Memorandum submitted by Carers UK
ABOUT CARERS
UK
1. Carers UK is the leading organisation
representing the views and interests of the six million carers
in the UK who care for their frail, disabled or ill family member,
friend or partner. Carers give so much to society yet as a consequence
of caring, they experience ill health, poverty and discrimination.
Carers UK seeks to end this injustice and will continue to campaign
until the true value of carers' contribution to society is recognised
and carers receive the practical, financial and emotional support
they need.
2. Carers UK is an organisation of carers,
for carers, with a reach of around 1,500 organisations, including
many run by carers, who are in touch with around 950,000 carers
between them. Including Carers Week our reach extends to around
4,000 groups and 2.5 million carers.
3. Carers UK runs an information and advice
service and we answer around 16,000 queries from carers and
professionals every year. We also provide training to over 2,600 professionals
each year. Our website is viewed by nearly 300,000 unique
visitors and nearly 1000 carers are members of our website
forum.
4. Carers UK has offices in Wales, Scotland
and Northern Ireland and we also run a specific project in London.
5. Carers UK warmly welcomes the clarification
sought by the Joint Committee on Human Rights and would like to
provide the Committee with evidence that supports its well argued
questions put to Government about the Equality Bill.
CLARITY OF
CLAUSE 13
6. Carers UK does not believe that Clause
13 is sufficiently clear to ensure compliance with the decision
of the European Court of Justice in the decision of Coleman v.
Attridge Law. We recognise that Ministers have clarified their
intentions in parliamentary debate which will help to direct judges
making decisions and interpreting the law. However, we do not
believe that the drafting is sufficiently clear for the majority
of those who will use the law or have to implement it.
7. The term "discrimination because
of" is not sufficiently clear to mean discrimination by association.
Discrimination law is usually hard to understand and to take cases
under. It therefore follows that the law should be as clear as
possible. If the Government's intention is to outlaw discrimination
by association, then it should be possible to state this specifically
on the face of the Bill removing any need for misunderstanding
and misinterpretation.
8. We know that misunderstanding and misinterpretation
of laws are very common. To take one example, the brief and relatively
easy to understand law, drafted by Professor Luke Clements, the
Carers (Recognition and Services) Act 1995 is consistently
misapplied. The drafting is very accessible to the ordinary reader
and it is legislation founded on good common sense and carers'
basic human rights. It established that in considering a disabled
person's needs, a carer's ability to provide care also has to
be considered. Still, 13 years after the Act was passed,
some local authorities have introduced a range of bars, thresholds,
criteria, procedures, etc. which are unlawful and have been successfully
challenged informally as well as through the courts.
9. The practical outcome of misunderstanding
legislation is that families are missing out and are facing dire
consequences as a result which directly affect their humans rights
as well as basic societal values and activities such as the ability
to work and learn, etc. Carers providing regular and substantial
care and who request an assessment are still repeatedly told that
there is no point in having a carer's assessment. The Carers (Recognition
and Services) Act 1995 states that if a carer requests an
assessment, the local authority has a duty to comply. Parents
of disabled children are regularly informed that they are not
entitled to an assessment of their own ability to care (and needs)
in contravention of the law. One authority's policy states that
carers only providing over 35 hours of care are entitled
to an assessment—which clearly is an unlawful fettering
of discretion. Carers are regularly told that there is not a duty
to provide services, when there is a duty to consider whether
the disabled person should have their services increased or changed
to accommodate carers' needs for support in their ability to care.
The use of this example demonstrates that even the simplest of
legislation is liable to misinterpretation and misapplication
and we would urge the Government to take up the Joint Committee
on Human Rights' recommendation that the Equality Bill is made
clearer by including discrimination by association on the face
of the Bill.
10. Carers UK facilitates Employers for
Carers and these far sighted employers already have introduced
policies which are supportive to carers in their workforce.
11. In our experience of assisting organisations
in the implementation of legislation, clear drafting of the law
will aid:
(a) quick and clear recognition that discrimination
by association exists;
(b) easier and direct reading of the law which
will lead to better briefing;
(c) a reduction in debate about "meaning"—which
will distract from good implementation, will divert resources
and could lead to multiple unhelpful interpretations;
(d) lower costs in implementation, including
for advice organizations like Carers UK, as a charity with limited
resources, which will spend less time responding to queries about
interpretation if the drafting is clear and straightforward; and
(e) greater accessibility of primary legislation
for carers and disabled people who stand to benefit from the provisions.
12. Carers UK considers the last point to
be extremely important. Informed disabled people and carers are
familiar with primary legislation and where laws are fairly clear
and easy to understand, we send the provisions to these individuals
to help them advocate or challenge their situation locally or
work with lawyers to challenge the provisions. Families with disabilities
and chronic illness already face sufficient challenges in their
lives without increased debate about whether a provision applies
or not to them because of poor drafting. Clarity for them is critical.
FOCUSING ON
OUTCOMES
13. Legal judgment is not just about the
law, it is about how people's lives are affected. Incorporating
the Coleman judgment into primary legislation is not just about
implementing the law, it is also about creating the cultures and
structures by which families are more able to cope with chronic
illness and disability. We know that one in five carers gives
up work to care. Many carers give up work because of the lack
of flexibility in the workplace. We also have many examples of
carers feeling bullied and harassed because of their caring responsibilities.
14. Carers UK believes that a well crafted
and well implemented piece of legislation outlawing direct discrimination
in the workplace will, ultimately, lead to more carers being able
to juggle work and care. Employers for Carers believes that that
better flexible working and more support for carers within the
workplace will deliver more efficiency and effectiveness in the
businesses making them more competitive in a tough economic environment.
15. Our final point is about this law which
has the ability to help "future proof" our society.
Of course we need better funding of social care in order to help
keep families in work whilst they still care for relatives and
close friends, but this is a critical tool in that process. With
the dependency ratio set to rise from a ratio of four to one workers
to retired people, it will be two to one in a couple of decades,
at the same time demanding that families care more and work longer,
expected to contribute to pensions.
DISCRIMINATION BY
ASSOCIATION IN
THE DELIVERY
OF GOODS
AND SERVICES
16. We have additional information to add
about discrimination in relation to goods and services. A few
brief calls to several local authorities has revealed that many
senior officials do not consider the Equality Bill to have an
impact on carers in relation to social care. There is widespread
confusion about its application, how it will impact on carers
and what their reaction would be.
17. There are several major difficulties.
Discrimination is a difficult concept to grasp. There are also
two levels of decisions to make in terms of discrimination by
association—first a person has to be associated with the
disabled person and then discriminated again on the basis of this
association. This makes decision-making far more complex than
if a caring strand were included directly. Carers UK has been
using a series of real cases to "test" the legislation's
interpretation. We have found the legislation difficult to apply
and complex to understand in relation to carers.
18. Debate at Committee stage suggested
that carers have a choice about caring and that caring is not
an intrinsic quality unlike race, gender or disability. First
of all, carers argue that they do not have a choice, but it is
undertaken out of a sense of duty and lack of services and support.
Secondly, religion is arguably a choice for the majority of people
in the first instance, but once chosen, is a path that people
wish to continue. This is no different to caring.
CARING AS
A PROTECTED
CHARACTERISTIC AND
SEEKING REASONABLE
ACCOMMODATION
19. Carers UK has long argued that caring
should be a protected characteristic. Section 75 in Northern
Ireland sees caring as a protected characteristic that is irrespective
of the type of caring activity—spanning both caring for
non-disabled children and people of all ages caring for someone
with a disability or chronic illness. At present, women have secured
freedom from discrimination through protection from direct and
indirect discrimination in the workplace because they are more
likely to provide childcare. However, men have not enjoyed similar
rights under indirect discrimination. Allowing caring to be a
protected characteristic treats caring as equal between genders
and ages.
20. Carers UK believes that reasonable accommodation
will be implemented by both employers and service providers as
a means of preventing cases of direct discrimination and to fulfil
the clause 143 equality impact assessment duties. However,
it would be easier if this were made explicit on the face of the
Bill.
INDIRECT DISCRIMINATION
BY ASSOCIATION
21. Government has not included discrimination
by association as indirect discrimination. Examples are difficult
to conceptualise. However, there is one very clear example that
is given in the Explanatory Notes to the Bill in relation to childcare.
Carers UK sees no distinction between parents who have to provide
childcare and carers who have to provide care to elderly, chronically
ill or disabled relatives. We would urge the Joint Committee on
Human Rights to also look at this issue.
DISCRIMINATION DOSSIER
22. Carers UK is compiling a dossier of
examples of discrimination faced by carers daily. This supplements
our work earlier on the Human Rights Act—Whose Rights Are
They Anyway? Published in 2005. These cases, we hope, will be
useful to illustrate why this law is so important to families,
how it can improve practice and to aid service providers and employers
in implementing the legislation.
We would be happy to provide the JCHR with examples
if that would be helpful.
| 
