The long awaited report from the UN about our governments attacks on disabled people was published at 4pm today. You can read the full report here: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/InquiryProcedure.aspx
— UN Human Rights (@UNHumanRights) November 7, 2016
We will have a lot more to say about this in future posts but for now here are the summary of findings of the report:
Summary of the findings
A. General findings
82. The facts submitted by the source were disputed by the State party. The Committee engaged in a verification exercise in which the facts that appeared to be controversial were cross-checked with data collected from a variety of sources, including parliamentary inquiries, reports of the independent monitoring body of the Convention, official statistics, reports and data originating from other government departments or units, entity governments, research institutes, service providers, academic centres, independent experts, former government officers, grass-roots non-governmental organizations, organizations of persons with disabilities and individuals. In some cases, some State party’s statements were not supported by evidence collected by the investigation. In others, the State party indicated that no data were available. The findings below are based on a comprehensive analysis of data provided by various sources.
83. The State party launched, a considerable time ago, a major policy reform to the welfare system, aimed at reducing the fiscal deficit and achieving in 2020 a surplus in its balance of payments. Various policy documents and statements by high-level ranking officers have stated that this is the most fundamental policy change to the social protection system in recent decades. The stated goals of the policy are to transform British society from a low-wage, low-employment and high-welfare society to a high-wage, high-employment and low-welfare one. The policy makes the assumption that individuals are better off in work, dependency on benefits is in itself counterproductive and perpetuates poverty and beneficiaries of welfare benefits need to move into work both through improvement of incentives to employment and through a system of conditionality and sanctions. The policy intends that sectors of society who have been dependant on benefits move into work. It has also been stated that the policy aims at protecting those people who require more support or who are “most vulnerable”.
84. Changes to the welfare system include the overhauling of a wide range of entitlements in several areas, including social and private housing sector, contributory and non-contributory benefits, tax credits and out-of-work and in-work benefits and have affected all segments of the population, including children, women, single parents, older persons and persons with disabilities. With regard to persons with disabilities, the reform resulted in the overhauling of major disability benefits, including means-tested benefits, income-maintenance benefits and benefits related to the specific and extra costs associated with disability. In the period covered by the inquiry, a large number of persons with disabilities have been requested to undergo capability assessments, with pre-implementation assumptions that a significant percentage would no longer rely on social allowances.
85. The roll out of those policies included the issuing of statements by high-ranking officers that the reform was aimed at making the welfare system fairer to taxpayers and more balanced and transparent and reducing benefit fraud. Persons with disabilities have been regularly portrayed negatively as being dependent or making a living out of benefits, committing fraud as benefit claimants, being lazy and putting a burden on taxpayers, who are paying “money for nothing”. Although the State party produced evidence of formal efforts and public awareness campaigns to improve the image of persons with disabilities, the inquiry collected evidence that persons with disabilities continue to experience increasing hostility, aggressive behaviour and sometimes attacks to their personal integrity. The inquiry also found no substantiation of the alleged benefit fraud by persons with disabilities.
86. Public sector equality duty obliges State authorities to carry out impact assessments when they plan to introduce measures, including legislative measures, to ensure that groups with protected characteristics, among them persons with disabilities, are properly consulted and any adverse impact on them is properly justified. The State party submitted evidence that it has complied with domestic legal duties for all the intended changes to the welfare system. The inquiry collected evidence that a major piece of legislation of the welfare reform, the Welfare Reform Act 2012, was not thoroughly compliant with those requirements. Similarly, a court of law found that the decision to close the Independent Living Fund was not in compliance with domestic equality duty, which compelled the authorities of the State party to carry out another equality assessment. The inquiry also collected evidence that the views of persons with disabilities and their representative organizations who had participated in consultations launched by the State party, were not meaningfully taken into account in the decision-making and had little or no influence on policy decisions.
87. Although the State party asserted that a cumulative impact assessment of the various policy measures affecting persons with disabilities was not technically feasible or practicable, the evidence collected by the inquiry indicates that a cumulative impact assessment could have been conducted with the data and information available in the State party.
88. The Committee observes that various pieces of legislation related to recent welfare policies do not fully enforce the international human rights framework related to social protection and independent living. In connection thereto, it was observed that in the field of social protection, persons with disabilities have not been properly considered as right-holders and entitled to benefits with regard to their right to social protection. Similarly, while the Care Act 2014 reflects the principles of well-being of persons with disabilities and underlines the objective of personalization of support packages, it fails to properly acknowledge the elements of autonomy and control and choice, which are intrinsic to the right to independent living as referred to in article 19 of the Convention.
89. The Committee observes the prevalence of the medical approach in assessment procedures for determining the eligibility of persons with disabilities to entitlements. The main assessment procedure for determining eligibility for out-of-work benefits resulted in persons with disabilities being classified as either unable to perform work-related activity, having limited capability to work or fit to work. The above-mentioned assessment failed to take in account the support persons with disabilities need to perform a job or the complex nature of some impairments and conditions, or reflect the human rights-based approach to disability.
90. The Committee observes that persons with disabilities who have undergone functional assessments aimed at determining their eligibility for social benefits felt that they were merely processed rather than being listened to or understood. The inquiry was informed that several measures have been adopted to make adjustments to procedures to improve service delivery, including the time frame for the assessment procedures, and ensure a better understanding of the diversity of persons with disability by assessors. The evidence collected from various sources indicates that the needs, views and personal history of persons with disabilities, and particularly those requiring high levels of support such as persons with intellectual and/or psychosocial disabilities, were not properly taken into account or given appropriate weight in the decisions affecting them.
91. The inquiry collected evidence indicating that information, advice and counselling provided to persons with disabilities about different steps in the assessment processes and decisions about their entitlements was limited, non-existent or not provided in accessible formats and languages. That was coupled with uncertainty about the outcomes of those processes triggering anxiety, psychological strain and financial hardship. The Committee also collected evidence about persons with disabilities whose mental health condition had severely deteriorated as a result of the aforementioned factors.
92. Evidence indicates that legal aid to challenge administrative decisions ending or curtailing their benefits before first-tier tribunals has been restricted. Legal aid for cases before those tribunals has also been curtailed. Similarly, access to review by an independent and impartial tribunal has been restricted by the introduction of mandatory reconsideration procedures before the same administrative entity that has ruled on benefits.
93. Evidence indicates that State party authorities carried out surveys and regularly published statistics about welfare reform. States party authorities also cooperated with parliamentary inquiries and provided answers to the recommendations issued by that oversight body. However, there is no evidence of periodic monitoring and evaluation activities involving persons with disabilities and their representative organizations about the impact of the implementation of measures.
94. Evidence was produced about mitigating measures put in place by central authorities to support persons with disabilities in coping with the curtailing of their social security benefits. Evidence was also produced indicating that those mitigating measures were of a temporary nature for individuals concerned by the measures, not regularly offered or known by claimants affected by decisions and not sustainable enough to outweigh the financial impact of the reduction or suppression of income-maintenance benefits. The Committee also observes that the devolved administrations in Scotland and Wales had put in place mitigation measures and takes note of the mitigation plan agreed upon in Northern Ireland.
B. Living independently and being included in the community (art. 19)
95. The Committee observed throughout the inquiry process that the interaction of various reforms on welfare schemes, in particular changes in housing benefits, the establishment of a cap on household benefits, changes in eligibility criteria for the “moving around” component under the new Personal Independence Payment, tightening of criteria to access social care and the closure of the Independent Living Fund in the State party, have disproportionately affected persons with disabilities and hindered various aspects of their right to live independently and be included in the community.
96. The Committee is concerned that the set of reforms has limited the right of persons with disabilities to choose their residence on an equal basis with others, resulting in persons experiencing increasing reliance on family and/or kinship carers, reduction in their social interaction, increased isolation and, in certain cases, institutionalization. The deinstitutionalization process in the State party has been adversely affected.
97. The Committee is of the view that changes in housing benefits, specifically the implementation of the social housing size criteria through the reduction in social housing welfare payments referred to as “the spare room subsidy”, the establishment of a cap on household benefits and changes in local housing allowances for private-sector tenants have curtailed the right of persons with disabilities to choose a place of residence in accordance with article 19 of the Convention. The Committee notes that, in multiple cases, social housing size criteria failed to recognize the specific living arrangements that persons with disabilities require in connection with their impairment and respect of their autonomy, will and preferences. The Committee observes that measures have caused financial hardship to persons with disabilities resulting in, inter alia, arrears, debts, evictions and cuts to essentials such as housing and food. The Committee, while noting that Discretionary Housing Payments have been established as a form of mitigation, observes that the concerns and views of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context (see A/HRC/25/54/Add.2) persist.
98. Evidence indicates that persons with disabilities affected by cuts in their housing benefits have undergone high levels of stress, anxiety and depression as a consequence of the shortfalls in their budget and the costs to recover financial stability. In many cases, the implementation of welfare measures has reinforced the dependency of persons with disabilities on informal and/or family care and has hindered deinstitutionalization plans.
99. The Independent Living Fund in the State party has been closed to new claimants since 2010 and was definitively closed in June 2015. The funds transferred from the central administration to local authorities under the scheme of localization were not ring-fenced in England, affecting the majority of former Fund users. It was observed that social care packages have been reduced in the context of further budgetary constraints at the local level. The Committee finds that former Fund claimants have seen the support they received from local authorities substantially reduced, to the extent that their essential needs in areas such as daily personal care are not sufficiently covered. The Committee takes note of the decision made by the devolved administrations in Scotland and Northern Ireland for the maintenance of schemes equivalent to the former Independent Living Fund, as well as in Wales. However, it remains concerned about the lack of acceptance of new applicants to the fund in Northern Ireland.
100. According to the Care Act 2014, social care provisions and schemes realize the principle of well-being. However, the information brought to the attention of the Committee demonstrated increasing financial hardship for persons with disabilities at the local level and the reduction in time and quality of social care services for those persons who are considered “not having substantial or critical levels of need”. Prioritization and tightening of eligibility criteria for adult social care has been implemented on a regular basis, adversely affecting persons with disabilities who are not being supported to the extent that they need. The Committee gathered evidence indicating that the level of care has diminished, affecting older persons with disabilities, and received testimonies about the reduction in time for visits by social carers, who in certain cases are limited to 15-minute visits to assist persons with disabilities with basic needs such as meals and personal hygiene. It was observed that the reduction in the provision of support services at the local level has curtailed the ability of persons with disabilities to take part in community life.
101. The State party provided information about measures to transfer more responsibilities to local authorities and the personalization of budgets for personal care. The Committee, however, received evidence that personal care packages have been reduced and that the availability of support is established on the basis of what is considered to be an affordable service in the market, rather than on the specific needs of the person concerned. The Committee received evidence that personal budgets do not necessarily allow persons with disabilities to have access and control over social care services and restrict the level of personal assistance they receive.
C. Work and employment (art. 27)
102. Evidence indicates several flaws in the processes related to the Employment and Support Allowance. In particular, the Committee notes that, despite several adjustments made to the Work Capability Assessment, the assessment has continued to be focused on a functional evaluation of skills and capabilities, and puts aside personal circumstances and needs, and barriers faced by persons with disabilities to return to employment, particularly those of persons with intellectual and/or psychosocial disabilities. In the initial period covered by the present report, evidence indicates a significant percentage of assessments were overturned by tribunals.
103. Despite the training delivered to assessors and decision makers, evidence indicates a persisting lack of awareness and limited knowledge of disability rights and the specific needs of persons with disabilities, particularly of persons with intellectual and/or psychosocial disabilities. The Committee also collected evidence of lack of reasonable accommodation and inaccessible information about the assessment process.
104. While the Committee notes the effort of the authorities to shorten the length of mandatory reconsideration procedures, evidence indicates that claimants requesting reconsideration have frequently experienced long waiting periods. The Committee also observes that, during the mandatory reconsideration procedure, Employment and Support Allowance benefits are suspended.
105. Evidence collected points to significant hardship, including financial, material and psychological, experienced by persons with disabilities undergoing assessments. Persons who have been compelled to undergo a new assessment shortly after a first assessment have been particularly affected.
106. The number of sanctions of claimants in the Employment and Support Allowance work-related activity group has increased significantly between 2012 and 2014, and evidence indicates that they have been applied in a disproportionate manner. Opportunities to apply for hardship payments exist, but few people appear to have been informed thereof; the payments are also modest, discretionary, subject to strict access rules and of a temporary nature. Evidence indicates that claimants who have been sanctioned have faced financial hardship, including through becoming indebted, relying on the support of relatives or on food banks or having reduced essential services.
107. Various programmes have been designed to encourage persons with disabilities to move into paid employment. The two main programmes, the Work Programme and Job Centre Plus, where persons with disabilities were mostly referred, had no visible impact in decreasing unemployment among them. Persons with disabilities who have had access to other programmes that have been more successful have experienced reductions in the support provided to them, in some cases resulting in loss of employment. Evidence indicates that the Work Programme helped persons with disabilities back to work to a very limited extent and that persons with substantial support needs were left aside.
108. The situation of persons with disabilities deemed “fit to work” is not monitored as such. Those who have re-entered the system by claiming the Job Seeker’s Allowance to support them until they find work face stringent levels of conditions and sanctions, which do not take into account the specific barriers they face. The Committee was informed that, in some cases, sanctions had led to financial hardship for persons with disabilities, and particularly persons with intellectual and/or psychosocial disabilities.
109. The State party initially stated that it did not monitor deaths that occurred after assessments. Evidence gathered during the inquiry indicated that, in 2012 and 2015, such information was released by the Department of Work and Pension following freedom of information requests. Additionally, information originated from official sources indicated that 33 deaths of claimants who died after being assessed were being examined. The State party claims that there is no causal link. The Committee is not aware of any attempts at objective, thorough, open and impartial investigation regarding those deaths by an independent body.
D. Adequate standard of living and social protection (art. 28)
110. The Committee had access to official statistics indicating that, overall, households with one or more persons with disabilities are more likely to have a relatively low income than households without persons with disabilities. The Committee was presented with evidence that changes operated in the welfare system had had a more negative impact on households with persons with disabilities, especially on those living on low income.
111. The Committee observes that equality impact assessments carried out by authorities for various welfare benefits did foresee that a large number of persons with disabilities would be affected by policy changes. The Committee also received evidence that the cumulative impact in the reduction of welfare benefits has led persons with disabilities to struggle to maintain minimum level of income, driving many into increased dependency on relatives and increased levels of indebtedness and resulting in an inability to manage the bare essentials and recourse to food banks.
112. The authorities foresaw that the transition from Disability Living Allowance to Personal Independence Payment would result in 620,000 fewer people receiving Personal Independence Payments and would represent a 20 per cent saving in expenditure. The eligibility criteria and the threshold for qualifying for Personal Independence Payments have been tightened, with the result that many claimants with moderate or lower levels of support have been excluded from the benefit. Similarly, the tightening of the eligibility criteria for the mobility component has resulted in Personal Independence Payments beneficiaries losing their entitlements to that component. Persons were reassessed based on functional criteria and evidence indicates that, despite assurances that the assessment period would be shortened, there were claimants experiencing long waiting periods. Information also indicates that the authorities intend to further reduce the support available to access assistive devices.
E. Systematic violations of the Convention
113. Consequently, the Committee considers that there is reliable evidence that the threshold of grave or systematic violations of the rights of persons with disabilities has been met in the State party. That conclusion is based on the following findings:
(a) The State party has implemented a policy aimed at reforming its welfare system and the reforms have been justified in the context of austerity measures to achieve fiscal and budgetary policy consolidation;
(b) The assumptions made under the policy include that: taxpayers need to be treated with fairness; large numbers of persons with disabilities have been relying and dependent on social benefits; persons are better off in work than on benefits; the dependency of persons with disabilities on benefits is in itself a disincentive to move them into employment; the number of persons with disabilities relying on social benefits were to be decreased; and tightening sanctions and conditionality of social benefits is a legitimate tool for incentivizing their moving into employment;
(c) The impact assessments conducted by the State party prior to the implementation of several measures of its welfare reform expressly foresaw an adverse impact on persons with disabilities;
(d) Several measures have disproportionally and adversely affected the rights of persons with disabilities;
(e) Measures resulting in reduction of support provided to meet the extra cost of disability, denial of reasonable accommodation in assessment procedures and realization of the right to employment have had a discriminatory effect on persons with disabilities;
(f) The core elements of the rights to independent living and being included in the community, an adequate standard of living and social protection and their right to employment have been affected: persons with disabilities affected by policy changes have had their freedom of choice and control over their daily activities restricted, the extra cost of disability has been set aside and income protection has been curtailed as a result of benefit cuts, while the expected policy goal of achieving decent and stable employment is far from being attained;
(g) There is evidence that a large number of persons with disabilities have been affected (e.g. 13,900 persons with disabilities have lost their Motability schemes and therefore their adapted cars, upon implementation of Personal Independence Payment up to February 2016; 492,180 had been placed in the Employment and Support Allowance work-related activity group by end of 2015; 41,792 Employment and Support Allowance work-related activity group sanctions were handed out up to March 2014);
(h) Evidence gathered nationally by the Parliament, the independent monitoring framework, universities and research institutes and centres and independent experts, has documented adverse and disproportionate effects of measures on persons with disabilities;
(i) The State party has not conducted a comprehensive human rights-based cumulative impact assessment even though reliable sources have indicated it is feasible;
(j) The State party continues its policy of reducing social benefits of persons with disabilities as reflected in the Welfare Reform and Work Act 2016.
114. The Committee recommends that the State party:
(a) Conduct a cumulative impact assessment of the measures adopted since 2010, referred to in the present report, on the rights to independent living and to be included in the community, social protection and employment of persons with disabilities. The State party should ensure that such assessment is rights-based and meaningfully involves persons with disabilities and their representative organizations;
(b) Ensure that any intended measure of the welfare reform is rights-based, upholds the human rights model of disability and does not disproportionately and/or adversely affect the rights of persons with disabilities to independent living, an adequate standard of living and employment. To prevent adverse consequences, the States party should carry out human rights-based cumulative impact assessments of the whole range of intended measures that would have an impact on the rights of persons with disabilities;
(c) Ensure that: any intended legislation and/or policy measure respects the core elements of the rights analysed in the present report; persons with disabilities retain their autonomy, choice and control over their place of residence and with whom they live; they receive appropriate and individualized support, including through personal assistance, and have access to community-based services on an equal basis with others; they have access to security social schemes that ensure income protection, including in relation to the extra cost of disability, that is compatible with an adequate standard of living and ensure their full inclusion and participation in society; and they have access and are supported in gaining employment in the open labour market on an equal basis with others;
(d) Ensure that public budgets take into account the rights of persons with disabilities, that sufficient budget allocations are made available to cover extra costs associated with living with a disability and that appropriate mitigation measures, with appropriate budget allocations, are in place for persons with disabilities affected by austerity measures;
(e) Introduce all adjustments necessary to make all information, communications, administrative and legal procedures in relation to social security entitlements, independent living schemes and employment/unemployment-related support services fully accessible to all persons with disabilities;
(f) Ensure access to justice, by providing appropriate legal advice and support, including through reasonable and procedural accommodation for persons with disabilities seeking redress and reparation for the alleged violation of their rights, as covered in the present report;
(g) Actively consult and engage with persons with disabilities through their representative organizations and give due consideration to their views in the design, implementation, monitoring and evaluation of any legislation, policy or programme action related to the rights addressed in the present report;
(h) Take appropriate measures to combat any negative and discriminatory stereotypes or prejudice against persons with disabilities in public and the media, including that dependency on benefits is in itself a disincentive of employment; implement broad mass media campaigns, in consultation with organizations representing persons with disabilities, particularly those affected by the welfare reform, to promote them as full rights holders, in accordance with the Convention; and adopt measures to address complaints of harassment and hate crime by persons with disabilities, promptly investigate those allegations, hold the perpetrators accountable and provide fair and appropriate compensation to victims;
(i) Ensure that, in the implementation of legislation, policies and programmes, special attention is paid to persons with disabilities living with a low income or in poverty and persons with disabilities at higher risk of exclusion, such as persons with intellectual, psychosocial or multiple disabilities and women, children and older persons with disabilities. Those measures should be put in place within contributive and non-contributive regimes;
(j) Set up a mechanism and a system of human rights-based indicators to permanently monitor the impact of the different policies and programmes relating to the access and enjoyment by persons with disabilities of the right to social protection and an adequate standard of living, the right to live independently and be included in the community and the right to work, in close consultation with persons with disabilities and their representative organizations in all regions and countries that constitute the State party;
(k) Respond to the present report within the time limit prescribed under the Optional Protocol, widely disseminate the Committee’s findings and recommendations and provide appropriate follow-up to the recommendations of the present report, including during the consideration of the State party’s initial report before the Committee.