Equality and Human Rights Commission (UK) response to UN Special Rapporteur on Disabilities’ inquiry into the right of disabled people to social security Introduction
The UN Convention on the Rights of Persons with Disabilities (UNCRPD) reaffirms disabled people’s human rights. It recognises that equality and human rights are for everyone and sets out how governments should ensure those rights are protected.
The United Kingdom (UK) ratified UNCRPD in 2009, and the UK submitted its initial report to the UN Disability Committee in 2011.1 Since then, we have come some way towards building a more inclusive society, but there is still much to do – and this must be done with disabled people. The Equality and Human Rights Commission (EHRC) along with the Equality Commission for Northern Ireland, the Northern Ireland Human Rights Commission and the Scottish Human Rights Commission are designated, by Article 33(2), as the UK Independent Mechanism to promote, protect and monitor the implementation of the UNCRPD in the UK. Together, in late 2014, we submitted an interim report, which brings together the available evidence, including of disabled people’s views and experiences, to set out the key issues disabled people face in the UK.2
The UN Disability Committee’s examination of the UK’s progress has been delayed and is not now expected until 2017. In the interim, the EHRC continues to work with the many disabled people and their organisations that are producing their own analysis of how well UNCRPD rights are being put into practice. The EHRC also continues to develop its own evidence-based assessment of how the UK’s obligations under UNCRPD are being implemented in our jurisdiction, namely England and Wales, and Scottish matters that are reserved to the UK Government.
Our submission responds to some of the questions identified by the new UN Special Rapporteur on Disabilities’ inquiry into the right of disabled people to social security.3 With the time and resources available, it has not been possible for the EHRC to cover all of the issues identified by the Special Rapporteur, some of which call for detailed factual information that should be readily available from the relevant government departments and the UK Government’s Office of Disability Issues should be able to assist with.
The last period has seen considerable pressure on the provision of public funded programmes and payments, including those aimed at disabled people. In response to the global economic downturn, a number of changes have been made to the forms of support available, as well as to the levels of public spending in the UK. This context has naturally impacted on the UK’s progress in implementing UNCRPD. Our submission focuses on areas we consider highly relevant to the UN Special Rapporteur on the rights of persons with disabilities’ inquiry into the right of persons with disabilities to social protection:
The impact of reforms to the UK’s social security system on disabled people’s right to independent living under Article 19, and to an adequate standard of living and social protection under Article 28;
Whether the design and delivery of health and social care services in England is consistent with rights to the highest attainable standard of physical and mental health under Article 25, independent living under Article 19, and to freedom from cruel, inhuman or degrading treatment or punishment under Article 15 UNCRPD; and
The impact of reforms affecting access to civil law justice in England and Wales on disabled people’s right to effective access to justice under Article 13 and on the realisation of other rights under UNCRPD
The impact of reforms to the UK’s social security system on disabled people’s right to independent living under Article 19, and to an adequate standard of living and social protection under Article 28
Financial Decision-Making and the Public Sector Equality Duty
The public sector equality duty (PSED) was established by the Equality Act 20104 and applies to all characteristics protected by that Act. It requires all public authorities in England, Scotland and Wales to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations. In advancing equality of opportunity, authorities must consider minimising disadvantages shared by persons with particular protected characteristics and consider taking steps to meet their particular needs. In the EHRC’s analysis, by making financial decisions that are compliant with the PSED the UK Government is more likely to act consistently with its obligations under the UNCRPD, including Article 28.
The EHRC is the regulator of the PSED. Using our statutory powers5 we conducted a formal assessment of the extent to which a Spending Review conducting by the UK Government in 20106 complied with the requirements of the former equality duties for race, gender and disability.7 While we found that a number of the Spending Review decisions were fully in accord with the requirements of these equality duties, in other cases our analysis identified weaknesses in the decision making process and in compliance with the duties. One example was the 20% reduction in the Bus Service Operators Grant, where the potential impact on people with disabilities was not included in the advice provided to HM Treasury ministers. Similarly, there was no evidence of any equality screening of the impact of the proposed household cap on welfare benefits.8
To improve compliance with the PSED, the EHRC recommended ongoing monitoring to understand the cumulative impact of future Spending Reviews and budgets on individuals with protected characteristics, including disabled people. When potential adverse impact is identified, consideration should be given at the early stages to mitigation and to the effectiveness of proposed mitigating actions. In relation to disabled people, the EHRC considers there is a strong case for cumulative impact assessments as disabled people are more likely to be in receipt of a combination of benefits. For example, our research shows that tax and social security reforms have disproportionate impacts on families containing at least one disabled person, particularly a disabled child.9
The UK Government has suggested that modelling difficulties prevent it from undertaking an assessment of cumulative impact that would be sufficiently robust.10 However, the UK Parliament’s Social Security Advisory Committee emphasises the importance of the UK Government assessing the cumulative impact of tax and spending decisions on disabled people, and proposes options for building on analyses which have already been undertaken.11 An EHRC funded study by Landman Economics and NIESR has found that assessments which look at cumulative impacts on individuals who share a protected characteristic are both feasible and practicable.12
The EHRC’s follow-up report on the impact of the decisions in the 2010 Spending Review found HM Treasury’s Equalities Analysis report for the 2013 Spending Round13 to be light on detail, and suggested further improvements in relation to data collection.14 These included recommending that HM Treasury identify key areas of spending or tax where an impact on people with protected characteristics is considered likely, but where equality data is inadequate. This would allow gaps in data to be filled.15 Following the General Election in May 2015, the EHRC wrote to the new Chief Secretary to HM Treasury highlighting our recommendations and seeking their full adoption.
Enforcement of the PSED by the Courts of England and Wales
The courts have an important role in interpreting the meaning of the ‘due regard’ duty under the PSED. As the legal framework of the PSED is very similar to the requirements of the former equality duties for race, disability and gender, earlier court decisions still provide helpful clarification for public authorities on the principles for complying with the PSED.16 These principles emphasise that there must be genuine and timely consideration, based on sufficient information of potential impacts on individuals sharing protected characteristics, and that decisions must be kept under review.
A recent court case has confirmed these principles in relation to the new duty. In December 2012, the UK Government decided to close the Independent Living Fund (ILF), which provides financial support to disabled people so they can live actively in their communities. The Court of Appeal of England and Wales overturned this decision, on the grounds that that the UK Government had not complied with the PSED. It had failed to ensure that the duty was fulfilled by the decision maker personally – in this case, the Secretary of State for Work and Pensions – taking into account all the relevant evidence. The court also confirmed that the UK’s obligations under UNCRPD, in particular Article 19, ought to inform the scope of the PSED with respect to disabled people.17
In March 2014, the UK Government again decided to close the ILF. This decision was found to be lawful by the High Court, as “[t]he Minister had sufficient information to enable him to discharge the PSED and he went about the exercise with the requisite thoroughness, conscientiousness and care.”18 Although the decision did not ultimately support the Article 19 rights of disabled people, the court found that the Secretary of State had given “focussed regard to the potentially very grave impact upon individuals in this specific group of disabled persons, within the context of a consideration of the statutory requirements for disabled people as a whole.”19
In another 2014 case, however, the High Court rejected the contention that the decision to adopt a 20 metre criterion to receive the higher rate of mobility allowance under the new Personal Independence Payments scheme (see below) was unlawful.20 The Secretary of State had complied with the PSED, since he had in mind the impact of the proposals and their effect on disabled people when he took the decision.