Memorandum submitted by Public Interest Research Unit
1. INTRODUCTION AND SUMMARY
Interest Research Unit (PIRU) welcomes the opportunity to submit evidence to
the Work and Pensions Committee's inquiry into 'The Equality Bill: What steps
should DWP take to achieve greater equality?'. PIRU is a small
In October 2008, PIRU and Rethink began a 12 month study of unlawful disability discrimination (on the part of DWP and others) against benefit claimants with mental health disabilities. The initial, unpublished, findings appear to be relevant to the Committee's Inquiry, including, in particular, in relation to - how would DWP 'have to change to achieve greater equality in employment?'; 'The Public Sector Equality Duty'; and 'How does the Department fare in promoting equality and tackling discrimination?'.
Our initial research findings (based, in particular, upon interviews with claimants and advisors, and document analysis) indicate that a substantial number of claimants with mental health disabilities are likely to have been subject to unlawful disability discrimination on the part of DWP; Job Centre Plus (JCP); DWP/ JCP assessment, employability, and training contractors; and employers that DWP/ JCP and their contractors have sent claimants to.
It appears likely that discrimination against claimants will have occurred contrary to the following sections of the Disability Discrimination Act (DDA) 1995: 4 (Employers: discrimination and harassment) and 4A (Employers: duty to make adjustments); 14C (Practical work experience: discrimination and harassment), 14D (Practical work experience: duty to make adjustments);19 (Discrimination in relation to goods, facilities and services) read with Section 21A (Employment services); and 21B (Discrimination by public authorities).
We only identified as likely to be unlawful those discriminatory acts which appeared (on account of not having been done in the necessary performance of an express statutory obligation) to not be exempted under section 59 DDA ('Statutory authority and national security etc'); and which still appeared to be unlawful in the light of the decision in Malcolm (1) (not withstanding that the decision, we would argue, did not closely reflect what Parliament intended).
Identified types (2) of action, which may have constituted unlawful discrimination, included, for example, a claimant's Job Seeker's Allowance being suspended on the grounds that he/ she had left his/ her job without 'just cause', when, it seems, that he/she had resigned as the result of unlawful harassment (involving, for example, ongoing derogatory remarks about his her/ mental health disability); and, for example, a DWP medical contractor failing, in the case of some Incapacity Benefit claimants, to make reasonable adjustments to medical examinations.
We suspect that the great majority of DWP/ JCP staff are individually committed to not discriminating. However, the following legislative, political, and organisational factors may have contributed to the occurrence of unlawful discrimination:
(a) DWP/ JCP do not appear to have fully complied, in relation to welfare benefits, with the section 49A DDA disability equality General Duty (the General Duty). Political pressure to promote proposals (rather than always subject them to rigorous and objective assessment) may have contributed to this problem.
(b) There appears to have been limited realisation, among DWP/ JCP contractors, that they are subject to the General Duty in relation to their 'functions of a public nature'; and a failure on the part of DWP/ JCP to take adequate measures to ensure that their contracted out functions meet the requirements of the General Duty.
(c) Some social security provisions, and some DWP/ JCP policies and practices, are likely to have encouraged unlawful acts (without it necessarily being realised that the acts were unlawful).
Levels of unlawful disability discrimination may be set to increase as Employment and Support Allowance is introduced; with Flexible New Deal; if the proposals in recent green papers (involving, for example, a 'stronger sanctions regime') (3) are adopted without substantial changes; and if the government continues to move towards a US Style workfare regime.
Our main recommendation for action is that distinct specific equality duties be imposed on DWP/ JCP; and that these duties should include the requirement that DWP/ JCP conduct an assessment of each claimant to determine what reasonable adjustments he/ she is likely to require in relation to how DWP, JCP, and their contractors, carry out their functions.
2. UNLAWFUL DISCRIMINATION AGAINST BENEFIT CLAIMANTS WITH MENTAL HEALTH DISABILITIES
2.1 Liability for unlawful acts
liability as primary actors
2.1.1. Our initial research indicates that a substantial number of benefit claimants with mental health disabilities are likely to have been subject to unlawful disability discrimination on the part of: DWP and JCP; DWP/ JCP contractors (including, in particular, those providing assessment, and 'employability' and training, services); subcontractors; employers that claimants have been sent to (including, in particular, for job interviews, Work Trials or work experience); and employees of all of the aforementioned.
liability for the acts of others
2.1.2. It also seems probable that DWP/ JCP, and its contractors and subcontractors, will have been liable (under the DDA) for some discriminatory acts on the part of others. This might, in particular, have involved:
an unlawful act being done by a person acting as their agent and with their authority (see section 58(2) DDA). For example, DWP/ JCP may well have been liable for failures on the part of its medical contractors.
being liable for the discriminatory acts of some claimants against other claimants (such as, for example, on training schemes), where DWP/ JCP, or the contractor in question, failed, for disability related reasons, to take action to stop or avoid the third party discrimination (see House of Lords judgement in Burton and Rhule) (4); and
being vicariously liable for the discriminatory acts of their employees (see section 58 (1) DDA).
2.2 Examples of types of action which may constitute unlawful discrimination against claimants (2)
unlawful discrimination against Job Seeker's Allowance (JSA) claimants
2.2.1. This may have involved, for example, the following circumstances:
(a) JSA payments being suspended on the grounds that the claimant had left his/ her job without 'just cause', when, in fact, the claimant had resigned on account of ongoing name calling which referred in a derogatory manner to his/ her disability (and which appeared to constitute unlawful harassment within the meaning of section 3B DDA).
(b) JSA payments being suspended (or there were threats to suspend them) on the grounds that the claimant had not done enough to get a job, when the reasons for 'not having done enough' related to his/ her mental health disability. For example, an episode of depression left a claimant unable to carry out some of the activities specified in his/ her 'Job Seeker's Agreement', and JCP failed to make the reasonable adjustment of not requiring these activities to be carried out until the claimant's health had improved.
(c) JSA payments being suspended (or there were threats to suspend them) on the grounds that the claimant had not taken up, had left, or was dismissed from, training schemes, when the reason for one or more of these things having happened related to the claimant's mental health disability. For example, a claimant was dismissed from a training scheme because he/ she was late on a number of mornings, and he/ she was late as a result of OCD washing rituals.
unlawful discrimination against Incapacity benefit claimants
2.2.2. This may have involved, for example, the following circumstances:
(a) JCP failing to make reasonable adjustments in relation to some initial benefit applications. For example, JCP rejected the request for a face to face appointment from a claimant who JCP knew (or could reasonably be expected to have known) was unable to make a telephone application on account of a mental health disability.
(b) DWP medical contractors failing to make reasonable adjustments to medical examinations for some claimants. For example, the contractor refused a home examination for a claimant who, on account of health related phobias, felt unable to attend the medical examination centre.
(c) Discrimination in relation to Pathways To Work. For example, a claimant's benefit might be cut for not 'participating' in a mandatory Work Focussed Interview, when the 'failure' to participate resulted from a mental health disability (involving, for example, an excessive fear of disclosing personal information).
3. SOME FACTORS CONTRIBUTING TO UNLAWFUL DISCRIMINATION
We suspect that the great majority of DWP/ JCP staff are individually committed to not discriminating. However, a number of legislative, political, and organisational factors (some of which are suggested below) may have contributed to the occurrence of unlawful discrimination
3.1 Weaknesses in relation to the DDA Disability Equality Duties
failures on the part of DWP/ JCP
3.1.1. Our initial research suggests that DWP/ JCP has not, in relation to welfare benefits, complied fully with its section 49A Disability Equality General Duty (for what the equality duties require, see, in particular, the judgments in Elias and Bapio) (5). In particular, DWP/ JCP does not appear to have assessed whether each of its policies was relevant to disability equality, nor to have conducted disability equality impact assessments (DEIAs) on all those which appear to have been of substantial relevance; and the DEIAs we have seen appear to have been inadequate. For example, the 'screening' assessment of 'Provider-led Pathways to Work' appears to conclude that there is no requirement for a full impact assessment, despite what appears to be the enormous potential for adverse impact, on claimants with disabilities, of a UK-wide scheme which enables private contractors to, in the words of the 'screening' assessment, 'manage and monitor compliance with the mandatory regime and assist Jobcentre Plus with the sanctions process'.
3.1.2. A particular problem, with DWP/ JCP's approach to the equality duties, may have been political pressure to promote proposals (rather than always subject them to a rigorous and objective assessment). In relation to this, it is worth noting the words of Lord Justice Moses in Kaur and Shah (at paragraph 24) - "What is important is that a racial equality impact assessment should be an integral part of the formation of a proposed policy, not justification for its adoption" (6).
failures on the part of DWP/ JCP contractors and subcontractors
3.1.3 The narrow majority decision in YL (7) in the House of Lords - that a private care home's local authority funded provision of care and accommodation, to an 84 year old woman with Alzheimer's disease, did not constitute a 'function of a public nature' - upsets what appears to have been the purpose of section 6(3) of the Human Rights Act 1998 (and, therefore, also the purpose of the comparable section 49B DDA), and, we would argue, demands a legislative solution in the forthcoming Equality Act. Without such a solution, and with more and more public functions contracted-out (including those relating to welfare benefits), the danger appears to be that the equality duties (and then the single equality duty) will be of ever diminishing practical significance.
3.1.4 However, even the majority decision in YL would appear to leave little doubt that DWP/ JCP assessment, employability and training contractors will, in relation to some of their functions, be public authorities within the meaning of section 49B DDA. For example, section 16 of the Welfare Reform Act (WRA) 2007 refers to 'functions of the Secretary of State' being 'exercised' by contractors (rather than, for example, to contractors providing services to the Secretary of State). We would also argue that one of the most compelling factors, in determining the matter, should be the degree of compulsion (including on account of the opportunities it provides for oppression and abuse of power), and that, therefore, functions assumed under section 16 WRA, which concern 'imposing' various requirements (with threats of cuts to benefits), are (and need to be taken to be) 'functions of a public nature'.
3.1.5 It is unfortunate, therefore, that there appears to be limited realisation, among DWP/ JCP contractors, that they are subject to the Disability Equality Duty. In addition, it appears that DWP/ JCP may have failed to take adequate measures (in relation to awarding and managing contracts) to ensure that its contracted out functions meet the requirements of the Duty. The momenta equality accreditation, for example, appears to set inappropriately low equality standards and to allow contractors to largely determine whether these are being met.
3. 2 Discriminatory impact of some legislation
3.2.1 It seems probable that the provisions of some social security legislation will have tended to encourage discriminatory acts.
the role of section 59 DDA and European Community law
3.2.2 In some cases, the discriminatory acts will have been done in the exercise of a power or discretion (conferred under social security legislation), rather than in the necessary performance of an express obligation; and, therefore, section 59 DDA would not apply so as to exempt such acts from being unlawful (in line with the House of Lords judgment in Hampson) (8). Failure to fully appreciate the import of Hampson may well have encouraged some DWP/ JCP officials to assume that discriminatory acts (such as in relation to cutting benefits) are lawful so long as they are done in the exercise of a statutory power (or simply in accordance with DWP/ JCP rules and procedures).
3.2.3 In other cases, the discriminatory acts will have been done in the necessary performance of an express obligation, and, therefore, section 59 would appear to apply. However, we suspect that some social security provisions, entailing express obligations, are incompatible with directly effective EC Treaty provisions; and would, therefore, need to be disapplied in any legal proceedings (including those under the DDA).
unlawful discrimination may be set to increase
3.2.4 Levels of unlawful disability discrimination could increase as Employment and Support Allowance (ESA) is introduced; with Flexible New Deal; if the proposals in recent green papers are adopted without substantial changes; and if the government continues to move towards a US Style workfare regime. In relation to Employment and Support Allowance, this is because, among other reasons, -
it will push large numbers of disabled claimants from Incapacity Benefit on to Job Seeker's Allowance, under which claimants will be at far greater risk of discrimination (including, for example, because the 'actively looking for work' rules will often be difficult or impossible for those with mental health disabilities to meet);
those remaining on ESA will be at far greater risk of discrimination than claimants had been on Incapacity Benefit, including, in particular, because of the strong element of compulsion.
implemented through regulation, section 13 ('Work-related activity') of the
Welfare Reform Act would arguably be a giant leap towards
4. SOME RECOMMENDATIONS FOR CHANGE
It is envisaged that, once our research on unlawful discrimination is complete, we will put forward a wide range of recommendations. In the meantime, however, we would like to focus on just two.
4.1. A different specific duty on DWP/ JCP
4.1.1. DWP/ JCP, with life changing powers over several million benefit claimants, is subject to the same specific duties as the John Soane's Museum, which (although well worth a visit) had just three other visitors last time I was there. We would argue, therefore, that the forthcoming Equality Act must give the Secretary of State the power (as currently exists under section 49D DDA) to impose different specific duties on different public authorities; and that specific duties should be imposed on DWP/ JCP which reflects their unique circumstances.
4.1.2. We would also argue that - since our initial research indicates that the greatest potential for unlawful discrimination lies in failures to make reasonable adjustments - these specific duties should include the requirement that DWP/ JCP conduct an assessment of each claimant to determine what reasonable adjustments he/ she is likely to require in relation to how DWP, JCP, and their contractors, carry out their functions; that the claimant be fully involved in the assessment and its use; and that the assessment be regularly reviewed.
4.2 contractors and the equality duties
the definition of public authority
4.2.1 Including for the reasons set-out at paragraphs 3.1.3 - 3.1.5 above, the definition of public authority should leave no doubt that DWP/ JCP assessment, and 'employability' and training, contractors are subject (in relation to their 'functions of a public nature') to the general equality duties (including, of course, any single equality duty). Further, there appears to be considerable merit in the definition provided at paragraph 151 of the Joint Committee on Human Rights' report on 'The Meaning of Public Authority under the Human Rights Act' (10). However, we would note the considerable extent to which DWP/ JCP 'prime' contractors sub-contract training and 'employability' services, and would argue that these subcontractors (in relation to relevant functions) also need to be subject to the duties.
contractors and the Freedom of Information Act
4.2.2. A public authority duty will, of course, be much weaker if it is hard or impossible for members of the public to determine whether or not its being met. Unfortunately, this would appear to be the current situation with DWP/ JCP contractors, who are (presumably for commercial reasons) reluctant to provide information on their policies. We would argue, therefore, that government contractors (with functions of a public nature) should, through a single description (applicable to them all) in Schedule 1 to the Freedom of Information Act (FIA), be designated as public authorities for the purposes of the FIA (in relation to information of a specified description).
Mayor and Burgesses of the
2. While based upon interviews (with all identifying details removed), and/ or scenarios which appear to be likely consequences of known policies and practices, the examples provided should be regarded as hypothetical.
3. DWP (2008). No one written off: reforming welfare to reward responsibility - Public consultation (para. 2.12). Cm 7363.
5. R (Elias) v Secretary of State for Defence (2005) EWHC 1435 (Admin); Secretary of State for Defence v Mrs Diana Elias (2006) EWCA Civ 1293; and R (BAPIO Action Limited (1) and Dr Imran Yousaf (2)) v Secretary of State for the Home Department (1) and Secretary of State for Health (2) (2007) EWHC 199 QB.
6. R (Kaur and Shah) v London Borough of Ealing (2008) EWHC 2062 (Admin).
7. YL (by her litigation friend the Official Solicitor) v Birmingham City Council and others (2007) UKHL 27.
8. Hampson v Department of Education and Science (1990) IRLR 302. This concerned section 41(1) Race Relations Act, which is in materially the same terms as section 59 DDA.
9. See, for example, www.womensrightsny.com.
10. Joint Committee on Human Rights (2007). The Meaning of Public Authority under the Human Rights Act, Ninth Report of Session 2006-07. HL Paper 77, HC 410.