Additional memorandum submitted by the Public Interest Research Unit (PIRU) (E 54)

 

SHOULD THE EQUALITY ACT TACKLE UNLAWFUL DISCRIMINATION AGAINST BENEFIT CLAIMANTS (OR SHOULD IT LARGELY IGNORE THE MOST MARGINALISED AND VULNERABLE)?

 

1. SUMMARY

1.1 need for the Equality Act to address discrimination against claimants

There appears to be a strong moral and practical case for the forthcoming Equality Act to robustly address unlawful discrimination (including that which is on grounds of disability, 'race', gender, and the other protected characteristics) against those claiming Job Seeker's Allowance, Employment and Support Allowance, Carer's Allowance, pension credit, and other welfare benefits.

1.2 proposal for reasonable adjustments assessment

Public Interest Research Unit's (PIRU) findings so far (from a research project with Rethink) indicate that a substantial number of benefit claimants are likely to have been subject to unlawful disability discrimination on the part of the Department for Work and Pensions (DWP); Jobcentre Plus (JCP); their contractors; and employers that claimants have been sent to (such as for work experience). Further, such discrimination appears set to increase with the implementation of the forthcoming Welfare Reform Act 2009. PIRU intends to next investigate 'race' discrimination against benefit claimants.

Since our research indicates that the greatest potential for unlawful disability discrimination, against claimants, lies in failures to make (or even consider) reasonable adjustments, we believe that the best way of avoiding such discrimination is to introduce (through an amendment to the Equality Bill) an explicit duty on DWP/ JCP officers to conduct an assessment in relation to each claimant to determine what if any reasonable adjustments the claimant is likely to require. An adjustment (identified in such an assessment) might involve, for example, not requiring someone with bipolar disorder to undertake activities likely to trigger a 'manic' or depressive episode.

A possible wording (which would need to be refined) for such an amendment is provided below at paragraph 2.5. Arguably, an implied duty to assess already exists under section 21B of the Disability Discrimination Act, but (as far as we are aware) such a duty has seldom if ever been complied with.

1.3 proposal for statutory welfare code of practice covering 'race', gender, disability and the other equality strands

Bearing in mind that there are millions of benefit claimants (including some of the most vulnerable people in our society), and that there is considerable potential for discrimination and disadvantage inherent in the welfare benefits regime (including, in particular, in relation to compulsory activities and sanctions, and the behaviour of contractors), it seems unfortunate (and perhaps surprising) that there is no statutory Welfare Code of Practice. In contrast, the DRC, EOC, and CRE, for example, all produced statutory employment Codes of Practice.

It is not clear that the Equality and Human Rights Commission, or the courts, will understand the wording in paragraph 10, of Schedule 26 to the Equality Bill, as empowering the Commission to issue a welfare code of practice, or that the clause if enacted will provide sufficient encouragement for the Commission to issue such a code. Therefore, either the clause needs to be amended or the Minister needs to make clear that the Commission will be empowered to produce such a code and that the government expects it to do so. A possible wording (which again would need refinement) for a possible amendment is provided below at paragraph 3.2.

 

2. PROPOSAL FOR EXPLICIT DUTY IN THE EQUALITY ACT TO CONDUCT REASONABLE ADJUSTMENTS ASSESSMENT

2.1 unlawful discrimination against claimants

2.1.1 PIRU's findings so far (from a research project being undertaken with Rethink) indicate that a substantial number of benefits claimants are likely to have been subject to unlawful disability discrimination on the part of the Department for Work and Pensions (DWP); Jobcentre Plus (JCP); DWP/ JCP assessment, employability, and training, contractors; and employers that claimants have been sent to (such as for work experience). Examples of unlawful discrimination include Job Seeker's Allowance being suspended on the grounds that claimants had left their job without 'just cause', when the claimants had resigned as result of unlawful harassment.

 

2.1.2 Discrimination is likely to have inhibited successful participation in employment and training schemes; damaged the health and confidence of some claimants, and left them less able to work; and (through the improper imposition of sanctions) deprived claimants of income which they and their families may well have desperately needed. Further, such discrimination appears set to increase with the implementation of the forthcoming Welfare Reform Act 2009; and, relatedly, if the government continues to move towards a US style Workfare regime (which US research has found to be associated with 'noxious' working conditions, discrimination, and, on occasions, sexual assault and other violence).

 

2.2 proposal for reducing this discrimination

Since PIRU's research (outlined in the previous paragraph) indicates that the greatest potential for unlawful disability discrimination lies in failures to make (or even consider) reasonable adjustments for benefit claimants with disabilities, we believe that the best way of avoiding such discrimination is to introduce (through an amendment to the Equality Bill) an explicit duty on DWP/ JCP officers to conduct an assessment in relation to each claimant to determine what if any reasonable adjustments the claimant is likely to require in relation to how DWP, JCP, and their contractors, carry out their functions. A possible adjustment (identified in such an assessment) might involve, for example, not requiring someone with bipolar disorder to undertake activities likely to trigger a 'manic' or depressive episode. It would, of course, be essential for there to be no requirement or pressure on any claimant to participate in a reasonable adjustments assessment (and, of course, no sanction, or threat of sanctions, for not participating - see proposed section 'X'(3)(b) below). Otherwise, the assessment itself could lead to discrimination.

 

2.3 aims of the proposed amendment

The principal related aims of the proposed amendment are to:

help ensure that DWP/ JCP, and their contractors, do not (including inadvertently) unlawfully discriminate against claimants with disabilities;

reduce the potential of the conditionality and sanction provisions of the forthcoming Welfare Reform Act to have discriminatory and counter-productive impacts (such as damaging the health of the sick and disabled and pushing them further from the labour market); and

help bring about a positive shift in how benefit claimants are treated; and thereby improve the effectiveness of DWP/ JCP, and their contractors, in assisting those with impairments and health problems to obtain long-term employment.

 

2.4 legal basis

make explicit the implied (but ignored) duty which already exists in the Disability Discrimination Act

2.4.1 The idea of a duty to assess is based upon the judgement, in Mid Staffordshire General Hospitals NHS Trust v Cambridge (2003) IRLR 566, that, in the employment field, "a proper assessment of what is required to eliminate a disabled person's disadvantage is a necessary part of the duty imposed by s6(1)" (of the Disability Discrimination Act (DDA)) to make reasonable adjustments. Arguably, a duty to assess is also implied in the DDA provisions relating to discrimination by public authorities (i.e. the provisions which apply to DWP/ JCP actions in relation to claimants). In other words, the proposed amendment might be understood to make explicit an existing legal requirement which (as far as we are aware) has seldom if ever been met.

 

make the duty more anticipatory

2.4.2 Arguably, what we're suggesting is more anticipatory in nature (than any current implied legal requirement) in that the initial assessment would take place when the claimant applies for benefits, rather than waiting for a claimant to be placed at a substantial disadvantage. However, an anticipatory approach would appear to be likely to be more effective in avoiding discrimination and also more cost efficient (since, for example, assessments would not need be made in relation to each substantial interaction with a claimant).

 

partial extension to those who are not 'DDA disabled'

2.4.3 The definition of disabled (which appears set to remain largely unchanged in the forthcoming Equality Act) might well exclude the majority of claimants, with health problems or impairments, who could benefit from reasonable adjustments (both in terms of the adjustments reducing detriment and assisting their return to work). For example, because of the nature of the DDA 'long-term' requirement, someone with an injury likely to last 12 or more months might be DDA disabled, whereas someone with a similar injury likely to last less than 12 months might not be. But both might be equally unable (on account of their injuries) to carry out certain obligatory Employment and Support Allowance work-related activities.

 

2.4.4 It would seem to make sense, therefore, for the duty to be to:

1. Conduct a brief initial ('screening') assessment in relation to all claimants (which, in the majority of cases, might conclude that the claimant appeared to have no relevant health problems or impairments).

2. Conduct a more in-depth assessment in relation to those who did have relevant health problems or impairments; which should include consideration, in all cases, of whether adjustments might usefully be made.

3. In the case of claimants who have health problems or impairments which constitute disabilities under the forthcoming Equality Act, make any adjustments which are required under that Act.

2.5 possible wording for the proposed amendment

2.5.1 note on wording

The wording is only meant to illustrate a possible general approach and would (if the general approach was to be adopted) need to be substantially refined.

X below is, of course, an arbitrary designation.

2.5.2 possible wording

section 'X' duty to conduct reasonable adjustments assessment for claimants

(1) Officers of the Secretary of State shall conduct an assessment in relation to each 'benefits claimant' to determine -

(a) what if any adjustments under this Act the Secretary of State and his officers are or may in future be required to make in relation to that claimant; and

(b) what if any other adjustments could usefully be made in relation to that claimant (including in the case of claimants who are not disabled for the purposes of section 6 of this Act).

 

(2) Each contractor and sub-contractor shall conduct an assessment in relation to each 'benefits claimant' (in relation to whom the contractor or sub-contractor is acting on behalf of the Secretary of State or otherwise carrying out a function of a public nature) to determine -

(a) what if any adjustments under this Act the contractor or sub-contractor is or may in future be required to make in relation to that claimant; and

(b) what if any other adjustments the contractor or subcontractor could usefully make in relation to that claimant (including in the case of claimants who are not disabled for the purposes of section 6 of this Act).

 

(3) Assessment, for the purposes of subsections (1) and (2), shall meet the following conditions -

(a) Each claimant shall be invited and permitted to fully participate in the assessment, and reasonable steps shall be taken to facilitate such participation.

(b) No claimant shall be required or pressured to participate in the assessment, and non-participation shall not result in a sanction or the threat of a sanction.

(c) Each claimant shall be provided with a copy of his assessment and of any amendments

to it.

(d) Each assessment shall be kept under review and amended whenever it appears that further adjustments should be made or planned.

 

*(4) In this Part "benefits claimant" includes any person receiving or making a claim for -

(a) Job Seeker's Allowance;

(b) Employment and Support Allowance;

(c) Carer's Allowance;

(d) pension credit; or

(e) ..........................

.* N.B. Would need to add any additional relevant categories.

 

(5) In determining whether a benefits claimant has (as a benefits claimant) been subject to unlawful discrimination, regard shall be had, in particular, to whether there has been a breach of section 'X' of this Act.

 

N.B. Instead of, or in addition to, the suggested subsection 5, the Equality Bill (including clause 27) might be amended so that a failure to conduct an assessment is in itself actionable.

 

3. STATUTORY WELFARE CODE OF PRACTICE COVERING ALL THE EQUALITY STRANDS

3.1 rationale

3.1.1 Bearing in mind that there are millions of benefit claimants (including some of the most vulnerable people in our society), and that there is considerable potential for discrimination and disadvantage inherent in the welfare benefits regime, it seems unfortunate (and perhaps surprising) that there is no statutory Welfare Code of Practice. In contrast, the DRC, EOC, and CRE, for example, all produced their own statutory employment Codes of Practice.

 

3.1.2 It also seems (from our research referred to at para. 2.1 above) that DWP/ JCP internal policies, and established practices, are not adequate to the purpose of avoiding unlawful discrimination (including that on grounds of 'race', gender, disability and the other equality strands). Further, our research on the government's eleven Employment and Support Allowance Prime contractors indicated that, without a Code of Practice, and other substantial action, these contractors cannot necessarily be relied upon to properly respect the legal rights of claimants.

 

3.1.3 It is not clear that the Equality and Human Rights Commission, or the courts, will understand the wording in paragraph 10, of Schedule 26 to the Equality Bill, as empowering the Commission to issue a Code of Practice covering how the government and their contractors carry out their functions in relation to benefit claimants, or that the paragraph will (without amendment) provide sufficient encouragement for the Commission to produce such a code. Therefore, either the wording needs to be amended or the Minister needs to make clear that the Commission will be empowered to produce such a code and that the government expects them to do so.

 

3.2 possible wording for the proposed amendment

3.2.1 note on wording

Again, the wording is only meant to illustrate a possible general approach and would (if the general approach was to be adopted) need to be substantially refined.

Subsections (1)(b) and (c) would, we assume, be subject to the requirement that the Commission is empowered to address the matter.

 

3.2.2 possible wording

Replace paragraph 10(2), Schedule 26, with:

'For subsection (1) substitute -

"(1) The Commission may issue a code of practice in connection with -

(a) any matter addressed by the Equality Act 2009 or an enactment made under that Act;

(b) any relevant matters addressed by any enactments dealing with social protection, social security, or social advantage; and

(c) any relevant matters addressed by any other enactment".'

 

N.B.There would, we assume, need to be consequential amendment to paragraph 10 of Schedule 26.

 

June 2009