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

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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Prepared 1 March 2012