Implementation of the Right of Disabled People to Independent Living

Implementation of the Right of Disabled People to Independent Living - Human Rights Joint Committee Contents

4 The Government's approach to implementing the UNCRPD

70. Since the United Kingdom ratified the UNCRPD in June 2009, much of the legal, policy, administrative and financial architecture underpinning the right to live independently and be included in the community has undergone, or is undergoing, significant reform. This chapter will examine the approach the Government have taken to developing and implementing relevant reforms and spending decisions and the role the UNCRPD has played, with particular reference to the General Obligations in Article 4 of the Convention.

Protecting and promoting the right to independent living

71. Implementation of the right to live independently and be included in the community involves the design, implementation, coordination and maintenance of a complex array of legal duties and entitlements, benefits services and social and environmental conditions. A wide range of actors need to be engaged at both local and national level, across different sectors. In evidence to us, the Equality and Human Rights Commission explained Article 19 as focussing on "the development of living options and all associated support services or mechanisms which cumulatively accord disabled people equal opportunities to be included and to participate as fully as they wish in the community."[59]

72. As a consequence, implementation of Article 19 demands a strategic and "joined-up" approach. The National Centre for Independent Living likened support for disabled people to a house of cards, where removing one card caused them all to collapse. They argued that the closure of the Independent Living Fund was an example of this. They cited the case of a woman who, while still receiving a consistent level of support from the local authority, no longer received the ILF part of her support. This resulted in her life being "very restricted".[60] Independent Living in Scotland cited the case of someone who could not get funding for a ramp or a wheelchair, and so was unable to leave her house: "what use is an accessible bus if you cannot get out of your house to get to it?".[61]

73. The College of Occupational Therapists Specialist Section-Housing told us that "the areas of legislation and practice guidance affecting the housing situation and rights of disabled people are multi-factored, and removing such legislation, or elements of it, under the banner of reducing regulation burdens, supporting localism or cutting general public sector costs runs the risk of substantially reducing the rights of disabled people to independent living through the possibly unintended consequences of interacting cumulative impacts."[62]

74. The nature of independent living strongly suggests the need for coordinated strategy and action at the national and local level, both cross-departmentally, between the different levels of government, and with non-governmental actors, and for careful consideration of both the independent and cumulative impacts of policy and legislative reform and public spending decisions.

75. We recommend that the Government consider provision of the means to independent living in the round. The complex interconnections between services and benefits mean that changes to one service or benefit may have unintended consequences for another—and for the overall level of outcomes achieved. For instance, changes to housing provision may have significant impacts on the accessibility of healthcare, transport, support networks and other rights and opportunities.

Independent Living Strategy: its effectiveness, and plans for the future

76. Although the Independent Living Strategy (ILS) was an important milestone on the way to establishing independent living at the heart of policy making, the use made of the strategy is unclear.

77. The National Centre for Independent Living told us that the aims of the strategy were fully supported by the organisations they represented. However, they expressed concern over implementation and the fact that, as far as they were aware, the Independent Living Strategy was "currently lying in someone's in-tray waiting for a decision about whether it will be picked up and further work done on it."[63]

78. Tim Cooper, head of the ODI at the time he gave evidence, said: "One important part of the Independent Living Strategy was getting wider recognition of independent living being not just about where you live but about all the changes to society and the support services that helped you to live a fulfilled and independent life [...] There is probably more that we can do to help them to understand that, if they change one area of policy in their department, there may be knock-on effects for a sister department down the road. That kind of brokerage is part of ODI's role."[64]

79. Scope agreed that the Strategy was an important milestone, but criticised it for not addressing independent living as a human rights issue.[65] RNIB and Action for Blind People argued that the ILS no longer appeared the best tool for implementing Article 19 obligations. They suggested that the ILS needed "resuscitation".[66]

80. However, the Social Care Institute for Excellence argued that the failure was in implementation rather than in the policy documentation, that the gap between policy and real people's experiences could be filled by "assiduous day-to-day application of the policies" and that the right to independent living should be made legally enforceable at the individual level.[67]

81. In the light of these comments, we asked the Minister for Disabled People about the future of the ILS. She said that the new Disability Strategy would build on the ILS, and would take "the UN Convention as a starting point".[68]

82. We welcome the commitment made by the Minister for Disabled People that the UNCRPD will provide the basis of the forthcoming Disability Strategy. We expect the Disability Strategy to be robust, targeted and deliverable, and co-produced with disabled people. It should cover all aspects of the Convention, including the right to independent living, and be specific in terms of how it delivers the Convention articles in order to aid measurement and transparency. The implementation process should include clear milestones, monitored by an independent body.

Coordinating implementation of the Convention across government departments and the devolved administrations

83. Article 33 of the UNCRPD requires States to implement a domestic framework to implement and monitor the Convention. This includes the designation of "one or more focal points" within government and encourages the designation of a "coordination mechanism" within government to "facilitate related action in different sectors and at different levels". In response to UN Human Rights Council Resolution 10/7, Human rights of persons with disabilities: national frameworks for the promotion and protection of the rights of persons with disabilities, the previous Government advised that the Office for Disability Issues was both the focal point and the coordinating mechanism within the United Kingdom Government. It went on to say that "in the United Kingdom, some policy areas are now the responsibility of the Devolved Administrations in Scotland, Wales and Northern Ireland. The ODI will therefore work with focal points in each of those Administrations on issues around implementation, monitoring and reporting."[69]

84. The UK response placed particular emphasis on the following mechanisms: "The ODI works with the Minister for Disabled People and with a cross-Government Ministerial group. ODI is overseen by the Disability Equality Delivery Board which is made up of senior officials from a range of other Government Departments. The Board also has three external members who bring expertise from outside Government and represent the specific experiences of disabled people of all ages and bring useful information to the decision making of the Board. The Board reports to the Improving the Life chances of Disabled People Ministerial Group, which is chaired by the Minister for Disabled People."

85. Tim Cooper, of the Office for Disability Issues, said that ODI had worked with Departments to ensure they were aware of the provisions of the Convention.[70] He pointed to the Right to Control initiative as having brought together the Department for Work and Pensions, the Department of Health and the Department for Communities and Local Government, as well as local authorities.[71] However, he suggested that there was a need to embed the ethos of the Independent Living Strategy in individual departmental strategies.[72]

86. The Minister for Disabled People highlighted contact with the devolved administrations: "even in areas like DWP where we have benefit and employment policies which are not devolved: we still work together on areas where we can join up our policy".[73] However, the Minister for Care Services told us that the Department of Health did not dictate to the devolved administrations how they should be discharging their duties in terms of the Convention.[74] Article 4 of the UNCRPD makes clear that "the provisions of the present Convention shall extend to all parts of federal States without any limitations or exceptions", but it does not offer any guidance as to how conformity with the Convention should be achieved across devolved or "federal" government. Any adverse finding by the UNCRPD Committee regarding failure to implement Article 19 would relate to the UK as a whole, even if the failure related to the jurisdiction of just one nation within the UK.

87. Although responsibility for the UNCRPD resides with the State (the United Kingdom) most of the measures required to make the rights under Article 19 practicable and real will be implemented by local or devolved rather than national government. Article 4 requires States "to ensure that public authorities and institutions act in conformity with the present Convention". The Convention does not specify the means by which such conformity should be achieved. Nevertheless, it clearly implies an obligation of conduct, and the Government should be able to explain the means by which they comply with this requirement and how the arrangements for such compliance achieve their "obligations of result". The delegation of powers by central government to devolved or local government to take decisions regarding the allocation of resources relevant to the realisation of Article 19 does not amount to a delegation of responsibility to ensure the progressive realisation of the Article (or other Articles in the Convention).

88. While we acknowledge that the Government should not seek to direct the devolved authorities or local authorities in the exercise of their powers, the UK Government should acknowledge their responsibilities under the Convention to ensure its implementation across the whole of the UK. Ultimately, the repercussions of any breach of the Convention will rest with the UK Government.

89. We recommend that the Office for Disability Issues updates and expands upon its response to Human rights of persons with disabilities: national frameworks for the promotion and protection of the rights of persons with disabilities, explaining its approach to coordinating implementation of the Convention across Whitehall, the devolved administrations, public authorities and other sectors. This could usefully be done in the context of the forthcoming Disability Strategy.

Implementation of the right to independent living by the devolved administrations

90. The devolved administrations have each taken their own approach to implementing the right to independent living. In Scotland, the Scottish Government, the Convention of Scottish Local Authorities (COSLA) and Independent Living in Scotland issued in 2009 the joint statement "Independent Living—A Shared Vision".[75] It aims to ensure that disabled people across Scotland will have equality of opportunity at home and work, in education and in the social and civic life of the community, based on the principles of choice, control, freedom and dignity. During the course of our inquiry the Welsh Government announced that it would develop a framework for independent living in Wales.[76] Northern Ireland does not appear to have made progress on developing a strategy of its own. The independent mechanisms for Northern Ireland (Equality Commission for Northern Ireland and Northern Ireland Human Rights Commission) told us that the Promoting Social Inclusion Disability Working Group (PSI Working Group)[77] reported to the NI Executive in December 2009 recommending that the NI Executive undertake a review of independent living and place it at the centre of its focus on disability issues. The NI Executive has not responded to this.

91. We were made aware several times in evidence that the situation in Northern Ireland presented complications because the Equality Act 2010 does not apply there. One particular difference between disability legislation in Northern Ireland and the rest of the UK stems from the 2008 decision of the House of Lords in Malcolm v LB Lewisham[78] which overturned the "disability-related less favourable treatment" principle, which still stands in Northern Ireland. In the rest of the UK, section 15 of the Equality Act 2010 reintroduced the principle through the provision of "discrimination arising from disability".

92. The Equality and Human Rights Commission told us that it was "not sure that each of the devolved Governments has necessarily realised that there is a right of independent living".[79] The Equality Commission for Northern Ireland argued that people in Northern Ireland were disadvantaged relative to those in Great Britain[80] and that it was entirely within the competence of the Northern Ireland Executive and Assembly to amend the disability legislation in the way that has been done in Great Britain.[81]

93. We commend the Scottish Government and the Welsh Government for their respective plans to promote independent living. We note with disappointment the lack so far of an equivalent strategy in Northern Ireland. It is regrettable that the Northern Ireland Executive has not yet responded to the proposals of the PSI Working Group made in 2009.

94. The Northern Ireland Equality Act should be amended to address the effects of the House of Lords judgment in Malcolm v Lewisham, ensuring parity of protection between disabled people in Northern Ireland and Britain.

Ensuring that public authorities comply with the Convention

95. For some, the advent of localism and changes to the specific duties in England under the Equality Act 2010 call into question the extent to which the independent living agenda can be carried out effectively at the local level. In England, the specific duties related to the Public Sector Equality Duty no longer explicitly require public authorities to carry out equality impact assessments or to involve disabled people in the process of meeting the Duty, unlike the predecessor Disability Equality Duty. Many witnesses reported a lack of joined-up thinking and a lack of awareness at local level of independent living and the Convention.

96. The Local Government Group told us that the joining up of individual initiatives had not worked as well as it might, and that "the best way to improve locally is to ensure local government involves users of services as much as possible in the design of those services".[82] Their representative, Bob Collins, said the lack of cross-cutting thinking at both national and local level had been his "greatest frustration" during his time as a councillor. However, he argued that the situation was improving and that councils were better at linking different services than Government.[83] Scope told us that "Government and local authorities have a very mixed approach on their understanding of independent living [...] people from a health background particularly find it more difficult to understand the social barriers".[84]

97. Witnesses were concerned about the impact that localism might have on the consistency of service provision. Housing Options and National Development Team for inclusion (NDTi) said that, in the absence of national performance indicators and a lack of clear entitlement to housing and care there was a risk of localism resulting in a "postcode lottery".[85] The RNID were concerned that different local authorities would adopt different priorities for delivery of social care,[86] while MENCAP argued that localism, in conjunction with reductions in local authority budgets, would result in non-statutory services "suffering greatly".[87]

98. Scope argued that, in the social care context, there was a danger that localism might result in fragmented provision and lack of effective scrutiny. They were particularly concerned that no mechanism was in place to ensure that the extra £2 billion of un-ring-fenced funding, announced in the 2010 Comprehensive Spending Review, would be spent on social care.[88]

99. Many of our witnesses suggested that there was a lack of awareness of the Convention among service providers.[89] The Surrey Coalition of Disabled People argued that the Government should legislate to ensure that public bodies received mandatory awareness training.[90] The Wallsall Alliance for Independent Living recommended that the Government should take steps to ensure that civil society in general was aware of its obligations under the Convention.[91]

100. We are unclear how the Government are meeting their obligation to ensure compliance with the Convention by public authorities, especially in the light of localism and changes to specific duties in England under the Equality Act 2010.

101. The Government, led by the ODI, should work with others including the devolved administrations, the independent mechanisms, regulators and disabled people's organisations to promote awareness and understanding of the Convention among public authorities, especially local government, and to monitor its implementation.

Impact assessments

102. Article 4(1)(c) of the Convention requires states to take account of the impact of policy on disabled people. "Quick start guidance" from the Home Office states that the English specific duties under the Equality Act 2010 "do not require public bodies to prepare or publish equality schemes, equality action plans, equality impact assessments, or separate annual reports on equality".[92] In Wales and Northern Ireland public authorities continue to be required to conduct equality impact assessments. Scotland has yet to finalise its specific duties, but the Scottish Government's consultation indicates its intention to retain the requirement.[93]

103. Karen Ashton, of Public Law Solicitors, suggested that there was a conceptual misunderstanding in the Government's thinking about the new public sector equality duty and specific duties, arguing that the public sector equality duty was by its nature an extremely important process duty. Reducing the bureaucracy involved did not necessarily improve its effectiveness.[94]

104. Witnesses criticised the quality of equality impact assessments of recent legislation.[95] RNIB and Action for Blind People discussed the proposal to remove the DLA mobility payment as a threat to Article 19 and the Independent Living Strategy which yet nonetheless "seemed to pass through any screening process [...] The proposal was accompanied by an Equality Impact Assessment but there now appears to be very little reference, if any at all, to the aims of the Independent Living Strategy".[96]

105. Others noted the absence of any consideration of human rights in impact assessments. Disability Alliance criticised consultation exercises for a general lack of reference to the Convention, arguing that this pointed to a lack of awareness among policy makers of its requirements.[97] We note that the Government have given a "clear commitment" to Parliament that it will give due consideration to the UN Convention on the Rights of the Child Articles when making new policy and legislation, and in so doing will always consider the recommendations of the UN Committee on the Rights of the Child, but that no equivalent commitment has been given to Parliament in relation to the UN Disabilities Convention.[98]

106. The Scottish Human Rights Commission told us that the development of an integrated human rights and equality impact assessment would provide a means to ensure that the rights of disabled people were taken into account. They also suggested that a fully participatory impact assessment process would "ensure that the cumulative impacts of a range of different policies and programmes rather than their discrete impacts can be understood through the lived experiences of individuals."[99] The Lord Chancellor and Secretary of State for Justice, Rt Hon Kenneth Clarke MP, indicated his willingness to consider the impact assessment methodology being developed by the Scottish Human Rights Commission to see if it holds any useful lessons for Whitehall departments in the way in which they assess the human rights impact of laws and policies.[100]

107. In evidence to us, Ministers defended the Government's use of impact assessments. The Minister for Disabled People told us that the Government had:

"published a full impact assessment in April 2011 around the housing benefit changes [...] That included the impact on disabled people. The way we considered the Article 19 requirements in terms of independent living was part of that full impact assessment. It was clear from the impact assessment that there was impact across the board on people, but that that did not disadvantage any particular group".

She added:

"We have had that impact assessment looked at, at a judicial level, and it was found to be a very fair and correct way of assessing the needs".[101]

The Minster for Care Services said that "in terms of social care, we had an extensive debate about the impacts of inadequate funding of social care [...]".[102]

108. In our legislative scrutiny Report on the Welfare Reform Bill we noted criticisms of the impact assessment process for that Bill. Equality impact assessments were not published by the Government until the Bill was in Committee in the Commons, and, while equality impact assessments have now been published for distinct parts of the Bill, these do not attempt to assess the cumulative impacts of multiple provisions in the Bill on particular groups with protected characteristics. This is of concern, since at least some individuals will experience these changes cumulatively, and their impact needs to be understood in this way. For example, a disabled person may find that they lose their lower rate DLA, and therefore become subject to a cap on their housing benefit such that they cannot afford to remain in their home. Moving may disrupt informal patterns of care and support at the same time as they have increased reliance on these supports.

109. The Equality and Human Rights Commission suggested that, when the UN Expert Committee on the UNCRPD examines the UK's implementation of the Convention ,"a failure to be able to demonstrate having accounted for the likely cumulative impact of policy and spending decisions may leave the Government exposed to serious criticism".[103]

110. We are concerned that the UNCRPD, and Article 19 in particular, does not appear to have played a central role in the development of policy. Inadequate attention has been paid to the impact of relevant policy on the implementation of the UNCRPD, in contravention of Article 4(1) and 4(3). We recommend that the Government make a clear and unequivocal commitment to Parliament, equivalent to that which it has already given in relation to the UN Convention on the Rights of the Child, that they will give due consideration to the articles in the UN Disabilities Convention when making new policy and legislation, and in doing so will always consider relevant recommendations of the UN treaty monitoring bodies.

111. However, if properly carried out, equality impact assessments provide an important mechanism through which to ensure policy achieves desired goals and avoids unintended consequences, and help to demonstrate transparency and accountability. We recommend that they should be produced early in the policy-making process with the full involvement of those likely to be affected by the policy.

112. Given the breadth of the current reforms, the Government should publish a unified assessment of the likely cumulative impact of the proposals on independent living, and set out any relevant mitigations through the Disability Strategy. The relevant strategies in the devolved administrations should also include such mitigation plans.

113. We regret the exclusion from the English specific duties under the new Public Sector Equality Duty of the requirement to conduct equality impact assessments. The Government should either revise the duties accordingly, or promote equality impact assessments as a matter of good practice, with the assistance of other expert bodies such as the Equality and Human Rights Commission, Scottish Human Rights Commission, Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. We welcome the willingness of the Secretary of State for Justice to consider the impact assessment methodology being developed by the Scottish Human Rights Commission and we look forward to the outcome of that consideration.

114. Our evidence suggests that equality impact assessments have not played an important part in assessing the impact of recent policy on disabled people in the context of the UNCRPD, because of poor quality, or untimely, EIAs. There also appears to be some confusion over the requirement to conduct EIAs, which the Government should clarify.

115. The Equality and Human Rights Commission, Scottish Human Rights Commission, Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission should monitor and publish an assessment of the degree to which due regard appears to have been paid to Article 19 in the most relevant policy developments and decisions in this Parliament. The findings should feed into the development of the Disability Strategy and relevant plans for each jurisdiction.

Consultation and involvement of disabled people

116. The UNCRPD specifically requires the Government to involve disabled people in the implementation of the Convention. The Disability Discrimination Act 2005 introduced the Disability Equality Duty which, among other things, required public authorities to involve disabled people in decision making in meeting their duty. The new specific duties under section 149 of the Equality Act 2010 do not require English bodies to involve disabled people, unlike the equivalent duty in Wales.

117. Witnesses regretted this change. Breakthrough UK said "local disabled people who are trying to influence what is happening in the locality and trying to be a part of the Big Society and so on, previously had a way of taking local statutory bodies to task if they were not doing proper consultation. That has been removed".[104] Scope said that the requirement to involve disabled people had had a great impact in achieving greater equality. They were concerned that these duties had been removed in the name of lightening the regulatory burden.[105]

118. Some witnesses pointed to particular problems with consulting disabled people. Breakthrough UK told us that disabled people as a group had different communication needs, and that consequently effective communication required a certain amount of bureaucracy.[106]

119. While some witnesses suggested that the Government were good at consulting the "usual suspects", some suggested that such consultation rarely went any wider, to involve disabled people themselves.[107] Leicestershire Centre for Integrated Living advocated greater consultation with user-led organisations.[108] Although members of Choices and Rights Disability Forum and North Bank Coalition suggested that consultation did take place, they were concerned that it was not taken into account in decision making.[109] Sense argued that deafblind people were rarely involved in consultations.[110] In supplementary written evidence, Doug Paulley also argued that consultation should involve "user led organisations instead of charities or other bodies. Charities do not effectively represent their beneficiaries and in any case as service providers themselves have different vested interests than ULOs".[111] KeyRing suggested that there was particular difficulty in enabling some disabled people, for instance those with autistic spectrum disorders or learning difficulties, to take part in community projects. They argued that this risked alienating those most in need of services from the consultation process.[112] The Coalition of Neurodiverse Organisations argued that the format of some consultation documents needed to be better designed in order to take the needs of neurodiverse people into account.[113]

120. The Government gave examples of the involvement of disabled people. The Minister for Care Services pointed to health and well-being boards within local authorities as "being placed under duties to involve service users right from the outset, and throughout that process" and argued that "the places that are doing best are the places that are involving most; the places that are damaging people the most are the places that are ignoring people the most".[114] The Minister for Disabled People said that Right to Control Trailblazers had been instructive: "there are a couple of things we have learnt already. The first is that co-production with disabled people, right from the beginning, has been a very successful part of this whole process, from policy development through to implementation [...] The other lesson I would draw [...] is how empowering the process is, being able to take the funding streams available and use them in innovative ways".[115] She also noted that 5,000 people took part in the consultation on the reform of DLA and argued that consultation on Personal Independence Payment was "demonstrably influencing policy".[116]

121. The UNCRPD specifically requires disabled people to be involved in the implementation of the Convention, and the Government have acknowledged the importance of such involvement. We recommend that the Government aim to involve disabled people in the development of policy, rather than simply consult them, and to ensure that timescales and methods are used which enable a full range of disabled people and their representative organisations to be involved.

122. We are disappointed that the English specific duties under Section 149 of the Equality Act no longer encourage the involvement of disabled people. This is a retrogressive step. The Government should actively promote involvement to public authorities as a means of meeting their Equality Duty and in order to comply with the UNCRPD.

Awareness of the UNCRPD

123. The evidence we received suggested that awareness of the UNCRPD among disabled people was low. Disability Action suggested that such a lack of awareness resulted in a weakness in the disability rights movement[117] and, referring to work they had carried out for the Equality Commission for Northern Ireland, argued that awareness-raising was essential to ensure adequate monitoring of compliance with the Convention. John Evans argued that the Government should commission disabled people's organisations to carry out awareness-raising and capacity-building sessions.[118] Doug Paulley pointed to a particular problem in residential settings, where "empowerment of service users and raising their awareness of their rights can only happen through changing the culture of the institutions where they live". He argued that "institutional environments consciously or unconsciously train their 'customers' into expecting and accepting lower standards of quality of life" and that people in residential care often had "little concept of rights and what might be expected in an independent living situation outside of 'careland'".[119]

124. Our evidence suggests awareness of the Convention among disabled people is low. It is important that disabled people are aware of their rights in order that they can access them. We recommend that the Government work in partnership with disabled people's organisations in order to increase awareness.

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