Written Evidence
Welfare Reform Bill
1 Letter from the Chairman to James Purnell MP,
Secretary of State for Work and Pensions, dated 27 February 2009 Pg
64
2 Letter from James Purnell MP to the Chairman,
dated 19 March 2009 Pg 71
3 British Humanist Association Pg 89
4 Citizens Advice Pg 92
5 Disability Alliance Pg 96
6 Undated letter from Families Need Fathers and
Resolution to
James Purnell MP Pg 100
7 Law Centre NI Pg 101
8 Maternity Action Pg 104
9 Mind Pg 105
10 RADAR Pg 108
11 Royal College of Psychiatrists Pg 109
12 Thcell Pg 113
13 Nigel Wheatley, Senior Welfare Rights Adviser,
Wolverhampton City Council Pg 115
Apprenticeships, Skills, Children and Learning
Bill
14 Letter from the Chairman to Ed Balls MP, Secretary
of State for Children, Schools and Families, dated 10 March 2009 Pg
120
15 Letter from Sarah McCarthy-Fry MP, Parliamentary
Under-Secretary of State for Schools and Learners, dated 25 March
2009 Pg 122
Health Bill
16 Letter from Anne Keen MP, Parliamentary Under-secretary,
Department of Health and Liam Byrne MP, Minister of State, Home
Office, dated 3 July 2008 Pg 127
17 Letter from the Chairman to Ann Keen MP and
Liam Byrne MP,
dated 31 July 2008 Pg 127
18 Letter from Ann Keen MP, dated 1 September
2008 Pg 128
Welfare Reform Bill
Letter from the Chairman to James Purnell MP,
Secretary of State for Work and Pensions, dated 27 February 2009
The Joint Committee on Human Rights is currently
scrutinising the Welfare Reform Bill for compatibility with the
United Kingdom's human rights obligations. I would be grateful
if you could provide me with some further information about the
Government's views on compatibility.
Welfare Reform Act 2007: Follow-up
In its report on the Bill which became the Welfare
Reform Act 2007, the Committee considered that making receipt
of Employment and Support Allowance (which replaced Incapacity
Benefit) conditional on requirements such as attendance at "work-related
health assessments", "work-related interviews"
and work-related activity did not pose a significant risk of incompatibility
with either Article 8 ECHR or Article 1, Protocol 1. The Committee
noted however that this depended on safeguards proposed by the
Government being in place and being operated in a consistent manner.
1. The Welfare Reform Act 2007 has been in force
for a very limited period of time (it has applied to new applicants
for ESA since October 2008). I would be grateful if you could
provide further information on the operation of each of the safeguards
outlined by the Government during the passage of the Welfare Reform
Act 2007 in respect of the application of conditionality for ESA
claimants, including any supporting evidence that the provisions
have been operated in a consistent and non-discriminatory way.
ESA and work-related activities (Clause
8)
The Welfare Reform Act 2007 introduced certain conditionality
requirements for people receiving ESA and requiring claimants
to complete work-related activities. The Bill proposes to amend
that Act in order to create powers to make claimants undertake
specified activities. The Bill expressly provides that any direction
must be reasonable "having regard to the person's circumstances".
If work-related requirements place an onerous burden on individuals
who are not able to meet them as a result of their mental or physical
disabilities, or which may exacerbate their health difficulties,
they may lead to an increased risk of a breach of that individual's
right to respect for their private life, and peaceful enjoyment
of their possessions, without discrimination (Article 14 in conjunction
with Article 8 and Article 1 Protocol 1 ECHR).
2. Why does the Government consider that these
additional powers are necessary, in the light of the fact that
the earlier provisions have only been in force for a short period
of time?
3. Is there an increased risk of a breach of the
right to privacy and a risk of unjustified discrimination against
those with mental or physical disabilities, when it is open to
advisers to require individual claimants to undertake specified
activities, subject to sanction?
4. How does the Government intend to ensure that
an adviser specifying a particular work-related activity will
have adequate information and expertise to assess whether an individual
will be capable of completing that activity without endangering
their health?
"Work for your benefit":
JSA (Clause 1)
The Explanatory Notes accompanying the Bill explain
that these proposals may engage the right to be free from forced
or compulsory labour (as guaranteed by Article 4(2) ECHR); the
right to be free from inhuman or degrading treatment (as guaranteed
by Article 3 ECHR); the right to peaceful enjoyment of possessions
(Article 1, Protocol 1 ECHR); the right to respect for private
and family life (Article 8 ECHR) and the right to a fair hearing
by an independent and impartial tribunal (Article 6 ECHR).
Individual states retain a wide "margin of appreciation"
in respect of the establishment of domestic welfare systems.
Although this margin is wide, it is not unbounded and where welfare
systems exist within a state, they must be administered in a way
that is not arbitrary and is not based upon unjustified discrimination.
The proposals in the Bill introduce new conditions
associated with certain benefits in order to encourage more claimants
into work. Launching the Bill, the Secretary of State for Work
and Pensions said "We will not leave anyone behind as we
face up to the global financial crisis
When times are tough,
it is more important than ever that we provide people with the
extra help they need".
5. I would be grateful if you could explain:
- Whether the Government considers that the
current economic crisis may affect the ability of job centre staff
and other advisers, including contractors, to implement the proposals
in a manner which is compatible with Convention rights; and
- What steps the Government intends to take,
including through statutory safeguards or guidance, to ensure
that these provisions are not applied in an arbitrary or discriminatory
manner.
In respect of the right to a fair hearing, the Government
has explained that the decision that job seekers allowance is
not payable will be subject to the "statutory appeal route".
6. I would be grateful if you could clarify the
route of appeal which will be open to claimants in respect of
decisions taken under the proposals in Clause 1? For example,
would an appeal be possible against a decision that a participant
has no "good cause" for failing to comply with a condition
in respect of work-related activity, and if so, what form would
that appeal take?
In respect of the right to peaceful enjoyment of
possessions, the Explanatory Notes explain that the Government
"considers that these provisions are in the public interest
and that they strike a fair balance between the interests of individuals
and the interests of the community". Although this sets
out the correct test, it fails to explain the reasons for the
Government's view that it is satisfied. In any event, the Government
stresses that two safeguards exist: (a) that someone's benefit
will only be withdrawn when they are "judged not to have
good cause for failing to comply with requirements" and (b)
the Secretary of State may make provision for hardship payments
to be made.
These are the same safeguards which the Government
explains will ensure that an individual claimant will never be
treated in a way which breaches their right to respect for private
and family life (Article 8 ECHR).
The detail of this new scheme will be elaborated
in secondary legislation. This means that much of the detail
of the scheme is unavailable for scrutiny. For example, the Bill
enables the Secretary of State to set up a hardship fund, but
does not require him to do so. It allows the Secretary of State
to set the conditions for hardship payments, and to set the relevant
amounts, but does not provide any further information. The Bill
makes provision for the Secretary of State to allow for the payment
of incidental expenses, but does not make clear whether this would
include incidental expenses paid by the claimant to enable them
to participate in the work or work-based activity (for example,
travel costs).
7. I would be grateful if you could provide a
further explanation of the Government's view that (a) these provisions
strike a fair balance between the rights of the individual and
the public interest (Article 1, Protocol 1 ECHR) and (b) there
are adequate safeguards in place to ensure that the right to respect
for private life is respected (Article 8 ECHR).
8. I would be grateful if you could explain whether
the Government intends to make draft regulations available for
scrutiny during the passage of this Bill. If so, please provide
us with a copy to assist our analysis of the Bill's proposals.
If not, could you explain why draft regulations cannot be made
available.
Other benefit claimants: Work-related activities
(Clause 2)
9. I would be grateful if you could explain whether
the Government intends to make draft regulations in respect of
these provisions available for scrutiny during the passage of
this Bill. If so, please provide us with a copy to assist our
analysis of the Bill's proposals. If not, could you explain why
draft regulations cannot be made available.
Contracting out
10. Does the Government consider that persons
exercising functions contracted out pursuant to the powers in
Clause 2 (New Section 2G) would be functions of a public nature
for the purposes of the HRA 1998? If not, please provide reasons.
11. If the Government does not consider that providers
of contracted out functions should be treated as functional public
authorities, how (and against whom) does it consider that individuals
will be able to seek redress for breaches of their human rights?
In a recent speech to the Evangelical Alliance, the
Secretary of State for Communities and Local Government launched
a 'conversation' about a charter for excellence for faith groups
providing public services, including the type of services which
might be contracted out under the proposals in the Bill. She
said "The charter would mean faith groups who are paid public
money to provide services promising to provide those services
to everyone, regardless of their background. And promising not
to use public money to proselytise".
12. I would be grateful if you could provide further
information on how the Government intend to ensure that private
providers performing welfare functions contracted out under the
provisions in this Bill provide services without unjustified discrimination,
including on the basis of thought, belief or religion.
Conditionality and drug and alcohol dependency
The Bill creates the power for regulations to impose
additional requirements on ESA and JSA claimants where "they
are dependent on, or have a propensity to misuse any drug"
and "such dependency or propensity is a factor affecting
their prospects of obtaining or remaining in work".
Article 8 ECHR provides particular protection for
the individual against compulsory medical treatment and guarantees
in respect of the disclosure of medical information. It is of
particular concern that the Explanatory Notes provide very little
explanation of the Government's view that the steps authorised
by the proposed regulations will be justified and proportionate
to a legitimate aim. In particular, the Government has:
- provided no evidence to support their assertion
that benefit compulsion will lead more claimants suffering from
drug dependency into treatment;
- not specified any of the safeguards that they
consider will ensure that these provisions compliant with Article
8 ECHR.
13. I would be grateful if you could provide a
fuller explanation of the Government's view that these proposals
will comply with the right to respect for private life (Article
8 ECHR). In particular I would be grateful if you could provide
further information on the safeguards which the Government consider
are relevant and why, in the Government's view, these safeguards
will ensure compatibility with right to respect for private life
and the right to enjoy that right without unjustified discrimination
(Articles 8, 14 ECHR).
Personalisation, individual budgets and disabled
people
Part 2 of the Bill makes provision for the introduction
of pilots to allow direct payments to be paid to people with disabilities
in relation to certain support services, including services (a)
for the provision of further education; (b) for facilitating the
undertaking of further education or higher education; (c) training;
(d) support for the purposes of facilitating employment; (e) to
enable independent living at home and (f) to enable individuals
to overcome barriers to participation (Clauses 28 - 39).
Section 6 HRA 1998 requires public authorities to
act in a way which is compatible with the Convention rights set
out in the Schedule to the Act. The term "public authority"
includes "any person certain of whose functions are functions
of a public nature." What constitutes a "function
of a public nature" is not further defined in the Human Rights
Act. In the Committee's second report on The Meaning of Public
Authority in the Human Rights Act, published in March 2007, it
recommended that:
the Government should be prepared to acknowledge
that the position in law is currently uncertain. This uncertainty
should inform parliamentary debate on whether delegation or contracting
out is an appropriate means of dealing with the provision of relevant
services, and whether it is desirable to make clear on the face
of a Bill that a body is a public authority for the purposes of
the HRA.
Services purchased through a direct payment may engage
an individual in a position of trust and in activities in a person's
home and private life. They may be discharging functions which
would otherwise be the responsibility of a government body or
agency.
14. Does the Government consider that private
providers of services funded through direct payments are to be
treated as public authorities under the Human Rights Act? If
it does, why is this not expressly provided on the face of the
Bill?
15. If the Government does not consider that such
providers should be treated as functional public authorities,
how (and against whom) does it consider that individuals will
be able to seek redress for breaches of their human rights?
Powers of the Child Maintenance Enforcement Commission
(CMEC)
Clause 40 of the Bill gives the CMEC the power to
make an administrative decision to disqualify a non-resident parent
from holding a travel authorisation or driving licence if he or
she fails to pay child maintenance due under the Child Support
Act 1991. CMEC currently has the power to apply for these orders
to a magistrates court. The Government accepts that these provisions
may engage the right to a fair hearing, the right to respect for
private life and the property rights of non-paying parents (Articles
6, 8 ECHR and Article 1, Protocol 1 ECHR). The Explanatory Notes
explain the Government's view that a full right to appeal ensures
that the provisions will be compatible with the right to a fair
hearing. The Bill provides that before making an order, C-MEC
shall consider whether the person needs the relevant document
in order to earn a living. It also provides that once an order
has been made, it must be served on the relevant individual.
16. Please provide further information about the
procedure which C-MEC will follow when considering whether to
make an order pursuant to these provisions. Specifically:
- Will an individual be given notice that an order
is being considered before that order is made?
- Will they be permitted to make representations
(a) in writing or (b) in person?
- What information will C-MEC take into account
in determining whether to make an order, including in respect
of the duty to take into account the impact which an order will
have on an individual's capacity to earn a living?
- In what kinds of circumstances does the Government
envisage that C-MEC may decide that an order is incompatible with
an individual's capability to earn a living?
- Will guidance be issued in order to ensure that
the assessment of information in respect of an individual's need
to retain their relevant documents is consistent and not applied
in an arbitrary manner?
The Bill provides for C-MEC to recover their costs
in an appeal when an order is affirmed or varied. This could
mean that an individual could partially win at appeal, by having
the order varied, but that they may not recover their costs. Under
ordinary magistrates' courts costs rules, an individual will generally
recover the costs of their appeal if they are successful. In
the case of a variation, where both parties' cases succeed "in
part", the court generally retains discretion over how the
costs burden should be distributed.
17. C-MEC may recover their costs in an appeal against
the imposition of an order, even in cases where that appeal succeeds
in securing changes to the order. Does the Government agree
that this has the potential to undermine the value of an appeal
to a potential appellant? Please explain the impact of these
cost provisions on the Government's view that the provision of
an appeal to the magistrates court will ensure that the right
to a fair hearing is respected in cases where a passport or driving
licence will be affected by an administrative order of C-MEC.
Joint responsibility for birth registration
The Bill would establish new provisions to deal with
birth registration. It would change current rules on birth registration
to deal with registration of children born to parents who are
not married to each other, or in a civil partnership. The new
provisions would effectively create a presumption for joint registration
of any birth, together with the names of both parents, subject
to some exceptions. The mother would have a duty to register
any birth within 42 days. Generally, she would be required to
provide prescribed information to the registrar about the father.
The Bill enables the Secretary of State to make provision
for a father to register his name against a birth, subject to
later acknowledgement by the mother, either before or after the
birth. Similar provision is made for the registrar to approach
a father named by an unmarried mother to ask him to acknowledge
or refuse to acknowledge parenthood.
Failure to comply with the relevant regulations will
be an offence and may result in a fine of up to £200. Such
failure could include a failure by a mother to provide information
when required to do so, failure by a father to acknowledge or
deny parenthood or failure by a mother to respond to a registration
by a father with an acknowledgement or denial. If a mother provides
false information to the registrar, she might be subject to prosecution
for perjury and liable to be sentenced to either a fine or imprisonment
up to seven years. In order to be liable to prosecution, a person
must wilfully provide a false answer, declaration or statement
to the registrar, knowing it to be false. The Bill amends the
Perjury Act 1911 to specifically include the duty of the mother
to provide information. A number of declarations may be provided
by the father of a child, or a person who is believed to be the
father of a child. It is likely that these declarations, if false,
would also open up the possibility of prosecution under the Perjury
Act 1911. Many of the provisions which will relate to the role
of the father, or a person named as father, are to be in secondary
legislation.
18. Please provide the reasons for the Government's
decision to expressly the Perjury Act 1911 to ensure that unmarried
mothers providing information to registrars, subject to the proposed
duty in the Bill, would be liable for prosecution for perjury.
19. Please confirm whether men who provide information
about the parenthood of a child (either by falsely stating that
they are the child's father or by refusing to acknowledge that
they are the child's father), would also be liable to prosecution
for perjury. If not, why not? If so, please explain why the
Government considers that there is no need to clarify this on
the face of the Bill?
The Government accepts that these provisions will
engage the separate private and family life rights of mothers,
fathers and children, and believe that "interference with
the mother's Article 8 rights in requiring her to provide information
about the father is appropriately balanced against the child's
Article 8 right to know about his parentage and the father's right
to respect for his family life under Article 8."
The Explanatory Notes explain that additional safeguards
exist for vulnerable mothers not to have to provide information
about the father. Similarly, the Government explains its view
that any interference with the father's right to private life,
as a result of the requirement that the mother disclose information
about him is justified. The reasons for justification are very
similar to those cited above: principally to protect the right
of the child to know both parents and to encourage unmarried fathers
to be involved in the lives of their children.
20. I would be grateful if you could provide a
fuller explanation of the Government's view that the proposals
in the Bill strike the appropriate balance between the rights
of women to respect for their private and family life, the rights
of unmarried fathers to be acknowledged on the official record
of their child's birth and the right of any child to know the
identity of its parents. In particular, please explain:
- The Government's view that the new proposals
will be capable of meeting the aims identified in the Explanatory
Notes, including any evidence to support the conclusion that placing
a duty on unmarried mothers to provide information will lead to
an increased involvement by unmarried fathers in the lives of
their children;
- The Government's view that the duty on unmarried
mothers to disclose information about the father of their child
is necessary and proportionate to meet that aim? (Article 8(2)
ECHR)
- How the Government intends the scheme to be
administered. In particular, does the Government intend that
training or guidance will be issued to enable registrars to understand
the extent of the duty on unmarried mothers. For example, how
will registrars respond to a mother who refuses to name a father
on the grounds that she does not know his identity? Will the
registrar then test that explanation by reference to the potential
for prosecution for perjury?
- The kind of circumstances in which the Government
envisages a prosecution for perjury would be in the public interest.
For example would a mother who refused to name a father on the
grounds that she did not know his identity be prosecuted where
he subsequently came forward and it was established that she withheld
his identify as she had been in fear of violence?
Letter from James Purnell MP to the Chairman,
dated 19 March 2009
Thank you for your letter dated 27 February 2009
requesting further explanation of the Government's view that the
proposals in the Bill are compatible with the Convention rights
guaranteed by the Human Rights Act 1998. As requested the attached
paper sets out the Government's response to the Committee's questions.
Welfare Reform Act 2007: Follow-up
(1) The Welfare Reform Act 2007 has been in
force for a very limited period of time (it has applied to new
applicants for ESA since October 2008). I would be grateful if
you could provide further information on the operation of each
of the safeguards outlined by the Government during the passage
of the Welfare Reform Act 2007 in respect of the application of
conditionality for ESA claimants, including any supporting evidence
that the provisions have been operated in a consistent and non-discriminatory
way.
The safeguards outlined in the Welfare Reform Act
2007 are as follows:
- advising the customer at the
point of claim about the work-focused interview process;
- contacting the customer before each work-focused
interview to remind them that it is due;
- considering in the context of each work-focused
interview whether the interview should be waived or deferred;
- notifying the customer of the date, time and
place for the work-focused interview, informing them that travel
fares are reclaimable and asking them to get in touch if they
cannot make it;
- offering them a more convenient location or a
home visit where appropriate, and encouraging advocacy support
if needed;
- identifying any relevant issues from medical
evidence where available, that might impact on attendance;
- visiting those customers with whom there has
been no verbal contact prior to the work-focused interview;
- visiting every customer, with their representative
if appropriate, with a stated mental health condition or learning
disability if a sanction is to be imposed; and
- lifting all sanctions and reinstating benefit
in full when the customer participates in a work-focused interview.
These safeguards have been in place for Incapacity
Benefit claimants since the inception of Work Focused Interviews
and Pathways to Work. The initial cohort of ESA customers has
only just come to the end of the first 13 weeks of the assessment
phase, so it is too early to have conclusive evidence on how these
safeguards are being applied to ESA customers. However, to date
we have received no cases of complaint in either Jobcentre Plus-led
or provider-led Pathways to Work districts concerning the application
of these safeguards in practice. We have no evidence to indicate
that vulnerable or very ill customers are not being visited at
home when appropriate or are being sanctioned inappropriately.
ESA and work-related activities (Clause 8)
(2) Why does the Government consider that
these additional powers are necessary, in the light of the fact
that the earlier provisions have only been in force for a short
period of time?
Risking people being trapped on benefits for the
rest of their lives is bad for the individual, bad for the economy
which loses their talents, and bad for the tax-payer who has to
foot the benefits bill. Pathways to Work, including mandatory
work-focused interviews, have been shown to increase the chances
of a customer being in employment after 18 months by around 25%.
We think we can do more. The Gregg Review[162]
recommended that conditionality should be based around encouragement,
co-operation and co-ownership, but also recognised that on occasions
the conditionality would need to be stepped up where people consistently
fail to engage effectively with the personalised support regime.
In line with Professor Gregg's recommendations, we
therefore want to give advisers the power to require claimants
to undertake specific activities, where they fail to comply with
the work-related activity requirement, or where they refuse to
address specific and significant barriers to work. This will provide
advisers with the tools to ensure that no one is written off.
In the current economic climate, it is even more important that
individuals make full use of the support available to them to
address their barriers to work.
We recognise that requiring work-related activity
is new territory. This is why we intend to run Pathfinders to
test the effects of the new conditionality regime (extended contact
with an adviser, coupled with a more central role for the action
plan and mandatory work-related activity).
(3) Is there an increased risk of a breach
of the right to privacy and a risk of unjustified discrimination
against those with mental or physical disabilities, when it is
open to advisers to require individual claimants to undertake
specified activities, subject to sanction?
We do not believe that there is an increased risk
to the right of privacy under article 8, or of unjustified discrimination.
This is because we will apply a range of safeguards to ensure
that vulnerable claimants are not directed into inappropriate
activities, or sanctioned where they have good cause for a failure
to comply with any requirements placed on them.
The Department is aware of the Article 8 and 14 issues
surrounding the taking of new powers in clause 8 of the Bill to
direct ESA claimants to undertake specified work-related activity.
The Department will ensure that any regulations made pursuant
to the powers in the Bill are compliant with the ECHR.
The case of M S v Sweden held that it is a
legitimate aim for a Government to ensure that only deserving
claimants receive social security entitlements. The Government
believes that it is unacceptable for welfare payments to continue
to be paid where customers fail to undertake work-related activity
which is aimed at making it more likely that a person will obtain
or remain in work.
Given the many safeguards in what is proposed for
the conditionality regime for ESA customers, the Department believes
that this balanced policy is proportionate to its aim and is therefore
ECHR-compliant.
The conditionality regime is such that the most severely
sick and disabled claimants (those in the Support Group due to
limited capability for work) are not required to take part in
work-related activity.
Under existing powers, all ESA claimants not in the
Support Group will be required to undertake some form of work-related
activity. Through the Welfare Reform Bill, we are building on
existing powers to enable the adviser to direct that a specific
activity is the only activity that should count as work-related
activity for that particular claimant. This will help to ensure
that work-related activity is appropriately focused on addressing
claimants' main barriers to work.
However, a direction would only be given as a last
resort following discussion with the claimant. Clearly any direction
must be reasonable having regard to a person's circumstances.
Regulations will provide that this includes a person's medical
circumstances. We will provide Personal Advisers with detailed
guidance on what to take into account when directing someone into
a specific activity.
If the claimant feels that the requirement on them
is unreasonable, they will be able to request that it is reconsidered,
under the provisions for reconsideration of an action plan.
If the claimant fails to undertake the activity,
they will be asked whether they can show good cause for failing
to comply with the direction before a sanction is considered.
We will make clear, through regulations, that evidence of good
cause can include demonstrating that the conclusions from the
work-focused health-related assessment or work-focused-interview,
which led to the direction, had not been or were no longer appropriate
or relevant to the claimant's circumstances. It might also include
that the claimant did not understand the requirement, or was unable
to undertake the requirement because the activity would cause
harm to health or excessive physical and mental stress.
If the claimant is sanctioned for failing to undertake
the activity, he will be able to appeal the decision to sanction.
Provided that these safeguards are applied, we believe
it is reasonable and proportionate to expect customers to engage
with the benefit system and to address their barriers to work.
(4) How does the Government intend to ensure
that an adviser specifying a particular work-related activity
will have adequate information and expertise to assess whether
an individual will be capable of completing that activity without
endangering their health?
Personal Advisors will have information about what
the claimant is likely to be able to do, and what his condition
would prevent him from doing from the work-focused health-related
assessment. Jobcentre Plus advisers receive thorough training
in delivering a package of support which takes account of peoples'
different needs and conditions. Personal Advisers have access
to Disability Employment Advisers and Work Psychologists to assist
them in supporting customers. We will review existing provision
in light of the new reforms. Personal advisers are critical to
the success of ESA, and we will take all necessary steps to ensure
that they are properly supported to do their jobs effectively.
The Personal Advisor will always discuss the activity
with the claimant before directing that he must undertake it,
providing the claimant with an opportunity to raise concerns if
they feel that they are unable to undertake an activity because
of a health condition or if they feel the activity specified will
damage their health.
"Work for your benefit": JSA (Clause
1)
(5) Whether the Government considers that
the current economic crisis may affect the ability of job centre
staff and other advisers, including contractors, to implement
the proposals in a manner which is compatible with Convention
rights; and
What steps the Government intends to take, including
through statutory safeguards or guidance, to ensure that these
provisions are not applied in an arbitrary or discriminatory manner.
The Government does not consider that the current
economic situation will affect the ability to implement the 'Work
for Your Benefit' programme in a manner compatible with Convention
rights. It is to be a programme tailored to addressing an individual's
employment barriers. In some cases Jobcentre Plus advisers will
need to make a reasoned decision on whether a claimant is likely
to benefit from the programme at a particular stage of their claim
for jobseeker's allowance (JSA). We will develop guidance and
training for advisers on how to identify appropriate customers
and avoid arbitrary decisions. We would not implement a programme
which could not be delivered to a high standard, and compatibly
with Convention rights.
Regulations establishing the 'Work for Your Benefit'
programme will be piloted in certain areas of the country under
section 29 of the Jobseekers Act 1995. These will be laid before
Parliament in draft for approval under the affirmative procedure.
The regulations will specify the conditions under which JSA claimants
can be selected for participation in the programme. Participation
may be required only with a view to improving claimants' prospects
of obtaining employment (see new section 17A(2) of the 1995 Act,
inserted by clause 1 of the Bill).
The programme itself will be delivered by contractors
who will be required to source work experience that is relevant
and suitable to the individual they are working with. Safeguards
to prevent discrimination will exist in the contracting arrangements.
Contractors will be required to promote equal opportunities, and
ensure that provision identifies and meets the specific requirements
of customers so that they can participate fully in provision.
For example, DWP expects suppliers to be exemplars in meeting
their duties under the Disability Discrimination Act 2005, including
the Disability Equality Duty. This will be specified in the contracting
arrangements and monitored through the Department's contract management
approach.
Finally, we will reflect any necessary changes to
the decision-making process in guidance for staff and the Decision
Maker's Guide. We will also provide training on any changes to
procedures and guidance to ensure a consistency of approach in
the pilot areas.
(6) I would be grateful if you could clarify
the route of appeal which will be open to claimants in respect
of decisions taken under the proposals in Clause 1? For example,
would an appeal be possible against a decision that a participant
has no "good cause" for failing to comply with a condition
in respect of work-related activity, and if so, what form would
that appeal take?
The route of appeal will be consistent with that
currently open to claimants in respect of other decisions taken
under the Jobseekers Act 1995. Subsection (4) of Clause 1 amends
Schedule 3 to the Social Security Act 1998 to provide a right
of appeal against decisions that benefit is not payable by reason
of regulations under new section 17A of the Jobseekers Act 1995.
A decision to require a claimant to participate in 'Work for Your
Benefit' will not be appealable, but there would be a right of
appeal against a decision which resulted in a loss of benefit
because of a failure to participate. Appeals will be to the independent
First-tier Tribunal constituted under the Tribunals, Courts and
Enforcement Act 2007.
Before an appeal is initiated, customers will also
be able to ask Jobcentre Plus to reconsider any decision relating
to sanctions or disentitlement. With respect to the example quoted
a customer can appeal a decision to impose a loss of benefit sanction
to a First-tier Tribunal.
(7) I would be grateful if you could provide
a further explanation of the Government's view that (a) these
provisions strike a fair balance between the rights of the individual
and the public interest (Article 1, Protocol 1 ECHR) and (b) there
are adequate safeguards in place to ensure that the right to respect
for private life is respected (Article 8 ECHR).
Support from the State matched by activity from the
individual is a long-recognised principle of the welfare state.
We believe that there should be a clear balance between rights
and responsibilities, where people are aware of the contribution
expected of them in return for help and support. A passive welfare
state does little to help people back to work. The Government
considers that it is entirely reasonable to require claimants
who are capable of, and required to seek, work to take steps to
improve their employment prospects, including by undertaking work-experience
for up to six months, to help develop their work habits and increase
their employability. 'Work for Your Benefit' is a programme that
will be tailored to addressing an individual's employment barriers,
with work-experience suitable and relevant to the individual.
The provisions in Clause 1 are intended to achieve a legitimate
objective, to help people in to work. Increasing the proportion
of the population in work is beneficial for both the individuals
concerned and the tax-payer.
Research has shown that sanctions do influence the
behaviour of claimants, and the Government considers that it is
a reasonable and proportionate response to withhold or reduce
benefit payments if claimants do not, without good cause or reason,
comply with the responsibilities imposed on them by legislation.
The extended Delegated Powers Memorandum (attached) sets out the
safeguards we plan to put in place relating to good cause, loss
of benefit sanctions and hardship payments in the 'Work for Your
Benefit' programme to ensure the right to respect for private
life is respected. We plan that these safeguards will be similar
to the safeguards for the current New Deal programmes.
(8) I would be grateful if you could explain
whether the Government intends to make draft regulations available
for scrutiny during the passage of this Bill. If so, please provide
us with a copy to assist our analysis of the Bill's proposals.
If not, could you explain why draft regulations cannot be made
available.
The Government does not intend to make draft regulations
available on Clause 1 during the passage of the Bill. We do not
plan to start piloting the programme until October 2010. Any regulations
drafted now will not necessarily reflect the circumstances approaching
the implementation date and therefore may not be representative
of the final regulations. We have outlined in the extended Delegated
Powers Memorandum what we expect to include in secondary legislation
under Clause 1. Where we plan to mirror existing provisions relating
to employment programmes we have referenced the relevant regulations
to enable scrutiny of our plans. A further safeguard is offered
by the fact we will be piloting the programme. This means that
any regulations made will be under section 29 of the Jobseekers
Act 1995 and therefore subject to the approval of both Houses.
Other benefit claimants: Work-related activities
(Clause 2)
(9) I would be grateful if you could explain
whether the Government intends to make draft regulations in respect
of these provisions available for scrutiny during the passage
of the Bill. If so, please provide us with a hard copy to assist
our analysis of the Bill's proposals. If not, could you explain
why draft regulations cannot be made available.
In the White Paper "Raising expectations
and increasing support: reforming welfare for the future"
we made a commitment to consult with our stakeholders on the design
of the Gregg pathfinders which include lone parents and partners
with children aged under seven. This process has started, and
we will not be in a position to finalise our policy and draft
regulations until those consultations have finished.
The extended Delegated Powers Memorandum, made available
at Commons Committee stage of the Bill, gives an indication as
how we anticipate using the regulation-making powers.
(10) Does the Government consider that persons
exercising functions contracted out pursuant to the powers in
Clause 2 (new section 2G) would be functions of a public nature
for the purposes of HRA 1998? If not, please provide reasons.
The Government's view is that the functions referred
to in new section 2G(1) and (2) of the Jobseekers Act 1995 (to
be inserted by clause 2 of the Bill) are clearly ones of a public
nature. This applies whether they are exercised by the Secretary
of State or by another person authorised under those provisions.
(11) If the Government does not consider that
providers of contracted out functions should be treated as a functional
public authorities how (and against whom) does it consider that
individuals will be able to seek redress for breaches of their
human rights?
As stated above, the Government considers that authorised
persons exercising functions pursuant to new section 2G(1) and
(2) would be regarded as functional public authorities. Section
2G(7) provides (subject to the exceptions set out in subsection
(8)) for acts done by authorised persons to be treated as done
by the Secretary of State. So, for example, where it was alleged
that a contractor carrying out a work-focused interview had contravened
a benefit claimant's Article 8 rights, that person could bring
proceedings against the Secretary of State . These might be brought
through the statutory appeals process that will apply to decisions
under the Social Security Act 1998, by way of judicial review,
or (in some case) by a claim for damages.
(12) I would be grateful if you could provide
further information on how the Government intend to ensure that
private providers performing welfare functions contracted out
under the provisions of the Bill provide services without unjustified
discrimination, including on the basis of thought, belief or religion.
Contractors will be subject to legislation that prohibits
discrimination in relation to the provision of services and in
the exercise of public functions. See in particular the Sex Discrimination
Act 1975, the Race Relations Act 1976, the Disability Discrimination
Act 1995 and, in relation to discrimination on the grounds of
religion and belief, sections 46 and 52 of the Equality Act 2006.
Safeguards to prevent discrimination exist in the
contracting arrangements. Contractors are required to promote
equal opportunities, and ensure that provision identifies and
meets the specific requirements of customers. Proposals from them
are evaluated for these features as part of the contract award
process.
DWP would intend to carry forward existing best practice.
For example, it already expects contractors providing training
to benefit claimants pursuant to arrangements made under section
2 of the Employment and Training Act 1973 to be exemplars in meeting
their duties under the Disability Discrimination Act 2005, including
the disability equality duty. This will be specified in the contracting
arrangements and monitored through the Department's contract management
approach.
The Secretary of State could terminate the contract
and/or bring proceedings against a person who failed to comply
with these contractual obligations. (Note the saving to new section
2G(7) provided by new section 2G(8)(a).)
Conditionality and drug and alcohol dependency
(13) I would be grateful if you could provide
a fuller explanation of the Government's view that these proposals
will comply with the right to respect for private life (Article
8 ECHR). In particular I would be grateful if you could provide
further information on the safeguards which the Government consider
are relevant and why, in the Government's view, these safeguards
will ensure compatibility with right to respect for private life
and the right to enjoy that right without unjustified discrimination
(Articles 8, 14 ECHR).
The Department is aware of the Article 8 and 14 issues
surrounding the drugs proposals and intends to ensure that any
regulations made pursuant to the powers in the Bill are compliant
with the ECHR.
The case of M S v Sweden held that it is a
legitimate aim for a Government to ensure that only deserving
claimants receive social security entitlements. The Government
believes that it is unacceptable for welfare payments to be spent
on illegal drugs.
We provide the following evidence of the extent of
the problem of drug use and the connection between drug use and
social security:
- We estimate that the social
cost of Class A drug use (health and crime) in Britain is around
£18 billion a year. An estimated 99% of which is attributed
to heroin and crack cocaine use.
- Between a third and a half of acquisitive crime
is estimated to be drug-related.
- Our estimates show that approximately 89% of
problem drug users in Britain are in receipt of out of work benefits.
Several safeguards are included in the proposals:
- People will only be required
to complete a rehabilitation plan if their drug use is a factor
affecting their employability and they are susceptible to treatment.
- All participants will be required to agree a
rehabilitation plan with the employment programme provider, so
there is an element of consent, as long as the plan addresses
the drug problem.
- While there is a power in the Bill to include
invasive treatment in a rehabilitation plan, it is clearly provided
that this can only be included with the consent of the claimant.
- Anyone who fails to meet the conditions in their
rehabilitation plan will have the opportunity to make a case for
good cause before any benefit sanctions are applied. This is subject
to an appeal right.
- The Bill further provides that no information
obtained about a person's drug use can be used to incriminate
the person (except in the case of perjury).
There is international evidence to support the link
between compulsion and increased engagement with drug treatment.
However, the approach set out in the drugs strategy provides for
a balanced combination of incentive, encouragement and compulsion.
Furthermore, we only intend to pilot the programme in a small
number of districts and evaluate it before any decision is made
to extend the program further. The Bill provides that the Secretary
of State must review the operation of the pilot and prepare a
report on its success and/or failure and lay that report before
Parliament. Before the program can be extended, Parliament must
pass an affirmative resolution.
Given the many safeguards contained in the Bill and
the additional review mechanisms that require further Parliamentary
approval, the Department believes that there is a sound basis
for arguing that this balanced policy is proportionate to its
aims and is therefore ECHR-compliant.
Personalisation, individual budgets and disabled
people
(14) Does the Government consider that private
providers of services funded through direct payments are to be
treated as public authorities under the Human Rights Act? If it
does, why is this not expressly provided on the face of the Bill?
Part 2 of the Welfare Reform Bill provides a broad
framework for developing a "right to control" for disabled
people. The central aspects of this framework are (a) the purpose
(clause 28) and (b) the regulation-making power (Clause 31(1)).
The purpose of the part is to enable disabled adults
to exercise greater choice and control in relation to the provision
of relevant services by relevant authorities. "Relevant Authority"
is defined in clause 30(1). The relevant authorities are publicly-funded
bodies with public functions and it is clear that they are also
public authorities for the purpose of the Human Rights Act.
The purpose of defining relevant authorities in this
manner is to ensure that the appropriate authority (the Secretary
of State, the Scottish Ministers or Welsh Ministers) can make
regulations providing choice and control for disabled people only
for those services which are delivered publicly-funded bodies.
The definition in the Human Rights Act was too broad for this
purpose, so referring to the Act could have confused the issue.
In relation to the providers of services paid for
by an individual using direct payments the position is different.
Regulations will be required to provide the detail of the right
to control. They will prescribe specific services to which the
right will attach. This is likely, at least initially, to be a
much narrower group of services than those which might fall within
the broad scope of "relevant services" delivered by
"relevant authorities".
The relevant services which might be included are
deliverable under a variety of statutory provisions with different
statutory outcomes. As a result, there is potential for the powers
in the Bill to be used to enable disabled people to use direct
payments to meet a broad range of needs according to the statutory
outcomes. The expectation is that, while some of the purchased
services will be public functions others, are likely to be essentially
private in nature.
The question of whether a body falls within s.6(3)(b)
HRA will depend on the nature of the function that they are performing.
Clearly it will not be possible to address this issue until the
Government had decided the issue of which services the right to
a direct payment will attach. Until the Government has made a
decision as to which relevant services are to be included in the
right to control and which services might be purchased by disabled
persons as "equivalent services", it is not possible
to say with certainty that all private providers will necessarily
be public authorities for the purposes of section 6 of the Human
Rights Act. It would be inappropriate to do so, on the face of
the Bill. We do not wish to be unduly restrictive at this point,
given that the aim of the provisions is to be as flexible and
helpful as possible. However, the Government remains fully conscious
of the need to protect individual's human rights in any particular
circumstances.
(15) If the Government does not consider that
such providers should be treated as functional public authorities,
how (and against whom) does it consider that individuals will
be able to seek redress from breaches of their human rights?
Regulations under clauses 31 and 32 will make detailed
provisions for the circumstances in which direct payments can
be made. Extensive consultation on the right to control, with
both service users and providers, is due to commence soon. Following
that consultation, a decision will be made as to which services
will be included in the right to control pilot schemes. Once that
decision has been made, the Government will be better placed to
determine whether the services which may be purchased with direct
payments are functions of a public nature.
The Government will ensure that, in making right
to control regulations, the human rights of individual disabled
people will be protected. If appropriate, provision can be made
in the regulations to ensure that there is clear redress if the
service purchased is properly a public function.
Powers of the Child Maintenance and Enforcement
Commission (C-MEC)
(16) Please provide further information about
the procedure which C-MEC will follow when considering whether
to make an order pursuant to these provisions.
(a) Will an individual be given notice that
an order is being considered before that order is made?
Yes. The non-resident parent will be informed in
writing that the Commission is considering making such order and
will be given the opportunity to make representations as to why
it would not be appropriate for an order to be imposed, e.g. the
driving licence or travel authorisation is essential to the non-resident
parent's ability to earn a living.
It should be noted that the non-resident parent can
simply pay what it is owed at any stage. This will mean that there
is no need to impose an administrative order; and if one is already
in effect it can be cancelled. The Commission will of course encourage
the non-resident parent to make that payment where it sends him
or her notice that it is considering making an administrative
order.
(b) Will they be permitted to make representations
(a) in writing or (b) in person?
The easiest way for non-resident parents to make
representations to the Commission is via the telephone. The Commission
will however accept representations in writing, and, where possible,
in person (there is only a limited "face to face" service
available to non-resident parents and individuals will be encouraged
to make representations over the phone or in writing).
(c) What information will C-MEC take into
account in determining whether to make an order, including in
respect of the duty to take into account the impact which an order
will have on an individual's capacity to earn a living?
The Commission must consider the history of the case.
This must include any previous payment pattern of the non-resident
parent. The Commission must also ensure that the various county
court enforcement mechanisms, i.e. the use of bailiffs, a third
party debt order or interim charging order have either been attempted
or ruled not appropriate. This is essential in determining whether
the non-resident parent has "wilfully refused or culpably
neglected" to pay maintenance.
Section 2 of the Child Support Act 1991 requires
the Commission to consider the welfare of any child affected by
the decision - this would include any children living with the
non-resident parent as part of his or her new family.
When considering the impact on the non-resident parent's
ability to earn a living, the Commission will be to a large extent
reliant on the representations made by the non-resident parent,
e.g. how crucial the document is, and whether the non-resident
parent has any alternative sources of income; although the impact
will be more obvious in cases where the non-resident parent's
occupation is directly linked to either a driving licence or travel
authorisation. While legislation does not prevent the Commission
from making an order where there is a known impact on the non-resident
parent's ability to earn a living, it would most likely be counter
productive to impose such an order in most cases. The Commission
will however retain the discretion to do so if the individual
circumstances of the case merit it. This is the same discretion
currently afforded to the courts.
(d) In what kinds of circumstances does the
Government envisage that C-MEC may decide that an order is incompatible
with an individual's capability to earn a living?
Decisions will be made on a case-by-case basis (taking
all the relevant factors into account) so it would not be possible
to say with absolute certainty in what circumstances the Commission
would decide that an order is incompatible with a non-resident
parent's ability to earn a living; and thereby not impose the
order. However, as outlined above, the Commission is not prevented
from imposing an order in these circumstances, and may decide
to impose the order where the individual circumstances of the
case merit it, notwithstanding the fact that an impact on the
non-resident parent's ability to earn a living has been identified
- although in the majority of cases the order would not be imposed.
(e) Will guidance be issued in order to ensure
that the assessment of information in respect of an individual's
need to retain their relevant documents is consistent and not
applied in an arbitrary manner?
Yes, appropriate guidance will be developed and communicated
to staff prior to these provisions taking effect. The guidance
will make clear what factors must be taken into account before
an order imposed, i.e. proper observation of the safeguards noted
in response to the Committee's third question.
The discretionary nature of this legislation means
that a blanket policy will not apply. Such a policy would prevent
cases from being treated according to their own merits and may
therefore unfairly disadvantage some individuals. This may mean
that different conclusions are reached in similar cases, but the
non-resident parent does of course have the ability to appeal
to the courts after the Commission has made the order. This will
result in the order being suspended, and not implemented, until
after the court has heard that appeal and reconsidered the Commission's
original decision.
(17) C-MEC may recover their costs in an appeal
against the imposition of an order, even in cases where that appeal
succeeds in securing changes to the order. Does the Government
agree that this has the potential to undermine the value of an
appeal to a potential appellant? Please explain the impact of
these cost provisions on the Government's view that the provision
of an appeal to the magistrates' court will ensure that the right
to a fair hearing is respected in cases where a passport or driving
licence will be affected by an administrative order of C-MEC.
The Government does not agree that this undermines
the value of the appeal to the non-resident parent, and would
argue that the right to a fair hearing is respected.
Legislation makes clear that any costs imposed will
be at the discretion of the courts. It is likely that there will
be circumstances where the court allows an appeal, but it is still
right for the court to ask the non-resident parent to pay towards
the Commission's costs. For example, where a non-resident parent
fails to pay maintenance to their children, the Commission will
rightly seek to use enforcement measures against them. However,
there may be reasons which make disqualification from holding
or obtaining a driving licence or travel authorisation inappropriate
as a compliance measure in any particular case, such as the removal
of either document having an adverse impact on any children living
with the non-resident parent in his or her new family. Should
the non-resident parent fail to make such reasons clear until
their court appearance, despite having every opportunity to tell
the Commission previously, then the court should have discretion
to impose costs in these cases. The unusual nature of appeals
against disqualification orders, whereby a successful appellant
may still be culpable, means that it is necessary to include this
provision so that the court has regard to the possibility of awarding
costs against the non resident parent.
Enabling such costs to be imposed against non-resident
parents, where circumstances suggest to the court it is right
that it should do so, should help to prevent the appeals process
from being manipulated as it will send a clear signal to non-resident
parents that they should cooperate with Commission fully before
the appeal hearing, or face the financial consequences of not
doing so.
However we do not consider that this breaches the
appellant's right to a fair hearing because courts will only award
costs against the appellant in exceptional circumstances. Therefore
if the non-resident parent has cooperated with the Commission,
or has good reasons for not having done so, he will not be deterred
from appealing against the disqualification order, as it is highly
unlikely that costs would be awarded against him.
Joint responsibility for birth registration
(18) Please provide the reasons for the Government's
decision to expressly the Perjury Act 1911 to ensure that unmarried
mothers providing information to registrars, subject to the proposed
duty in the Bill, would be liable for prosecution for perjury.
The Government decided to amend the Perjury Act 1911
to make it clear that the information which a mother is required
to provide about the father under new section 2B(1) is to be taken
to be information concerning the birth.
A mother will, under new section 2B, be asked to
give information about the man she alleges to be the father which
is not information to be included on the register - for example,
the man's contact details. It may be that she is asked to provide
this information before attending the register office in person
- she may for example be asked to provide it over the phone, when
making her appointment. This will enable the registrar to contact
the man alleged to be the father, who will then be asked to acknowledge
whether or not he is the father. The Government wanted to make
clear that the provision of additional information which may not
end up on the register, for example, because the man alleged to
be the father, does not acknowledge that he is the father, or
because it is contact details that are not to be included on the
register, is subject to the Perjury Act 1911. For purposes of
natural justice and legal certainty, the Government considered
it important to be clear on what constitutes a criminal offence.
Further, in considering sanctions in respect of the
new duties created by the joint birth registration provisions,
the Government wanted to make sure that the information provided
by virtue of the new provisions was subject to the Perjury Act
in the same way as the existing provisions are. It was considered
appropriate to make the provision of this information subject
to the Perjury Act because, the provision of this information
is key to how the new process for joint birth registration will
work. The offence will capture those mothers who wilfully make
a false declaration, the Government is of the view that if they
genuinely make a mistake, they will not be captured. Furthermore,
if they do not know the whereabouts of the father, they will not
be subject to the duty to provide information .
In practice registrars make it clear to parents registering
births that the information which they are required to give is
subject to the Perjury Act. We considered that statements and
declarations to be made under the new provisions could fall under
section 4 (1)(b) or section 4 (1)(d) of the Perjury Act. When
considering the new duties we felt that the information provided
under section 2B(1) would most likely fall outside of that set
out in section 4(1)(b) and section 4(1)(d) but we wanted section
4(1)(a) to apply to it. Section 4(1)(a) covers making a false
answer to a registrar and giving false information concerning
any birth or death.
There may be circumstances where a mother maliciously
provides information about a man who is not the father, or maliciously
provides a bogus address that will result in registrars wasting
time and resources attempting to contact the man in question.
The Government is of the view that the false provision of this
information should be treated in the same way as false information
which is provided under the circumstances to which section 4(1)(a)
of the 1911 Act currently applies.
(19) Please confirm whether men who provide
information about the parenthood of a child (either by falsely
stating that they are the child's father or by refusing to acknowledge
that they are the child's father), would also be liable to prosecution
for perjury.
By virtue of regulations made under new section 2C
and new section 10C where a mother provides information about
the father that enables the registrar to contact him, that man
will be required to state whether or not he acknowledges that
he is the father. The Government is of the view that this statement
would be subject to section 4(1)(b) or section 4(1)(d) of the
Perjury Act. It is intended that the notice to be sent out by
the registrar by virtue of regulations made under new sections
2C and 10C will require a man to state that either he acknowledges
he is the father or that he does not acknowledge that he is the
father . If he is unsure as to whether he is the father, then
it would be open to him to state that he does not acknowledge
that he is the father and such statement would not constitute
perjury.
Similarly under regulations made under new sections
2D and 10B a man who believes himself to be the father can make
a declaration to that effect to the registrar. The Government
is of the view that this declaration would also be subject to
section 4(1)(b) and 4(1)(d) of the 1911 Act.
If a man refuses to state whether or not he acknowledges
he is the father of the child he would not be liable to prosecution
for perjury, however, he will be committing an offence under new
section 36(aa) of the Births and Deaths Registration Act 1953.
The Government is of the view that this approach accords with
the approach currently taken in relation to offences in the 1953
Act and the Perjury Act offences, that is, that the offences in
section 36 of the 1953 Act deal with failures to give information,
whereas the provision of false information is covered by the Perjury
Act.
(20) I would be grateful if you could provide
a fuller explanation of the Government's view that the proposals
in the Bill strike the appropriate balance between the rights
of women to respect for their private and family life, the rights
of unmarried fathers to be acknowledged on the official record
of their child's birth and the right of any child to know the
identity of its parents. In particular, please explain:
Each point is covered below, but in general terms
the Government has sought to balance the mother's, the father's
(and the alleged father's), and child's rights under Article 8.
The Government has explained that it accepts that the mother's
right to a family and private life under Article 8 is engaged
by being placed under a duty to provide information about the
father. As explained below, the Government considers that the
duty will apply in those circumstances where the parents are not
cooperating. It is envisaged that these will be exceptional circumstances
and, for the reasons outlined below, it is considered necessary
to impose such a duty. There will be safeguards in place in terms
of the exemptions from the duty that will protect a woman who
fears that her safety (or her child's safety) is at risk if the
father is contacted about the child's birth. This duty is balanced
against the father's Article 8 rights to be involved in his child's
life and the child's right to know his parents' identity. The
Government is taking the approach that the father has a right
to be involved in his child's life and that the child has a right
to know his parents' identity, however, where the act of registration
itself (that is, the registrar contacting the father) would give
rise to a situation where the mother or child is at risk of harm,
the mother will not have to provide this information.
In terms of the father's rights (or alleged father's
rights) under Article 8, as the Government explained previously,
we are of the view that these would consist of his right to a
family life with the child in question. Further, if he has another
family, it would include his right to respect for the family life
that he has with that other family. In addition, disclosing that
he had sexual relations with the mother would also engage his
right to a private life under Article 8. The proposals to impose
a duty on the mother to provide information about the father would
engage such rights. This provision of this information is subject
to the Perjury Act 1911. There is therefore, an incentive for
the mother not to provide false information. We are of the view
that these measures will promote the father's right to respect
for a private life with his child. In terms of the situation where
the father has another family, given the importance of the child
to know who his father is and the importance placed on fathers
being involved in their child's life, we consider it is appropriate
to place this father under a duty to acknowledge that he is the
father if the mother provides information about him. There is
no requirement for him to disclose this paternity to his current
family, but there will a requirement for him to be honest in acknowledging
paternity and if he does so, his name will be entered on to the
birth register. We consider that this approach appropriately balances
the different rights in question.
The father will also have an independent right to
present himself to the register office and declare his paternity.
Whilst we acknowledge that this will engage the mother's Article
8 rights, we are of the view that such interference is necessary
and proportionate. His declaration will be subject to the Perjury
Act 1911 and thus there is an incentive for him not to provide
false information. If it is considered that he is unsuitable to
have parental responsibility, there are court orders available
that can remove or limit his exercise of parental responsibility.
The Government's proposals also promote the right
of the child to know his parent, but accepts that there are situations
where this is not possible, or desirable. So, as outlined above,
the Government would not want the registration process in itself,
to cause a risk of harm to the mother or child and in these circumstances
the mother will not have to provide information about the father.
(a) The Government's view that the new proposals
will be capable of meeting the aims identified in the Explanatory
Notes, including any evidence to support the conclusion that placing
a duty on unmarried mothers to provide information will lead to
an increased involvement by unmarried fathers in the lives of
their children
We are aiming to bring about a radical cultural change
centred on the right of children to have the best possible chances
in life from the outset. Following a national consultation, we
considered the options and came to the conclusion that effective
cultural change in this instance needs to be supported by a balance
of both legislation and positive promotion of joint registration.
We are seeking, through this policy, to encourage
more men to understand and accept their responsibilities as a
father. We want both mothers and fathers to recognise that a child
has a right to be formally acknowledged by both parents and indeed
this act of acknowledging the child is one of the first steps
of responsible parenthood.
At the same time, we recognise that most fathers
want to be responsible parents. We are therefore seeking to establish
a fairer system by giving fathers an entitlement to jointly register
their child's birth, rather than leaving the decision on whether
they may or may not register to the mother.
So, in addition to enabling more fathers to take
this important first step, our proposals will require reluctant
fathers to take some responsibility for their children. We are
aiming through this policy to encourage and support the development
of a long term involvement on the part of the father in his child's
life, and the benefits of paternal involvement. We do of course
recognise that joint birth registration is merely a starting point
for such a relationship, but we believe it is an important and
positive milestone in achieving this. Evidence from US research
with fragile families demonstrates that early acknowledgement
of paternity has significant benefits for both ongoing father-child
contact and financial support for the child.
It is important to note that only in a minority of
cases (see below), where the father has not come forward to register,
will the mother need to provide the registration service with
information about the father.
(b) The Government's view that the duty on unmarried
mothers to disclose information about the father of their child
is necessary and proportionate to meet that aim (Article 8(2)
ECHR)
The Government's aim is to increase the number of
unmarried fathers who are registered on the birth register entry
of their child. Unless a duty to provide information about the
father is imposed, it is likely that that mothers who are not
cooperating with the father in the registration of their child's
birth would not provide this information.
In deciding how to legislate for birth registration,
the Government considered different options including
- imposing a duty on all unmarried
fathers (regardless of whether they had been identified as the
father) and
- having a scheme that enabled mothers to provide
information about the father, rather than requiring them to do
so.
It was felt that option i) would create a situation
where many men were under a duty in respect of a child they were
unaware existed and the Government was doubtful that this would
lead to an increase of fathers on the birth register. The Government
felt that a better approach was to provide for a system whereby
if the mother provided the father's details, that father was given
the opportunity to acknowledge that he is the father and at this
point he would become registered as the father.
The Government considered the option at ii) but had
in mind that the new provisions would often cover situations were
the parents were not cooperating. The ability for unmarried parents
to jointly register is already provided for under section 10 of
the Births and Deaths Registration Act 1953. The Government is
also allowing for a less formal declaration to be made than the
statutory declaration currently used for jointly registering unmarried
parents where only one party attends the register office. This
will make it easier for more unmarried parents to jointly register
the birth under section 10 of the 1953 Act where they are cooperating.
In situations where the parents are not cooperating
it is considered likely that the mother would not provide the
information about the father unless compelled to do so.
In research carried out on behalf of the Department
for Work and Pensions,[163]
it was found that out of all sole registrations[164]
, almost 50 % of the mothers were in a close relationship with
or were friends with the father. The remaining figure comprised
of mothers who were not in a relationship with the father or who
were separated from the father. The Government envisages that
the imposition of the new duty under section 2B will target a
proportion of the women not in a relationship with, or separated
from, the father.[165]
It is considered that the process to be triggered
by section 2B (where the mother acts alone) will be an exceptional
route and an information campaign will be launched and guidance
provided indicating that unmarried parents should jointly register
under the routes currently set out in section 10 of the 1953 Act.
The Government also considers the duty to provide
the information about the father to be proportionate. The duty
will not apply if the mother makes a declaration that one of the
exemptions set out in section 2B(4) is satisfied. The Government
also has the ability to prescribe additional exemptions if the
need arises. It is considered that these exemptions will provide
safeguards against women at risk from violence if the father is
contacted and safeguards from having to identify a man where she
is unsure as to his identity. This will be a safeguard against
an unjustified interference in that man's Article 8 rights. Furthermore,
the information provided about the father under new section 2B
will be subject to the Perjury Act 1911. This will protect a man
who is not the father, from being named maliciously as the father
which will also act as a safeguard protecting his Article 8 rights.
(b) How the Government intends the scheme to be
administered. In particular, does the Government intend that training
or guidance will be issued to enable registrars to understand
the extent of the duty on unmarried mothers? For example, how
will registrars respond to a mother who refuses to name a father
on the grounds that she does not know his identity? Will the registrar
then test that explanation by reference to the potential for prosecution
for perjury?
Information given to a registrar by a mother in relation
to a birth is already covered by the Perjury Act and those attending
the register office are reminded of this. The registrar's role
is to record the information which he or she is provided with,
not to challenge or question it. However, in cases where there
are suspicions about the information being provided, the registrar
would seek to resolve these with the person concerned in order
to enable the birth to be registered.
We expect our proposed new arrangements for joint
birth registration to operate on the same basis. The mother attending
the register office will, as now, be required to provide certain
information concerning the birth. In cases where she is seeking
an exemption from the duty to provide information about the child's
father (where she is not registering jointly with him) she will
need to make a declaration to this effect. We are working with
registrars themselves to develop the precise form which such a
declaration will take, however a woman who makes a declaration
that an exemption applies will not be probed further on this.
As happens now, the information will be duly recorded by the registrar
and the birth then registered without the father's details.
The legislative measures which we are taking will
be supported by a range of non-legislative measures. These will
include a comprehensive information and awareness campaign, with
the aim of ensuring that prospective parents and those using the
birth registration system are fully aware of the changes we are
making and understand their rights and responsibilities under
the new system. We will ensure that the exemptions set out in
the Bill are fully explained as part of this process and that
any necessary information and explanation is made available to
parents and prospective parents before they register.
We will also be ensuring that registrars themselves
are fully trained in the operation of the new system, and that
existing guidance is revised to take full account of the changes
we are now proposing.
(c) The kind of circumstances in which the Government
envisages a prosecution for perjury would be in the public interest.
For example would a mother who refused to name a father on the
grounds that she did not know his identity be prosecuted where
he subsequently came forward and it was established that she withheld
his identify as she had been in fear of violence?
As now, we would expect the Registrar General to
consider each case on its individual merits in making a decision
about whether to refer the case to the police.
We are currently working closely with the General
Register Office and with registrars themselves to develop the
detailed processes which will underpin the primary legislation,
including the best way of managing situations where a mother is
claiming an exemption. This may of course be particularly sensitive
where the exemption relates to the fear of violence or of harm
of another kind. We intend to make use of registrars' existing
experience and expertise in dealing with such situations in developing
our new processes.
Information provided for the purposes of birth registration
is of course already subject to the Perjury Act. Those who attend
the register office are reminded of this and this will continue.
We intend that registrants will be given clear information
about possible exemptions under the new system and that their
duty to provide honest information will continue to be made clear
to them when registration takes place.
The fact that the mother is the primary carer would
be relevant to sentencing.
The following are examples are where a prosecution
for perjury could be in the public interest. Where the mother
maliciously named a man as the father, where it was clear that
they had had no sexual relations, in order to cause him stress
and this was one of several efforts designed by the mother to
harass the man. Or where the mother falsely named a man as the
father hoping that it would confer citizenship on her child that
would enable her to remain in the UK, in a case where she would
not otherwise be entitled to remain in the UK.
Where it was established that a mother who refused
to name a father on the grounds that she did not know his identity,
actually withheld his identity as she had been in fear of violence,
the Government does not consider that it would be in the public
interest to prosecute. The purpose of the legislation would not
be served by carrying out such a prosecution as the mother would
have been fully entitled not to provide information about the
father for reasons associated with risks to her safety.
Memorandum submitted by the British Humanist Association
About us
The British Humanist Association (BHA) is the national
charity representing the interests of the large and growing population
of ethically concerned non-religious people living in the UK.
It exists to support and represent people who seek to live good
and responsible lives without religious or superstitious beliefs.
The BHA is deeply committed to human rights, equality,
democracy, and an end to irrelevant discrimination, and has a
long history of active engagement in work for an open and inclusive
society. In such a society people of all beliefs would have equal
treatment at law, and the rights of those with all beliefs to
hold and live by them would be reasonably accommodated within
a legal framework setting minimum common legal standards.
One of our largest campaigning areas is that of public
service reform - and specifically the contracting out of public
services to religious organisations.
Introduction
We welcome the opportunity to submit evidence to
this inquiry.
The Welfare Reform Bill is not yet published. However,
the Green Paper, 'No one written off: reforming welfare to reward
responsibility', currently open for public consultation, sets
out the Government's intentions and proposals for the forthcoming
Bill.
In May 2007 and in January 2008 the BHA responded
to two Department for Work and Pensions (DWP) consultations: those
on welfare reform and the "Freud report" and on the
DWP's interim commissioning strategy. In those responses we set
out a number of equality and human rights-based concerns specifically
in reference to the Government's proposals for welfare reform.
In November 2007 we published our report on the contracting out
of public services (including welfare services) to religious organisations,
'Quality and Equality: Human Rights, Public Services and Religious
Organisations'. That report sets out in detail our concerns about
discrimination and infringements on human rights that are specific
to contracted religious organisations. We attach all three documents,
as evidence, as annexes A, B and C.
In September, we met with DWP officials from the
Commercial Directorate and from the Commissioning Strategy Policy
Team. While we were assured that the DWP has no intention of allowing
discrimination in employment on religious grounds by its contractors
and subcontractors in its Flexible New Deal programme, our concerns
in terms of employment remain. It was clear from our meeting that
the present exemptions from equality legislation for organisations
based on religion or belief have not been taken into specific
consideration by those responsible for commissioning and perhaps
more widely.
The welfare reform Green Paper, in essence, proposes
the implementation of Freud's proposals. Importantly from our
standpoint, that includes the continuation and expansion of commissioning
welfare services from the private and third sectors. Indeed, the
Green Paper suggests even more extensive change than the 2007
proposals and proposes 'giving private and voluntary providers
the right to bid for any back-to-work service' (p7, emphasis added).
This will include contracting out many welfare and employment
services to religious organisations - a policy that the Government
has been especially and increasingly keen to promote over the
past couple of years (see annexes A, B and C for evidence and
detail).
In this short memorandum (which should be read with
the annexes), we summarise our concerns regarding welfare reform
and set out in brief our proposals for mitigating the negative
effects of contracting out services to religious organisations.
We finish with a number of safeguards to promote equality, tackle
discrimination and uphold human rights that we consider vital
inclusions in the forthcoming Welfare Reform Bill.
Our position
We set out our fundamental position as follows:
- that all public services, including
welfare services, should be open and accessible to all citizens
and be provided on a non-discriminatory basis;
- that organisations in receipt of public funding
to provide public services should be bound in their provision
of those services by the same legal obligations to avoid discrimination
in dealing with their clients as are public providers of the same
services;
- that those organisations should be bound in their
provision of those services by the same legal obligations to avoid
discrimination in their employment practices as apply to public
providers of the same services;
- that those organisations should be bound, as
public authorities, in their provision of those services by the
Human Rights Act 1998;
- that such organisations should be required to
respect the privacy and autonomy of their clients.
Therefore, should any religious (or, equally, humanist)
organisation be involved in providing public services in partnership
with or on behalf of the Government or any public authority, it
should not be allowed to discriminate on the grounds of religion
or belief either in its employment practices or in its service
delivery, and it should not be allowed to suggest either to employees
or to clients that any advantage might attach to those with beliefs
consonant with its own, far less to proselytise. To avoid misunderstanding,
we make clear that it is our view that any religious organisation
engaged in public services must be ineligible, so far as the delivery
of those services is concerned, for the exemptions from anti-discrimination
law provided to religious organisations in their religious activities.
We would like to draw the Committee's attention to
the fact that religious organisations have exemptions from equality
legislation which allow them to discriminate in their employment
practices and in the way they provide services in some circumstances,
on grounds of religion or belief or of sexual orientation, even
when contracting to provide welfare or other public services.
Such organisations are also not covered by the Human Rights Act
1998 (HRA), and we consider there to be especial problems in terms
of possible infringements of service users' rights, such as their
right to freedom of conscience and belief, if their service provider
is a religious organisation.
In the forthcoming Equality Bill, which is set to
replace all existing equality and anti-discrimination legislation,
the Government will look at legislative and non-legislative measures
to encourage (or force) contracted organisations to comply with
the general equality duty when they are performing public functions.
The duty will be extended to cover seven protected areas: gender,
race, disability, religion or belief (which includes non-religious
beliefs), sexual orientation, age and gender reassignment. In
the absence of such future legislative requirements on contracted
organisations, or until such time, we would like to see the DWP
make clear in its commissioning strategy that all contracted organisations
should act as if they were bound by that duty. This should certainly
be reflected in the Welfare Reform Bill.
It should be noted that we see contracts - however
tight the stipulations are - as a poor second best to legislation
for protecting employees and service users from discrimination,
for promoting equality, and for protecting human rights - all
of which may be especially necessary should the contractor be
a religious organisation.
Further, as the DWP is 'not party'[166]
to subcontracts, we have additional concerns that, through including
religious organisations as subcontractors in particular, neither
employees nor service users will be adequately protected from
discrimination or unequal treatment.
It is the main contractors' responsibility both to
stipulate the details of subcontracts and to monitor whether the
subcontractors are fulfilling their contractual obligations and,
in most cases, it would be the main contractor who would be held
accountable for the way subcontractors operate. However, religious
main contractors will be able to ignore infringements by religious
sub-contractors and in any case, to the extent that religious
suppliers become significant suppliers they will be in a position
to disregard contractual provisions since there will be no ready
alternative to them as suppliers, and the Government or local
authority may be reluctant to penalise them.
Proposals for Welfare Reform Bill
It is vital that there are legislative provisions
in the Welfare Reform Bill that make clear that:
- Any exemptions in equality
law that allow religious organisations to discriminate in employment
on any grounds do not apply when working under contract to provide
welfare and employment services.
- Any exemptions in equality law that allow religious
organisations to discriminate in service provision on any grounds
do not apply when working under contract to provide welfare and
employment services.
- All organisations working under contract to provide
welfare and employment services must act - and be held accountable
- as if they were bound by the Human Rights Act 1998.
- Any organisation contracted to provide welfare
and employment services must be bound by the same equality and
anti-discrimination regulations and duties as public sector providers.
- All services must be provided in a secular way,
that is, in a way that is neutral and not religious. This would
include outlawing proselytising, preaching, praying and any other
religious activity, whether compulsory, voluntary or even that
which is visible in the context of service provision. It would
also prohibit the provision of welfare and employment services
from places of worship or where there is religious symbolism on
display.
October 2008
Memorandum submitted by Citizens Advice
The CAB service
The CAB service provides free, independent, confidential
and impartial advice to everyone on their rights and responsibilities.
It values diversity, promotes equality and challenges discrimination.
The service aims both to provide the advice people need for the
problems they face, and to improve the policies and practices
that affect people's lives.
The CAB network is the largest independent network
of free advice centres in Europe, providing advice from over 3,200
outlets throughout Wales, England and Northern Ireland. We provide
advice from a range of outlets, including GPs' surgeries, hospitals,
community centres, county courts and magistrates' courts, and
mobile services both in rural areas and to serve particular dispersed
groups.
In 2007/08 bureaux in England and Wales advised around
2 million people with new or ongoing problems and dealt with 5.5
million enquiries in total. Of these 79,000 concerned immigration,
asylum & nationality issues; 22,000 concerned discrimination
issues; and over 332,000 concerned Incapacity Benefit, Jobseekers
Allowance, and Income Support issues.
Introduction
This submission covers the:
- Citizenship, Immigration and
Borders Bill.
- Equality Bill
- Welfare Reform Bill
Citizenship, Immigration and Borders Bill
In this submission, we confine our comments to an
issue that we raised with the Committee in 2006-07, and which
the Committee addressed in its March 2007 report: the lack of
public funding for legal representation at appeal hearings before
the Asylum Support Tribunal (AST). In doing so, we will draw
on our previous analysis of the 285 appeals determined by the
AST in the four-month period January to April 2007. We would
like the Government to use the opportunity provided by the forthcoming
Bill to extend public funding to such legal representation before
the AST.
Where the UK Border Agency (UKBA) decides to refuse
or terminate asylum support (including 'section 4 support' for
qualifying failed asylum seekers), there is in most cases a right
of appeal to the Asylum Support Tribunal (AST). Since its establishment
in 2000, the AST (originally known as the Asylum Support Adjudicators)
has in many ways proven itself to be a model tribunal, at least
in terms of its administration, the training of its judges (originally
'adjudicators'), and its interaction with appellants and other
stakeholders.
However, whilst asylum seekers (and failed asylum
seekers) are dispersed throughout the UK, including in Scotland,
the AST has only one hearing centre - in Croydon, south west London.
So many appellants, faced with having to travel considerable
distances to attend an appeal hearing, elect to have their appeal
determined by the AST on the papers only. This means that they
have no opportunity to present their case in person or, better
still, have it presented on their behalf by a skilled and knowledgeable
advocate. Only 24 per cent of the 62 paper-only appeals determined
by the AST in the four-month period January to April 2007 were
allowed or remitted to the UKBA for a fresh decision.
Furthermore, because there is no legal aid in this
area of law, those who elect for an oral hearing before the AST
are in any case most unlikely to find a solicitor or barrister
to represent them at the hearing. And, whilst unrepresented appellants
are most unlikely to have any significant knowledge or understanding
of UKBA policy and the increasingly complex case law on asylum
support, the UKBA is almost always represented at the appeal hearing
by a Presenting Officer specialising in asylum support law.
Of the 223 appeals determined by the AST at an oral
hearing in the four-month period January to April 2007, a specialist
Presenting Officer attended to present the BIA case in all but
four cases, whereas only seven of the 223 appellants were legally
represented at the hearing by a solicitor or barrister. In short,
the vast majority of oral appellants who attend the hearing alone
and unrepresented, or who do not attend at all, are on a vastly
unequal footing with the body whose decision they are attempting
to overturn.
Yet, as in so many other areas of law, and despite
the impressive credentials and apparent empathy of the AST judges,
there is convincing evidence that legal representation at an oral
hearing before the AST substantially increases the chances of
success. Since its launch in June 2005, the Asylum Support Appeals
Project (ASAP), a small independent legal charity, has run a limited
duty scheme providing free legal representation to otherwise unrepresented
AST appellants. Of the 223 oral appeals determined by the AST
in the period January to April 2007, the ASAP provided representation
in 29 appeals, and (as noted above) a solicitor or barrister provided
in a further seven appeals. Of these 36 appeals, 58 per cent
were allowed or remitted to UKBA for a fresh decision. In contrast,
of the 187 oral appeals in which the appellant was not legally
represented at the hearing, only 29 per cent were allowed or remitted
to UKBA for a fresh decision, a 'success rate' little better than
that for paper-only appeals.
The injustice of this inequality of arms has been
acknowledged by the Asylum Support Tribunal itself, which in its
annual reports has consistently expressed its concern about "the
lack of [legal] representation available to appellants at asylum
support appeals". And such injustice matters. For, as the
Asylum Support Appeals Project has noted, "the human cost
of poor [BIA] decision-making is great. Every time [the UKBA]
makes a mistake it risks forcing someone who is actually entitled
to support into destitution and exposing them to the associated
dangers of living on the streets". A genuinely fair appeals
mechanism is therefore essential to avoiding such destitution,
the risk to the well-being of the men, women and children concerned,
and the associated detriment to social cohesion and public policy
more generally. And for the appeals mechanism to be genuinely
fair requires that all appellants have timely access to specialist
legal advice, including representation at any hearing.
In June 2006, in our report Shaming destitution,
Citizens Advice called for 'legal aid' to be extended to cover
advice and representation in all appeals to the AST. And in March
2007, noting that, where an appeal to the AST fails for want of
adequate legal representation, the resulting destitution "may
be a violation of Article 3 of the European Convention on Human
Rights", the Committee similarly called upon the Government
to "make legal aid funding available for representation before
the AST". We would like the Government to use the opportunity
provided by the forthcoming Bill to do so, and thereby make the
AST a genuinely fair as well as effective tribunal.
Equality Bill
We welcome the Equality Bill, and the much needed
simplification and strengthening of policies and remedies to tackle
unfair discrimination in the workplace, consumer markets and the
provision of public services. However, we would like to see the
Bill used in order to strengthen the remit of the Equality and
Human Rights Commission (EHRC) and its partner organisations across
both discrimination and human rights law, and to clarify and enhance
the Commission's role with respect of promoting human rights.
There are significant opportunities in this legislation
to join up policy across discrimination and human rights law;
for example human rights legislation has profound importance for
vulnerable older people, and for the first time older people are
to be included within the scope of anti-discrimination law. In
our submission to the Discrimination Law Review, and throughout
our regular contact with the Government Equalities Office, we
have argued that
- The Bill should include a power
for regulators and inspectorates to act on equality grounds and
duties and for the EHRC to work jointly with regulators; we consider
that this power should include taking public authorities' Human
Rights Act duties into consideration.
- The process of simplifying existing anti-discrimination
legislation should be complemented by the development of the EHRC's
key function in producing clear guidance and accessible guidance
for business and public authorities. The role of the EHRC in developing
Codes of Practice on equality legislation could likewise be extended
to include human rights law and principles.
- The EHRC should have a role in facilitating collective
redress under the new legislative regime, where appropriate through
a mechanism for initiating representative actions before county
courts or employment tribunals - this mechanism could also apply
to judicial review proceedings under the Human Rights Act.
- We are also asking for a wider definition of
the coverage of "workers" as we see significant evidence
of exploitation of migrant and agency workers. This is an area
where there is a clear cross-over between discrimination and human
rights.
Welfare Reform Bill
The Welfare Reform Bill will seek to implement a
number of policies set out in the DWP's Green Paper No one written
off: reforming welfare to reward responsibility (2008) over which
we have expressed some concerns, in particular over
- Increasing conditionality requirements
for claiming Employment Support Allowance (ESA)
- Introducing new powers for Jobseeker Allowance
(JSA) claimants to be sanctioned at various stages of their claim
- Freezing the rate of incapacity benefit (IB)
for claimants who have an age addition payable
We believe that the DWP needs to undertake an impact
assessment to look at the possible effect of these measures on
people with different levels of vulnerability or impairment. The
emphasis on conditionality will involve the increased use of medical
assessments in order to support the proposed Work-Focused Health-Related
Assessment (WFHRA), and we have expressed concerns from CAB evidence
that benefit-related medical assessments can be intrusive and
sometimes degrading. So these proposals need to be considered
within an overall context of human rights standards.
Citizens Advice is also very concerned about proposals
to introduce increased requirements for ESA claimants to undertake
work-related activity and on what the impact might be on people
with different impairments. The Government is also proposing to
develop the new form of Work Capability Assessment and to extend
mandatory attendance at 'work focussed interviews'. Unless these
are conducted to an appropriate standard people with impairments
may be forced into taking inappropriate jobs and may suffer discrimination
or unfair treatment as a result.
Finally, CAB evidence raises questions about the
effectiveness of enhancing the current sanctions regime. CAB advisers
report seeing claimants who face hardship as a result of sanctions,
including vulnerable clients sanctioned multiple times due to
failing to understand or comply with requirements. They are
often vulnerable clients with learning disabilities who have failed
to understand what is required of them or who haven't attended
courses or applied for jobs because the options have been inappropriate
to their disabilities or levels of literacy. Without proper probing
of claimants' failure to attend and without sufficient Disability
Employment Advisers, there is a serious risk that vulnerable claimants
will be unfairly and inappropriately treated.
A CAB in the Midlands reported that their client
had pronounced learning disabilities and high blood pressure.
She was on JSA and was required to actively seek work. She was
regularly given information from Jobcentre Plus with the warning
that non-attendance would result in sanction but does not understand.
As a result she had been regularly sanctioned and has had sustained
periods without any money at all resulting in increased debt problems.
The stress of the situation was beginning to affect her health.
A Hertfordshire CAB client lacked basic skills, had
very poor literacy and had been sanctioned twice within a couple
of months. The first time he was nine weeks into a six-month
course but was told to leave for failing to participate fully.
He said the course was inappropriate and too advanced - he was
made to type letters on the computer but struggled as he had no
understanding of what he was writing as he couldn't read or write.
The second sanction was for failing to complete maths and English
tests. He reported that his personal adviser had not taken his
struggles seriously. He was worried about how he was going to
be able to pay his utility bills.
Memorandum submitted by Disability Alliance
Welfare Reform Act 2007 follow-up
Employment and support allowance
Disability Alliance notes the Committee's request
for further information related to the implementation of employment
and support allowance (ESA). We have heard some local instances
whereby ESA claimants are being required to submit written requests
for payment of benefit when lodging an appeal and after a successful
appeal, which is an administrative barrier that is not actually
required by the provisions of the Act.
This has clear implications for more vulnerable claimants
and we would ask for Ministerial assurance that such unnecessary
barriers to benefit receipt are removed. Other than this, we have
not come across any specific issues at this stage beyond the usual
administrative mishaps such as difficulties using phone services
and so on.
Local housing allowance
We also wish to raise another issue, related to the
Local Housing Allowance (LHA), which was also introduced by the
2007 Act. It has been bought to our attention that DWP has never
carried out a Disability Equality Impact Assessment prior to the
national roll-out of LHA.
One consequence of this is that disabled people who
require an extra bedroom for a non-resident carer to sleep in
during overnight stays are finding that the amount of LHA to which
they are entitled does not reflect the need for an extra bedroom.
There is no flexibility at all to recognise and pay for an extra
bedroom, unlike under the previous housing benefit provisions.
We have raised this in writing with Ministers and
were informed in a written response from the DWP that, under the
LHA scheme:
"It is realised that disabled customers can
be limited in the type of property that they can rent"
With no apparent intention to address the issue in
a positive and proactive manner as required under the Disability
Equality Duty, we would ask the Committee to address this issue
with Ministers. We have heard of a case where a disabled student
in the third year of his degree is in danger of being unable to
complete his course because the introduction of LHA has seen his
benefit entitlement restricted to a one-bedroom property, whereas
he has previously been paid housing benefit equivalent to the
rent for a two-bedroom property.
Welfare Reform Bill
Work for your benefit (Clause 1)
Disability Alliance is very concerned that these
proposals will disproportionately affect disabled people with
low level physical and mental health problems. DWP has predicted
that the introduction of the Work Capability Assessment for ESA
will see at least a 10% increase in disallowances, thus meaning
that more people with lower levels of health problems will be
required to claim jobseeker's allowance instead.
Further, there is research[167]
that demonstrates that work for your benefit schemes are least
effective in getting people into jobs in weak labour markets where
unemployment is high, as is currently the emerging situation in
this country and that such schemes are is least effective for
individuals with multiple barriers to work. Also, welfare recipients
with multiple barriers often find it difficult to meet obligations
to take part in unpaid work. This can lead to sanctions and, in
the most extreme cases, the complete withdrawal of benefits that
leaves some individuals with no work and no income.
Abolition of income support (Clause 7)
Disability Alliance is concerned that the proposal
to abolish income support will have a detrimental impact on those
people claiming benefits for whom work-related activity is not
a feasible or viable option, whether in the short or long term.
The most obvious and largest group of claimants will be those
with caring responsibilities but this also could include pregnant
women, estranged children in education and lone parents with young
children.
The Government has said that no changes will be made
until the circumstances of these groups have been properly addressed,
yet the Bill clearly contains other measures (e.g. Clause 3) which
are intended to relax the conditionality rules of jobseeker's
allowance in anticipation of moving such groups onto this benefit.
Requiring such a disparate group of benefit claimants to make
a claim for jobseeker's allowance, with varying levels of conditionality
to be applied depending on how Jobcentre Plus staff decide to
categorise someone, runs a very clear and serious risk of discriminatory
and/or arbitrary manner.
Claimant directions (Clause 8)
Disability Alliance is concerned that reforms are
being implemented to the ESA system without any credible evidence
being presented of either the way that the newly introduced benefit
is operating in practice, nor whether further increases in conditionality
are actually required.
Further, the explanatory notes to this Clause state
that:
"Failure to undertake the specified activity
without showing good cause for this within the allowed time would
be sanctionable".
This is in direct contradiction of previous assurances
given by the then Minister for Employment and Welfare Reform,
Jim Murphy, in the Committee debates about the relevant Clause
15 of the Welfare Reform Act 2007. Mr Murphy stated:[168]
"The decision to apply a direction will
not lead to sanctions."
We feel this is an example whereby Ministerial commitments
given when the original legislation was being debated are being
ignored or overridden. Similar assurances were made with regards
to disabled students and ESA, whereby Ministerial commitments
about bringing forward certain rules were subsequently ignored
due to a change of mind. This is an unacceptable way for Parliamentary
scrutiny to be undertaken in our opinion.
It is also worth highlighting the large and almost
unprecedented use of regulation making powers within this Bill.
There are 387 references to regulations which means that the actual
process for implementation of many of the powers is deferred to
secondary legislation, which as the Committee has noted means
that scrutiny of the detail of the scheme is difficult. With so
many potentially wide-ranging powers being introduced, with much
greater conditionality and potentially more sanctions and loss
of benefit provisions, we are concerned that this is a worrying
precedent being set.
Claimants dependent on drugs (Clause 9)
Disability Alliance shares the concerns laid out
by the Committee in their letter to James Purnell dated 27 February
regards these proposals. We feel that an approach that has, at
the very least, an implication of compulsory medical treatment
with risk of financial sanction for non-compliance, as well as
mandatory assessment for a drug problem in the first place, as
being against the right to a private life and is also, by its
intrinsic nature, discriminatory in approach.
We share concerns raised by other mental health charities
that if deemed successful, the Government could utilise similar
legislation requiring compulsory treatment for people with mental
health problems also.
External provider social loans (Clauses 13-15) and
Community Care Grants (Clauses 16-17)
Disability Alliance is concerned that there appears
to be no independent statutory review in respect of social loans
by external providers, nor in respect of some community care grant
decisions. The Independent Review Service (IRS), that currently
exists to carry out these functions for the social fund scheme,
highlight the fact that although the explanatory notes to the
Bill do say that there will be a complaints procedure and likely
access to the Financial Services Ombudsman, there is no provision
in the Bill in relation to this and so any such redress would
not be put on a statutory footing by the Bill.
Further, the Bill gives the Secretary of State to
exclude from the right of review decisions to make an award for
specified goods or services via arrangements made with a specified
supplier. The IRS state that their experience shows that decisions
are often overturned on review and that there is potential for
incorrect decisions being made under the proposed scheme but without
the protection of the right of review.
Contracting out functions under Jobseekers Act
1995 (Clause 23)
Disability Alliance is concerned that the greater
powers being transferred to external providers of welfare to work
services could undermine the ability of disabled people to properly
hold to account such providers in terms of the service standards
they receive. This has particular implications, for example, whereby
individuals may be parked and not receive the level of support
that is required to help move them towards employment, or where
they are directed to undertake activity that is inappropriate
or unhelpful or potentially harmful.
To this end, we have worked with Child Poverty Action
Group, Gingerbread and Citizens Advice in drafting a Claimant's
Charter which sets out some key principles that we feel should
underpin delivery, including the creation of an Employment Services
Ombudsman to mediate where extra-regulatory disputes arise between
claimants and contractors. A copy of the draft Charter is attached
as an appendix to this submission.
We hope that you find the contents of this submission
useful to the Committee's enquiry and look forward to monitoring
the outcomes.
Undated letter from Families Need Fathers and
Resolution to James Purnell MP, Secretary of State for Work and
Pensions
We are writing jointly to ask you to announce at
Second Reading of the Welfare Reform Bill, that you are withdrawing
the provisions concerning the possible confiscation of driving
licences and travel documents by the Child Maintenance and Enforcement
Commission without going to court (clauses 40 and 41 and Schedule
5).
These proposals have a number of serious shortcomings.
Fundamentally, they conflict with the citizen's direct
access to the courts when the state could be seen to be acting
in a way clearly against the person's interests and their right
to a fair trial. If the Commission make these Orders administratively,
there are no safeguards to have the matter properly considered.
If the Orders are made administratively, they are effectively
being made by Civil Servants, who may be quite junior in position
and, again, there are no 'checks and balances'. The Bill attempts
to deal with this by providing that the seizure will only take
place by an administrative decision if the individual decides
not to appeal to the court. But that is well short of direct and
full access to the court. Many of the individuals concerned may
be poorly equipped to take sound advice from the legal profession
or elsewhere when confronted with the threat to confiscate any
of these documents.
Secondly, the provisions depend crucially on CMEC's
ability to communicate effectively with the persons whose licence
or documents they are confiscating. We know from long experience
of CMEC's predecessor, the Child Support Agency (CSA), that communications
with payers of maintenance have often been poor. Until CMEC is
fully operational it will be difficult to trust them with such
onerous responsibilities. It is quite feasible that there will
be a considerable number of cases where CMEC is writing to the
wrong address, or a person simply has not received the paperwork
etc. What system will be in place to ensure that, to the greatest
extent possible, the NRP is aware that the application is going
to be made? What if letters simply go missing at the Post Office
stage and never actually reach the individual concerned?
We understand an individual will have the opportunity
to submit an appeal, but this is effectively reversing the burden
of proof to the paying party to demonstrate why the Order should
not remain in place. This does not make sense.
There are also concerns about the costs provisions.
The Bill states that CMEC can recover their costs in confiscating
driving licence/travel documents. However, if we have read clause
40 (5) (3) correctly, there is no provision that, if the Court
revoke a disqualification Order, the individual against whom the
Order has been made can actually recover their costs.
The bill provides that CMEC would consider "whether
the person needs the relevant document in order to earn a living".
That is far from a guarantee that they would not do so if it prevented
the person earning a living. We know from our experience of the
CSA that on occasion they have proposed taking away driving licences
from people whose jobs required a current licence. What safeguards
will be put in place to ensure proper consideration of the individual
case? Such actions militate against the provisions' objective
of maximising the payments of child support due.
In view of the proposed measures, we also believe
that provisions are likely to be in breach of the Human Rights
Act 1988 and Article One and Article Six of the First Protocol
of the European Human Rights Convention.
These draconian sanctions may simply encourage some
parents to go underground, to avoid their responsibilities and
be counter-productive, where such parents are likely to pay some
monies if treated differently.
Similar provisions were, as you know, rejected by
Parliament during the passage of the Child Maintenance and Other
Payments Act. We believe that this is highly likely to happen
again. We suggest that it would be much better for you to withdraw
them on your own initiative.
For the avoidance of doubt, we all support the Government's
aim of ensuring that parents pay their appropriate share of child
maintenance after divorce or separation. However, we believe that
that is best pursued by making the regime more efficient and effective,
rather than attempting to introduce provisions which have already
been rejected by Parliament as being inappropriate.
Memorandum submitted by Law Centre NI
About Law Centre (NI)
Law Centre (NI) is a public interest law non-governmental
organisation. We work to promote social justice and provide specialist
legal services to advice organisations and disadvantaged individuals
through our advice line and our casework services from our two
regional offices in Northern Ireland. It provides a specialist
legal service (advice, representation, training, information and
policy comment) in five areas of law: social security, mental
health, immigration, community care and employment. Law Centre
services are provided to over 450 member agencies in Northern
Ireland. In this paper we outline the significant human rights
issues likely to be presented by implementation of the draft Bill,
drawing attention to the Northern Ireland specific issues.
The Northern Ireland Context
The White Paper acknowledges that while the Government
will continue to work closely with the devolved administration
in Northern Ireland to seek to maintain a single system of social
security across the UK, the Northern Ireland Executive will consider
the most appropriate arrangements for Northern Ireland. This
is important because Northern Ireland presents particular circumstances
with regards to welfare and arrangements to move people into employment.
Below we highlight the human rights concerns of this Bill for
Northern Ireland.
Lone Parents
We are very concerned by the proposals within the
Bill to require lone parents with children aged under seven years
of age to actively seek work as a condition of JSA. While we
support a policy of positively encouraging lone parent into paid
work at an appropriate time, efforts to move lone parents back
to work should be through measures tailored to support and encourage
lone parents rather than through sanctions.
The Government's current welfare reform proposals
to move lone parents and others into work depend on the availability
of childcare to allow parents to take paid work. Recent research
on childcare provision found that childcare provision in Northern
Ireland remains "woefully inadequate."[169]
Gingerbread (NI) estimate that 30,000 extra childcare places
would have to be provided in Northern Ireland to support delivery
of the UK government's target to have 70% of lone parents in employment
by 2010.[170] Yet
between 2002 and 2007 the overall number of daycare places in
Northern Ireland fell by 1 percent.[171]
In England and Wales greater strides have been made
towards developing comprehensive wraparound child care than in
Northern Ireland. Northern Ireland local government structures
are very different from those in the rest of the UK, particularly
in terms of service support and delivery. Local authorities are
under no obligation to assess and meet local childcare needs as
required by the Childcare Act 2006 in England and Wales.
The childcare infrastructure in Northern Ireland
required to underpin these proposal is not in place, nor is there
a lead Department responsible for developing this. Moreover,
with rising unemployment the current economic climate may make
it difficult for lone parents to secure jobs that allow them to
combine their work and family life. There are also concerns about
the potential impact on child poverty if lone parents are exposed
to the risk of benefit sanctions. This raises real concerns that
implementing the Bill as it stands in Northern Ireland will lead
to a potential negative impact on family life and possible discrimination
against women, who as the majority of lone parents will be most
affected by a lack of adequate childcare. This may potentially
engage Article 14 in conjunction with Article 8 and Article 1
Protocol 1 of the ECHR. The Government should also consider
its obligations under Articles 2(d) and (f) and Article 11(e)
of the Convention on the Elimination of All Forms of Discrimination
against Women.
Any UK wide welfare reform must take into account
the differing standards and level of investment in childcare across
the UK. To combat this inequality we would urge for improved
investment in childcare provision in Northern Ireland as part
of the wider welfare reforms.
Sanctions
Research highlights considerable problems with the
use of sanctions.[172]
An increased use in sanctions is likely to have substantial adverse
implications for claimants and their dependants. We are particularly
concerned about work-related requirements placing an onerous burden
on people with mental health issues which may exacerbate their
health issues. The increased use of benefit sanctions may raise
issues in relation to an individual's right to respect for their
private life, and peaceful enjoyment of their possessions without
discrimination thereby engaging Article 8 in conjunction with
Article 14 and Article 1 Protocol 1 of the ECHR.
The government recognises that job offers 'may be
more limited' for disabled people and people with health conditions.[173]
Given this acknowledgement it seems inherently unfair that disabled
people will be subject to the same conditionality principles.
We oppose increased sanctions in all instances; however, we particularly
oppose sanctions against disabled individuals while there is no
parity in terms of job offers for disabled/non disabled claimants.
Direct Payments
The Bill provides many welcome moves to assist more
people with disabilities into employment and as such it has the
potential to better promote the human rights of people with disabilities.
The UN Convention on the Rights of Persons with Disabilities
provides that State Parties will recognise the rights of persons
with disabilities to work, on an equal basis with others and Article
27 states that State Parties will 'safeguard and promote the realisation
of the right to work.'
Despite the success of Access to Work, disabled people
still face substantial barriers to employment. Statistics compiled
by Disability Action in Northern Ireland show that only 32% of
people with disabilities are in employment compared to 79% of
those without disabilities.[174]
Mencap have expressed concern that the proposed reforms do not
go far enough to provide 'appropriate specialist support for people
with a learning disability' and without the ongoing funding this
requires, people with a learning disability will continue to be
the disabled group most excluded from the work force,[175]
once again raising issues of compatibility with Article 14 when
considered together with Article 1, Protocol 1. The Government
should also consider Article 6 of the International Covenant on
Economic, Social and Cultural Rights and the steps that should
be taken by State Parties to ensure the full realisation of the
right to work.
Joint Registration
The legislative approach set out in the Bill as regards
to joint registration provides a good balance between rights and
protection. While the recognition of parental rights and responsibilities
is important, equally important is the awareness that in some
circumstances it is not appropriate to recognise a child's father
in order to protect the child and mother from potential harm.
Northern Ireland has the highest percentage of sole registration
in the United Kingdom, at around 9 per cent, compared to around
7 per cent in England and Wales and around 6 per cent in Scotland.[176]
We share the JCHR's concerns that many of the provisions
relating to joint registration are to be in secondary legislation
therefore, our ability to comment on potential compatibility issues
is somewhat limited.[177]
Secondary legislation will need to ensure that given the delicate
nature of many of the exemption criteria, considerable care is
taken to ensure that no further distress is caused to the mother
or alleged father during the registration process. Careful consideration
needs to be given to how exemptions are applied and the appropriate
burden of proof to be discharged in order to obtain an exemption
from registration.
The potential impact on the courts of an increased
involvement in paternity or parental disputes and the costs associated
with cases of this nature needs to be considered. The individual's
right to a fair hearing will need to be protected and the questions
arises of whether legal aid will be available to participants
in court cases regarding joint birth registration as this could
have possible implication in regards to Convention rights. The
potential implications of an inability to defend or challenge
a joint registration could also potentially engage Article 8 and
Article 1, Protocol 1 rights.
Law Centre (NI) welcomes the opportunity to provide
evidence to the Committee. We trust you will find our comments
helpful. If there is any further way in which we could contribute
to this process we would welcome the opportunity to do so.
Memorandum submitted by Maternity Action
Summary
Where a mother has reason to fear for her safety
or that of the child if the father were to acquire parental responsibility,
the father should be required to apply for parental responsibility
through the court system.
About Maternity Action
Maternity Action is a national voluntary organisation
working to end inequality and promote the health and wellbeing
of all pregnant women, new mothers and their families from before
conception to the child's early years.
Birth registration
The Welfare Reform Bill ('the Bill') creates new
processes for registering fathers on children's birth certificates
which are likely to result in increased numbers of unmarried fathers
being registered on their children's birth certificates. Registering
the father on a child's birth certificate enables the child to
know the identity of both parents and facilitates contact with
a separated parent, where this is in the child's best interest.
This is consistent with Article 7 and Article 9 of the United
Nations Convention on the Rights of the Child (UNCRC).
The Bill does not effectively address the risks to
the mother and child of an abusive father. The Bill provides
all fathers with parental responsibility on registration as the
child's father. This includes fathers who are abusive. A mother
is entitled to seek an order to remove or restrict the father's
exercise of parental responsibility under Section 8 of the Children's
Act 1989. This requires a woman who has newly given birth to
pursue legal action. This is an unreasonable burden to place
on a woman at this time, and also creates a window in which an
abusive father may exercise parental responsibility to the detriment
of the mother and child.
Where a child has an abusive father, there are significant
risks to mother and child. To minimise these risks, the courts
should consider the question of parental responsibility before
parental responsibility is granted, rather than afterwards.
Maternity Action recommends that where a mother has
reason to fear for her safety or that of the child if the father
were to acquire parental responsibility, that the father be required
to apply for parental responsibility through the court system.
March 2009
Memorandum submitted by Mind
Key points
- Mental health has a significant
impact on welfare reform and benefits. Around 40 per cent of Incapacity
Benefit (IB), to be replaced by Employment and Support Allowance
(ESA), claimants have a primary diagnosis of a mental health problem
and, if secondary mental health diagnoses are taken into account,
the proportion increases beyond 50 per cent of the caseload.[178]
- Training and competency of employment advisors:
The complexities of mental health need to be understood, and taken
into account, by employment advisors and other relevant staff.
It is unfair and unrealistic to expect employment advisors to
be able to offer real and useful assistance to people with mental
health problems if they have not received appropriate training
themselves.
- Compulsion and sanctions:
The welfare to work agenda must not result in advisors and staff
being given disproportionate and unchecked power over individuals.
While these issues are important to anyone claiming benefits,
the potential detriment to people in mental distress is a source
of great concern.
Introduction
Over 200,000 people with mental health problems flow
onto incapacity benefits each year - this figure has not changed
in the last decade.[179]
The Government's welfare reform programme has the potential to
be of substantial benefit to people with mental health problems
and transform lives. But unless this latest programme is carried
out with adequate resources and with a proper understanding of
the barriers to employment that people with mental health problems
face, its effectiveness may be limited. In some cases it may
even have the potential to do harm.
The Welfare Reform Bill and the measures it contains
are intended by the Government to realise its aspiration of an
80 per cent employment rate for people of working age. The Government
has stated that its intention is a system where everyone has personalised
support and conditions to help them get back to work, underpinned
by a simpler benefits system and genuine choice and control for
disabled people.
Since the Government published their proposals for
consultation in July 2008 the economic climate has worsened. In
the last recession, many people with mental health problems were
written off as unemployable when they lost their jobs. Another
recession will undoubtedly put pressure on the Government's initiatives
to support people in finding and holding on to jobs.
Mind fully supports the Government's aims for the
Welfare Reform Bill to achieve a socially inclusive society with
opportunity for all. However, a number of the measures proposed
seem to be at odds with this principle. Mind has consistently
disagreed with the notion of deducting from, or restricting, welfare
benefits in an attempt to promote certain types of behaviour in
claimants. Benefits are set at a rate deemed sufficient for a
claimant to live on, taking into account their personal circumstances.
There can be no justification to reduce income levels below what
the Government has already decided is the minimum living income.
Claimants have a right to the full applicable amounts of benefits
they are eligible for. Mind believes it is wholly inappropriate
to erode this right and that, to do so, potentially infringes
on a person's right to be free from inhumane or degrading treatment.
The disproportionate nature of the sanctions which
are provided for in this legislation cause concern in terms of
the Government's human rights compliance. Taking away a person's
income, as punishment for minor offences such as failing to attend
a meeting, impacts directly on their right to privacy, liberty,
a family and, potentially, life. Mind believes that this Bill
has insufficient safeguards to protect the human rights of benefits
claimants.
Mind welcomes the introduction of personalised support.
People with fluctuating mental health problems require tailored
and flexible support for their needs, and this is often unavailable.
However, linking personalised support to increasing conditionality
and sanctions is likely to be ineffective in enabling people to
take steps towards employment at the most appropriate time and
pace for them. In the worst cases it risks pushing people into
unsuitable and potentially harmful situations.
Mind supports the Government's objective of supporting
people who are in a position to do so to move into employment,
but it is difficult to welcome without reservation a Bill which
leaves many of the details of the proposed reforms to be set out
in as yet unpublished regulations. Draft regulations for the key
proposals outlined in the Welfare Reform Bill 2006 were published
in time for the Committee Stage debate and Mind would urge the
Government to do the same again. Without seeing the regulations
in full Parliamentarians cannot be expected to know what the full
human rights implications of the legislation are.
This submission draws on wide consultation with Mind's
networks and all quotes included in the briefing are taken from
people with direct experience of mental distress.
Training and competency of employment advisors
The Bill will give greater flexibility and greater
powers to JobCentre Plus Personal Advisers, to tailor the support
they offer to individual's needs and circumstances. Mind is concerned
that staff who will be responsible for supporting people into
work are insufficiently trained on mental health issues. The Bill
has no proposals to increase training to support staff who will
have to make important decisions.
This Bill allows advisors to remove benefits for
people, without trial or due process. It is imperative that anyone
invested with such power is also trained to the highest possible
standard. The powers that employment advisors will have, for
instance the ability to seek access to claimants' medical records,
potentially infringe on the claimants' right to privacy.
"Advisors, employers and work colleagues
still lack understanding of mental health issues - stigma is alive
and kicking. Just because my disability is not visible it's just
assumed I was work shy."
"A lot of people including employers do
not understand about mental illness and would not be able to deal
with an employee who suffers mental health issues."
Compulsion and sanctions
The Bill will allow Personal Advisers to decide the
appropriate activity a claimant should undertake. It is wholly
inappropriate for this power to be used to require a claimant
to access healthcare provision, take medication and/or access
psychological therapies. To do so would blur the boundaries between
health provision and social control. It is a general principle
of law that people with capacity to make decisions about medical
treatment should not be subject to compulsion, and, where this
is permitted, these powers are subject to stringent safeguards
(notably, within mental health and mental capacity legislation).
There are also worrying implications for the Government in terms
of compliance with human rights legislation as people's rights
to liberty and privacy would be severely infringed by such measures.
The Government's use of draconian sanctions for people
who fail to comply with work related directions are clearly disproportionate.
People will be punished severely, by having their income blocked
for arbitrary periods of time, for minor infractions.
The Government had made a commitment that a clear
and comprehensive set of safeguards would be built in to ensure
claimants are not required to undertake inappropriate activities.
Yet the White Paper describes what can constitute work-related
activity and it can include any activities a person undertakes
to manage their health for work, for example, condition management
programmes, drug and alcohol rehabilitation, 'Progress to Work'
for drug misusers, or therapy or physiotherapy for a common health
condition.
Claimants are to be sanctioned one week's benefit
if they are cautioned about an offence involving violence or harassment
towards a DWP employee through Clause 20. There needs to be adequate
safeguards to prevent this being misapplied through potentially
broad interpretations. It is extremely worrying that people will
have their benefits reduced without due process. This clearly
infringes a person's right to a fair trial.
In 2007 the DWP launched a pilot to test the effectiveness
of Voice Risk Analysis (VRA) technology in detecting benefit claimants
who might be subject to a more through assessment of their claim.
When a person calls to make a benefit claim VRA monitors a person's
voice during the call. A baseline tone is established and any
deviation from that as the call progresses is taken to indicate
that the caller might in some way be suspect. Mind raised concerns
about this as people with mental health problems will often be
anxious and even more so when in contact with their local authority
or JCP, so their tone may fluctuate in a way that might be assessed
as being suspicious. Mind argued that the DWP had a duty to carry
out a disability impact assessment of the proposals being piloted
but this never happened.
Memorandum submitted by RADAR
RADAR is a pan-disability network led by people experiencing
ill-health, injury or disability (IID). Many of our members
are directly affected by this Bill.
We have significant concerns over the 'work for your
benefit' pilot proposals in Clause 1 of the Bill which engage
a range of human rights including the right to be free from forced
labour and the right to family life. These proposals will affect
growing numbers of disabled people as the gateway to ESA is artificially
tightened and given that the Flexible New Deal (which precedes
the new 'work for your benefit' stage) has not been designed in
such a way as to maximise positive employment outcomes for those
furthest from the labour market. Dragooning people into work
they have not freely chosen on less than the minimum wage with
no guarantee of respect for their particular circumstances is
unlikely to contribute anything their future employability and
will inevitably risk human rights violations. To guard against
this Clause 1 and regulations made under it must ensure disabled
people have :-
- a choice of what work they
do,
- a guarantee of tailored support
- a guarantee that the number of hours people are
'required' to work will reflect how many they can manage (in relation
to their impairment) and how many hours are just and fair (no
one should be forced to work for prolonged periods on less than
the minimum wage)
- a guarantee that such schemes will provide real
progression towards sustainable employment.
We regret that the Bill includes proposals to enable
personal advisers to direct Employment and Support Allowance claimants
to undertake specific work-related activity if they deem claimants'
choices to be ineffective. Whilst we agree with the expectation
that disabled people, like other citizens, should undertake work-related
activity we want to see the maximum level of control possible
in that activity - not least because evidence suggests motivation
is one of the key indicators of success in job seeking, Unsurprisingly,
if you pursue work-related activity that interests you you are
more likely to persevere and succeed than if you are pushed towards
activity against your wishes. We also believe there are unacceptable
risks to human rights in this policy which confers too much power,
inappropriately on personal advisers. We can quite easily envisage
people with conditions such as RSI or Chronic Fatigue Syndrome
being forced to do things which would actually exacerbate their
condition.
In relation to the right to control and direct payments,
the regulatory provisions in Part 2 are a missed opportunity to
create a seamless system of public service supported rooted in
the protection and promotion of human rights. Rather than an
integrated system of individual budgets and self-directed support,
Part 2 provides for a circumscribed right to require the authorities
to give you a direct payment with no 'right to control' should
you opt to continue with direct service provision. Part 2 also
fails to mandate alignment of key funding streams including social
care and so risks continuing the fragmented approach to meeting
disabled people's independent living requirements.
In relation to direct payments, RADAR believes domiciliary
care agencies should be explicitly brought under the HRA to minimise
the risk of abuse in such situations and ensure that support workers
are trained to support disabled people's dignity, equality and
autonomy. There are too many examples of people receiving substandard
support. Similarly we would advocate other agencies acting in
lieu of the state - including welfare to work providers having
human rights obligations. We would urge JCHR to press for a Claimants
Charter safeguarding claimant's human rights against which welfare
providers could be held to account. This has been proposed by
the Disability Alliance, Gingerbread and others and we strongly
commend it.
A general point we would highlight is that while
the rhetoric around the Bill promises more support in exchange
for more responsibility (disabled people are quite happy with
that if we see the support ), the Bill itself is largely one sided:
more conditionality (much of it ill thought through) and no new
support. The increase in the Access to Work budget is of course
helpful but that vital programme is discretionary: there is no
right to it. We would have liked an approach that breaks down
barriers to work and gives disabled people clear rights to the
support they may need to build skills and build a real career.
Memorandum submitted by the Royal College of Psychiatrists
The College welcomes the opportunity to make a submission
to the Joint Committee on Human Rights on the Welfare Reform Bill.
Introduction
The changes to the welfare benefits system introduced
in the 2007 Act and extended in the current Bill have a direct
impact on people with mental health problems and learning disabilities
(referred to generally throughout as people with a mental disability)
who will be required to attend work focused interviews and undertake
work related activities. Some may be considered fit for work and
come within 'work for benefit' schemes and learning disabilities.
The College broadly welcomes some aspects of the
Bill but has concerns about the aspects of the conditionality
regime. The provisions appear to be designed for the 'work shy'
but apply also to those who are not work shy but who have significant
difficulties in entering the labour market.
Like other disabled people, people who have had mental
illness or who continue to have episodic periods of illness (often
called fluctuating conditions) generally are keen to enter the
paid workforce. They remain some of those most subject to poverty
and social inclusion and stand to gain from the benefits of paid
work whether on a full or part time basis. Carefully planned a
gradual entry to work can have beneficial effects on a person's
recovery and on their general wellbeing. Some who have recovered
wish merely to restart their life. However the obstacles to employment
are considerable. Employers' prejudice or lack of knowledge about
the aetiology of mental ill health and the failure of Access to
Work to be used effectively for this group are all widely recognised
as key contributors to their lack of employment opportunities.
People with learning disabilities face similar challenges are
as well generally keen to work but need support to do so.
Existing evidence of people coming off incapacity
benefit in the pilot areas (Blyth, 2006) has showed an increased
likelihood of being employed for people with physical health problems,
but not those with mental health problems (Adam et al 2006; Bewley
et al, 2007). A recent report (Dorsett, 2008) gave further indication
of the difficulty experienced by people with mental health problems:
'Customers with mental health problems seemed
particularly hard to help and some advisers mentioned feeling
out of their depth when dealing with such individuals. Perhaps
reflecting this, the impact analysis does not find any evidence
of a Pathways effect for those with mental health problems. Given
the prevalence of mental illness among the Pathways population,
identifying ways of better supporting those with such a health
condition would seem an important priority'. (page 18).
Specific issues:
- Whether changes to require
ESA claimants to undertake specific work-related activities will
be administered, without discrimination, and in a way which is
compatible with the right to respect for private and family life
and property rights (Article 8, Article 1, Protocol 1 and Article
14 ECHR);
The Welfare Reform Bill intensifies the conditionality
regime by providing for ESA claimants, to undertake mandatory
specific work related activities, with a possible sanction of
loss of some benefit if he or she fails without good cause to
comply. The College has particular concerns about the extent of
work related activities and the adequacy of safeguards for their
use.
In the Bill WRA are defined broadly as 'activity,
which makes it more likely that the person will obtain or remain
in work or be able to do so'. However, the Welfare Reform White
Paper sets out what it may involve:
'Any activities a person undertakes to:
- Stabilise their own or their
family's situation, for example, assessing childcare options,
activities to stabilise health conditions, seeing a debt adviser
about stabilising their financial situation and looking at options
for improving their housing situation, or joining a Children's
Centre;
- Manage their health for work, for example, condition
management programmes, drug and alcohol rehabilitation, 'Progress
to Work' for drug misusers, or therapy or physiotherapy for a
common health condition'.
These sweeping powers cover a wide range of activities
- exceeding those that are directly related to a specific type
of employment rather than wider employability. There is no built
in requirement that the activities required are proportionate
to the objective of finding work although a direction must be
'reasonable, having regard to a person's circumstances '(clause
8(2)(a). Furthermore there is no national programme of training
and no national competency standards to ensure that personal advisers
have the requisite skills to be making the judgments over a range
of non employment activities that are envisaged.
Health related activities: Mandated activities might
extend to therapy programmes, to medication regimes, or to other
activities such as exercise or weight management. The Explanatory
Memorandum states that specific work related activity for ESA
claimants under Clause 8 will not extend to medical treatment
but there is no such restriction in the Bill.
Such decisions are matters that should be decided
between a person and his or her clinician or other expert advisor.
Not only does the personal adviser lack appropriate training to
be making healthcare related judgments but also their right to
coerce people into therapy and other treatments is inappropriate
and non-therapeutic. While the College has no objection to health
related matters being included in a voluntary action plan the
existence of a direction and a sanction changes the entire complexion
of the issue. There is no protection in the Bill against these
powers being exercised in a way that could breach Article 8 rights
to private and family life by being a disproportionate interference
with them.
General comments on the conditionality regime as
it applies to people with mental disability. Other problems that
are likely to have human rights implications stem from the failure
to recognise the actual situation people, particularly those with
fluctuating conditions and those with learning disabilities, may
face. Failure to take part in a work activity could be health
related if an illness has recurred or relate to lack of effective
communication. A loss of benefits engages Protocol 1 Article 1
rights. It is a particularly severe penalty for people with the
double disadvantage of being in poverty and vulnerable to stress.
There is no provision in the Bill that requires the
consent or agreement of the claimant to the action plan, or even
that his or her views are to be taken into account, although of
course the government intends that the system should operate cooperatively.
The White Paper makes the point that the system will not work
without the claimant's active cooperation. However this ignores
the reality that will occur on the ground with busy advisers,
vulnerable claimants and the 'big stick' of a sanction. While
under Clause 2E, regulations may make provision for the claimant
to request a reconsideration of the action plan there is no indication
in the Bill on what basis this will be provided. Nor is there
a requirement in the Bill for people to be notified clearly at
the time of their claim or of their interview of the consequences
that may follow their failure to comply with any requirement imposed
on them.
The good cause defence: While the claimant under
different provisions of the Bill has a defence for their non-compliance
if they have 'good cause ' there are several things wrong with
this.
- First the Bill does not define
what constitutes a good cause and we can only trust that Regulations
will include health related reasons and a lack of effective communication.
A statutory definition of good cause that was not exhaustive but
gave instances like those in current Regulations would give greater
protection and overcome any human rights deficiencies.
- Secondly even if these matters are covered they
need to be stated with enough specificity so that staff will be
clear when sanctions should not apply. Also claimants need to
know clearly in advance the consequences of their failure to attend
so that they can regulate their conduct accordingly. In human
rights terms this is encompassed in the requirement of legality.
- Thirdly, and most damaging, the required process
for providing a defence is to submit a written defence within
5 days. This is both inadequate in terms of timeframe and inappropriate.
A person who, for instance, has a recurrent period of depression
or schizophrenia will be most unlikely, without help of family
or friends to submit a defence in writing within 5 days, if indeed
they are able to compose a written defence at all. Depression
is characterised by loss of the ability to concentrate, loss of
motivation, increased sense of hopelessness and lack of self worth,
a psychotic episode brings about a distorted perception of reality.
Yet it appears that a sanction will follow from their failure
to provide this written response. No requirement to contact the
person and no requirement to attempt a face-to-face meeting is
entailed.
Whether the proposals in the Bill which would introduce
conditionality for benefits claimants who are, or may be, dependant
on controlled drugs or alcohol, are compatible with the right
to respect for private and family life, property rights and the
right to enjoy those rights without discrimination.
The most extreme operation of conditionality appears
in the provisions covering claimants who are or may be dependent
on drugs or alcohol. The College faculty of Addictions has expressed
considerable disquiet at the conditionality provisions while welcoming
the attempt to assist drug users with their addiction. The issues
affecting people with addictions and mental disorder are complex
and difficult. We fear that sanctions will not improve treatment
compliance or the chances that people will obtain and remain in
work. On the contrary, they may drive people deeper into poverty
and marginalization. Being coercive in nature the provisions have
the potential to undermine the therapeutic relationship between
clinician and client.
The extensive powers are very broadly framed, unduly
invasive and thus constitute a significant interference with a
person's private and family life. They empower Job Centre Plus
staff to identify claimants who are 'dependent on or have a propensity
to misuse any drug'. The Bill is unacceptably broad in this respect.
There will be requirements to answer questions about drug use
and treatment, undergo an assessment and a power to require someone
to undergo a drug test.
We agree with Drugscope:
"Drug testing should not be introduced into
the benefit system. It is an invasive procedure. A drug test can
only reveal that a particular substance is present in somebody's
body at a particular time. This means, for example, that test
results can be identical for someone with a serious crack cocaine
dependency and for a first time participant.
As currently drafted a benefit claimant with
a relevant drug problem could be required by the Secretary of
State to attend and abide by the rules of a residential drug service.
It is important that expectations of the treatment system are
realistic. Research has established that recovery journeys out
of long-term drug dependency can take many years. Often drug users
have complex needs, including mental health problems and homelessness.
Drug users must not be compelled into unsuitable
or inappropriate services - for example, it is important that
someone cannot be required to attend a service that they do not
feel is appropriate given their age, gender, ethnicity, culture,
religion, sexuality and/or disability status" (Second Reading
Briefing, Welfare Reform Bill 2009)
We consider that the powers in relation to drugs
are excessive and should be curtailed in order to provide a reasonable
balance between the rights of claimants and their responsibilities.
Memorandum submitted by Tcell
We are a group representing the HIV community as
it has and continues to experience the Welfare State and benefits
in the UK. Initially concerned with current benefits such as Disability
Living Allowance. We want to ensure equitable and fair access
and consideration with respect to the Employment and Support Allowances.
Points we raise.
- "Whether changes to require
ESA claimants to undertake specific work-related activities will
be administered, without discrimination, and in a way which is
compatible with the right to respect for private and family life
and property rights (Article 8, Article 1, Protocol 1 and Article
14 ECHR)
- Whether powers in the Bill to contract out functions
of the Secretary of State or others, and provision for direct
payments, will provide adequate protection for individuals who
might seek redress for breaches of their Convention rights under
the HRA 1998"
HIV remains one of the most stigmatised conditions.
Fear of diagnosis and the reaction thereafter, from others, being
a major issue.
Often HIV can be coupled with other discriminating
factors such as colour, race, culture, religious, gender &
sexual orientation.
This raises issues relating to confidentiality and
fair treatment especially where information could be passed to
a third party.
Decision's made by the State, especially with regard
to Welfare Benefits, largely go unchallenged. The public nature
of HIV disclosure to engage in any appeal equates to many being
unable to seek full redress to decisions that a non-HIV person
would not face.
We know from our past experience of the DWP and Disability
Living Allowance reviews. That decision can be inconsistent. The
DWP passes on HIV status to GP's where claimant has expressly
withheld consent. Those medical assessments are made by sufficiently
inexperienced Medical Practitioners working for the DWP.
Mental Health issues are given little to no consideration.
The stress of dealing with the State can exacerbate
illness.
That there is no protection for the fluctuating nature
of an illness such as HIV.
Access to remedy by the use of the Disability Discrimination
Act or Employment Tribunal is rarely taken, again for fear of
exposure & stigma.
- "Whether the proposals
in the Bill which would introduce conditionality for benefits
claimants who are, or may be, dependant on controlled drugs or
alcohol, are compatible with the right to respect for private
and family life, property rights and the right to enjoy those
rights without discrimination"
Within the Bill is mentions drug dependency. However
in many cases with HIV control of side effects of either the illness
itself or Antiretroviral therapies can lead to the use of pain
relief such as opiate based medications. Not limited to just those
with HIV but other disabilities the Bill doesn't consider this.
Opiate use is in terms of addiction rather than medically necessary.
Introduction.
ThCell is a voluntary group that started as a result
of the Special Rules Review of the Disability Living Allowance
and its affects on the HIV community within the UK.
This is achieved largely via the Internet allowing
people to share their experiences. Lobbying by the group to Parliament
and other bodies. Campaigning for better understanding of HIV
and reducing stigma. To ensure that processes consider the needs
of the HIV individual in ensuring equitable treatment in all aspects.
The group members campaign on issues that personally
affect them.
Factual Information.
The website www.tcell.org.uk and its benefit section
contains all the reference materials as well as the personal experience
of others.
We get approximately 1500 hits a month.
Consideration also needs to be given to the Criminalisation
of HIV as it may impact further on the stigma of having &
living with HIV.
Recommendations.
1. Sometimes the open nature of government and the
legal process suffices for the majority but such openness can
oppress minorities thus denying them the execution of their rights
through stigma. In insuring compliance consideration needs to
be given to the most vulnerable, typically these minorities. In
the case of HIV/AID's this openness disallows, in many cases,
suffers from exploring appeal and legal redress for fear of exposure.
2. Any process of redress or appeal should protect
the individuals HIV status, as confidential, especially where
such information may become public. To ensure those with HIV &
their families can access redress without fear. To comply with
Article 5 and Article 8.
3. That any referral of a person with HIV to a 3rd
party employed by the State in delivery of its goals and the subsequent
transfer of key data including HIV status is undertaken only with
the full consent of the individual concerned.
4. The disclosure of HIV, say to a potential employer,
is subject to the full consent of the individual affected. That
measures are in place to ensure this confidentiality. That the
State & any agency it employs fully understands and is trained
in this respect. That process for redress of non-consensual disclosure
doesn't itself risk public exposure.
5. That process is not unduly complex or protracted
given the impact to mental and physical health potentially arising
from anxiety and undue stress, potentially a breach of Article
3.
6. Training is regular in HIV & co-morbities
- especially for public facing staff.
7. Article 8 extends to not only the right of the
individual but of the individuals family and loved ones. That
the stigma of HIV needs to be considered not only as affecting
the HIV person but tarnishes those close to them like family.
That the action taken by the state or any third party needs to
reflect, in the execution of its process, the rights of associated
people. This potentially giving rise to breach of Article 5 and
the right to liberty and security.
8. Proper monitoring and scrutiny of HIV/AIDS benefit
applications to ensure they have been processed correctly and
not merely a reliance on an equal oppourtunity policy as part
of a poorly "policed' employment contract.
Memorandum submitted by Nigel Wheatley, Senior
Welfare Rights Adviser, Wolverhampton City Council
I would like to submit the following concerns about
the human rights implications of the implementation of ESA (Employment
Support Allowance) and specifically on the effects of the conditionality
and work related activity & condition management provisions
in ESA on people with a severe and enduring mental illness who
are living outside of hospital.
I am responsible for supervision of the benefits
advice and casework in Wolverhampton to adult mental health services.
We have 5 CMHTs (Community Mental Health Teams) which are jointly
commissioned teams between Social Services and NHS. They provide
care management, assessment and treatment at secondary care level
after referral from GP (primary care). The criteria for referral
are strictly that a person must have a severe and enduring mental
illness. Each CMHT includes CPNs (community psychiatric nurses),
ASW (Approved Social Workers, licensed under mental health act)
- recently now re-titled as AMPs, Consultant Psychiatrists, Occupational
Therapists and support workers.
As a result of the introduction of ESA (October 2008),
I have held a series of updating briefings with staff at these
mental health teams, and the comments from health professionals
in these teams forms the basis for this submission.
The main point is that we think that, for people
with a severe & enduring mental illness, the conditionality
and work related activity provisions in ESA are incompatible with
many of the provisions within the Mental Health Act, and within
the mandatory Department of Health's CPA (Care Programme Approach),
for compliance with treatment plans, the vital role of care co-ordination
and supervision.
My discussions with our Consultant Psychiatrists
indicate that the mortality rate for people with a severe mental
illness is between 10% and 15% - my apologies but at short notice
given I can't quote exact sources for the committee. By severe
mental illness I include people with repeat acute episodes of
Schizophrenia, Bi-Polar Mood Disorders (manic depression), Severe
(Unipolar) Depression and Anorexia Nervosa. Anything which conflicts
with or prevents full compliance with care & treatment plans
or adds stress & risk must therefore be potentially life threatening
for this vulnerable group.
By my reading of the ESA regulations many of our
service users who have a severe and enduring mental illness will
be put in the untenable position of
"either I do what
the Jobcentre adviser tells me and keep my benefit or I do what
my consultant psychiatrist tells me and risk losing benefit".
It is arguable that the ESA regulations conflict
with human rights, particularly Article 2 the right to life -
and the psychiatric treatment & support necessary to preserve
life; Article 8 respect for private life - especially interference
the area of appropriate medical & psychiatric treatment &
support; Protocol 1 the protection of property, ie benefits entitlement
earned via national insurance contributions as an incapacity for
work benefit being denied or penalised because of non-compliance
with conditions that the claimant cannot comply with due to the
symptoms of their illness or disability.
In the previous Incapacity Benefit regulations there
existed a series of exempt groups which included that of severe
mental illness. Provided the correct information was gathered
from the GP (not always the case so that many service users fell
through this safety net), there was no further obligations or
interference on those with severe mental illness. One of the major
changes that ESA will bring is that it will for the first time
involve a vulnerable group of severely mentally ill people in
compulsion and attendance at Jobcentres with staff who have no
access to background knowledge about their condition, history,
severity and risks associated - nor to reasons why they might
not attend or respond appropriately. Knowledge of factors such
as symptoms of severe mental illness, especially those preventing
people form going outdoors, being in strange places, meeting strangers,
concentrating and remembering content of conversations when subject
to voice hearing or intrusive or paranoid thoughts - and crucially
awareness that lack of insight means that many service users
will not admit or acknowledge the severity of illness.
In my experience DWP/JobCentrePlus policy makers
routinely fail to appreciate both the numbers and the severity
of illness of those people with severe & enduring mental illness
who are living (mostly) in the community with support from CMHTs
(community mental health teams). This support includes short term
hospital admissions, or intensive home treatment, in acute crises
as well as the usual home care & support from CPNs and social
care staff in more stable periods - but always under the overall
responsibility of a Consultant Psychiatrist (RMO - responsible
medical officer). For instance in Wolverhampton we have approx
2,800 registered service users with our mental health teams but
only 75 are in residential care homes plus 44 acute short/medium
stay beds in our psychiatric hospital. Within the 2,800 there
are approx 130 who are registered with the forensic psychiatric
service which takes on people who are referred via court diversion,
or under probation orders and those subject to Home Office supervision
& restriction orders under the Mental Health Act.
All of those referred to adult mental health services
from their GP (primary care) have to meet the criteria of severe
enduring mental illness and have a care coordinator & care
plan & clinical risk assessment under CPA (Dept of Health's
mandatory guidelines).
In developing ESA's work related conditionality,
for people with severe mental illness, DWP seems to have little
apparent awareness of potential conflict between the crucial role
of the Care Co-ordinator in the Dept of Health's CPA (Care Programme
Approach) and related Mental Health Act provisions for supervision,
treatment and co-ordination of care management for people living
in the community with severe & enduring mental illness. As
a direct result of, amongst others, the Christopher Clunis enquiry
in the 1990s (which followed the fatal stabbing of a member of
the public by a mental health service user) it was established
that every service user assessed with a severe & enduring
mental illness must have a nominated mental health professional
as care co-ordinator. Usually this will be the ASW (approved social
worker) or CPN, OT or Consultant Psychiatrist in the local area
Community Mental Health team. All activities, treatments and all
professionals involved must be recorded and co-coordinated through
this care co-ordinator and form part of the care plan so that
all issues/risks and contact were known to all professionals involved
- this includes housing/employment/benefits and other non-health
related community support.
The Role of the Care Co-ordinator: The care co-ordinator
will be a mental health professional who will be responsible for
drawing up a Care Plan and a Risk Assessment at regular reviews
with the service user and the consultant psychiatrist and supervising
that care provision & management. Care Plan lists the week's
activities including attendance at Day Services or Day hospital
for therapy or therapeutic activities, specific appointments with
CPNs for depot injections for people who are not reliably self
compliant with medication, regular home visits from support workers
and others. At the same time under ESA, the jobcentre adviser
could be promoting other activities to the claimant unaware of
the existence of the care plan. Compliance with the care plan
is vital to ensure well being
DWP in both Incapacity Benefit and ESA seems incapable
of bringing itself up-to-date with arrangements which have been
in place now for over 15 yrs for community based mental health
services. DWP is still not able to change enquiry forms to ask
the simple question of if you are having treatment or support
for a mental illness do you have a care co-ordinator and/or consultant
psychiatrist -if so what are contact details? It will be very
difficult for our service users to keep up with their care plan
if they are also being pressured, sometimes with compulsion and
threats of benefit reductions, to attend and participate in work-related
activity by JobCentre advisers who have no knowledge of the role
or existence of care co-ordination and CPA.
We already have had instances where the JobCentre
has not been willing to re-schedule appointments for our service
users and where our service users have not felt able to disclose
or explain full extent of mental illness and involvement with
mental health services -which might have changed the Jobcentre's
decision.
Conflict with Psychiatric Treatment under Care
of Consultant Psychiatrist:
Condition management programme offering alternative
treatments such as CBT from unqualified staff without proper co-ordination
with adult mental health services. DWP is potentially now also
involving on a mandatory basis people with severe & enduring
illness with both employment support and Management of Condition
Programmes. In Wolverhampton & the Black Country area we have
a private agency SEETEC, on behalf of JobCentrePlus, aiming to
provide CBT (Cognitive Behavioural Therapy) to ESA claimants without
any apparent consultation or knowledge of that person's background,
risks, history and current treatment with adult mental health
services. The SEETEC treatment is by 'therapists' (in reality
unqualified trainees) who are 'working towards a CBT qualification'
under the supervision of an area manager who is an Occupational
Psychologist (not a Clinical Psychologist). I feel that it is
only a matter of time before a very serious & life threatening
incident is triggered by unqualified, unaware intervention.
Conflict & Duplication with Role of Employment
Support & Vocational Rehabilitation:
The new situation under ESA for people who first
became ill and unable to work after October 2008 will drastically
limit the scope of Permitted Supported Work for those with a severe
and enduring mental illness. This will be at a time when many
Mental Health Trusts are, for the first time, developing proper
employment support services or 'Vocational Rehabilitation' which
involve service users in the wider world as opposed to sheltered
workshops. IPS (Individual Placement & Support) is the current
buzzword. Mental Health employment support workers will find that
most of their service users who are ESA claimants, despite having
a severe and enduring mental illness, will not be able to make
use of the permitted supported work scheme, forcing them to stop
any useful activity after 52 weeks because their continuing severe
mental illness prevents a move into work of 16 hrs or more and
Tax Credits. This raises the legitimate concern that therapeutic
activity (i.e. employment or vocational rehabilitation) which
is medically and clinically prescribed and forms part of that
persons treatment and Care Plan might have to be withdrawn after
52 weeks because of ESA rules whereas it can continue under Incapacity
Benefit rules fo those who first claimed before October 2008.
A justifiable discrimination?
Conflict with Supervised Community Treatment Orders:
The new 2007 Mental Health Act introduces compulsory
treatment orders for the first time to England & Wales (used
in Scotland since 2005). In effect these add further legal compulsion
to the issue of compliance by the service user with the activities
and treatments listed in the Care Plan under Dept of health's
CPA (Care Programme Approach). We should not people in a situation
where their compliance with these orders is threatened by Jobcentres
requiring attendance and participation on programmes under threat
of benefit reductions.
Conflict with the Role of Forensic Psychiatry
& Home Office Supervision Orders under sections 39/41 of Mental
Health Act:
In Wolverhampton the Forensic Psychiatry Service
has capacity for approx 130 places to supervise people in the
community who are either convicted of an offence or have been
subject to a treatment order as an alternative; referrals come
from Magistrates Court Diversion Schemes, Probation Orders but
also the crucial role of supervising on behalf of the Home Office
(Ministry of Justice) former detainees or convicted offenders
under the provisions of the Mental Healht Act. My colleagues who
take on this role tell me that the conditions & restrictions
laid down by the Home Office are often very tight and breach of
conditions will lead to re-arrest. Again the care co-ordinator's
role is crucial and people under these restrictions cannot be
expected or compelled to take part in activities or programmes
which conflict with their treatment plan or Involvement in activities
especially those which might bring into contact with general public
without prior agreement with Home Office.
In order to minimise risk and preserve human rights
of those living with severe and enduring mental illness, I would
suggest the following amendments or remedies to ESA regulations
- All ESA claimants with mental
illness who have a care coordinator under Dept of Health's CPA
(Care Programme) should be exempted for any compulsion under the
work related activity provisions of ESA and exempted from any
benefit deductions for non-compliance/attendance. Alternatively
place this group in the ESA Support Group.
- Place a statutory duty on all Mental Health trusts
(and provide ring fenced funding by diverting otherwise duplicated
funds from ESA advisers budget) to employ or provide a employment
support/vocational rehabilitation service that will help people
to retain jobs or find alternative jobs or training but as an
integrated part of Care Planning & Treatment. Allowing support
to be provided in a coordinated/integrated manner at a non time
limited pace and with reference to person's individual condition
and assessed risks of relapse.
- Amend ESA rules on Permitted Work (which is limited
to 52 weeks only) and Permitted Supported Work to allow all who
have a care co-ordinator under Dept of health's Care Programme
Approach to access Permitted Supported Work (which is not limited
to 52 weeks period)
- Amend the housing benefit regs which currently
penalise those receiving ESA (contribution based) from earning
upto £92 per week under permitted work scheme but which
disregard totally the part-time earnings income from those on
ESA (income based) in the same circumstances.
I welcome your committee's interest in this matter
and hope that the above is helpful.
Apprenticeships, Skills, Children and Learning
Bill
Letter to Ed Balls MP, Secretary of State for
Children, Schools and Families, dated 10 March 2009
The Joint Committee on Human Rights is considering
the compatibility of the Apprenticeships, Skills, Children and
Learning Bill with the requirements of human rights law.
We were grateful to receive from your Department
prior to the Bill's publication a human rights memorandum outlining
the consideration given to the human rights issues raised by the
main policy proposals in the Bill, including explanations of why
the Government believes that any interferences with Convention
rights are justified and proportionate. This memorandum has assisted
us in our scrutiny of the Bill, as in many cases it provided a
more detailed explanation of your department's reasoning than
is contained in the Explanatory Notes which accompany the published
Bill. We will be encouraging other departments to follow your
example as best practice in future.
The Committee welcomes a number of provisions in
the Bill as measures which positively enhance the protection of
human rights in the UK. Its scrutiny of the Bill has however
identified a number of questions to which I would be grateful
for your answers.
(1) Education for detained young offenders
The Committee welcomes the new obligations on Local
Education Authorities in respect of the education of detained
young offenders. However, it wishes to probe further the extent
to which the Bill ensures equal access to special needs provision
for children in detention. In its 2003 inquiry into the UNCRC,
the Committee's predecessor received evidence of a Youth Justice
Board audit indicating that as many as 50% of all young people
in custody would qualify as having special educational needs (SEN),
but that only 1% had formal SEN statements entitling them to special
provision. The Committee found that the position of young offenders
with special educational needs was "of particular concern"
and therefore recommended that the Government legislate to provide
a statutory right, not just to education, but to access special
needs provision equal to that enjoyed by all other children.[180]
The Bill provides that when deciding whether education
or training is suitable to meet the detained child's reasonable
needs, the host LEA must in particular have regard to any special
educational needs or learning difficulties the person may have.[181]
This falls far short, however, of a statutory duty on the host
LEA to ensure that provision is made to meet any recognised special
educational needs that a detained child or young person may have,
or the delivery of all of the special educational provision set
out in the relevant part of any SEN statement which the detained
child or young person has. We note that at Second Reading you
gave your assurance that the Government will take forward this
issue "with great seriousness" and indicated that the
Government will table amendments in Committee to make it clear
that the obligations on local authorities to deal with young people
in custody will be strengthened. To date those amendments have
not been published.
Q1. The Committee would be grateful if you could
give it sight of these proposed amendments at the earliest opportunity,
in draft if possible, to enable it to assess whether they ensure
equal access to special educational provision for this group of
children and young people amongst whom such special needs are
particularly prevalent.
(2) Power to search pupils for alcohol, illegal
drugs and stolen property
The Explanatory Notes to the Bill are correct that
powers to search for and seize alcohol, drugs and stolen property
are in principle capable of being justified interferences with
pupils' human rights, and that there are safeguards contained
in the Bill designed to ensure that the power is used proportionately.
However, neither the Explanatory Notes nor the Departmental memorandum
refer to any evidence demonstrating the necessity for the new
powers to search for and seize alcohol, illegal drugs and stolen
property. Sir Alan Steer's 2005 Report of the Practitioners'
Group on School Behaviour and Discipline recommended that "the
DfES should monitor, evaluate and publish a report on the use
of the new legal power to search pupils without consent for weapons.
In the light of that report, they should review whether the right
to search should be extended in due course to include drugs and
stolen property." The material we have so far seen does
not refer to any such review having been carried out, or any other
evidence of the need to extend the existing power.
Interferences with Convention rights must be shown
by evidence to be necessary. Giving teachers what are effectively
police powers, without the accompanying training in the exercise
of such powers or detailed codes of practice regulating their
exercise, is a significant step which ought not to be taken lightly.[182]
Q2. What evidence exists that there is a pressing
practical problem concerning alcohol, illegal drugs and stolen
property on school premises?
Q3. What evidence is there of the scale of that
problem and of the underlying trend?
Q4. What evidence is there that the current powers
to address the problem are inadequate?
(3) Obligation to record significant incidents
involving use of force by staff on pupils
The Committee welcomes as a positive, human rights
enhancing measure the Bill's new recording and reporting requirements
on the use of force in schools and FE colleges. It notes, however,
that the use of force in schools may need reconsidering more generally
in light of recent developments concerning restraint in child
custody, in particular the Court of Appeal's recent decision that
the use of physical restraint is not permissible for the purposes
of good order and discipline because it violates the child's right
to dignity and physical integrity in Articles 3 and 8 of the ECHR,
interpreted in light of the UN Convention on the Rights of the
Child,[183] the
independent review of the use of restraint in juvenile secure
settings, and the Government's response to that review.
Q5. Does the Government intend to revise its 2007
Guidance on the use of force by staff in schools in light of the
recent developments concerning the use of restraint in juvenile
secure settings?
Q6. If so, how?
Q7. The Committee would be grateful to have early
sight of a draft of such guidance in order to scrutinise it for
human rights compatibility.
(4) UNCRC as strategic framework for Children's
Plans
The Committee notes that in its 2008 Concluding Observations
on the UK, the UN Committee on the Rights of the Child, commenting
on the UK Government's overall strategy for implementing the UNCRC,
welcomed the fact that the UNCRC had been referred to in the Children's
Plan for England, but expressed its continuing concern "that
the Convention is not regularly used as a framework for the development
of strategies throughout the State party and at the lack of an
overarching policy to ensure the full realization of the principles,
values and goals of the Convention."[184]
Our predecessor Committee, in its Report on the Bill which became
the Children Act 2004, was similarly critical of the failure of
that Act to use the UNCRC as the overarching framework of provision
for children in UK law.[185]
Q8. What, if any, would be the Government's objection
to the Bill being amended to require Children's Trust Boards
(a) to have regard to the need to implement the
UNCRC when preparing its Children and Young People's Plan and
(b) to consult with children and young people
in the preparation of their plans, as envisaged by Article 12
of the UNCRC?
Letter from Sarah McCarthy-Fry MP, Parliamentary
Under-secretary of State for Schools and Learners, dated 25 March
2009
Thank you for your letter of 10 March 2009 about
the compatibility of the Apprenticeships, Skills, Children and
Learning Bill with the requirements of human rights law. We have
set out below our answers to the additional questions you posed
and hope these will assist you with your further considerations.
Education of detained young offenders
We are pleased the committee supports the new obligations
we are placing on local education authorities in respect of the
education of young offenders. Amendments were tabled on 11th March
to insert a new Chapter 5A into the Education Act 1996, new section
312A and subsection 328(5)(aa) of that Act. Those amendments
are enclosed with this letter and make further provision for persons
detained in relevant youth accommodation including those with
special educational needs.
We believe that it is essential that education and
training in custody meets the reasonable needs of children and
young people detained there, as far as is practicable within the
custodial environment . However, we are also aware of the need
to consider the practicalities of arranging and delivering highly
specialised and discrete provision for persons in custody, the
majority of whom spend only short periods in custody. Therefore,
we believe our amendments provide a robust and practicable solution
to ensure that the special educational needs of children and young
people in juvenile custody can be appropriately supported.
New section 562C will require Host LEAs (by which
we mean the local education authority in whose area the juvenile
custodial establishment is located) to use its best endeavours
to secure that appropriate special educational provision is made
for those detained person who had a statement of special educational
needs maintained for them prior to their detention in juvenile
custody. Section 562C will also require the authority that was
maintaining the statement to keep a copy of the statement whilst
the person is detained.
New section 562F will make provision for the transfer
of SEN statements and makes provision to ensure the host authority
is aware that an authority was maintaining a statement of special
education needs for the person prior to their detention.
When the person is released, new requirements will
be put on the host LEA to inform the home LEA of the person's
release, or if different, the LEA that was responsible for maintaining
the statement prior to the person's detention. This will help
ensure that the appropriate authorities are aware that the person
has been released so that where necessary, special educational
provision can be made for the person in the community.
In addition, new section 562G will require the host
LEA to notify the person's home LEA on their release if they are
of the opinion that a person in juvenile custody may have special
educational needs (and they do not have a SEN statement). This
will ensure that the home LEA is aware that the person may need
an assessment on their release and will help ensure that information
flows between the home and host LEA.
Amendment 352 amends section 207 of the Education
Act 2002 to enable regulations to be made to allow the host LEA
to recoup the cost of making appropriate special educational provision
for a person from the authority in whose area the person belongs.
This will help ensure that the host local education authority
is able to meet the special educational needs of persons in custody
and is able to recover these costs which are over and above the
core education costs in custody.
We have also tabled amendments (NC19) to ensure that
a child's statement of special educational needs, which was maintained
before the person's detention, is revived and reviewed on their
release from custody. This will put a clear framework in place
for ensuring that a person's special educational needs are picked
up again on their release from custody and should ensure that
young people's needs continue to be addressed when they return
to their home community.
Power to search pupils for alcohol, illegal drugs
and stolen property
You asked what evidence there is that a practical
problem in schools exists.
The items included in this clause - alcohol, controlled
drugs and stolen property - were identified by behaviour expert
Sir Alan Steer as ones that schools would be most likely to need
to search for. This was in Sir Alan's report to the Secretary
of State last July on pupil behaviour issues. It reflected Sir
Alan's own experiences as a serving head teacher and the consultations
that he undertook with other practitioners during the course of
his review. This included the six main teacher professional associations,
local government and governor representatives and other key stakeholders
on the Ministerial Stakeholders' Group on Behaviour and Attendance;
the Practitioners' Group on Behaviour and Attendance; the Secondary
Heads' Reference Group; the Drug and Alcohol Education Advisory
Group and the national drugs co-ordinator for the Association
of Chief Police Officers. The decision not to include a wider
range of items within the clause is also, in large part, due to
considerations regarding article 8 of the European Convention
on Human Rights.
Sir Alan's recommendation reflected a concern expressed
by the former Practitioners' Group on School Behaviour and Discipline,
which he chaired, in their October 2005 report on Learning Behaviour.
The Practitioners' Group particularly highlighted problems of
pupils carrying drugs or stolen property. Since 2005, public
and media concerns have been expressed over issues around alcohol
abuse by some young people. Sir Alan's July 2008 report noted
that "my view, supported by a number of those I have spoken
to during the course of this review, is that alcohol is a particular
problem".
Data from a number of sources suggest that alcohol,
drugs and stolen items are present in schools:
- In 2006/07 there were 400 drug
and alcohol related permanent exclusions (4.6% of the total number
were for this reason) and 210 permanent exclusions for theft (2.4%).
- Of the fixed period exclusions recorded 8,180
(1.9%) were drug and alcohol related and 9,440 (2.2%) were for
theft.
- 9% of 10-17 year olds in the 2006 crime survey
by the Home Office reported stealing something at school in the
preceding 12 months.
- Bullying data from the Longitudinal Survey of
Young People in England tell us that 3% of 13-14 year olds had
been made to hand over money or possessions to bullies in the
previous 12 months, falling to 1% when they reached age 15-16.
- In the MORI Youth Survey 2008 -young people in
mainstream education, 33% of pupils said they had stolen something
in school (an increase from 30% in 2005 and 29% in 2004).
In a survey of 1,500 teachers for the NUT (published
in 2008), 20% of respondents reported witnessing possession of
drugs within their school in the year preceding the survey and
over 20% reported witnessing possession of an offensive weapon
over the previous year ('offensive weapon' is not defined).
You also asked to what extent the existing powers
are insufficient.
There is no existing power to search pupils without
consent for any of these items. The obligation of schools to
exercise a duty of care towards pupils and staff implies a need
for such a power.
We have anecdotal evidence that schools already search
pupils for these items. There are difficulties in determining
whether or not a child has consented to being searched. The clause
will provide clear and explicit powers, within a framework of
safeguards.
Making clear in law that searches for these specific
items can be undertaken, including setting out a framework of
safeguards for the searching process, will help to safeguard the
interests of both school staff and pupils.
In the case of school staff, the new power will provide
protection from having their disciplinary authority challenged
and overturned. The risk of legal challenge to such authority
was highlighted in the 1989 report of Lord Elton's Committee of
Inquiry into Discipline in Schools and underlined by the 2005
report of the former Practitioners' Group, which noted how the
Gillick competence principle means that the risk of such challenge
is now even greater, particularly in relation to older pupils.
It is not in the interests of pupils for school staff to have
their authority to search for alcohol, controlled drugs or stolen
property overturned. Alcohol and drugs are an obvious risk to
the health and well-being of children, and a common form of bullying
is to take items from a child.
Where force is used to search a pupil, the Bill introduces
a requirement for this to be recorded and reported to the parent.
Obligation to record significant incidents involving
use of force by staff on pupils
You asked if we will be reissuing the 2007 Guidance
on the use of force by staff in schools in the light of the recent
developments concerning the use of restraing in juvenile settings.
We do anticipate revising this guidance to take account
of the new Bill clause, issues raised during passage of the Bill
clause and also as appropriate developments arising from the review
of use of restraint in juvenile secure settings. An outline will
be provided for the Apprenticeships, Skills Children and Learning
Bill Committee later this month and we will send you a copy at
the same time.
Issues arising from the review of use of restraint
in juvenile secure settings that we intend to reflect in the revised
guidance include:
- making clear that certain restraint
techniques should not be used because of the particular physical
risks they pose to children and young people;
- recording being done within 24 hours;
- reporting arrangements to include an opportunity
for the child or young person to give their views - this will
strengthen existing advice that differing accounts of the incident
be recorded. It will be reflected by a change to the model form;
and
- the importance of reporting concerns to external
agencies such as other local authority children's services, the
local Children's Safeguarding Board, the Health and Safety Executive,
youth offending teams and the police where a child or young person
may be at risk of significant harm - this will strengthen existing
advice that post incident support could involve such reporting.
The revised guidance will also reiterate and as appropriate
strengthen references to:
- consulting with and informing
staff, pupils and parents about the use of force policy;
- good school practice in assessing the frequency
and severity of incidents that are likely to occur, using historical
patterns as a starting point; and
- the importance of schools assessing carefully
the training needs of staff, including needs for refresher training.
The current guidance includes a model form for recording
incidents of use of force in schools similar to that specified
in the review of restraint in juvenile secure settings. The Bill
clause will make it a legal requirement for schools to have regard
to the section of the guidance on recording and reporting incidents
of use of force in schools.
Because of the fundamental differences in context
between pupils in schools and young offenders in the secure estate,
the Government takes the view that not all of the recommendations
arising arising from the review of restraint in juvenile secure
settings are applicable to schools. However the guidance will
suggest that, where young people move between a school and a juvenile
secure setting, there should be an appropriate exchange of information.
UNCRC as strategic framework for Children's Plans
You asked what objections, if any we would have to
the Bill being amended to require Children's Trust Boards to
a) have regard to the need to implement the UNCRC
when preparing its Children and Young People's Plan and
b) consult with children and young people in the
preparation of their plans as envisaged by Article 12 of the UNCRC.
The duty to comply with the obligations under the
UNCRC lies with the UK as the relevant State party. We do this
through a mixture of legislative, executive and judicial action.
Insofar as our legislation is concerned, we are content that it
is consistent with the provisions of the Convention, and we therefore
consider that it is unnecessary to have any specific provision
falling on the Children's Trust Board to have regard to the UNCRC
when preparing its plan.
The broader issue of embedding the UNCRC into UK
policy and practice will be covered in the forthcoming Green Paper
to discuss the introduction of a Bill of Rights and Responsibilities.
The Government is keen to hear views on the Green Paper and
would want to consider any further legislative steps in the light
of that consultation
On the question of consulting children and young
people, it remains our commitment that they should be consulted
when the Children and Young People's Plan is being drawn up -
and so we will be repeating the requirement for this in the new
regulations being drawn up under new section 17 of the Children
Act 2004 (inserted by clause 185 of the Bill).
Health Bill
Letter from Anne Keen MP, Parliamentary Under-secretary,
Department of Health and Liam Byrne MP, Minister of State, Home
Office, dated 3 July 2008
Joint Committee on Human Rights Conference on
healthcare for failed asylum seekers.
As you may be aware, the Department of Health and
Home Office are currently jointly reviewing the rules governing
access to the NHS by foreign nationals. The review was announced
on 7 March 2007 in the Home Office publication, Enforcing the
Rules: A new strategy to ensure and enforce compliance with our
immigration law.
The review is due to be completed shortly and will
be followed by a full public consultation. As a result, we are
unable to attend your conference regarding healthcare for failed
asylum seekers whilst the review is still being completed. We
think we could have a much more productive discussion once the
review has been completed and is sent out to public consultation.
The review is considering a range of issues regarding
immigration and asylum particularly the eligibility of failed
asylum seekers and their children. An equality impact assessment
will also be carried out as part of this review process, in relation
to both primary medical services and secondary care.
We are aware that there has been speculation as to
the outcome of the review in respect of failed asylum seekers,
but that is all it is - speculation. No decisions have yet been
made, and we are committed to a full public consultation on any
proposals before final decisions are made.
We offer our sincere apologies for the fact that
we are unable to attend you conference and hope that you will
take the opportunity to respond to the public consultation which
is due to be issued shortly.
Letter from the Chairman to Ann Keen MP and Liam
Byrne MP, dated 31 July 2008
Human rights issues in healthcare for asylum seekers
and trafficked persons
My Committee held a meeting on Wednesday 9 July with
a number of interested parties to discuss the provision of health
care for asylum seekers. As you will recall, you decided not to
attend the meeting because the Government has not yet produced
its new proposals on this issue.
I am attaching the key conclusions of our meeting,
to enable you to feed these into your review of health care for
asylum seekers. I understand that these conclusions would be most
helpful to you now, rather than during the subsequent public consultation.
The overall message we heard is that there are still
significant human rights concerns about the provision of health
care for asylum seekers.
My Committee is particularly concerned about the
current lack of information about the Charging Regulations since
the ruling on the case R v Secretary of State for Health.
I would be grateful if you could inform us of what plans the Department
of Health has for drawing up clear guidelines, and of making these
available to all relevant parties, including clinicians, overseas
payment officers and asylum seekers themselves.
My Committee noted with concern reports of the way
in which asylum seekers were treated by some overseas payment
officers. Asylum seekers are often vulnerable individuals, sometimes
with complicated mental and physical health conditions: being
verbally abused by these officers goes against standards of common
humanity and increases stress, perhaps thereby exacerbating existing
health conditions.
I also flag up the importance of providing free primary
care to asylum seekers. We heard that if asylum seekers were not
able to access free primary care then human rights abuses would
likely increase. Public health concerns would also increase: we
heard that failure to treat infectious diseases poses a risk not
only to asylum seekers, but to the UK population at large.
We understand that there are reasons on grounds of
common humanity, and on public health grounds, for providing treatment
to all asylum seekers with infectious diseases. In particular,
we continue to be concerned that treatment of HIV/Aids is not
provided free of charge for asylum seekers. We understand that
the Government is committed to tackling HIV/Aids on a global scale
and yet is not doing so adequately within the United Kingdom.
I am concerned about the lack of cohesion across Whitehall on
this issue, and so I am copying this letter to Gillian Merron
MP, Parliamentary Under-Secretary of State for Department for
International Development.
My Committee is concerned that there has been little
progress towards ensuring that the human rights of asylum seekers
are protected, both in the free and accessible healthcare available
to them, and in the way that they are treated within the healthcare
system. I trust that the outcome of your ongoing review and public
consultation will be to ensure that human rights are central to
Government policy towards asylum seekers.
Letter from Ann Keen MP, dated 1 September 2008
Thank you for your letter of 31 July to Liam Byrne
and me about the conclusions of the meeting of the Joint Committee
on Human Rights on 9 July. We will be happy to consider these
conclusions as part of the upcoming consultation exercise on the
review of access to the NHS by foreign nationals.
Firstly, I must emphasize that within the NHS
(Changes to Overseas Visitors) Regulations 1989, as amended,
asylum seekers whose claims have not yet been decided have full,
free of charge access to NHS treatment, including for HIV. We
have no plans to change this arrangement. Those asylum seekers
whose applications have been rejected, are not exempt from charges,
for hospital treatment except where the treatment itself is exempt
from charges, or for other courses of treatment begun whilst their
application was under consideration and which need to continue
while they remain in the UK.
The recent Judicial Review ruling found that failed
asylum seekers can, in certain circumstances, be considered to
meet the ordinary residence test which is the determinant of who
is automatically entitled to free NHS hospital treatment. This
means that each NHS Trust must decide whether each failed asylum
seeker they treat meets this test, based on the individual circumstances
of that failed asylum seeker. If they do, then they cannot be
charged for their treatment. Since this ruling is now law, guidance
was issued by the Department of Health to all NHS Trust Chief
Executives on 1 May, and a copy issued directly to overseas visitors'
managers in Trusts, where possible.
The Department of Health has decided to appeal this
ruling because of wider implications across health and Government.
However, we are mindful of the issues facing failed asylum seekers,
and so we are considering these as part of the review of access.
In relation to primary care, I can confirm that the
review of access will consider the key preventative and public
health role of NHS primary medical care as well as international
law and humanitarian principles.
You also raised the issue of asylum seekers being
subject to verbal abuse by NHS staff. Clearly this is unacceptable
and I would remind you that hospitals have complaints procedures
that all patients have the option to use.
In relation to HIV, I would like to point out that
much is already underway to address issues such as HIV prevention
and the level of undiagnosed HIV in England, especially for those
groups most in need, including people from African communities,
many of whom may be asylum seekers. We remain committed to action
on HIV and recent work has included action on stigma, strengthening
our national health promotion programmes and an increase of 17.6
per cent in the AIDS Support Grant paid to local authorities.
Thanks in part to open access confidential services, the early
introduction of harm minimisation programmes, sustained health
promotion and awareness campaigns, estimated HIV prevalence in
the UK remains relatively low and is much lower than countries
such as France, Spain, Portugal and Italy.
For African communities we continue to commission
innovative work from the African HIV Policy Network and their
community partners, to increase awareness and encourage people
to test earlier for HIV. We have greatly reduced the mother to
child transmission of HIV through our policy of offering and recommending
an HIV test to every pregnant woman. Again, many of these women
are from African communities living here. We are also taking forward
work to address HIV related stigma and discrimination, and will
be commissioning additional work to reduce the level of undiagnosed
HIV in the population.
Finally, we do work closely with other Government
departments, including the Department for International Development
(DfID). Action includes contributing to Achieving Universal
Action, published earlier this year, which sets out how the
Department of Health supports more broadly DfID's strategy on
HIV and AIDS in the developing world. The Department and DfID
also worked together in participating in the 2008 United Nations
report and high-level meeting on AIDS.
162 In December 2008 Professor Paul Gregg published
his independent review "Realising Potential: A Vision
for Personalised Conditionality and Support", which made
recommendations about how the Government could make further progress
in reforming the welfare system to promote employment and reduce
child poverty. It is available at www.dwp.gov.uk/welfarereform/gregg-review-discussion-paper-Jan09.pdf Back
163
Department for Work and Pensions, Research Report No 463. "Sole
and joint birth registration: Exploring the circumstances, choices
and motivations of unmarried parents" - Jenny Graham, Chris
Creegan, Matthew Barnard, Alice Mowlam and Stephen McKay. A report
of research carried out by the National Centre for Research and
the Institute of Applied Social Sciences, University of Birmingham
on behalf of the Department for Work and Pensions. Back
164
Births registered in the mother's name only. Back
165
In 2007, sole registration constituted 7% of all registrations. Back
166
Letter from Caroline Flint MP to the BHA, 11th October 2007 Back
167
A comparative review of workfare programmes in the United States,
Canada and Australia, Richard Crisp and Del Roy Fletcher, DWP
2008 Back
168
House of Commons Standing Committee A, 31 October 2006 Back
169
Northern Ireland Assembly Research Paper 16/08, Childcare Provision
in the UK and Republic of Ireland, March 2008 Back
170
Supra note 2 at page 62 Back
171
DETI, "Women in Northern Ireland: Labour Market Statistics
Bulletin" September 2008. The number of places fell from
47,170 in 2002 to 46,914 in 2007. Back
172
Social Security Advisory Committee 19th Report Sanctions in the
benefit system: Evidence review of JSA, IS and IB sanctions. This
report highlights the fact that claimants do not understand the
sanctioning rules, the process is not clearly explained, there
is a lack of uniformity in the imposition of sanctions and there
is a lack of support for those who have been sanctioned. Back
173
Chapter 3.34. This acknowledgement is reflected in statistics
on employment in Northern Ireland: only 32% of people with disabilities
are in employment compared to 79% of those without disabilities.
Statistics compiled by Disability Action Back
174
At http://www.disabilityaction.org/publications/Building%20a%20Better%20Future.pdf Back
175
At http://www.mencap.org.uk/news.asp?id=6792 as of 03.02.09 Back
176
Office for National Statistics, Birth Statistics 1964-2004 Back
177
Letter to Rt Hon James Purnell MP from JCHR dated 27/02/09 Back
178
Waddel and Aylward (2005) The Scientific and conceptual basis
of incapacity benefits The Stationery Office Back
179
Dame Carol Black (2008) Working for a healthier tomorrow. TSO. Back
180
Tenth Report of Session 2002-03, above, at paras 58-59. Back
181
New s. 18A(2)(b) Education Act 1996, as inserted by clause 47. Back
182
The Committee expressed similar concerns about conferring police
powers on immigration officers in the context of the UK Borders
Bill. Back
183
R ( C) v Secretary of State for Justice [2008] EWCA Civ
882 (28 July 2008). Back
184
UNCRC Concluding Observations, above, at pra. 14. Back
185
Nineteenth Report of 2003-04, Children Bill, HL Paper 161,
HC 537, at paras 14-21. Back
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