Embargoed for publication 10:00 9 January 2012
A new Report on the proposed changes to Disability Living Allowance in a team led by Dr S J Campbell, Sue Marsh, Kaliya Franklin and Declan Gaffney, raises fresh concerns about the legitimacy of the new welfare reforms for England and Wales. This Report provides much hope to disabled law students, as the Report paves the way for a comprehensive legal challenge to the Welfare Reform Bill for alleged breaches of international and domestic law, especially as regards discrimination, human rights and equality.
The new Report cites specific examples of existing concerns about the legitimacy of such reforms under international and domestic law, but the clarity of new precise statistics. At present, the rights of disabled citizens are protected by a range of domestic and international legislation, including the Universal Declaration of Human Rights, the International Covenant on Economic Social and Cultural Rights (ICESCR), the UN Enable Convention on the rights of people with disabilities, Articles 28, 26 & 4 (UNCRPD), Disability Discrimination Act 1995, the Human Rights Act 1998, and the Equality Act 2010. Under Equality Act 2010, it is illegal to treat one group of disabled people less favourably than another. If removal of DLA from people with so-called “lesser needs” removes or limits those choices, the UK Government may find itself in breach of their human rights obligations.
The Report provides troublesome reading for the Government regarding their “equality assessment”:
The Government Equality Assessment recognises that some disabled people will lose their entitlement to DLA. We dispute the Government’s claim that losing DLA will increase disabled people moving into work. We suggest the opposite. During the consultation many disabled people reported that losing their DLA would leave them unable to continue working, most often citing travel costs. !is misunderstanding underlines the Government’s deep misconception of DLA as an out-of-work benefit rather than a benefit which enables work for those disabled people who are capable of it.
This Report was entirely written, researched, funded, and supported by sick and disabled people, their friends and carers, as well as thousands more supported it through social media. It is report is a comprehensive presentation of the most relevant evidence available on Disability Living Allowance (DLA) and the proposals to replace it with a new bene?t, Personal Independence Payments (PIP). It gathers together existing information and analyses over 500 group responses to the Government’s Response to Disability Living Allowance reform (obtained under FOI request 1989). That the Report was so comprehensively produced with the relative lack of funds normally given for such exercises is a touching testament to the commitment of people genuinely distressed about this.
The Report’s authors argue that “reform must be measured, responsible and transparent, based on available evidence and designed with disabled people at the very heart of decision-making“. The authors unfortunately concluded that there was a clear indication that this had not been the case, and respondents to this particular consultation repeatedly warn that plans for PIP may be in breach of some or all of these. Overwhelmingly, they found that disabled people do not agree that there is a need for an entirely new bene?t. It was clear to them that whilst disabled people do support some reform of DLA they do not want an altogether new bene?t. The respondents believed it is a costly irrelevance during times of austerity. However, the Report provided that, “Disabled people are clear and emphatic – keep DLA and reform the existing bene?t.”
The Report finds that:
It was felt that people with mental health disabilities would be disproportionally affected by these proposals. This was deemed to be because they would suffer from the type of assessment proposed which would perform poorly at assessing fluctuating conditions, so called invisible disabilities, people with poor communication skills and people who might be unable to communicate changes of circumstances, all of which apply in particular to people with mental health disabilities. Furthermore people with mental health disabilities are disproportionally represented among those receiving lower rate DLA and are considered to be the most likely to suffer from any cuts.
The Report finds that:
Ironically it was felt that disabled people would be negatively affected by these proposals. Due to cuts of 20% there would be a significant loss of income to large numbers of disabled people who would lose valuable support. It was also reported that some might be unable to continue working and others would be unable to continue socialising. It was felt that there could also be a negative impact on their health and wellbeing. It was suggested that there might be a contravention of human rights in these proposals.
Crucially, this Report puts another nail in the coffin for the proposed argument that the the proposed Welfare Reform Bill is consistent with other sources of domestic and international law. This has already begun to be an area of close scrutiny.
Extracts from other recent documents are provided below.
The Welfare Reform Bill was introduced in the House of Commons on 16 February 2011 and was brought from the House of Commons to the House of Lords on 16 June 2011. The Parliamentary Under-Secretary of State and Minister for Welfare Reform, Lord Freud, has certified that, in his view, the Bill is compatible with Convention rights. The Bill completed its Committee stage in the House of Lords on 28 November and its Report stage is scheduled for 12 December.
THE LEGAL STATUS OF THE RELEVANT STANDARDS
1.21 Before considering the specific provisions of those treaties which are relevant, we think it is important to point out the different nature of the legal obligations imposed on the State by the European Convention on Human Rights on the one hand, and by human rights treaties such as the ICESCR and the UNCRC on the other.
1.22 All human rights treaties impose legal obligations, but the precise nature of those obligations differs. ECHR rights are the archetypal legally enforceable rights, fully justiciable by courts and capable of protection by legal remedies. Rights such as the right to social security and the right to an adequate standard of living, on the other hand, are subject to progressive realisation and, as such, are less susceptible of judicial enforcement. In our view, in any parliamentary democracy it is the democratic branches of the State, that is, the Government and Parliament, which should have primary responsibility for economic and social policy, in which the courts lack expertise and have limited institutional competence or authority.
1.23 It follows, from this difference in the nature of the legal obligations imposed by the ECHR and by other human rights treaties, that political accountability for compliance with the UK’s human rights commitments under the UN human rights treaties is in practice even more important than legal accountability. Parliament therefore has a key role to play in scrutinising legislation to secure compliance with the positive obligations and minimum standards to which the UK has committed itself in those treaties.
… 1.35 We are disappointed by the Government’s failure to carry out any detailed analysis of the compatibility of the proposals in the Bill with the UK’s obligations under the UNCRC, the ICESCR and the UNCRDP. The legal effect of these human rights obligations in the UK is different in kind from the legal effect of Convention rights, which are given effect in our national legal system under the Human Rights Act, but they are nevertheless binding obligations in international law and the Government should be able to demonstrate that they have considered the compatibility of legislative proposals with those obligations. We have commended a number of human rights memoranda from departments in the past which have done precisely that. We remind departments of this Committee’s expectation in this respect, which is explicitly referred to in the Cabinet Office Guide to Legislative Procedure.
This other published document also provides disturbing reading for those who observe the Rule of Law:
The proposals recognise the need to support those ‘who face the greatest challenges to leading independent lives’ but the overview impact assessment concludes that this may mean a reduction in support for some people. Whilst the stated intent to focus on those facing the greatest barriers to independent living is welcomed by the Commission, our view is that this aim does not justify and will not be achieved by putting targets in place to reduce the number of DLA recipients. It is critical that the assessment is about the individual and is not subject to targets or quotas based purely on reducing the number of DLA claimants. The Commission is concerned about the impact this could have on individuals’ standard of living, and could be counter-productive to government policies and initiatives to overcome barriers to work.
The Report’s authors must be congratulated on a comprehensive piece of work, on behalf of law students. That the Welfare Reform Bill may not be above the international or domestic “rule of law”, especially in relation to discrimination, equality or human rights, will give much need hope to disabled law students.