As usual Disability News Service exposes shocking information and continues to be a thorn in the side of DWP and others.
Disability charity’s appointment of Unum boss as new chair ‘is truly disgraceful’
A disability charity’s decision to choose as its new chair the head of a company closely linked with the government’s hated “fitness for work” test has been branded “a betrayal” of disabled people and “a truly disgraceful appointment”.
United Response, which provides a range of support services to about 3,000 disabled people across England and Wales, this week announced the appointment of management consultant Malcolm McCaig.
McCaig has been a non-executive director of Unum UK since July 2009 and was appointed to chair the company’s board last year.
But Unum has spent decades attempting to influence UK government policy on welfare reform and is blamed by many disabled researchers and activists for pushing successive governments to make the process of applying for out-of-work disability benefits harsher and more stressful.
Those policies have been closely linked to the deaths of countless benefit claimants and with causing significant harm to the physical and mental health of many others.
Campaigners argue that Unum has spent years trying to undermine the social security system to boost the market for its own income protection insurance (IPI) policies.
In 2011, Unum launched a major UK marketing campaign to promote the need for IPI policies, just as the coalition began its three-year programme to reassess about 1.5 million existing claimants of old-style incapacity benefit through the new work capability assessment (WCA).
United Response this week celebrated the appointment of its new chair, describing him as “a strong advocate of diversity and inclusion” who would be “a major asset to the organisation”.
But Mo Stewart, the disabled researcher who has done most to raise concerns about Unum’s influence on welfare reform*, described McCaig’s appointment as “an insult to the chronically ill and disabled people being coerced and intimidated by the DWP, who used Unum as advisers for welfare reforms that have caused death, despair and destitution for those in greatest need in the UK”.
Disabled People Against Cuts (DPAC) described the appointment as “a betrayal of all the disabled people and their families who have suffered under the work capability assessment”.
A DPAC spokesperson added: “More than that, though, we consider it active collusion in Unum’s interest in replacing the UK social security net with an insurance system from which they will profit and disabled people will be harmed.
“Given Unum’s history in the US of denying disability in order to avoid pay-outs this is a truly disgraceful appointment.”
Rick Burgess, another leading disabled activist, said: “Given Unum’s reputation in being a ‘disability denial factory’ and its role in abusive disability welfare changes, this appointment is completely inappropriate, unless of course United Response plans on replicating Unum’s approach to disabled people.”
It is also not the first time Unum has courted links with the disability sector.
Two years ago, the Mental Health Foundation was heavily criticised for launching a partnership with Unum that aimed to tackle the stigma of mental health in the workplace and encourage employers to safeguard the mental health of their employees.
Unum’s links with the UK government date back to the 1990s, when Peter Lilley, social security secretary in John Major’s Conservative government, hired senior Unum executive John LoCascio to offer advice on how to cut the number of claimants of long-term sickness benefits.
A detailed memo submitted to the Commons work and pensions committee in 2002 by a director of Unum – then known as UnumProvident – called on the Labour government to “ensure both that work always pays more than benefits, and more importantly that it is clearly seen to do so”.
And in 2005, Unum bragged in a document that it had “always been at the leading edge of disability assessment and management”, and that government policy was now “moving in the same direction” as “our views and understanding” and was “to a large extent being driven by our thinking and that of our close associates”.
Three years later, in 2008, the Labour government introduced the WCA.
Stewart said McCaig’s appointment “disregards the history of this American corporate giant, the fact that they were official government advisers from 1992 regarding ‘welfare claims management’ which influenced the introduction of employment and support allowance and the notorious WCA”.
She also pointed out that Unum was accused of operating a “disability denial” agenda by a professor at Yale Law School and was identified by the American Association for Justice as being the second worst insurance company in America.
In 2005, California’s insurance commissioner, John Garamendi, described Unum Provident as “an outlaw company” that had “engaged in a strategy to increase its bottom line at the expense of its customers”.
The company has previously admitted widespread criticism of its past actions in the US, mainly over its refusal to pay out on large numbers of genuine insurance claims by disabled people, a record also mentioned five years ago in a Commons debate on the WCA.
Unum also sponsored Cardiff University’s Centre for Psychosocial and Disability Research for four years.
That research, said Stewart, led to the fatally flawed biopsychosocial (BPS) model of assessment on which the WCA is based.
Unum has repeatedly dismissed claims that it pushed the government to introduce the WCA system, and two years ago even claimed that it “never has lobbied on the topic of welfare reform or related matters”.
United Response failed to respond to the concerns about Unum.
But Tim Cooper, the charity’s chief executive, said: “Malcolm is an outstanding individual whose background and vast experience will prove invaluable in leading United Response and helping it achieve its vision.
“We undertook an extensive recruitment process resulting in an incredibly strong shortlist of candidates, and Malcolm’s skill set and demonstrable understanding of the charity led to his appointment.”
*Stewart’s book, Cash Not Care, details Unum’s influence over successive UK governments, and how it led to the introduction of the WCA
16 August 2018
Union backs claims of widespread discrimination by ‘hostile’ university
A “Disability Confident” university is facing claims that it forced a disabled member of staff to scour the campus for accessible rooms in which she could deliver her lectures.
The University of Liverpool also told Dr Kay Inckle that it might be considered “reasonable” for her to go down stairs on her bottom in some circumstances rather than be timetabled into ground floor or fully accessible rooms.
And it told the wheelchair-user that she would have to wait in the wings for the end of the annual procession of academic staff through the Liverpool Philharmonic Hall before she was allowed to join them on stage at the end-of year conferment ceremony in which students receive their degrees.
After she protested about her treatment, she says, she was eventually allowed to join the procession.
The university has even claimed that it cannot afford to pay for an access consultant to ensure plans for a £30 million refurbishment of the building where the school of law and social justice and her office will be located are accessible.
Instead of paying for a professional consultant, the university has asked Inckle, and possibly other disabled staff, to offer advice on access requirements for the refurbished building.
The university will also not commit to putting a fire evacuation lift in the building to ensure that disabled people can escape in an emergency, says Inckle.
And one of the two lifts in the main student union building has been out of action for nearly a year, which means that wheelchair-users have not been able to reach the upper floors.
Despite the claims, the university is one of about 7,000 employers that have signed up to the government’s discredited Disability Confident employment scheme.
It claims to be a Disability Confident Employer – the second of the scheme’s three levels – as an organisation that is “recognised as going the extra mile to make sure disabled people get a fair chance”.
Critics have previously argued that it is easy for employers to sign up to the Disability Confident scheme and then continue to discriminate against disabled people.
Inckle, a sociology lecturer who specialises in work on disability, self-harm and mental distress, told Disability News Service that she has been treated with “absolute contempt” by the university.
And she said it was “sickening and laughable” that the university saw itself as a Disability Confident employer.
Now the local branch of her union, the University and College Union, has passed a motion condemning the university’s treatment of her and other disabled staff and students, and is calling for support from disability rights groups.
Its motion says: “The branch is concerned with how the University is discriminating against disabled staff and students in a variety of direct ways from failing to provide accessible rooms and hold accurate information of the accessibility of rooms, to ensuring new buildings are fully compliant with the Equality Act 2010.
“There are also frequent failures to make reasonable adjustments in an effective and timely manner and a hostile and obstructive response towards those who request such adjustments.”
It adds: “A request for an accessible room is not discretionary; it is a legally binding, non-optional and reasonable adjustment.”
The union branch has concluded that the university is breaching the Equality Act 2010 and that its discriminatory actions are “heavily impacting staff and students”.
Inckle described how she has repeatedly been allocated rooms for her lectures that were accessible for disabled students but inaccessible for her because the lecturer’s area could only be reached via steps.
When she complained, she was told to search the campus herself for accessible rooms that would be suitable for her to lecture in.
She has even been allocated rooms that she would not be able to evacuate from in the event of a fire, and she says it took 10 months for the university to provide an accessible toilet for her to use in her own department.
She said: “I was told by one member of university staff that the university might think it was reasonable for me to go down stairs on my bum in some situations rather than provide me with fully accessible rooms.”
On another occasion, a member of university staff demanded that she demonstrate to him how she could be evacuated down stairs in her wheelchair before he would give her permission to use the fire evacuation lift.
Her pleas to address the shortage of accessible parking spaces near her office have also been dismissed.
She said: “As a disabled woman, I am seen as useless and worthless and as an annoyance.
“I am treated with absolute contempt. They see me as a nuisance who needs to shut up and go away.”
A University of Liverpool spokeswoman said: “The University of Liverpool is committed to fulfilling its obligations under the Equality Act and to supporting students and staff with disabilities to flourish.
“Colleagues at the University and College Union have recently raised a number of points with the university regarding the experiences of disabled staff and students and we are actively looking into these.
“We are eager to work with the trade unions and have agreed to meet with them to discuss this further as soon as possible.”
16 August 2018
DWP repeatedly breaches FoI laws ‘in bid to hide secret jobcentre reports’
The Department for Work and Pensions (DWP) has repeatedly breached freedom of information laws in an apparent attempt to prevent the release of secret reports written by disabled people recruited to work within its jobcentres.
Two years ago, DWP published a work, health and disability green paper, Improving Lives, in which it revealed plans to recruit about 200 new “community partners”.
Ministers said these community partners would have “personal and professional experience of disability” and would support work coaches in jobcentres.
The aim was for them to “provide valuable first-hand insight” into the issues faced by disabled people in “securing and sustaining employment”, with work coaches able to draw on their local knowledge.
The community partners, many of whom were to be seconded from disability organisations, would also help map local provision of peer support and service-user groups.
But Disability News Service (DNS) has since learned that these community partners submit regular reports on their work, often based on their experiences of visiting jobcentres.
For years, DNS has been reporting on the alleged failure of DWP jobcentres to safeguard disabled people left in vulnerable situations because of flaws in the benefits system.
Many of these failings have led to the deaths of benefit claimants and have subsequently been reported on in secret DWP peer reviews (now renamed internal process reviews).
DNS therefore submitted a freedom of information request to DWP in May, asking to see any of the reports written by community partners working in London Jobcentre Plus districts in 2017 and 2018, in case any of them included concerns raised by Community Partners about such failings.
Such requests are supposed to be answered within 20 working days, but there has so far been no written response from the department’s freedom of information department.
On 5 July, DNS emailed DWP’s freedom of information team to ask why it had failed to respond to the request, and followed that up with another email on 19 July, warning that the failure to respond was a clear breach of the Freedom of Information Act.
DNS has since spoken to a civil servant in DWP’s freedom of information team, who promised to try to find out why no response had been sent.
She told DNS this week that she had repeatedly attempted to secure a response from the jobcentre operations team and had warned them that they had breached their legal duties under the act.
She said she did not know why they had failed to respond to the request.
She told DNS: “I chased it again this morning and I don’t know why it has taken so long. I have reminded them of their duty to reply in time and that is where I am with it.
“You have every right to go to the Information Commissioner’s Office [to lodge a complaint].
“I have tried. I don’t know why they are digging their heels. I am sorry.”
A DWP spokeswoman refused to explain the reason for the repeated breach of the Freedom of Information Act.
But she said in a statement: “Any issues relating to FOI requests can be dealt with by writing to email@example.com.
“If you are unhappy with the handling of an FOI request please contact the Information Commissioner’s Office.
“The latest statistics show that DWP answered 95 per cent of FOI requests within 20 working days, exceeding the information commissioner’s compliance threshold of 90 per cent.
“As you know, DWP spokesperson statements must come from the DWP press office, and we regularly provide you with statements, as we are doing so in this instance.
“Please can you therefore use the above wording in your story instead of quoting from phone calls with DWP employees.”
16 August 2018
Deaths and hospital admissions follow short-notice closure of Leonard Cheshire home
At least two disabled people have died while others have been admitted to hospital following the short-notice closure of a residential home by a disability charity.
Leonard Cheshire faced allegations of “insensitive and abusive” behaviour in May over the way its executives told disabled residents that they were about to close their care home because they could not afford to keep it open.
About 20 residents and other service-users were given less than three months’ notice of the charity’s plans to close Greathouse, near Chippenham, Wiltshire.
Leonard Cheshire blamed staffing problems, a drop in the demand for places and the cost of repairs for its decision to close the home on 27 July.
But the charity confirmed this week that two former residents of Greathouse have died soon after being forced to leave the home.
One had been a resident for 15 years and died soon after moving out, while the other had moved to Greathouse more recently and was said to have had a stroke after having trouble settling at his new home.
A third former service-user, a disabled woman who used the home’s respite service and was said to have been deeply upset at not being able to visit Greathouse, is also believed to have died, and other former residents have had to be admitted for hospital treatment.
Anne Keat, whose son Richard was a resident at Greathouse and has now been moved to another home nearby, said she and other relatives were convinced that the deaths and other health problems were connected to the closure.
In addition to the deaths, she said, as many as five or six former Greathouse residents had been hospitalised, including Richard.
He lost more than 20 kilogrammes – more than a quarter of his bodyweight – after learning of the closure and had to be admitted to hospital for three days.
She said: “He literally disappeared before our eyes. It was a pure grieving process, it was horrible to see.”
She said the Greathouse chef had commented several times on how much less food he was cooking in the weeks leading up to the closure, because residents had lost their appetites.
She said: “Leonard Cheshire have a lot to answer for. I just think they have behaved appallingly.”
Earlier this month, Leonard Cheshire was also criticised over its decision to sell 17 residential homes to other care providers and was accused of making “a complete mockery” of its supposed commitment to service-user involvement.
Disability News Service has heard from three separate sources that three former Greathouse residents have now moved to Leonard Cheshire homes that are among the 17 listed for sale next year and so are likely to go through a further period of uncertainty and upheaval.
One source, who has friends among ex-staff and relatives of former residents, said the deaths were “so distressing”, and added: “This is a scandal, but no-one cares.”
Doug Paulley, who lives in a Leonard Cheshire home in Wetherby and has publicly criticised the way the charity is run, said the deaths were “very sad” but predictable.
He said: “Leonard Cheshire knows that people die if they are forced to move from their care homes, but they did it anyway.
“These actions that devastate disabled people who live in their homes – it is disgusting.
“It is difficult to prove but I have no doubt that people being moved forcibly against their will when they have severe impairments has caused deaths.”
He said the charity had given the residents of Greathouse the minimum possible notice – three months – of its intention to close the home.
Although it is impossible to prove that the deaths and health problems were caused by the sudden closure of Greathouse and residents being forced to move to new homes, some research has suggested a link between involuntary relocation from residential homes and a negative impact on residents’ health.
A Leonard Cheshire spokeswoman said: “We are aware that two former residents of Greathouse have sadly passed away.
“Our heartfelt thoughts are with the families at this difficult time.
“It would be inappropriate to comment further at this point until the facts are established.
“Care was taken in supporting all residents of Greathouse with their individual moves, including health checks and the transfer of records around complex conditions so that continuity of care was properly managed.
“Continuity and quality of support, and the welfare of all residents is our top priority during the coming months as we look to secure a new provider for the services that we have taken the difficult decision to sell.
“Any sale is unlikely to occur before the end of March 2019 and could take longer. We will support residents and their families throughout this process.”
She said the charity was not aware of the death of the woman who used the respite service.
She added: “With regard to the other residents you refer to we will not comment on the health of individual residents beyond our statement.
“If residents have transferred to other providers, any queries about the care and wellbeing of residents who transferred to other providers need to be addressed to them.”
She declined to comment further.
16 August 2018
Concerns over green paper’s ‘chilling’ failure to address accessible housing crisis
The government has been criticised by disabled campaigners and the equality watchdog after its new social housing green paper failed to include a single mention of the accessible housing crisis.
Only three months ago, the Equality and Human Rights Commission (EHRC) warned that more than 350,000 disabled people in England had unmet housing needs, with one-third of those in private rented accommodation and one-fifth of those in social housing living in unsuitable properties.
EHRC called in its report for the government to draw up a national strategy to ensure an adequate supply of new homes built to inclusive design standards.
But this week’s social housing green paper, described by communities secretary James Brokenshire as a “new deal” for social housing residents – those who pay rent at below market levels – does not mention accessible housing once.
The word “accessible” only appears in the 78-page document four times, on each occasion relating to the need for accessible information or complaints procedures.
The green paper does refer to supported housing, which it explains has a “key role to play” in supporting minority groups including people with mental ill-health, learning difficulties and other disabled people.
But there are no proposals to improve supported housing, other than referring to a U-turn announced last week, in which ministers said that it would continue to be funded through the social security system rather than being devolved to local authorities as originally planned.
The green paper also mentions an ongoing review of the disabled facilities grant (DFG), which provides funding to make disabled people’s homes more accessible, for example by widening doorways or installing ramps, and which will see spending increase from £220 million in 2015-16 to £505 million in 2019-20.
But there are no new proposals for increasing the supply of accessible housing, or even requests for ideas on how the accessible housing crisis could be addressed.
Ellen Clifford, campaigns and policy manager for Inclusion London, said that reading the green paper and realising its failure to mention the crisis in accessible housing – despite the conclusions reached in the EHRC report – had been a “chilling” experience.
She said: “Despite the fact that disabled people are twice as likely as non-disabled people to live in social housing, that over half of all households in the social housing sector have disabled members and that according to the EHRC report there are around 365,000 disabled people in England with unmet housing needs, with one in five disabled people in social housing living in unsuitable accommodation, the new green paper on social housing fails to mention the crisis in accessible housing at all or offer any solutions to it.”
She added: “The paper refers a number of times to the Grenfell tragedy but fails to mention the numbers of disabled tenants housed there, a number on upper floors who were unable to escape, due to the chronic lack of accessible housing that is a problem across Britain.
“The chilling part is that the only mention of meeting disabled people’s housing needs or of accessibility comes through the government’s commitment to invest in supported housing.
“The recent government announcement on increased funding for supported housing states that a unit within such housing will ‘have its own front door’, as if to detract from what this represents, which is ghetto-isation and re-segregation of disabled people.”
EHRC told Disability News Service that it was concerned and disappointed by the green paper’s failure to address the “chronic shortage” of accessible housing.
An EHRC spokeswoman said in a statement: “Almost half of social housing is occupied by disabled tenants or those with a long-term illness and their needs must be specifically reflected in the green paper.
“The ambition to empower tenants is welcome, but we are disappointed that specific initiatives for disabled people and the need to address the chronic shortage of accessible housing are not mentioned.
“We will be responding to the consultation and discussing the proposals directly with the Ministry of Housing, Communities and Local Government to raise our concerns.”
The green paper offers five “core principles”: a “safe and decent home”; “swift and effective resolution” of concerns about the safety or standard of a home; “empowering residents” and ensuring landlords are held to account; tackling the stigma of living in social housing; and “building the social homes that we need and ensure that those homes can act as a springboard to home ownership”.
But although prime minister Theresa May says in a foreword that the government is “committed to getting more of the right homes built in the right places, sold or rented at prices local people can afford”, the green paper provides few if any firm proposals.
Instead, it includes a series of questions to be answered through a public consultation – which closes on 6 November – although none of them relate to accessible housing.
Although it was not mentioned in the green paper, the Department of Health and Social Care (DHSC) announced this week that it was extending funding for its Care and Support Specialised Housing Fund (CSSHF) for another three years.
CSSHF received £315 million in its first five years (£63 million a year) and produced about 3,300 accessible “supported or specialised” properties suitable for disabled and older people.
Funding will now rise to £76 million a year for the next three years, with DHSC expecting “thousands” more homes to be built.
A spokeswoman for the Ministry of Housing, Communities and Local Government (MHCLG) failed to explain the failure to mention accessible housing in the green paper.
Instead, she pointed to the reference to the DFG review, and added: “We realise many disabled people face challenges in their daily lives, but we’re clear that their homes should not cause them problems.
“Our green paper sets out our plan to tackle stigma and ensure social housing can be a stable base that supports people when they need it.
“Our new planning rulebook also makes clear that councils must take the needs of the elderly and disabled people into account when planning new properties.”
MHCLG also said that as design of homes was at the heart of the green paper, that would include making sure properties were suitably accessible.
And it said that disabled people were among nearly 1,000 residents who took part in 14 engagement events around the country leading up to the green paper.
16 August 2018
User-led alliance set to raise concerns for second time with Mental Health Act Review
User-led groups and service-users are set to raise grave concerns about the work of the team reviewing mental health laws on behalf of the government, including its refusal to take a “full human rights-based approach” to reform.
An alliance of user-led organisations, mental health service-users and survivors, and their allies, are to write for a second time to the Mental Health Act Review (MHAR), which is examining the Mental Health Act 1983, which covers England and Wales.
More than 120 organisations and individuals – led by the National Survivor User Network (NSUN) – wrote to the review in May raising alarm about its reluctance to recommend full rights that comply with the UN Convention on the Rights of Persons with Disabilities (UNCRPD).
The letter called on the review to address the concerns raised by the UN’s committee on the rights of persons with disabilities, after it investigated the UK’s implementation of the UN disability convention last year.
The UN committee said in the “concluding observations” to its examination of the UK that the government should “repeal legislation and practices that authorise non-consensual involuntary, compulsory treatment” and the detention of disabled people “on the basis of actual or perceived impairment”.
Two NSUN representatives met the review team last month to discuss their letter, but they said they did not think their concerns were taken seriously, while the response from the review’s chair – Professor Sir Simon Wessely – and his three vice-chairs “fell well short of what we might have hoped”.
Wessely made it clear that he and his vice-chairs would not recommend full implementation of the UN convention.
Now NSUN is set to write to the review for a second time next month, in response to the views expressed by Wessely and his vice-chairs at the meeting.
The follow-up letter is likely to stress again the importance of a human rights-based approach to reform which gives mental health service-users the same rights as everyone else, and express strong dissatisfaction with the review’s dismissal of the concerns.
The letter is again expected to secure significant support from user-led organisations, mental health service-users and survivors, and allies.
Among the other concerns raised by the NSUN alliance in the first letter are that service-users, survivors and user-led organisations have been outnumbered in key parts of the review structure, leading to a “tokenistic” approach.
And they say the review has been “incredibly rushed”, with the review brief being to produce recommendations this autumn, ahead of NHS England’s 10-year funding plan, which is expected later this year.
This has caused “significant barriers to service user and carer involvement” in the review.
And they want to see a greater effort to reach those with lived experience of detention and compulsory treatment, with an adequate focus on those from particularly disadvantaged groups, including those from black and minority ethnic (BAME) communities, lesbian, gay, bisexual and transgender communities, people from disadvantaged socio-economic groups, people with learning difficulties and people with physical impairments.
They also want the review to place more of a focus on social models of mental distress, and to examine alternatives to clinical services and provision of resources for these alternatives.
They also have major concerns about the quality of the interim review report, which was published in May, because of the reporting and reliability of the data it used, and the lack of clarity on the evidence for its findings.
Dorothy Gould, freelance researcher, trainer and consultant for NSUN, said: “It is utterly wrong that the 21st century has been reached without people with mental health diagnoses/in mental distress having the same human rights as everyone else – and now, to compound this, the review chair and vice chairs are not willing to recommend that we do even now.”
Sarah Yiannoullou, NSUN’s managing director, said the review team had made it “quite clear” that that they were not going to recommend any move towards mental health legislation which was fully compliant with UNCRPD.
Yiannoullou said the review was incredibly important because it was likely to be the basis for the last major reform for the next decade.
She said: “Whatever recommendations there are, that’s it for the next 10 years.”
A Department of Health and Social Care (DHSC) spokeswoman declined to answer questions about the key points made by NSUN, as the review was ongoing, but said in a statement: “We’re determined to ensure the Mental Health Act works better for patients and their families, which is why we commissioned a review of the act and will be considering the final recommendations of the review when it reports later this year.”
But DHSC also said that a service users’ and carers’ group was embedded in the governance of the review, and that every working group established by the review had at least one service-user or carer as a full member.
DHSC said that more than 2,000 people and organisations had provided views for the review through a call-for-evidence, a survey and face-to-face meetings.
The department also said that 30 small focus groups had been held with service-users and carers, with participants including those with experience of low, medium, high security and forensic services, autistic people and those with learning difficulties, and those from BAME communities.
A further two workshops with service-users, carers and professionals have just been held, while at least 15 more focus groups will be re-run in early autumn to test the review’s thinking.
For more information about NSUN’s campaign, or to offer support, contact Dorothy Gould (firstname.lastname@example.org), NSUN’s lead on the review, or Sarah Yiannoullou (email@example.com)
16 August 2018
Legal ruling secures new protection for autistic pupils
Thousands of disabled children have won new protection from being unfairly excluded from school after a judge ruled that the government’s equality laws were unlawful.
The upper tribunal ruled last week that a 13-year-old pupil, known as “L” for legal reasons, should not have been excluded from his school because his behaviour was linked to his autism.
Now campaigners are calling on the education secretary to change the law to take account of the appeal victory.
L had originally been excluded from school for one-and-a-half days, when he was 11, because of his aggressive behaviour.
The way that Equality Act regulations have been interpreted has meant that children like L who were defined as having “a tendency to physical abuse” were often not treated as “disabled” and were therefore not protected by the Equality Act.
This lack of protection meant schools did not have to justify how a decision to exclude a disabled child in these circumstances was proportionate or explain how they had made reasonable adjustments to support the pupil so the behaviour could be prevented or reduced.
But Judge Rowley, sitting in the upper tribunal, has now found that this rule comes “nowhere near striking a fair balance between the rights of children such as L on the one side and the interests of the community on the other” and was a breach of the Human Rights Act.
He said that “aggressive behaviour is not a choice for children with autism” and that the education secretary had “failed to justify maintaining in force a provision which excludes from the ambit of the protection of the Equality Act children whose behaviour in school is a manifestation of the very condition which calls for special education provision to be made for them”.
He added: “In that context, to my mind it is repugnant to define as ‘criminal or anti-social’ the effect of the behaviour of children whose condition (through no fault of their own) manifests itself in particular ways so as to justify treating them differently from children whose condition has other manifestations.”
He said he believed that his decision was “in harmony with” both the UN Convention on the Rights of Persons with Disabilities and the UN Convention on the Rights of the Child.
Statistics show that almost half of all school exclusions involve children with special educational needs and disabilities (SEND), who are almost seven times more likely to be permanently excluded than other pupils.
L’s parents said in a statement: “We have always believed passionately that our son and other children in his position should have equal rights to be able to go to school and receive the support they need to achieve the best possible outcomes.
“School should be somewhere he can go without fear of discrimination or exclusion for actions which he has no control over.
“Knowing that one of the key rules that prevented that has now been found to be unlawful is of great comfort to us, and we hope, many other families.”
Michelle Daley, interim director of The Alliance for Inclusive Education (ALLFIE), said: “ALLFIE has continuously expressed our deep concerns about the increase in the level of exclusion of disabled children and children with SEND and also the increase in the number of children in segregated provision.
“All credit to L and his parents for pursuing the case and in helping to bring about this ruling to get the state to recognise the human rights of disabled children.
“This is an encouraging move forward, ensuring that children will be protected under the law.
“We now hope that further changes will be made to properly implement article 24 of the UN Convention on the Rights of Persons with Disabilities to end segregated education.”
Polly Sweeney, human rights partner at lawyers Irwin Mitchell, who represented L’s family, said: “We are delighted with this outcome and pleased that the upper tribunal has recognised in strong terms that the profound and severe discriminatory impact that these rules have on vulnerable children such as L when accessing education is unlawful.
“As has been made clear in the judgment, this decision does not mean that schools are prevented from excluding children where it is necessary and proportionate to do so.
“However, it will ensure all disabled children are afforded the same safeguards, protections and rights under the law regardless of whether their disability gives rise to challenging behaviour.”
Barrister Steve Broach, who argued L’s case at the tribunal, said on Twitter that the successful appeal “shows the power of the Human Rights Act”, as rules made under the Equality Act were found to have breached L’s human rights.
Melanie Field, executive director at the Equality and Human Rights Commission, which funded the case, said: “We are delighted with this judgment which will require schools to make reasonable adjustments to try to prevent or manage challenging behaviour and justify that any exclusion in these circumstances is proportionate.
“This is a positive step towards ensuring that everyone has the opportunity to reach their potential through education and increasing the inclusion of disabled children in mainstream education.”
A DfE spokeswoman said: “The government is fully committed to protecting the rights of children with disabilities, as well as making sure schools are safe environments for all pupils.
“We will be carefully considering the judgment and its implications before deciding the next steps.”
The government launched a review of exclusions earlier this year, led by former Tory education minister Edward Timpson, which is examining how schools use exclusions and why some groups are disproportionately excluded.
16 August 2018
Retailers back UK’s first ‘accessible shopping day’
Major retailers have backed the launch of the UK’s first “accessible shopping day”, which will see businesses promise to introduce new measures to benefit their disabled customers.
Purple Tuesday, to be held on 13 November, is being led by Purple, the social enterprise formerly known as Essex Coalition of Disabled People.
It has secured backing from businesses and organisations including Asda, Barclays, Argos, Marks and Spencer, Sainsbury’s, The Crown Estate, the British Retail Consortium, and Hammerson, which owns Birmingham’s Bullring shopping centre, and has been endorsed by the government.
As well as endorsing and promoting Purple Tuesday, every organisation that signs up must make at least one long-term commitment aimed at improving the experience for their disabled customers, such as introducing regular “quiet hours” for neurodiverse shoppers.
Purple will provide retailers that sign up with a training kit to help staff feel confident in assisting disabled shoppers.
It believes there are a “vast array” of adjustments that can be made by retailers that will have a “significant impact”, and many – like the training kit – can be introduced quickly.
Any business or organisation that interacts with disabled customers can sign up to Purple Tuesday, which will also promote the need for accessible retail websites.
Mike Adams, chief executive of Purple, said: “Less than 10 per cent of companies have a dedicated strategy for targeting disabled customers.
“Fundamentally, Purple Tuesday isn’t about a single day in the year but encouraging lasting change that creates a virtuous circle between businesses and disabled consumers.”
Earlier this year, a report co-authored by Adams, Leading From The Front, found the estimated value of the “purple pound” – the collective spending power of disabled people in the UK and their families – to be £249 billion a year.
The report said that three-quarters of disabled people had walked away from a business because of poor disability awareness – costing businesses £420 million a week – while inaccessible websites and apps cost £11.75 billion in lost revenue in the UK in 2016.
It also pointed out that fewer than one in 10 businesses have a defined strategy for targeting disabled consumers.
Purple Tuesday has evolved from a campaign launched by Purple last year, Help Me Spend My Money, which encouraged retail and hospitality businesses to provide disability equality training to their in-store staff and take other measures such as providing an accessible website.
Sarah Newton, the minister for disabled people, said: “Shopping should be a pleasant experience, but for many disabled people it can often be the cause of distress and frustration.
“By failing to cater to their disabled customers, many businesses are missing out on billions of pounds and denying disabled people the opportunity to enjoy something which many people take for granted.
“I look forward to working alongside Purple and members of my Disability Retail Forum on this hugely important agenda, highlighting examples of best practice in the retail sector and encouraging others to make small changes which can make a massive difference to their customers.”
16 August 2018
News provided by John Pring at www.disabilitynewsservice.com