Conclusions and recommendations
Independent Living as a human right
The legal status of the relevant standards in
the disabilities
1. We
are concerned that characterising the obligations assumed by the
Government under the Disabilities Convention as "soft law"
is indicative of an approach to the treaty which regards the rights
it protects as being of less normative force than those contained
in other human rights instruments. The UNCRPD is hard law, not
soft law. The Government should fulfil their obligations under
the Convention on that basis, and must counter the public perception
that it is soft law. (Paragraph 23)
Progress so far
Political consensus
2. We
welcome the Government's continued commitment to removing barriers
and creating opportunities for disabled people, and consider this
to be entirely consistent with their obligations under Article
19 UNCRPD. The UK has an established position as a world-leader
on disability rights and in relation to independent living in
particular. We strongly encourage the Government to make every
effort to maintain and build upon this status. (Paragraph 47)
The current situation
3. We
note the significant disadvantage to disabled people which persists
in relation to choice and control and levels of participation
in economic and social life and the impact this has on their economic
and social well-being, and on what many of our witnesses considered
to be their enjoyment of basic human rights. We therefore welcome
the Government's recognition that more progress is required to
promote disabled people's right to independent living. (Paragraph
50)
4. The
Government should continue their commitment to delivering independent
living by ensuring that the forthcoming Disability Strategy sets
out a clear plan of action to make progress with regard to independent
living as defined by Article 19, with milestones and monitoring
mechanisms. The Disability Strategy should build on and update
the outcomes framework set out in the current Independent Living
Strategy. (Paragraph 51)
Legislative underpinning of the right to independent
living
5. The
Right to Control is a welcome step towards establishing independent
living as a right. If the evaluation of the "Right to Control
Trailblazers" is positive, the Government should make regulations
to roll out the scheme nationwide in both social care and primary
health care. (Paragraph 63)
6. We
note that while the UK has made progress in developing a rights-based
approach to the design and delivery of public service support
to disabled people, disabled people in the UK do not enjoy a right
to independent living in domestic law. (Paragraph 64)
7. We
regret that the Convention has not been incorporated into UK law
and no underpinning legislation exists specifically to protect
and promote the right to independent living. While we consider
the existing matrix of human rights, equality and community care
law to be instrumental in the protection and promotion of the
right to independent living, we do not consider it sufficient.
The right to independent living (as defined by Article 19) should
be added as an outcome in any forthcoming Bill on adult social
care in England. (Paragraph 65)
8. We
remain concerned, however, that merely filling in the gaps in
the current legislative framework will still not accord the right
to independent living the legal status that its fundamental importance
deserves. We hope that the Commission on a Bill of Rights will
consider the arguments for and against expressly recognising the
right of disabled people to independent living in any Bill of
Rights for the UK. In the meantime, we recommend that all interested
parties, governmental and non-governmental, immediately start
work on assessing the need for and feasibility of free-standing
legislation to give more concrete effect in UK law to the right
to independent living. (Paragraph 67)
9. We
recommend that the Government publish their assessment of the
need for and desirability of such free standing legislation implementing
the right to independent living in the light of the forthcoming
first report of the UN Committee on Disabilities following its
scrutiny of the UK's first compliance report. (Paragraph 69)
The Government's approach to implementing the
UNCRPD
Protecting and promoting the right to independent
living
10. 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. (Paragraph 74)
11. 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. (Paragraph 75)
Independent Living Strategy: its effectiveness,
and plans for the future
12. 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. (Paragraph 82)
Coordinating implementation of the Convention
across government departments and the devolved administrations
13. 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. (Paragraph 88)
14. 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. (Paragraph 89)
Implementation of the right to independent living
by the devolved administrations
15. 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. (Paragraph 93)
16. 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. (Paragraph 94)
Ensuring that public authorities comply with the
Convention
17. 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. (Paragraph 100)
18. 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. (Paragraph 101)
Impact assessments
19. 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. (Paragraph
110)
20. 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. (Paragraph 111)
21. 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. (Paragraph
112)
22. 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. (Paragraph 113)
23. 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. (Paragraph 113)
24. 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. (Paragraph 114)
25. 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.
(Paragraph 115)
Consultation and involvement of disabled people
26. 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.
(Paragraph 121)
27. 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. (Paragraph 122)
Awareness of the UNCRPD
28. 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. (Paragraph 124)
Implementing Article 19—issues and challenges
The impact of current reforms
29. We
recognise the exceptional economic circumstances facing the UK
and the challenges involved in implementing the stringent cuts
in public spending the Government feel are necessary. However,
in tackling these economic challenges the Government must give
due attention to their obligations under international law. (Paragraph
133)
30. We
welcome the additional £2 billion for social care set out
in the 2010 Spending Review but are concerned that, without ring-fencing,
it will not make up for anticipated shortfalls in social care
budgets. Any reduction in care budgets, particularly in the context
of rising care costs, presents a serious risk of retrogression
in the realisation of the right to independent living. (Paragraph
134)
31. We
concur with Scope's view that expenditure on independent living
should be seen as an investment and that such an approach will
reduce long-term costs and promote better outcomes for disabled
people and for society in general. We urge the Government to
adopt this approach to the funding of adult social care and other
budgets which contribute towards independent living. (Paragraph
135)
32. We
are concerned that the restriction of Fair Access to Care Services
eligibility criteria to critical-only risks giving rise to individual
breaches of Article 19(a) of the Disabilities Convention and to
retrogression in the realisation of the rights in Article 19(b).
We recommend that the Disability Strategy includes measures to
monitor the impact of restrictions on eligibility for adult social
care on disabled people's right to independent living. (Paragraph
138)
33. We
welcome the Government's recent decision that disabled people
in residential settings should continue to be eligible for DLA/PIP
mobility component. However, we recommend that, in order for
PIP to play its part in promoting independent living, the new
assessment system and eligibility criteria:
a) must not create a disincentive to using aids
and adaptations;
b) continue to be based on the fundamental principle
that it is a benefit based on the additional costs of impairment,
and not based on medical diagnosis; and
c) should be independently reviewed with the
involvement of disabled people's organisations before being rolled
out nationally. (Paragraph 145)
34. Significantly
fewer people will receive PIP in comparison with those currently
receiving DLA. DLA was conceived as a means to enable disabled
people to meet the extra costs associated with overcoming barriers
to independent living. We fear the introduction of PIP will restrict
the ability of disabled people to overcome these barriers and
enjoy the right to independent living (Paragraph 146)
35. We
are extremely concerned that the closure of the Independent Living
Fund to new applicants, with no ring-fenced alternative source
of funding, may severely limit the ability of disabled people
to participate in society. We would expect the Government to address
this issue in their consultation paper on replacement funding
to be published in early 2012 and to ensure that this change in
policy does not result in individual breaches of the rights in
Article 19(a) and retrogression as far as Article 19(b) is concerned.
(Paragraph 152)
36. We
welcome the Government's statements that they do not wish to see
people forced to move from houses which have undergone adaptation,
but the interaction between where a person lives and other elements
of the right to independent living go further than the issue of
adaptations alone. (Paragraph 159)
37. We
welcome the increase in the Discretionary Housing Fund, but are
concerned that its discretionary nature means it will not provide
an adequate guarantee that the right of disabled people to exercise
choice and control over where they live will be consistently upheld
in the light of reductions in Housing Benefit. (Paragraph 160)
38. The
range of reforms proposed to housing benefit, Disability Living
Allowance, the Independent Living Fund, and changes to eligibility
criteria risk interacting in a particularly harmful way for disabled
people. Some disabled people risk losing DLA and local authority
support, while not getting support from the Independent Living
Fund, all of which may force them to return to residential care.
As a result, there seems to be a significant risk of retrogression
of independent living and a breach of the UK's Article 19 obligations.
(Paragraph 161)
39. We
recommend that the Office for Disability Issues, working with
the devolved administrations and local authorities, monitor the
impact of reform and spending decisions on the right to independent
living and undertake to promote innovative ways through which
to mitigate their impact. This should include reporting on to
what extent reforms to the ILF, DLA and housing benefit are enabling
the Government and local authorities to deliver their Article
19 obligations. (Paragraph 162)
Adult social care
40. National
and local government should monitor and actively promote the innovative
practices of local authorities which employ personalisation effectively
to mitigate the impact of spending cuts. The Government should
monitor the extent to which choice and control is being diminished
or increased by the roll out of personal budgets, and take action
if the goal of increasing choice and control is not being realised.
(Paragraph 168)
41. We
welcome the Government's pilot scheme to extend personal budgets
to primary healthcare. They should also monitor this scheme with
regard to the increase or reduction of choice and control, and
take action if there is no increase. (Paragraph 169)
42. We
welcome the Government's intention to consider introducing portable
assessments. However, we are concerned that this may be insufficient
to ensure the enjoyment of rights under Article 19, in particular
the right to choose one's place of residence and where and with
whom one lives on an equal basis with others. We urge the Government
to consider whether further action is required. (Paragraph 175)
43. The
Government should include in its Disability Strategy Action Plan
a commitment to enable disabled people living in residential settings
to access their full Article 19 rights. It should also set out
actions to achieve this commitment, and establish detailed outcomes
against which progress can be measured and monitored. The Government
should also ensure that residential care home providers are aware
of the UNCRPD and of their role in assisting in its implementation.
(Paragraph 181)
44. There
appears to be an anomaly in the charging policy for residential
care which creates a significant work disincentive, thus impeding
access to independent living. The Government also appear not
to recognise the extent to which people living in residential
care are able to engage in paid work. We urge the Government
to take action to remove this disincentive as soon as possible.
(Paragraph 184)
45. The
Government should, in partnership with disabled people's organisations,
monitor the extent to which regulation and inspection frameworks
are promoting independent living in both domiciliary and institutional
settings. The Disability Strategy should include the role of
regulation and inspection in promoting Convention rights. (Paragraph
188)
46. The
NHS Commissioning Board should produce guidance for Health and
Wellbeing Boards on the need to incorporate human rights into
their commissioning strategies, emulating the guidance of the
Scottish Government. (Paragraph 193)
47. The
Health and Social Care Act 2008 included a provision which ensured
private and third sector care homes were defined as carrying out
a public function when providing publicly-arranged care, bringing
them within the scope of the Human Rights Act 1998. The current
Health and Social Care Bill should be similarly amended to extend
this definition to provision of care at home. (Paragraph 194)
Access to information and advocacy
48. Access
to information, advice and advocacy is critical for all disabled
people to benefit from personalisation. The Government should:
- monitor access to information, advice, and advocacy
services in the context of the roll-out of personal budgets;
- continue to support and develop the role of Disabled
People's User-Led Organisations to enable them to provide independent
information, advice, and advocacy services; and
- implement the advocacy provisions in sections
1 and 2 of the Disabled Persons Act 1986 when reforming community
care legislation. (Paragraph 199)
49.
The Disability Strategy should set out how the Government intend
to take action on, and measure progress on, disabled people's
access to housing, transport, public space and public services
within the context of the right to independent living. (Paragraph
204)
Hate crime and abuse
50. The
occurrence of hate crime against disabled people, and the fear
of such crime, is a growing threat to disabled people's ability
to live independently. We welcome the Government's commitment
to reducing hate crime, and in particular the requirement that
police forces collect and report data on such offences. (Paragraph
208)
51. We
remind the Government of its obligations under Article 8 of the
Disabilities Convention to foster respect for the rights and dignity
of persons with disabilities and to combat stereotypes and prejudices
relating to such people. The Government should take care to ensure
that the justifications it offers for its reforms to the system
of disability benefits does not undermine its other work to promote
positive perceptions and greater social awareness towards persons
with disabilities. (Paragraph 209)
52. The
Government should monitor the extent to which access to redress
and justice for disabled people is affected by the provisions
of the Legal Aid, Sentencing and Punishment of Offenders Bill,
and the effect this has on their right to independent living.
The Disability Strategy should include action to be taken to
ensure disabled people's access to redress and justice. (Paragraph
214)
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