In a survey carried out by the National Union of British Sign Language Interpreters, 48% of interpreters surveyed said they are considering leaving the profession.

For more comment see:
https://stopchanges2atw.wordpress.com

To view the statement:
http://www.parliament.uk/documents/commons-vote-office/March%202015/12%20March%202015/40.DWP-Access-to-work.pdf

WE’RE LOOKING FOR ANTI-AUSTERITY VOLUNTEERS!

 News  Comments Off on WE’RE LOOKING FOR ANTI-AUSTERITY VOLUNTEERS!
Mar 142015
 

Central London
4-hour shifts on dates between 30 March and 9 April

For more information please contact Jessie[at]roaring-girl[dot]com.

Figures (www.wearefigures.co.uk) is setting out to make visible the human cost of austerity and urge action against it.Using excavated raw river mud and taking up residence on the streets and foreshore of central London, artist-activist Liz Crow will sculpt 650 small human figures, each one representing an individual at the sharp end of austerity. Their number echoes the 650 constituencies throughout which the effects of austerity are felt%2

 Posted by at 18:23
Mar 132015
 

Following the news today that Wales will definitely be setting up a replacement ILF after it’s closure in June 2015 and given that both Scotland and Northern Ireland are also keeping a fund starting today March 14th – March 21st we’re asking as many of you as possible to email, and/or tweet to Ed Miliband and Kate Green asking why they are betraying disabled people with high support needs in England and refusing to commit to keeping a ring-fenced fund open in England as well. This has to be the biggest post-code lottery in social care ever with your changes of receiving the care you need depending on whether you are fortunate enough to live in a devolved nation.
Contact details
kate.green.mp@parliament.uk

ed.miliband.mp@parliament.uk
@kategreenSU
@ed_miliband
gov.wales/newsroom/healthandsocialcare/2Hi Ed and/or Kate,

Hi Ed and/or Kate,

I don’t know whether you have seen the news today (see link below) but the Welsh Government has now formerly announced it is setting up a new fund to support ILF recipients. As you are aware, Scotland had already announced a similar scheme there and Northern Ireland is also committed itself to support current recipients.

Surely its time that Labour looked at this situation again and consider the implications of what this means? Whoever is in Government after the election is facing the prospects of having to explain/defend/apologise for the fact that whilst politicians in Northern Ireland, Wales and Scotland have listened to and taken action on this matter, in England, ILF recipients have effectively been abandoned and face having their care packages slashed.

It’s not too late for Ed Miliband and his front bench to take a firm stance on this issue and show that you stand shoulder to shoulder with disabled people and demonstrate to the electorate that there is a real difference between Labour and the Tories.

At the very least I urge you to raise this matter (and the recent developments) with other members of the Labour front bench team.

Yours

http://gov.wales/newsroom/healthandsocialcare/2015/150313fund/?lang=en

 Posted by at 22:21
Mar 112015
 

I need to acknowledge the use of work produced by Professor Luke Clemens which was provided by Kate Whittaker, of Scott-Moncrieff to us. The full summary produced is here http://www.lukeclements.co.uk/wp-content/uploads/2015/01/0-Care-Act-notes-updated-2015-02.pdf

 

There are also 2 excellent youtube videos by Professor Clemens on Continuing Health Care and assessing social care needs.

 

Luke Clements lectures

https://www.youtube.com/watch?v=MmFZ5qzvCZE  on CHC

 

https://www.youtube.com/watch?v=hEwBN873dYE   assessing social care needs

 

 

Background to Care Act 2014

The Care Act 2014 repeals almost all of the principal adult social care statutes. The list of ‘repeals’ is extensive including the National Assistance Act 1948, as well as the Acts and regulations that govern such things as direct payments, charging for social care, assessments (ie the NHS & Community Care Act 1990) and all the Carers Acts. It also replaces FACS criteria with a list of eligible needs.

 

The implementation timetable for the Care Act 2014 has been the subject of significant criticism. The 506 page guidance and 17 sets of regulations weren’t approved until mid-October – leaving local authorities less than 5 months to make major) changes (including training their workforce) before the Act comes into force in April 2015. It is I think fair to sat that many local authority social workers and managers are unlikely to know just what the Care Act entails even once it has replaced existing social care legislation so as disabled people and carers it is probably more important than ever that we know what it says and what our rights are.

 

The Government say this is  ‘the most significant reform of care and support in more than 60 years’ and it also provides a range of new rights for family carers.

The equivalent Welsh legislation (Social Services & Well-being (Wales) Act 2014) is not coming into force until 2016.

 

While the bulk of the Act will come into force in April 2015, the new appeals process and the ‘cap on costs’ provisions aren’t due to come into force until April 2016. A sum of £55.5m was ‘released’ which becomes the ‘Carers and Care Act Implementation Grant.’ aimed at meeting the expected increased potential demand from carers to access their ‘new rights’.

 

Luke Clemens says that “The speed with which the final guidance has been produced has resulted in it having a number of material errors and omissions. One is a section explaining the guidance’s status at law. The draft guidance contained a statement (page 3) that ‘local authorities are required to act under the guidance, which means that they must follow it, unless they can demonstrate sound legal reasons for not doing so’. This obligation stems from section 78 of the 2014 Act – which replicates the current duty (in section 7(1) Local Authority Social Services Act 1970) and means that existing case law concerning Department of Health ‘policy guidance’ will remain relevant under the new legal regime.”

 

The regulations detail specific obligations relating to market oversight / business failure (3 sets of regulations); the assessment of need; eligibility criteria; advocacy; charging; choice of accommodation; deferred payments; personal budgets; direct payments; the NHS interface; delayed hospital discharge; ordinary residence (2 sets of regulations); portability of care packages and cross-border placements; and registers for people with visual impairments. The longest set of regulations concern charging and there are none on some key questions – notably adult safeguarding.

The guidance contains a number of ‘examples’. While these had the potential to be of considerable value, they are disappointing: generally limp and have the predominant outcome that once the person had been pointed in the right direction, there was no need provide them with any local authority support.

 

The Act does not talk of disabled, elderly or of ill people: instead it uses the word ‘adult’ – but this is generally qualified as being an adult ‘in need’ of care and support. The regulations however stipulate that this is an adult who has ‘a physical or mental impairment or illness’. The current community care legislation generally requires that the impairment be both substantial and permanent.

 

Carer

Section 10 defines a carer as someone 18 or over  who provides or intends to provide care for someone but is not contracted to provide the care or providing the care as formal ‘voluntary work’. All ‘carers’ are now eligible for an assessment. This means that many more carers will be eligible for an assessment – for example those who are providing little or no physical or practical care – but providing emotional support This change, coupled with: (a) the abolition of the requirement that carers’ ‘request’ an assessment; and (b) the new ‘duty’ to meet carers assessed needs has the potential to recast radically the legal regime for carers.

 

As with the pre-Care Act law, there is no duty to assess carers who provide their care by virtue of a contract, or as voluntary work (section 10(9)). The guidance addresses the not uncommon situation of a carer who is paid to provide care for the adult (possibly through the use of a direct payment) but is also providing unpaid care for that person. At para 6.17 it advises that in such circumstances ‘the local authority must consider whether to carry out a carer’s assessment for that part of the care they are not providing on a contractual or voluntary basis’.

 

The act also includes provisions for young carers and disabled children.

 

Local Authorities also have far greater duties to provide assessments to eligible persons even those who self-fund, they must provide transparent information to people including how their Resource Allocation System operates, they must provide access to information and to advocacy for those who need it.

 

RAS will be based on the 10 outcomes outlined below with each outcome having a maximum number of points based on how expensive that outcome is to meet. Questions asked about support levels and the need to meet these will produce points for people whereasquestions about informal support which may be in place to help meet needs will remove points but it is also stressed in the Act that any assessment of needs must ignore care provided by informal carers and that such input can only be considered if appropriate and the informal carers are willing to provide such support. (6.64)

 

Social Care Institute for Excellence (SCIE) says that the Care Act is based on a strengths based approach to improve wellbeing and independence and that it looks at what people can do rather than what they can’t do as well as what those around them can do and what the community can do to support them to put off the need for care and support.

 

Underpinning principles (section 1)

The consultation process leading to the drafting of the legislation resulted in demands that the Act be underpinned by a coherent set of guiding principles (rather like those that apply in relation to the Mental Capacity Act 2005, s1). The Act does not have such a set of principles – instead it contains a general duty to promote the ‘well-being’ of individuals (ie adults and carers). The duty applies to local authorities and their staff when exercising ‘any function’ under Part 1 of the Act (ie sections 1-80).

 

Well-being

Well-being is so widely defined that there was a risk that it would prove to be of little practical application and is fairly meaningless. Clemens says   however the guidance goes a considerable way to dispelling this fear.

 

‘Well-being’ includes personal dignity, physical and mental health and emotional well-being; protection from abuse and neglect; control over day-to-day life; participation in work, education, training or recreation; social and economic well-being; domestic, family and personal relationships; suitability of living accommodation; and ‘the individual’s contribution to society’.

 

The emphasis on the importance of ‘control’ has been seen as a cause for concern by some commentators: in many respects the inclusion of ‘control’ can be seen as a further manifestation of the ‘responsibilization’ agenda. Despite the Law Commission’s comments, ‘choice’ does not appear as a well-being principle.

When discharging any obligation under the Act, the local authority must ‘have regard to’—

 the individual’s views, wishes, feelings and beliefs;

 the need to prevent/ delay the development of needs for care and support;

 the need to make decisions that are not based on stereotyping individuals;

 the importance of individual’s participating as fully as possible in relevant decisions (including provision to them of necessary information and support);

 the importance of achieving a ‘balance between the individual’s wellbeing and that of any friends or relatives who are involved in caring for the individual’;

 the need to protect people from abuse and neglect;

 the need to ensure that restrictions on individual rights /freedoms be kept to the minimum necessary.

 

A criticism made of the ‘well-being’ obligation and the above list in particular – concerns the failure to include an explicit reference to the right to ‘independent living’ – ie as protected by Article 19 UN Convention on the Rights of Persons with Disabilities (CRPD). The guidance, however, goes a good way to addressing this omission, stating that (para 1.19):

 

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). Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act.

 

Such an express statement is of considerable value – not least because the courts and Ombudsmen have shown a surprising willingness to have regard to the Convention in recent judgments / reports.

 

Well-being is defined as including being protected from ‘abuse and neglect’ (s1(2)(c)) and the guidance gives emphasis to this stating that ‘it is not possible to promote wellbeing without establishing a basic foundation where people are safe and their care and support is on a secure footing’ (para 1.26). The problem, as is noted below, is that although the eligibility criteria lists ‘being able to make use of the adult’s home safely’ as an outcome – this in itself does not (on one interpretation) trigger the safeguarding duty as the adult would also have to demonstrate an inability in relation to another ‘outcome’: being an elderly ill person unable to keep herself safe – is not without more, sufficient to instigate the safeguarding duty.

 

Bits of particular interest to us

 

Services / care and support responses (section 8)

Under the current legal regime the object of a community care / carers assessment is to determine (among other things) whether there is a need for ‘services’. The community care statutes provide exhaustive lists of services that can be provided and the Carers and Disabled Children Act 2000 provides a generalised statement as to what a carer’s ‘service’ might be. The Care Act repeals these statutes and (in keeping with its ‘outcomes’ rhetoric) avoids referring to the word ‘service’ when describing what may be provided to meet a person’s needs. Instead, section 8(1) contains an illustrative list of what may be ‘provided’ to an adult in need or carer – namely:

  1. a) accommodation in a care home or in premises of some other type;
  2. b) care and support at home or in the community;
  3. c) counselling, advocacy and other types of social work;
  4. d) goods and facilities;
  5. e) information and advice.

The absence of such things as ‘adaptations’ ‘travel’; and ‘holidays’ (which are specifically cited in the current law) was considered problematical by the Select Committee and in response to a question it asked the Department of Health, received confirmation that the Department considered that these services did fall within the ambit of the list.The Committee expressed the hope that the subsequent guidance would ‘make clear that the list is not intended to limit the ways in which a local authority might meet any eligible needs or agreed outcomes, removing any possible ambiguity on that point’ (para 170). Unfortunately the guidance does not make this sufficiently clear.

Support such as home adaptations, equipment and transport is often vital to enable ‘adults in need’ to live independently in the community. The facilitation / provision of suitable adaptations / equipment requires explicit guidance, given that the overlap of responsibilities between housing and social services authorities will remain (with such support being capable of being delivered under both the Housing Grants, Construction and Regeneration Act 1996 and the Care Act 2014).  The guidance fails to reiterate and build on the current guidance on this question.

 

Section 8(2) slips out of the ‘outcomes’ mode and gives examples of the ways need may be met which include the ‘service’ word – namely:

(a) by arranging for a person other than it to provide a service;

(b) by itself providing a service;

(c) by making direct payments.

 

Local authorities will be able to charge (under section 14) for the costs that they incur in providing care and support (under section 8) to meet the ‘needs’ of individuals – ie carers as well as elderly ill and disabled people. The question arises therefore as to whether local authorities will start charging for support such as advocacy, social work and information (and indeed how ‘social work’ is to be defined). The question is all the more pressing since local authorities will be able to delegate assessments (and most of their other functions) to independent sector organisations (section 79 – see below). In answer to a specific question on this point, the Minister (Norman Lamb) stated that these provisions do ‘not give a power to local authorities to charge for carrying out a needs or carer’s assessment in any circumstances’.

 

Assessment of adults in need (section 9)

The Act, the regulations and the guidance create important and welcome obligations on local authorities in relation to the advocacy and safeguarding needs of individuals

identified during the assessment and care planning processes.

 

The duty in the Care Act to assess adults in need is closely aligned to the existing duty (under s47 NHS and Community Care Act 1990). As with the current law, the duty is triggered by the appearance of need and arises regardless of the ‘level’ of those needs or the person’s financial resources (it applies, as now, to self-funders). The assessment must have specific regard to the well-being criteria (ie section 1(2) above) and must involve the adult and any carer. It is difficult to see how this can be achieved without a face to face assessment (unless the adult agrees this is not necessary) however para 6.28 of the guidance states that:

Where appropriate, an assessment may be carried out over the phone or online. In adopting such approaches, local authorities should consider whether the proposed means of carrying out the assessment poses any challenges or risks for certain groups, particularly when assuring itself that it has fulfilled its duties around safeguarding, independent advocacy, and assessing mental capacity.

There appears to be a downgrading (or at least a welcome acceptance of reality) of the value of ‘supported self-assessments’. Rhetorically they have promoted the unrealistic notion of disabled people identifying their own needs and mapping out their support – with a social worker giving gentle guidance and the benefit of her or his wisdom. In reality they have too often been the posting of a Self Assessment Questionnaire (SAQ) to the person in need and then running the ticked boxes through a Resource Allocation System (RAS): highly impersonalised and designed to reduce care costs: to ‘lower expectations’. The guidance requires individuals who are able and willing to undertake a supported self-assessment be offered one (para 6.44) but that: (a) the local authority must assure itself that it ‘is an accurate reflection of the person’s needs’ (para 6.3); and (b) that regardless of what the individual may think ‘the final decision regarding eligibility will rest with the local authority’ (para 6.53).

The guidance gives useful emphasis to the need for assessors to be ‘appropriately trained’, but also states that registered ‘social workers and occupational therapists can provide important support and may be involved in complex assessments which indicate a wide range of needs, risks and strengths that may require a coordinated response from a variety of statutory and community services’ (para 6.7). In so doing the implication is that for non-complex cases social workers may not be necessary. The general (and welcome) tenor of the guidance is, however, that assessors must be ‘appropriately trained’. Para 6.88, for example states that if an ‘assessor does not have the knowledge of a particular condition or circumstance, they must consult someone who has relevant expertise’ and at para 6.86 it requires that:

assessors undergo regular, up-to-date training on an ongoing basis. The training must be appropriate to the assessment, both the format of assessment and the condition(s) and circumstances of the person being assessed. They must also have the skills and knowledge to carry out an assessment of needs that relate to a specific condition or circumstances requiring expert insight, for example when assessing an individual who has autism, learning disabilities, mental health needs or dementia.

The guidance requires that assessments be ‘person-centred, involving the individual and any carer that the adult has, or any other person they might want involved ‘ (para 6.9) and that they must ‘establish the total extent of needs’ (para 6.10). Local authorities are also required to ‘provide in advance, and in accessible format, the list of questions to be covered in the assessment’ (para 6.38).

 

Carer support ignored

The ‘eligibility criteria’ regulations make explicit that the decision about whether an adult has eligible needs, is made on the basis that it does not take into account any support that is being provided by third parties (ie carers): ‘instead, where a person receives support from a carer, this will be taken into account during the development of the care and support plan.’ This important point is addressed in the guidance, which at chapter 6 (Assessment and eligibility) states:

 

6.15 During the assessment, local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer. Where the adult has a carer, information on the care that they are providing can be captured during assessment, but it must not influence the eligibility determination.

 

This approach is restated in the care and support planning section of the guidance (para 10.26) which requires that authorities ‘must identify, during the assessment process, those needs which are being met by a carer at that time, and determine whether those needs would be eligible’.

Section 10(5) requires that assessments must take into account the extent to which the carer is ‘willing, and is likely to continue to be willing’ to provide care. The guidance at para 2.48 that ‘authorities ‘should not assume that others are willing or able to take up caring roles’ echoes earlier guidance – for example the original 1990 policy guidance to the Community Care reforms61 and guidance to the Carers (Recognition & Services) Act 1995.62

 

The nature and setting of the assessment

The guidance advises that to enable individuals to prepare for their assessment, they should be provided in advance (in an accessible format) with the list of questions to be covered in the assessment (para 6.38). At the same time the authority must consider if the individual may have ‘substantial difficulty’ in being involved in the assessment process and if so consider the need for independent advocacy (para 6.23). At the conclusion of the assessment the local authority must ‘ensure that it is an accurate and complete reflection of the person’s needs’ (para 6.46) – which must presumably mean sharing a draft and getting it agreed (or details of what is not agreed) – since a copy of the assessment must then be given to the carer / adult in need (para 6.98).The duty to endeavour to reach agreement at this stage is not however explicit – unlike the requirement in para 10.83, that authorities ‘must take all reasonable steps to reach agreement with the person for whom the plan is being prepared’.

Individuals must be ‘at the heart’ of their assessments and in the case of an adult ‘in need’ the authority ‘must also involve any carer the person has (which may be more than one carer)’.

 

Advocacy support

The Act, regulations and guidance make specific provision for advocates to be provided where a person has ‘substantial difficulty’ in being actively involved with the planning process. Less is said concerning the needs of those who don’t have such a difficulty – but nevertheless feel the need for support from friends or advocates.

 

Eligibility criteria (section 13)

Where an assessment identifies that an individual has needs for care / support then the authority must decide if these needs are sufficient to meet the eligibility criteria. The pre-Care Act legislation contains no reference to ‘eligibility criteria’: locating them instead in guidance (commonly referred to as FACS). The Care Act places eligibility criteria in a statutory footing (section 13) with the detail being spelled out in the regulations– which contain separate criteria for adults in need and for carers. Whether this change of status – or indeed the significant changes to the criteria themselves – will result in material change in practice is difficult to predict. Research suggests that for both carers and disabled / older people, the content of national criteria is less influential than ‘social work attitudes’ and local interpretations of the national criteria.

 

Adults in need eligibility criteria

For adults in need, the Care Act criteria have many similarities to the FACS guidance: the most obvious change is the absence of ‘bands’ (the ‘critical’, ‘substantial’, ‘moderate’ ‘low’ bands in FACS).

 

Under the new eligibility scheme, adults in need must satisfy three requirements:

 

(1) their needs must be the result of a physical or mental impairment or illness;

(2) as a result they must be unable to achieve two or more specified outcomes; and

(3) as a consequence, there is (or there is likely to be) a significant impact on their well-being.

 

In this process – a key word is ‘significant’ and it is one that also appears in the carers eligibility criteria. The guidance avoids a precise definition of what ‘significant’ means – para 6.110 stating that it is to have its ‘everyday meaning – but then adding that authorities must consider whether the adult’s needs and their consequent inability to achieve the relevant outcomes will have an important, consequential effect on their daily lives, their independence and their wellbeing’ (para 6.110) – and that:

‘Needs may affect different people differently, because what is important to the individual’s wellbeing may not be the same in all cases. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another’ (para 6.111).

 

Inevitably it would appear to follow that, as with the FACS criteria, the eligibility determination will continue to be subjective and made on the basis of the assessor’s professional opinion. The ‘inherently subjective’ nature of this process led a number of commentators, including the LGA and ADASS, to suggest that the draft eligibility criteria (published in June 2014) placed the threshold of entitlement closer to the ‘moderate’ band in FACS than the ‘substantial’ band. The final (ie revised) criteria appear to be ‘tighter’ – most noticeably requiring that the person is ‘unable to achieve two or more specified outcomes’. However, in this context, regulation 3 defines ‘unable’ in expansive terms: a person is to be deemed ‘unable’ if he or she:

(a) is unable to achieve it without assistance;

(b) is able to achieve it without assistance but doing so causes the adult significant pain, distress or anxiety;

(c) is able to achieve it without assistance but doing so endangers or is likely to endanger the health or safety of the adult, or of others; or

(d) is able to achieve it without assistance but takes significantly longer than would normally be expected.

The broad definition of inability to achieve – has also led commentators to suggest that even in this final formulation, the eligibility remain more generous than under the FACS guidance.

 

Regulation 2 details ‘outcomes’ as being:

(a) managing and maintaining nutrition;

(b) maintaining personal hygiene;

(c) managing toilet needs;

(d) being appropriately clothed;

(e) being able to make use of the adult’s home safely;

(f) maintaining a habitable home environment;

(g) developing and maintaining family or other personal relationships;

(h) accessing and engaging in work, training, education or volunteering; Care

(i) making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and

(j) carrying out any caring responsibilities the adult has for a child.

 

Para 6.107 of the guidance provides examples of how local authorities should consider each of the above outcomes – while emphasising that the guidance does not constitute an exhaustive list of examples.

 

As noted above, the regulations and guidance are unequivocal concerning the input of carers: this must be ignored during the assessment process of the adult and during the determination of eligibility. As the guidance states (para 6.119):

The eligibility determination must be made based on the adult’s needs and how these impact on their wellbeing. Authorities must only take consideration of whether the adult has a carer, or what needs may be met by a carer after the eligibility determination when a care and support plan is prepared. The determination must be based solely on the adult’s needs and if an adult does have a carer, the care they are providing will be taken into account when considering whether the needs must be met.

 

The pre-Care Act rule – that the eligibility criteria can be sidestepped for people whose needs are urgent is carried forward into the new regime (section 19(3)). The guidance advises that where ‘an individual with urgent needs approaches or is referred to the local authority [it] should provide an immediate response and meet the individuals care and support needs’ and it then provides as an example, ‘where an individual’s condition deteriorates rapidly or they have an accident, they will need a swift response to ensure their needs are met’ (para 6.26).

 

Funding panels

Many local authorities use ‘panels’ of various types (sometimes termed ‘allocation panels’, ‘funding panels’ or ‘purchasing panels’) as a means of rationing services. The legality of the way that some of these panels operate is open to question – creating as they do, an additional non-statutory hurdle for people in need and their carers. The 2014 Act makes no change to this situation and so the concerns raised by the courts and the Joint Committee on Human Rights concerning the legality of such ‘panels’ overruling social work recommendations will remain relevant. The Local Government Ombudsman has also expressed similar misgivings. In a 2005 report, for example, he held that where an assessment has been carried out, a purchasing panel (and by implication a manager) cannot override the judgment of the assessor without providing clear reasons for doing so.

Due regard should be taken to the use of approval panels in both the timeliness and bureaucracy of the planning and sign-off process. In some cases, panels may be an appropriate governance mechanism to sign-off large or unique personal budget allocations and/or plans. Where used, panels should be appropriately skilled and trained, and local authorities should refrain from creating or using panels that seek to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons. …

 

Duty /power to provide care & support for adults /carers (section 18 – 20)

The duty on local authorities to meet the eligible needs of disabled, elderly and ill people is retained and widened by the Care Act. The pre-2014 legislation contains no duty to meet carers’ eligible needs (just a power)85 nor (in general) does the pre-2014 legislation create a duty to meet the needs of ‘self-funders’ (ie people whose savings are above the capital limit – currently £23,750). Both these limitations are removed by the 2014 Act. Where an individual’s needs (ie a carer or an ‘adult in need’) meet the eligibility criteria then there will be a duty to ensure their care and support needs are addressed. The only stipulation being that they are ordinarily resident in the local authority’s area (as at present) and that if their assets are above the financial limit, that they ‘ask the authority’ to meet their needs. Until April 2014 the right of self-funder’s to require the local authority to meet their care needs will only extend to non-care home settings.

Even if a self funder with eligible needs does not ask the local authority to meet their needs – the local authority will (once the ‘cap on care costs’ comes into force in 2016) be under a duty to provide them with a statement (an ‘independent personal budget’ ) detailing what the cost would be to the local authority of meeting their needs – since this notional budget will count towards the ‘cap’.

 

Care & support plans (section 25-26)

The assessment process involves identifying ‘needs’ and then determining which of these (if any) are ‘eligible needs’. This stage is then followed by the development of a care and support plan that explains how the eligible needs will be met. These stages are two sides of an equation: on one side there are the eligible needs that have to be met and on the other are the details of how this will be done. In order that the individual can determine whether their assessed needs are fully addressed in the care plan, the guidance requires that they ‘must be given a record of their needs or carer’s assessment’ (para 6.98) and also their final care plan (para 10.87).

 

Needs versus ‘outcomes’

The Act seeks to distinguish ‘needs’ from ‘outcomes’. This chimes with the views of many commentators who consider that the ‘social model’ approach requires a ‘focus on outcomes’ rather than personal ‘needs’. There is much to be said for this, but there are dangers too.

On the positive side outcomes aim to identify the person’s ‘aspirations, goals and priorities’. The theory is that if the assessment focuses on these issues it will break free from the shackles of thought processes tied to existing service models – thinking about ‘what services are available’. Once the person ‘in need’ / carer have been helped to explain what they would like happen in their lives – then they (with the support of the authority) can seek to develop a care and support plan designed to enable these things to be achieved. The theory is that this process leads to better and sometimes more imaginative solutions.

On the negative side, however, there is evidence that the emphasis on outcomes is rhetorical rather than of substance (a criticism also made of many local authority ‘personalisation’ programmes). Much of the research concerning outcomes focused assessments identifies the importance of avoiding prescriptive ‘tick box’ questionnaires and of the need for a strong human relationships with assessors who have the skills and time to enable this approach to succeed. Local authorities are however moving to greater standardisation, more prescriptive assessment forms, less skilled / trained workforces with ever higher caseloads. increasing disconnect between what service users say and related evidence, and the thinking of government and policy-makers and what they seem to be doing.

 

A further reason for caution lies in the very ambiguity as to what constitutes an ‘outcome’. Just as some disabled people have historically been told that their asserted ‘need’ is merely a ‘want’ – some are now being told that their ‘need’ is no longer relevant – it is the ‘outcome’ that counts (and the local authority then proceed to tell them what this is). Not infrequently there is a pedantic circularity to the distinction – and one that should be confronted. Outcomes arise out of needs, which stem from impairments – so, for example, the regulations (when dealing with the criteria for an adult in need’) state that because of a person’s needs, a statutory ‘outcome’ could be ‘managing toilet needs’. The guidance (para 6.107) then explains how local authorities should consider each statutory ‘outcome’ for the purposes of determining eligibility – and in relation to ‘managing toilet needs’ it states that this requires a consideration of their ‘ability to access and use a toilet and manage their toilet needs.’ It would appear to follow that a ‘need’ to get to the toilet is only a ‘need’ but a need to mange my toilet needs’ is an outcome.

It is at this stage one asks whether the well-being requirement – that the authority starts from the ‘assumption that the individual is best-placed to judge the individual’s well-being’ (section 1(3)) – extends to accepting that the individual is best placed to say what they want to be able to do (their outcome) and to do so in their own terms – including using the language of need?

 

Provided the potential for casuistry in the ‘outcomes versus needs’ analysis is avoided, there is much to welcome in having a statutory list of ‘outcomes / needs’ – particularly as the guidance (para 6.107) states that this does ‘not constitute an exhaustive list) when determining the adult’s eligibility for care and support’.

 

Care and support planning – principles

Section 25 details what must be in every care and support plan (ie for a carer or an adult ‘in need’) and this duty is analysed in the guidance (para 10.36). The requirements include:

 the needs identified by the assessment;

 whether, and to what extent, the needs meet the eligibility criteria;

 the needs that the authority is going to meet, and how it intends to do so;

 for a person needing care, for which of the desired outcomes care and support could be relevant;

 for a carer, the outcomes the carer wishes to achieve, and their wishes around providing care, work, education and recreation where support could be relevant;

 

the personal budget …;

 information and advice on what can be done to reduce the needs in question, and to prevent or delay the development of needs in the future;

 where needs are being met via a direct payment … , the needs to be met via the direct payment and the amount and frequency of the payments.

The effect of section 25 is that the current requirements for care and support plans will continue – but they now become statutory rather than requirements of Department of Health guidance. Existing case law concerning care plans will remain relevant – particularly so, given that it places great emphasis on the importance of local authorities following guidance. (which will now be the detail in the 2014 guidance). In R v Islington LBC ex p Rixon (1997) it was held that central importance of a care plan was described as: the means by which the local authority assembles the relevant information and applies it to the statutory ends, and hence affords good evidence to any inquirer of the due discharge of its statutory duties.

In R (J) v Caerphilly CBC it was held that care plans must ‘set out the operational objectives with sufficient detail – including detail of the “how, who, what and when” – to enable the care plan itself to be used as a means of checking whether or not those objectives are being met’. A 2014 Ombudsman’s report held (in similar terms) that an assessment must be more than merely a descriptive document: it must spell out with precision what the needs are, what the impact of the disability is on the carer(s) and whether the disabled person and the carers needs can be met and can continue to be met into the future. The assessment must result in a care plan that identifies the needs, what is to be done about these needs, by whom and when. If a direct payment is made, it must specify precisely what need these payments are intended to meet, why this level of payment is considered appropriate, or what outcome this will result in.

 

The most significant difference under the new regime is that every such plan for an ‘adult’ must have a ‘personal budget’ offered. (s25(1)(e) ). Since most local authorities already do this – it will probably make little practical difference.

 

The 2014 guidance requires that the person being assessed must be ‘genuinely involved and influential throughout the planning process and that: ‘it should be made clear that the plan ‘belongs’ to the person it is intended for, with the local authority role to ensure the production and sign-off of the plan to ensure that it is appropriate to meet the identified needs (para 10.2). The care and support plan ‘must take into consideration the individual’s preferences’ (para 10.21).

The duty to meet eligible needs is not discharged just because a person has another entitlement to a different service which could meet those needs, but which they are not availing themselves of. The needs remain ‘unmet’ (and so the local authority under a duty to meet them) until those needs are actually met by the relevant service bring provided or arranged.

 

Personal budgets

Section 26 states that the amount of an adult’s personal budget is ‘the cost to the local authority of meeting those of the adult’s needs which it is required or decides to meet’. The guidance states at para 11.10 that:

The personal budget must always be an amount sufficient to meet the person’s care and support needs, and must include the cost to the local authority of meeting the person’s needs which the local authority is under a duty to meet, or has exercised its power to do so. This overall cost must then be broken down into the amount the person must pay, following the financial assessment, and the remainder of the budget that the authority will pay.

It follows from the above, that a personal budget may include an amount attributable to support that the local authority funds as a ‘discretion’ (ie support that it considers is needed – but which does not meet the eligibility criteria). Since the amount that an individual pays for their care will be added (from April 2016) to their ‘Dilnot taxi meter’ – towards their ‘cap on costs’ – the guidance needs to make clear whether the charges for discretionary services are included for ‘cap on costs’ purposes. If these charges do not count – then there is an obvious temptation for local authorities to include them in the plan as a discretionary support.

The expectation is that (for non-self funders) the personal budget will change as the care and support planning process progresses. At the start of the planning process it will be an ‘indicative amount’ shared with the person, and anybody else involved, with ‘final amount of the personal budget confirmed through this process’ (para 11.7). This means there is no need for an authority to use a Resource Allocation System (RAS) to generate a figure at the commencement of the process – an authority might have (for example) a simple set of ‘bands’. Research suggests that most RAS generate incorrect figures which have serious defects – not least their complexity and the rigidity with which some local authorities then apply them. In support of this approach the guidance advises that ‘complex RAS models of allocation may not work for all client groups’ (para 11.23) and that ‘regardless of the process used, the most important principles in setting the personal budget are transparency, timeliness and sufficiency’ (para 11.24).

The guidance (para 11.7) states that ‘Everyone whose needs are met by the local authority … must receive a personal budget as part of the care and support plan.

 

Direct Payments (sections 31-33)

The new legislation provides for an almost identical ‘direct payments’ regime as at present and the detail (as with the current system) is to be found in the regulations and the guidance. The only significant change is that direct payments will be available for residential care placements. This change is expected to come into force in April 2016 and pilots in 18 local authority areas are currently underway.

 

 

The relevance of local authority financial difficulties

Para 10.27 of the guidance makes clear that the current law concerning the relevance of a local authority’s financial position remains (as first detailed in the Gloucestershire judgment) namely that although authorities can ‘take into account reasonable consideration’ of their finances, they ‘must comply’ with their legal obligations. A local authority’s finances are relevant when it decides how to meet the eligible needs of an individual ‘but not whether those needs are met’. The guidance goes on to stress that authorities ‘should not set arbitrary upper limits on the costs [they are] willing to pay to meet needs through certain routes’ – although they 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. (para 10.27)

 

Sign off and copies of care plans

The ‘sign off of a plan should only occur once the authority has taken ‘all reasonable steps to reach agreement with the person for whom the plan is being prepared’ and ‘any third party involved in the preparation of the plan’ and this ‘agreement should be recorded and a copy placed within the plan’ (para 10.83). If the plan is not agreed then the authority should ‘state the reasons for this and the steps which must be taken to ensure that the plan is signed-off’ (para 10.86).

The Act also requires that a copy of the care and support plan be given to the adult in need / carer (and anyone else they request) (section 25(9) and (10)) and the guidance at para 10.87 makes clear that the copy must be ‘in a format that is accessible to the person for whom the plan is intended’ and copies should also be given to any independent advocate involved. Many care and support plans are computer generated and incomprehensible to all but the initiated. The requirement that the copies be ‘in a format that is accessible’ must require that this practice ends and plain English, jargon free plans are provided to those who require them.

 

And some of the rest

Prevention (section 2)

Local authorities will be under a general duty to provide a range of preventative services that they ‘consider’ will:

(a) contribute towards preventing or delaying the development by adults in its area of needs for care and support;

(b) contribute towards preventing or delaying the development by carers in its area of needs for support;

(c) reduce the needs for care and support of adults in its area;

(d) reduce the needs for support of carers in its area.

 

Charging and preventative services

The current requirement that intermediate care and reablement must be provided without charge is carried into the new regime. While it will continue to be a time-limited service, the guidance advises that ‘where it is provided beyond six weeks, local authorities should consider continuing to provide it free of charge beyond six weeks in such circumstances’ (para 2.61).

Where a local authority decides to charge for preventative services the guidance advices that it is ‘vital to ensure affordability’ and that it balances the ‘affordability and viability … with the likely impact of charging on the uptake’ – and that this be considered individually as well as at general policy levels.

 

Integration with the NHS (section 3)

Section 3 places a duty on local authorities to promote integration with health provision where it would—

(a) promote the well-being of adults with needs & carers in its area; or

(b) contribute to the prevention of the development of needs in adults / carers; or

(c) improve the quality of care for adults / carers, provided

This will include joint working in relation to the better Care Fund.

 

Information (section 4)

Local authorities will have an enhanced duty to provide adults in need / carers with information about care and support arrangements, including:- how the care system operates; the care and support choices they have (including the choice of providers); how to access this support and how to raise safeguarding concerns. The information duty will also include how to access independent financial advice – which will be of considerable relevance given the choices ‘self-funders’ will have to make under the new regime – particularly with regard to the ‘cap on care cost’ reforms.

The guidance explains that authorities ‘must establish and maintain a service for providing people with information and advice relating to care and support’ (para 3.11); that this must be provided for a variety of different formats; that the ‘duty in the Care Act will not be met through the use of digital channels alone’ and that the mix of provision will be expected to include ‘face-to-face contact’ (para 3.29).

 

Duty to promote effective high quality providers (section 5)

The Act (fleshed out by three sets of regulations36) contains a range of provisions designed to address the ‘supply side’ problems of the social care market – ie (a) the problem of large providers collapsing (such as Southern Cross failure in 2011); and (b) the increasing belief that the quality of services is generally poor and deteriorating. These provisions include ‘market oversight’ arrangements involving the Care Quality Commission (CQC) – amongst others (ss 53 – 57 Care Act 2014) and a temporary duty on social services to intervene if a particular provider ‘fails’ (ss 48-52). In July 2014 the Public Accounts Committee was of the view that the CQC (which will monitor the top 40 – 50 providers) lacked ‘the skills to undertake this expanded level of monitoring’.

Regulations38 have now been issued to provide for eleven fundamental standards39 of safety and quality that should always be met by providers of health and social care and draft CQC guidance.

Section 5 places a duty on local authorities to promote an efficient /

Workforce issues

The social care workforce has been a direct victim of local authority pressure on providers to reduce their fees. The guidance stresses the importance of authorities ‘fostering a workforce which underpins the market’ (para 4.21) and encouraging (by for example providing funding – para 4.29) ‘training and development’. Local authorities when commissioning services must assure themselves that their fee levels do not (among other things) compromise the service provider’s ability to: (1) ‘meet the statutory obligations to pay at least minimum wages; (2) ‘provide effective training and development of staff’ (para 4.31); and (3) pay remuneration that is:

at least sufficient to comply with the national minimum wage legislation for hourly pay or equivalent salary. This will include appropriate remuneration for any time spent travelling between appointments (para 4.30).

The guidance advises that where a provider has previously been in breach of national minimum wage legislation it should in general be excluded from the tendering process (para 4.102).

 

Delegation (section 79)

Local authorities will be able to delegate all of their functions under the Act – with few exceptions (eg safeguarding (sections 42 – 47) and charging (section 14)). Section 79(6) makes it clear that ultimate responsibility in such cases will still rest with the local authority (any acts /omissions by the delegated body will be treated as done / omitted to be done by the local authority). A series of pilots have run since 2011 to explore the potential for delegation: these have been small scale and almost all have been third sector not for profit organisations. Section 79 opens up the possibility of full scale delegation of quite a different order and might be contemplated by local authorities facing a steep rise in their assessment / care planning obligations resulting from their new duties to carers and to self funders. In anticipation of these reforms all English local authorities have been given power to delegate virtually all of their adult social services powers.

covered in the assessment’ (para 6.38).

 

Review of care & support plans (aka annual harassment)

Section 27(1) of the 2014 Act places a general requirement for local authorities to keep under review care and support plans (as well as when a reasonable request by the adult in need or a carer and section 27(4) requires that if they believe that that circumstances have changed materially, then they must undertake a further needs or carer’s assessment and revise the plan accordingly. The guidance creates an expectation that the care and support plans will reviewed ‘no later than every 12 months, although a light-touch review should be considered 6-8 weeks after the plan and personal budget have been signed off’ (para 10.42 – and see also para 13.32).

The guidance requires that reviews (like assessments) must be person-centred, accessible and proportionate: must involve the ‘person needing care and also the carer where feasible’ (para 13.2) and their purpose is ‘identify if the person’s needs (or any other circumstances) have changed’ (para 13.4). Very welcome is the note in the guidance that the ‘review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget’ (para 13.4). Reviews should not be ‘overly-complex or bureaucratic’ and should cover the specified matters – which ‘should be communicated to the person before the review process begins’ para 13.12). These include: whether the person’s needs / circumstances have changed; what parts of the plan are working / not working / need changing; have the outcomes identified in the plan been achieved and are there any new outcomes they want to meet; is the person’s personal budget adequate and is there a need to change the way it is managed / paid; are there material changes in the person’s support networks which might impact negatively or positively on the plan; have any changes occurred which could give rise to a risk of abuse or neglect; and is the person, carer, independent advocate satisfied with the plan?

 

Charging (section 14)

As noted, local authorities will be able to charge for the cost they incur in providing social care support services. Under the pre-Care Act law, there was a duty to charge for residential care services and a power to charge for non-residential care (including carers’ services). The 2014 Act repeals the previous law and section 14 gives authorities the power (but not a duty) to charge. In the short term it is unlikely that there will be material changes to local authority charging policies – although reference to the well-established Charging for Residential Accommodation Guidance (CRAG) will change as this is repealed – but it is replicated in large measure by the Care and Support (Charging and Assessment of Resources) Regulations and the guidance (including Annexes B, C, D and E).

 

The guidance states (para 8.2) that a single set of principles will condition local authority approaches to charging, namely:

 ensure that people are not charged more than it is reasonably practicable for them to pay;

 be comprehensive, to reduce variation in the way people are assessed and charged;

 be clear and transparent, so people know what they will be charged;

 promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control;

 support carers to look after their own health and wellbeing and to care effectively and safely;

 be person-focused, reflecting the variety of care and caring journeys and the variety of options available to meet their needs;

 apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings;

 encourage and enable those who wish to stay in or take up employment, education or training or plan for the future costs of meeting their needs to do so; and

 be sustainable for local authorities in the long-term.

 

Welcome as is the requirement that ‘people are not charged more than it is reasonably practicable for them to pay’ this represents (for people receiving non-residential care support) a dilution of their legal rights. At present the prohibition is contained in the statute and so is only capable of being removed by Parliament (whereas guidance can be re-written on Ministerial whim).

One problem with the approach of applying ‘the charging rules equally so those with similar needs or services are treated the same’ is that local authorities may start charging carers for services. The guidance anticipates this problem – but in a relatively ‘limp’ section seeks to argue that charging carers is not inevitable stating (para 8.50):

Local authorities are not required to charge a carer for support. …. a local authority should consider how it wishes to express the way it values carers within its local community as partners in care, and recognise the significant contribution carers make. … Local authorities should consider carefully the likely impact of any charges on carers, particularly in terms of their willingness and ability to continue their caring responsibilities.

 

Continuity of care (portability) (sections 37-38)

The Act prescribes the way local authorities transfer responsibility for the care and support of an adult – when she or he moves from one local authority area to another. It does this by attempting to embed ‘good practice’ (ie what should happen) into legislation. The problem is that there are no sanctions if either the first or second local authority fails to act properly – and so (as now) an individual would have to make a complaint/ go to the Ombudsman if a problem occurs.

Sections 37 – 38 are replete with detailed procedural obligations – but in essence they provide that where a local authority (the 1st local authority) is providing135 care and support for an adult and another authority (the 2nd authority) is notified that the adult intends to move into their area (and it is satisfied that the intention is genuine) then it must (among other things) undertake an assessment of the adult’s needs (and those of any carers he or she may have). If the assessment(s) have not been completed by the time the adult actually moves, then the second authority must meet the needs identified by the 1st authority (until its assessment is complete).

Chapter 20 of the guidance fleshes out how the process should operate – but signally fails to deal with what will happen when a person moves and the second local authority fails to act properly – for example by failing to fund the person’s needs to the same level as the first authority until it has completed its assessment. The guidance should have cautioned against the first authority stopping the funding in such cases – but it does not.

 

Ordinary Residence (section 39 – 41)

The existing law concerning the determination of a person’s ‘ordinary residence’ continues under the new legislation – with one major change.

The case law concerning the notion of ‘ordinary residence’ will remain applicable – ie that it refers to a person’s ‘abode in a particular place … adopted voluntarily and for settled purposes … whether of short or long duration’.As with the current law there are two significant ‘deeming’ rules – and it is in relation to the second of these that the material change is made.

The first deeming rule (now found in section 39(5)) concerns adults in NHS accommodation: such people are deemed to be ordinarily resident in the area in which they were immediately before they entered the NHS accommodation / ambulance.

The second deeming rule concerns adults whose accommodation is arranged by a local authority in the area of another local authority. At present this is restricted to cases where a local authority arranges accommodation in a registered care home. The legislation extends this rule to include not only care home accommodation, but also shared lives scheme accommodation and supported living accommodation. Local authority responsibility only attaches if the care and support ‘can be met only’ in the specified accommodation and the accommodation is in England (section 39(1)).

Para 19.31 of the guidance explains that:

Need should be judged to “only be able to be met” through a specified type of accommodation

 

in the specified accommodation and the accommodation is in England (section 39(1)).

Para 19.31 of the guidance explains that:

Need should be judged to “only be able to be met” through a specified type of accommodation where the local authority has made this decision following an assessment and a care and support planning process involving the person. Decisions on how needs are to be met, made in the latter process and recorded in the care and support plan, should evidence that needs can only be met in that manner. The local authority must have assessed those needs in order to make such a decision – the “deeming” principle therefore does not apply to cases where a person arranges their own accommodation and the local authority does not meet their needs.

Responsibility will however continue even if the person moves between different specified types of accommodation in another (or more than one other) area and it will also exist where the person takes a direct payment and arranges their own care (see paras 19.32 – 19.34).

 

Safeguarding (sections 42 – 47))

The Act places on a statutory footing some of the safeguarding obligations that are at present, only located in the guidance (principally the ‘No Secrets’ guidance) – for example the duty to make enquiries / decide what action should to be taken.

Section 42 contains the duty to make enquiries if adult with care & support needs:

  • is experiencing, or is at risk of abuse of neglect; and
  • is unable to protect him/herself against the abuse / neglect.

 

The Act does not explain what is meant by ‘abuse’ – save to specify that it includes financial abuse which is broadly defined – eg including putting the adult ‘under pressure in relation to money or other property’ and/or the adult ‘having money or other property misused’.

The Act provides no new powers to protect adults from abuse – merely ‘process’ obligations (eg to have a Safeguarding Board; to undertake investigations and to require individuals to provide information etc). The Welsh Act provides a power of entry – to enable social services to gain access and to speak with a person suspected of being abused – and the Scottish Act contains (in addition) a power of removal. Not only are such powers absent from the English Act, the existing National Assistance Act 1948 section 47 power to remove, is repealed.

 

Independent advocacy (section 67)

Section 67 of the Act and the regulations place a duty on local authorities to arrange independent advocacy if the authority considers that: (1) an individual would experience ‘substantial difficulty’ in participating in (amongst other things) their assessment and / or the preparation of their care and support plan; and (2) there is no one appropriate available to support and represent the person’s wishes. As the guidance states at para 7.4:

Local authorities must arrange an independent advocate to facilitate the involvement of a person in their assessment, in the preparation of their care and support plan and in the review of their care plan, as well as in safeguarding enquiries and SARs [Safeguarding Adults Reviews] if two conditions are met. That if an independent advocate were not provided then the person would have substantial difficulty in being fully involved in these processes and second, there is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer. The role of the independent advocate is to support and represent the person and to facilitate their involvement in the key processes and interactions with the local authority and other organisations as required for the safeguarding enquiry or SAR.

The guidance explains that a person experiences ‘substantial difficulty’ when this exists in relation to any one of four areas – namely (para by 6.33):

understanding the information provided; retaining the information; using or weighing up the information as part of the process of being involved; and communicating the person’s views, wishes or feelings. Where a person has substantial difficulty in any of these four areas, then they need assistance.

s117 Mental Health Act 1983 (section 74)

Currently ‘’after-care services’ are not defined by the 1983 Act. The Care Act inserts a new subsection (5) into the 1983 Act to limit services to those:

(a) ‘arising from or related to the mental disorder’ and

(b) reducing the risk of a deterioration of the person’s mental condition (ie that may require re-admission).

The Act confirms that ordinary residence for the purposes of s117 is determined by where a person was based immediately before they were detained and gives the Secretary of State power to resolve ordinary residence disputes. It also inserts a new ‘s117A’ that provides for regulations to introduce a limited ‘choice of accommodation’ for persons subject to s117.

 Posted by at 21:25
Mar 112015
 

Mental health charity Mind excludes election candidate, mental health service user and disability campaigner, Mick Hardy, from its mental health election panel.

Mind, the largest mental health charity in England, has excluded Mick Hardy, a mental health service user and disability campaigner, from its General Election Panel Event at The Curve, The Forum, Norwich NR2 1TF on Friday 13th March, 2015 between 1300 and 1600.

Mind claims that the event, chaired by national Mind’s Chief Executive, Paul Farmer, is “to give people with lived experience of mental health problems, their carers and support workers, volunteers and Mind staff an opportunity to ask the questions which matter to them and to hear what our parliamentary candidates from the north and south of Norwich have to say about the future of the services they use.” Yet Mind seeks to exclude Mick Hardy, disability rights campaigner and Dandy Party candidate in Norwich North from its event.

Mick Hardy said:

“I couldn’t believe it when Mind refused to have me, a prospective parliamentary candidate in Norwich North and mental health service user, on their panel. I believe this is due to my criticism of the failure of the local Norfolk Mind organisation to speak out against the massive cuts to mental health services at Norfolk & Suffolk NHS Foundation Trust (NSFT) which included the closure of the assertive outreach and homeless teams. Indeed, the local Mind has sought as a ‘service provider’ to profit from the cuts and privatisation of services at NSFT. The Mind volunteers and donors will find this shocking.”

“Mind receives more funding from Norman Lamb’s Department of Health than it receives in public donations. This reliance on government funding means that Mind is compromised when it comes to speaking out in defence of mental health service users. Nothing demonstrates this more than Mind’s attempt to exclude a mental health service user candidate from their panel in Norwich. This breaches Mind’s obligation as a charity to be apolitical.”

“I encourage all those concerned about the crisis in mental health services in Norfolk and Suffolk, which has seen our local trust NSFT rated inadequate by the CQC and put into special measures by health regulator Monitor, to lobby outside the Forum on Friday both before (1230-1300) and afterwards (1600-1630). It is a shame that those holding such views have been excluded from Mind’s event.”

“Mind claims to campaign for social inclusion but seeks to exclude me.”

Notes to editors:

Mind received £3.697m in public donations in 2014. Mind received £5.26m in government grants over the same period, with £4.651m from the Department of Health including £100,000 for the crisis care concordat and £4.262m for Time to Change.

Amanda Hedley, Chief Executive of Norwich Mind has written “As part of the Redesign Process we have tried to play a constructive role in helping to suggest good alternatives provided in the third sector which would provide support for people at a lower cost but achieve similar outcomes…..’ She

also told the Health Overview and Scrutiny Committee of Norfolk County Council “…MIND could even deliver some of the services currently delivered through the Trust…”

 

Mar 112015
 

Dear Supporters of Anthony,

Your support has made an important difference. Please pass on this message to the people who were there and for whom I do not have an email address.

Thanks so much for your support at the protest last week, at the NAS Awards in Harrogate, 3rd March 2015. Following the protest The parents of Anthony Kletzander welcomed the action taken by Mark Lever, Chief Executive of National Autistic Society, to formally write to The Health Service Executive (HSE) in Ireland calling for an Independent investigation into the allegations of abuse, made by Anthony and his parents.

This is an important move taken by the NAS. When an independent investigation into the allegations of abuse is initiated by HSE, Autism Accreditation, will be suspended from Nua Healthcare, pending the outcome of that independent investigation.

Clearly the focus of who conducts the “Independent investigation” will require much critical scrutiny, Anthony’s friends are here to do just that.

It is intolerable that a disabled person has to be subjected to such struggles to get what is accepted as a right for so many non disabled people.

We will continue the struggle with Anthony until he gets what he knows is his right to Independent Living, with appropriate support.

Joe Whittaker
 Posted by at 14:04
Mar 102015
 
A recent article in the Guardian drew attention to the BBC’s current efforts to increase the numbers of disabled people on and off-screen. Tania Motie and Tanni Grey-Thompson argued that there are three stereotypes applied to disabled people – we are heroes, scroungers or brave victims. The BBC, they wrote, has a role in challenging this, and that:

Sophisticated, multi-faceted, authentic portrayal influenced by disabled people will really help to break down barriers and allow disability to become part of the DNA of our society.

This reminded me of how, 23 years ago, in 1992 – which like 2015 was also a general election year – the BBC launched a series of programmes made with and about disabled people, together with a booklet and poster advertising.  The series and the booklet were called Disabled Lives: we wanted to call it Disabling Society but Channel 4 had got there first with their own series that same year. The initiative resulted from an Advisory Group made up of disabled people brought together by the BBC to help them  develop programmes which challenged the stereotypical and unrealistic ways in which disabled people’s lives were portrayed.
It sounds familiar doesn’t it? But there were some differences.
The key difference is that, in 1992, disability was increasingly being identified as a civil rights issue, whereas today public debate is dominated by arguments and counter-arguments about whether we are ‘scroungers’ or ‘vulnerable’.
The 1992 booklet said that it, and the BBC series of programmes, was about:

one of the most exciting civil rights issues of our times, the right of disabled people to participate equally and fully in the communities in which we live….Today, there is a growing movement of disabled people who insist that our lives have value and that we want to be treated as equal citizens with equal rights.

This was before the Disability Discrimination Act which was finally passed in 1995 after many years of campaigning.  The programmes and the publicity gave a voice to this demand for an end to discrimination, but also emphasised the importance of changing the dominant cultural representations of disabled people, arguing – as Elspeth Morrison (one of the Advisory Group’s members) put it:

If we have no representation of ourselves other than those images used in charities’ advertising, crippled witches in children’s books, brave and tragic media stuff, theatre and film’s metaphorical use of disability as social inadequacy, social decay – if there is no expression of life as we live, it, how do we begin to validate ourselves and learn about each other?

One of the photographs (taken by David Hevey) used in the booklet and in the posters  – was of the Direct Action Network holding up a bus in Manchester.  No buses were wheelchair accessible at that time and access to public transport was an important part of the campaign for anti-discrimination legislation.
Independent living (having choice and control) was also a key focus, for people with the whole range of impairments and across all ages. The Independent Living Fund had been established in 1988 and more and more people with high levels of support needs were accessing it and starting to live the kind of lives their non-disabled peers took for granted. In general, more disabled people were demanding, and getting, their entitlements to support to enable them to go about their daily lives.
Organisations of disabled people (as opposed to the charities speakingfor disabled people) were increasing in number and influence in the early 1990s, reflected in the fact that the people on the  BBC’s Advisory Group were mainly from organisations of disabled people.  The initiative encompassed Deaf people, people with physical and/or sensory impairments, people with non-evident impairments and health conditions, people with learning difficulties, mental health service users and older disabled people.  As People First (the organisation of people with learning difficulties) said:
We are for difference
For respecting difference
For allowing difference
Until difference
Doesn’t matter anymore.
In the early 1990s, the most influential stereotype of disabled people was of us as objects of pity, as tragic victims who, at best, could be admired for ‘overcoming’ against all odds, at worst were considered to have lives not worth living.  The response of a government Minister to one of the petitions calling for anti-discrimination legislation was to say that he didn’t believe employers discriminated against us, rather they felt sorry for us.
Nevertheless, in 1992 things were shifting.  In the run-up to the general election, the Conservative Party (in government since 1979) devoted a specific section in its Manifesto to commitments to disabled people, celebrating that:

Under the Conservatives, more disabled people than ever before are getting the help they need and deserve. Since 1979, the number receiving Attendance Allowance has more than trebled; the number receiving Mobility Allowance has risen six fold; the number receiving Invalid Care Allowance has risen 25-fold. Today we spend some £12,000 million a year on benefits for long-term sick and disabled people. Even after allowing for inflation, that is 2½ times as much as Labour spent in the 1970s.

The Tories promised to introduce “new disability benefits [Disability Living Allowance and Disability Working Allowance] which will, in the next Parliament, bring extra help to at least 300,000 people. By 1993-94 these and other improvements will mean that we will be directing an extra £300 million a year to long-term sick and disabled people.”
They were proud of the “great success” of the Independent Living Fund and gave a manifesto commitment to maintaining it.
The Labour Party had very little to say about disabled people in their1992 manifesto. There was a nod to ‘training’ opportunities, to health services for people with long-term conditions and to better community services for people using mental health services and for people with learning difficulties.  The Liberal Democrats’ manifesto had more, committing them to introduce a Citizen’s Income with a specific disability component, human rights legalisation (to include disability) and a Charter of Rights for disabled people.
In those days, very few people argued that too much was spent on disability benefits. Very few people thought that disabled and sick people were making false claims for out of work or disability benefits.
In fact, in 1992 the Conservative government felt that not enough disabled people were being helped and introduced new benefits for which more people were eligible.  Today the Coalition government argues that too many people are receiving help with the additional costs associated with impairment and disability. The Disability Living Allowance – which the Conservative government of the early 1990s was proud to introduce – has been abolished and replaced with Personal Independence Payment with the aim of reducing the budget by 20% and accompanied by such long delays in responding to claims that aJudicial Review has been granted of the process.
In 1992, the government were proud of the Independent Living Fund and vowed to keep it.  Today, they have abolished it and many people with high support needs are at risk of losing the ability that ILF funding gave them to live ‘ordinary lives’.
In 1992, disability was a civil rights issue and we were on our way to getting the Disability Discrimination Act, enacted by the Conservative government in 1995.  Today, access to justice under the legislation has been severely undermined by cuts in legal aid, and the introduction of fees for taking a case to an Employment Tribunal.
In 1992, public debate was about whether disabled people were to be pitied as the objects of charity and needed to be ‘looked after’, or whether we should have equal rights to access education, employment, independent living.  Today, public debate is about whether we are avoiding our responsibilities to seek employment and need conditions and sanctions to get us ‘off benefits’, or whether we are ‘vulnerable’.   Instead of recognising the additional support, and the removal of barriers, which are required in order for us to access the same opportunities as others, we are – in order to avoid being labelled as ‘scroungers’ –  once again forced into the role of tragic victims, where the legitimacy of our requirements is to be measured by how ‘vulnerable’, ill and/or impaired we are.
So if we are to avoid being identified as ‘scroungers’, we have to prove how ‘vulnerable’ we are made by our impairments, illness and/or age.  Yet ’vulnerability’ is created by the society in which we live – by lack of appropriate support, and by prejudicial attitudes. ‘Vulnerability’ is created, for example, by removing benefits from someone because they failed to fulfil conditions which illness, impairment and/or poverty made difficult for them to do. ‘Vulnerability’ is created by threatening to stop providing support to enable someone to go to the toilet when they need to. ‘Vulnerability’ is created by a lack of suitable, affordable housing for a family affected by illness and disability.
Tackling discrimination, removing barriers, providing appropriate support which gives us choice and control in our lives – none of these are on the agenda for public and policy debate anymore. Instead, our social worth is to be measured by whether we are ‘hard-working’, which means engaged in productive labour.  Other important social roles – looking after others, bringing up children, contributing to our friends, families and communities – are not deemed worthy of support or celebration.
The BBC’s current initiative – all these years after the 1992 initiative – to increase the numbers of visible, ‘happen to be’ disabled people on screen and to increase their employment off screen is laudable.  But we also need to change the language of public discourse about sick and disabled people.
In particular, we need politicians, and all those participating in public debate in the run up to the election in May, to change the way they talk about disabled people.  We need to revisit the language and images the disability movement tried so hard (with some considerable success) to promote during the 1980s and 1990s – language which returns to some of the hopes reflected in the BBC’s booklet all those years ago:

Disabled people are fighting for a society which celebrates difference, a society which does not react to physical, sensory or intellectual impairments, or emotional distress,, with fear and prejudice.  We want a society that recognises the difficulties we face, but which also values us for what we are.

 

Our hopes for the future are based on the justice of our wish for control over our lives, the strength of our demands for equal participation, the passion of our belief in the value of our contribution to the communities in which we live.

 

with thanks to Jenny Morris for more see:

http://jennymorrisnet.blogspot.co.uk/

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Mar 102015
 

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Apr182014

DPAC Response to ‘How Labour would Reform the Work Capability Assessment ( Published April 18th 2014)

 

We read with interest the piece in the Independent by Rachel Reeves and Kate Green regarding Labour’s response to the Work Capability Assessment [1]

Labour should realise that disabled people are deeply distrustful of any Labour reform of a Work Capability Assessment system, which Labour introduced in the Welfare Act of 2007 with the stated aim of removing 1 million claimants from the benefit system [3].

Our position has been and will be that the Work Capability Assessment is deeply flawed in its basic concept, not just in terms of the details of its delivery, and inclusion in the workplace for disabled people cannot simply be achieved by a ‘back to work’ test.

manifesto

In the Reclaiming Our Futures, Disabled People’s Manifesto [4], we state that a priority demand from government is that:

A comprehensive and strategic plan of action is developed with disabled people and our organisations to tackle the discrimination and exclusion disabled people face in work and employment including: increasing quality and range of personalised support available to disabled people, strengthening disabled employees rights and tackling employer discrimination and poor practice

Other key demands include that:

Economic productivity must not be the only measure of people’s worth and value, volunteering offers as much value to society as paid employment. While we recognise that volunteering can offer additional skills, it should not be the default option for disabled people because of our exclusion from paid work

There must be policy and media recognition that there will always be disabled people who are unable or too ill to work. These individuals must be supported by a publically funded system. They should not be penalised or demonised as they are currently.

For true inclusion in the workplace for disabled people a wider approach is necessary including but not limited to:

Will Labour commit to the restoration of Disabled Student’s Allowance,
• Will Labour commit to the restoration of the Independent Living Fund,
• Will Labour commit to the extension of Access to Work (AtW) to include unpaid voluntary positions,
• Will Labour commit to the reversal of the reduction of people who currently receive DLA, but will not receive PIP and also lose their Motability access,
• Will Labour commit to the reinstatement of the requirement for councils to produce equality schemes on employment and access
• Will Labour commit to the provision of accessible transport.
• Will Labour commit to the reinstatement of “day one” protection from unfair dismissal in employment law
• Will Labour commit to the provision of Employment Tribunals enforcing mandatory organisation-wide measures on preventing disability discrimination
• Will Labour commit to the provision that all government contracts, at a national, regional and local level, are only awarded to companies that are fulfilling measurable equality targets for the employment of disabled people

(for further points see reference 2)

These currently are some of the barriers to inclusion in the workplace for disabled people, and they will not be fixed by simply amending the WCA. The issue must be seen within the context of the wider interconnected system of barriers in place. It must be seen in terms of what a large majority of disabled people have already identified as key problems.

In terms of inclusion we also need from Labour, a recognition that for many disabled people to be able to work there has to be a nationally transportable social care system with a guarantee that people would keep the same levels of funding wherever they needed to move to work.

We need recognition that there is an onus on government and employers to fully accept the spirit of the Equality Act 2010 [4] with its requirement to the opening of work opportunity to disabled people. Without this, no “fit for work test” aimed at cutting disability benefits will make any impact whatsoever on the numbers of disabled people who can attain and sustain employment.

We also need from Labour a stronger recognition that there are many disabled people who cannot enter the work place and should not have to live in fear of being pressured into doing so.

There is much that the article leaves out and that leaves us with a number of serious concerns and questions.

While we are not yet prepared to endorse in any way Labour’s new approach to the Work Capability Assessment, we do see the article by Rachel Reeves and Kate Green as a helpful starting point for discussions on the future of inclusion of disabled people, who want and are able to work, in the workplace and we would welcome an opportunity to meet with them and discuss this further. We would like meet with Kate Green and Rachel Reeves to ask the following questions:

1. Will Labour commit to stop spending public money on private
contractors and return any assessments of disabled people back to GPs
with medical evidence taken into account as well as give a commitment to
look at the barriers to work for disabled people who can and want to
work (in line with the social model of disability)?

2. Will Labour commit to a time and date to talk with DPAC, My Legal,
the Mental Health Resistance Network, Black Triangle, Deaf activists,
those with learning difficulties ( with an outreach of ½ a million
disabled people) to listen to the views of the largest network of grass
roots disabled people on the WCA and ESA?

3. If Labour are committed to scrapping the WCA when will Deaf and
disabled people, and those with mental health issues have sight of the
detail of any alternative Labour is proposing?

4. If Labour accepts the harm, devastation and premature deaths that have
been an outcome of the WCA why have they chosen to suspend their
prospective parliamentary candidate for St Austell and Newquay, Deborah
Hopkins for speaking out in public about the harm caused by the WCA.

5. Will Labour address the disproportionate harm that the WCA and
sanctions on ESA and JSA are causing to all disabled people, in
particular those with mental health issues and learning difficulties?

6. We along with many others insisted that a centralised Independent Living Fund
for Scotland be established and it has been done. They have also promised to re-open ILF to new users, with a commitment of additional funds and recognition of its importance to independent living and obligations to article 19 of the UN Convention on the Rights of Persons with Disabilities. Why has the Labour
Party not promised to re-establish it south of the border?

Many of the Statements included in this response are taken from the UK Disabled Peoples’ Reclaiming our Futures Manifesto and are endorsed by a UK network of disabled people and Deaf and Disabled Peoples Organisations, including: ALLFIE, Inclusion London, Equal Lives, DPAC, Inclusion Scotland, Disability Wales and the TUC Disabled Workers Committee [2], who between them reach several million disabled voters.
References
1. How Labour would reform the Work Capability Assessment http://www.independent.co.uk/voices/comment/how-labour-would-reform-the-work-capability-assessment-9265479.html
2. The Reclaiming Our Futures, Disabled People’s Manifesto http://disability-studies.leeds.ac.uk/files/library/UK-Disabled-People-s-Manifesto-Reclaiming-Our-Futures.pdf
3. The Green Paper: The new deal for welfare: Empowering people to work. 2006 http://webarchive.nationalarchives.gov.uk/+/http://dwp.gov.uk/docs/a-new-deal-for-welfare-empowering-people-to-work-full-document.pdf
4. Equality Act 2010 http://www.legislation.gov.uk/ukpga/2010/15/contents

Our Response to Labour’s WCA Proposal ( again) ( published Nov 14th 2014)

 Benefits and Work website yesterday published an email sent by Labour which explains their proposals to improve WCA.

It is a summary of previously announced proposals but we thought we would take this opportunity to restate, perhaps in even more strident terms our position with respect to Labour’s WCA Proposals.

We have done this many times of course, both on the blog and in direct communication with Labour but nothing ever seems to sink in.

Labours proposals are:

1. We will start by transforming the way the WCA is designed to make it more effective at helping disabled people into work. With Labour, disabled people would receive a copy of the assessor’s report of how their health condition may affect their ability to work, and information about the support that is available in their local area to help them – a first vital step towards a more integrated system of support.

2. Secondly, we would continue to produce an independent review of the WCA, and ask the Office for Disability Issues to support an independent scrutiny group of disabled people to work together with the independent reviewer to assess whether the test is being conducted in a fair and transparent way. We will commit to responding to the recommendations of this report.

3. Finally, a Labour government will go further in ensuring that the assessments get it right first time. We would make sure that in the new system there would be clear penalties for poor performance by assessors, measured both on the number of times decisions are overturned by DWP decision makers, and the number of times they are overturned on appeal.

These changes are falling very short of being crucial.

First they are very vague, and do not address the very high number of ESA overturned decisions by tribunals or even by DWP own reconsideration process (before mandatory reconsiderations were introduced).

The reviews that Labour is committed to produce have been discredited. Professor Harrington, by deciding to talk about his misgivings about moving IB claimants onto ESA only, after he lost his lucrative job for DWP when he could have spoken up before, Dr Litchfield because he devised the Mental health descriptors and was very unlikely to challenge them later in his review.

What disabled people have been waiting for, is a sign from Labour frontbench that disabled people have been unfairly targeted by cuts, but also mistreated, bullied, abused and driven to suicide.

They are still waiting.

One Labour backbencher suggested that one way to improve things very quickly was to pause the reassessments. This suggestion from Sheila Gilmore is welcome and it is surprising that it was not followed up by Rachel Reeves or Kate Green.

The focus on disabled people working, contributing to the economy shows that Labour, like the Tories only see people as economical variables, not people who deserve to live a decent life.

Lastly, if you still have some illusions, sanctioning disabled people wasn’t introduced by the Tories, it began under the last Labour Government.

These WCA Proposals from Labour are “figleaf policies”, intended only to do the barest minimum needed to avoid embarrassment for Labour. It hasn’t worked.  

So here it is again, our response to Labour on WCA (maybe this time it will sink in):-

Are you taking the Piss?

The WCA DOESN’T WORK

The WCA is a cause of stress and hardship to disabled people, it is inaccurate, causes harm, and it DOESN’T EVEN GET DISABLED PEOPLE INTO WORK.

The WCA has caused people to commit suicide and your WCA will continue to cause people to commit suicide.

You are still planning to use LIMA, a computer program to MAKE CATASTROPHICALLY WRONG DECISIONS, TIME AND TIME AND TIME AGAIN.

You are still planning to bully people who CAN NOT WORK with repeat assessments.

Will you stop mandatory consideration? If so how are you going to handle the flood of appeals from wrong decisions? If not, you are no better than the Tories.

More “Harrington” Reviews of the WCA? Don’t make us laugh.

YOU ARE STILL INTENDING TO USE PRIVATE CONTRACTORS WHO DON’T CARE ABOUT DISABLED PEOPLE BUT DO CARE ABOUT PROFITS

and after all that, after the fear, the misery, the anxiety, the hardship and the suicides, your WCA won’t get disabled people into work because THERE ARE NO JOBS AVAILABLE for us.

EMPLOYERS CAN’T BE BOTHERED WITH US, DONT YOU GET THAT?

And when a job is available, we can’t get there because WE DON’T HAVE ACCESS TO TRANSPORT,

DPAC’s response to Labour’s WCA proposals in a nutshell:

SCRAP THE WCA & ESA and Scrap Sanctions for all.

Then come up with something much much better that addresses our real needs, not Daily Mail headlines.

Has it sunk in yet?

And again from 2014

As part of DPAC’s Who 2 Vote 4 campaign Anita Bellows delves in to the history files, to examine who made the decision to move Incapacity Benefit Claimants onto ESA and the warnings that were made about that at the time.


Even before the full reassessment of Incapacity Benefits claimants was in full swing, academics predicted a disaster with 600,000 claimants forced off Incapacity Benefits, particularly for those living in regions of high unemployment.

Guardian article refers to a study undertaken in 2011 by the Centre for Regional Economic and Social Research of Sheffield Hallam University (CRESR)  which showed that it was possible to anticipate the dire consequences of IB reassessments and of the ESA regime which relied on a tougher test, but which was already known at the time to be flawed: the Work Capability Assessment.

But the CRESR was not the first, and certainly not the only opponent to the IB migration, and to raise doubts about IB reassessment, the Work Capability Assessment, and the Employment and Support Allowance (ESA) regime.

As early as May 2010, the Social Security Advisory Committee, the House of Lords Merits of Statutory Instruments Committee, and the House of Lords all separately warned first the Labour government and then the Coalition government of the potential negative impacts on disability benefit claimants if the IB reassessments went ahead, especially with a tougher test and a standard of assessment which was “not always good enough, especially for people with mental health and cognitive difficulties”.

Both governments decided to ignore these warnings and to go ahead, even before knowing the findings and recommendations of the first review of the WCA.

Background to the reassessment of  existing Incapacity Benefit claimants

Employment and Support Allowance did not initially affect existing claimants of incapacity benefits, but the Labour Government made it clear from the outset that existing claimants would be reassessed for ESA.

Budget 2008 [para 4.5] announced that all existing Incapacity Benefit claimants would be required to take the Work Capability Assessment from April 2013.

March 2010 regulations

Regulations laid before Parliament by the Labour Government on 29 March 2010 provided for the “migration” of the remaining incapacity benefits claimants customers to ESA between October 2010 and March 2014, provided they satisfied the Work Capability Assessment.

The draft regulations were subject to full scrutiny by the Social Security Advisory Committee (SSAC), who published its report in March 2010 with the response of the government.

March 2010 Social Security Advisory Committee’s report

The Committee believed that the migration arrangements in the draft regulations could not be implemented without the risk of operational stress and adverse impacts on significant numbers of vulnerable people before adding: “In our view, the Department should not embark upon the proposed migration until the well-documented problems with current ESA processes and procedures (including those with the WCA) have been resolved, any changes to the Pathways programme have been implemented and bedded-in, and improvements have been made to the support available for JSA claimants with a health condition or disability”.

The Committee raised also several concerns:

  • Lack of a solid evidence base for the decision to migrate or the proposed migration arrangements.

  • Underestimation by DWP of the support required by this group of claimants, in terms of both their participation in a more active benefit regime and the support required to move them closer to the labour market.

  • ESA evaluation for new claimants is not planned to be completed until 2011, by which time the proposed migration arrangements will have commenced.

And the Committee recommended that the migration to ESA did not proceed to the current timetable but waits until:

  • a stronger evidence base on what works and whether ESA is achieving its aims is available

  • the new regime for claimants with a health condition or disability (as an outcome of the Pathways review) has bedded down

  • DWP’s review of the WCA is complete, recommendations have been considered and any necessary changes have been made

  • demand-side approaches to stimulating the labour market have begun to have a positive impact on local demand for labour, particularly in areas with a high concentration of IB claimants.

And in case the migration did proceed as planned the Committee made several recommendations, notably that the quality of the WCA should be improved, particularly for claimants with mental health problems and cognitive and learning difficulties, and that Incapacity benefits claimants currently exempt from the PCA should be automatically treated as meeting the conditions for the ESA Support Group.

March 2010 Government’s response

In its response in the same document, Point 141, the Labour Government rejected the Committee’s call to alter the timetable for migration, but took on board some of the Committee’s concerns and undertook to continue to engage with “stakeholders” as the migration proceeded, stating:

The Government has carefully considered the Committee’s concerns in relation to the ESA transitional Regulations and their wider concerns about the migration programme. However, for the reasons outlined in this response it does not accept the Committee’s recommendation that migration should not continue to the current timetable. The Government considers the migration of existing incapacity benefits customers to be a key element of welfare reform and one that will greatly benefit customers at a time when support to get back to work is urgently needed. The Government does not believe it would be right or fair to delay this support for customers who have been without it for too long already”.

June 2010 House of Lords Merits of Statutory Instruments Committee’s report

In June 2010, after the General election, the House of Lords Merits of Statutory Instruments Committee published a reportwhich echoed the concerns voiced by the SSAC about whether there would be sufficient support for these groups of claimants, and the lack of evidence on how ESA was working for new claimants, notably that the Committee, from the limited evidence they have seen thought that a

major project with a potential impact on the lives of some of the most vulnerable in the community is being conducted in a rather ad hoc fashion. The second phase is being rolled out before the first has been evaluated and although better information will be sought on the outcomes, the Department’s intended course of action, and evidence to support it, all seem rather vague”

It voices also concerns about the capacity of only 20 Benefit centres to absorb and process the transition of 10,000 cases per week, the arrangements put into place by DWP for Job centres, as “many of the customers will have special needs”, and the quality of the Work Capability Assessment.

The Committee also asked DWP what percentage of those ESA claimants sent down the JSA route obtained work, and what happened to the 30% who moved off benefits, to which DWP replied that the Department did not hold the information centrally, but that it intended “to carry out a qualitative piece of in-depth research on unsuccessful ESA claimants who do not qualify for ESA, have their claim closed, or withdraw their claim”.

One report was published in 2011 [para 4.4.2] in which DWP acknowledged that it knew nothing about ESA claimants found fit for work, and not claiming JSA.

July 2010 House of Lords’s debate to motion

The House of Lords then debated a motion to take note of the Merits Committee’s report on 20 July 2010 which criticised the reassessment of existing IB claimants, the WCA and the ESA regime and which quoted Professor Gregg, the architect of the sanctions regime in the two most recent Welfare Reform Acts as saying: “To start moving people who may have been on incapacity benefit for years straight onto jobseeker’s allowance is ridiculous. Before wading into the stock, the system has to be right“.

To which Lord Freud answered by providing reassurance that everything was fine and under control, and that even this year in March (2010), “a DWP-led review of the work capability assessment found that generally it is accurately identifying individuals for the right support”.


The General Election is one year away and the choice is likely to be between the two main parties.

  • Both of them were alerted in 2010 to the risks people claiming incapacity benefits could be exposed to, if IB reassessments went ahead.

  • Both parties knew there was a real capacity gap in Job centres and Benefit centres to deal with the number estimated by DWP to be found fit for work.

  • Both parties were warned about the issues already plaguing the Work Capability Assessment.

  • Both parties chose to ignore these warnings and to proceed with a flawed reassessment process.

While the Conservative party, through Iain Duncan Smith, and the various Ministers for Disabled People has shown itself to be indifferent to the plight of people who need support because they cannot work, the Labour party should not be let off the hook.

Would Labour have done things differently? Maybe, but the fact is we don’t know, and while they were in power, they did not show any willingness to protect these groups of people from harm.

Before being trusted again, the Labour party has to acknowledge its errors of the past and make concrete proposals to put things right.

and any Google search will show that DPAC has been consistent in calling for the WCA to be scrapped