The UN Convention on the Rights of Persons with Disabilities

The UN Convention on the Rights of Persons with Disabilities - Human Rights Joint Committee Contents

Memorandum submitted by Tabitha Collingbourne[18]

UK SOCIAL WELFARE LAW AND THE UN CONVENTION

ABSTRACT

On ratifying the UN Convention, the UK will undertake to "ensure and promote the full realization of all human rights and fundamental freedoms", including economic, social and cultural rights, "for all persons with disabilities".[19] This submission argues that effective implementation of that undertaking will require some radical changes in UK social welfare law and practice. The incipient shifts in thinking from "welfare" towards "rights" currently identifiable in the policy field are not yet reflected in the real lives of disabled people, or in existing legislation or service delivery. Furthermore, some aspects of existing law and practice, together with the Government's consideration of potential reservations to the UN Convention, threaten to hinder such transformation.

INTRODUCTION

The UK intends to ratify the UN Convention on the Rights of Persons with Disabilities, an international treaty that fully integrates civil, cultural, economic, political and social rights in the context of disability. Before doing so, the UK government will seek to ensure that it can implement the Convention's provisions and therefore comply with its obligations.[20] This submission briefly considers the capacity of UK social welfare law and practice to contribute to that implementation.

DISABILITY RIGHTS IN THE UK

In the UK, the Human Rights Act 1998 offers some protection to disabled people's civil and political rights. In addition, disability discrimination is prohibited in some socio-economic fields such as employment, education and housing under the Disability Discrimination Act 1995, which also imposes on public bodies a duty to promote disability equality in the provision of their services. However, the UN Convention demands more: it requires not only non-discrimination, but also the positive promotion and fulfilment of all human rights, including socio-economic rights.[21]

ECONOMIC, SOCIAL & CULTURAL RIGHTS

Economic, social and cultural rights have not been incorporated into UK law. Indeed, the UK in its latest report to the UN Committee on Economic, Social and Cultural Rights confirmed that "[t]he [Covenant] has not been and is not expected to be incorporated into domestic law| The Government is not convinced that it can incorporate the rights contained in the ICESCR in a meaningful way within the British legal system."[22] In their place, we have a complex assortment of "social welfare" law, some dating back to the 1940s, which risks being incompatible with the purpose and principles of the new UN Convention.

"SOCIAL WELFARE" LAW

The "laws, policies and practices"[23] on which the UK relies for its implementation of the economic and social rights of disabled people largely have their roots in the post-war welfare state. They have not yet made the necessary transition from "welfare" to "rights" thinking, which involves moving away from seeing disabled people as problems towards seeing them as holders of rights.[24] For instance, the National Assistance Act 1948 still provides the legal foundation for social care, including residential care and "welfare arrangements for blind, deaf, dumb and crippled persons".[25] This can be contrasted with the (so far unsuccessful) Independent Living Bill 2008, whose principles include that "disabled persons are the best judge of their own requirements", that they should determine their own living arrangements and be enabled (where necessary) to make their own decisions.[26]

Another, more practical, problem is the complexity, inconsistency and ineffectiveness in the disability context of social welfare law.[27] Unnecessary bureaucracy is a major issue in its delivery[28], and administrative redress systems such as complaints or Tribunals are complex, inaccessible and often counterproductive.[29] Meanwhile, disabled people are not only more likely than others to experience a problem that might be resolved through this system, they also experience more such problems, particularly those relating to socio-economic matters such as housing or welfare benefits. Experience of these problems can in turn lead to the kind of "spiralling problem sequences" that result in social exclusion and the denial of human rights.[30]

There are, however, signs of incipient change.

CONCEPTUAL SHIFTS

The government's 2005 report on Improving the Life Chances of Disabled People talks at length of equality, inclusion, dignity and respect. The subsequent work of the Office for Disability Issues on independent living and individual budgets has recently been acknowledged as "contribut[ing] towards the Government's work to ratify the United Nations Convention on Disability Rights"[31]. The current Welfare Reform Green Paper[32] recognises links between work, financial support and public services in the realisation of equality and rights. The proposed reforms are said to "reflect [the government's] drive towards world-class public services across the board—delivering personalised services tailored to individual needs". Consultation on those "personalised" services is underway. None of this policy is explicitly couched in the language of human rights. However, it seems that the government is now willing at least to consider ways of incorporating some socio-economic rights into UK law through a potential British Bill of Rights.[33]

BARRIERS TO TRANSITION

These shifts in thinking are not yet reflected in the real lives of disabled people. Indeed, aspects of current law and practice continue to hold back that process of transformation. Although the Office of Disability Issues acknowledges "that there is a gap between national policy and people's real experiences", it believes that "change can be achieved without new legislation".[34] Any renewal of legislation is resisted, and the existing complexity, bureaucracy and inaccessible redress systems continue.

At the same time, the resources required to translate policy into reality are increasingly severely rationed, leaving many people without support, and leading the Commission for Social Care Inspection to ask whether "the present situation is both sustainable and—in pursuit of an outcomes focused personalisation agenda—defensible".[35] Baroness Campbell identifies current levels of social care rationing as "the major problem which blocks the transformation of social care from a welfare safety net, to an empowering human rights, public support service."[36] This transformation is not simply about more resources; it entails changes in the planning and delivery of existing resources[37] to reflect that conceptual shift from State "welfare" provision to recognition of the right to independent living as set out in Article 19 of the UN Convention.

Furthermore, the UK government is considering ratifying the UN Convention with reservations. Clearly any possible ratification issues must be investigated. The resolution of potential issues in respect of choice of residence and aspects of mental health legislation is welcome, and further outcomes are awaited.[38] However, the fact that these reservations are considered at all further undermines the credibility of the government's own policy objectives. Choice of place of residence is fundamental to independent living under Article 19 of the Convention and a key component of the Improving Life Chances report. The right to access education in one's community is fundamental to the development of human potential and self-worth under Article 24, and to the early inclusion and transition to adulthood of disabled children, again key components of the Improving Life Chances report. Mental capacity and mental health provisions are central to autonomy and equality under the law and to protection from abuse. And a lack of accessible communication denies freedom of expression and limits both personal development and social inclusion. All are inextricably linked to the Convention's—and the government's—underlying principles of equality, inclusion, dignity and respect.

CONCLUSION

On ratifying the UN Convention, the UK will undertake to "ensure and promote the full realization of all human rights and fundamental freedoms", including economic, social and cultural rights, "for all persons with disabilities".[39] Effective implementation of that undertaking will require some radical changes in UK social welfare law and practice. Despite positive developments, the incipient shifts in thinking from "welfare" towards "rights" which are currently identifiable in the policy field are not yet reflected in the real lives of disabled people. The resistance evidenced by the potential reservations to the Convention, and by the failure to back policy with legislation and with effective resources, hinders the development of those new discourses into a new "common sense". If such policies are to actually begin to change people's lives for the better and so contribute to the effective implementation of all the UN Convention rights in the UK, they will need to be translated into a fundamentally different kind of law and a fundamentally different kind of practice.

October 2008

18 Doctoral Student, School of Law, University of Sheffield. t.collingbourne@sheffield.ac.uk Back

19 CRPD Article 4(1) Back

20 Minister for Disabled People (Anne McGuire), Statement 6 May 2008 Back

21 CRPD Articles 1 & 4 Back

22 Fifth Periodic Report from the United Kingdom|, July 2007, E/C.12/GBR/5, paras 74/5 www.justice.gov.uk/docs/ICESCR-report-part1.pdf Back

23 ibid Back

24 Quinn, G & Degener, T, et al, "Human Rights and Disability: the current use and future potential of United Nations human rights instruments in the context of disability", United Nations, 2002 HR/PUB/02/1 www.ohcgr.org/english/issues/disability/study.htm Back

25 NAA1948 ss 21 & 29 Back

26 www.publications.parliament.uk/pa/cm200708/cmbills/084/08084.i-ii.html Back

27 see eg Strategy Unit, "Improving the Life Chances of Disabled People", Chapter 2: the current situation and its causes', 2005; "Fairness and Freedom: the final report of the Equalities Review", 2007; O'Grady et al, "Disability, Social Exclusion and the consequential experience of justiciable problems" Disability & Society, 19/3, 2004 Back

28 Maynard Campbell, S, Maynard Lupton, A, "Bureaucratic Barriers to Normal Day to Day Activities", Muscle Power!, 2000 www.leeds.ac.uk/disability-studies/archiveuk/Campbell/bureaucratic%20barriers.pdf Back