Government response |
This memorandum sets out the Government's response
to the conclusions and recommendations in the Joint Select Committee's
report, Implementation of the Right of Disabled People to the
The Government welcomes the report as an important
and timely contribution to discussion about implementation of
the United Nations Convention on the Rights of Disabled People
(the Convention') and the development of a new Disability Strategy.
It also welcomes the Committee's acknowledgement
that this Government is committed to removing barriers and creating
opportunities for disabled people, and that the UK is a world-leader
on disability rights and in relation to independent living in
Disabled people make a huge contribution to societythrough
work, volunteering, caring and as active members of communities.
However, there remain significant physical and attitudinal barriers
that prevent disabled people from reaching their full potential
and playing their role in society.
The Government is committed to tackling these barriers
and to enabling disabled people to have opportunities to play
a full role in society. The Government has been working with disabled
people to develop a new Disability Strategy that will build on
the UK's long standing commitment to independent living and equality
for disabled people.
The Government wants to realise the aim of independent
living, where "all disabled people have the same choice,
control and freedom as any other citizenat home, at work,
and as members of the community. This does not necessarily mean
disabled people 'doing everything for themselves', but it does
mean that any practical assistance people need should be based
on their own choices and aspirations".
To take this forward, the Government is working to
frame a new Disability Strategy. The aim of the Strategy is to
give renewed impetus to our commitment to enabling disabled people
to fulfil their potential and have opportunities to play a full
role in society. It will focus the need for continued action across
government and externally. It will be based around three themes:
disabled people must have the opportunities and support they need
to realise their potential and their aspirations for education,
work and independent living, particularly during key life transitions.
Individual control: disabled
people must have the opportunity to make their own choices to
live independently, with choice and control in their daily lives.
Changing attitudes and behaviours: discrimination
and harassment are unacceptable. We must grow strong and positive
attitudes and behaviours towards disabled people to enable their
full participation in work, family and community life
The Government is committed to working with disabled
people and their organisations on the development of the Disability
Strategy. In December 2011, the Office for Disability Issues (ODI)
at the Department for Work and Pensions published a discussion
documentFulfilling Potentialas the basis
for discussions and has worked with disabled people to explore
how the Strategy can be developed and what actions will be both
realistic and can have the greatest impact.
The discussion period ended on 9 March. Huge interest
was shown in the document. The ODI received 548 written responses
from organisations and individuals. In addition, the Government
provided funding for around 100 events held by disabled people's
organisations around the country to enable disabled people to
discuss their ideas around Fulfilling Potential. Overall
more than 5,000 disabled people have taken the opportunity to
help shape the new strategy.
In the light of all the responses received, work
is in progress on the Strategy, which the Government will publish
later this year. The Committee's report makes a number of recommendations
about the approach that the Strategy should take, and these are
being considered as part of that work.
The context in which we are developing the Disability
Strategy is a challenging one and must recognise the reality of
the current fiscal environment. Nonetheless, the Government is
committed to tackling the barriers that may prevent disabled people
from participation in society as equal partners. The Strategy
will reflect the Government's fundamental reform programme that
will create a new welfare system for the 21st century. This will
transform the opportunity for people without jobs to find work
and support themselves and their families, and will ensure that
the most vulnerable in society are protected. Disabled people
are at the heart of this ambition, which recognises that support
for disabled people must not mean a life of welfare dependency,
but must enable everyone to take an equal role in society. The
Strategy will also reflect the move away from traditional top-down
direction from central government towards a flexible approach
and a greater emphasis on localism, which enables decisions to
be responsive to the real needs of local communities, including
As the Committee's report acknowledges, the devolved
administrations have their own strategic approaches to the achievement
of independent living for disabled people, and to implementation
of the UN Convention on the Rights of Disabled People. The Disability
Strategy will therefore primarily be for England, but with some
policies applicable to the UK as a whole.
The legal status of the relevant standards in
the Disabilities Convention
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.
The Government recognises that the Convention is
a legally binding instrument, and has made it clear that it is
committed to its implementation. The evidence given to the Committee
was intended to make the distinction that international treaties
are generally not incorporated into UK domestic law. The Convention
imposes legal obligations on the UK Government. The UK fulfils
these obligations through existing domestic legislation, such
as the Equality Act 2010, and through policy and programmes that
impact upon the lives of disabled people. In this way, the rights
contained in the Convention have practical effect.
Progress so far
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.
The Government welcomes the Committee's recognition
of its commitment to removing the barriers that disabled people
face, and of the position that the UK has established as a world-leader
on disability rights. The Government aims to build on the strong
foundations that exist with a new Disability Strategy, co-produced
by disabled people, and a programme of reform across welfare,
education, employment support and social care to make the state
system work better for disabled people.
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
The new Disability Strategy will be based around
1. Realising Aspirations: disabled people must have
the opportunities and support they need to realise their potential
and their aspirations for education, work and independent living,
particularly during key life transitions.
2. Individual control: disabled people must have
the opportunity to make their own choices to live independently,
with choice and control in their daily lives.
3. Changing attitudes and behaviours: Discrimination
and harassment are unacceptable. We must grow strong and positive
attitudes and behaviours towards disabled people to enable their
full participation in work, family and community life
The Disability Strategy will build upon the UK's
long-standing commitment to independent living and aim to ensure
all disabled people have the opportunities to fulfil their potential.
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.
The Government agrees that the Disability Strategy
should build on previous strategic thinking, including the Independent
Living Strategy, the 2005 Life Chances report, the Roadmap 2025,
and the Government's commitment to the UN Convention on the Rights
of Disabled People. The Strategy will restate the Government's
continuing commitment to enable disabled people to make their
own choices and have the right opportunities to live independently.
One of the three themes around which it will be framed is Individual
Control. This will focus on enabling disabled people to make their
own choices and ensuring that they have the right opportunities
to live independently.
The Strategy will set out actions to be taken across
The Government agrees with the Committee about the
importance of monitoring the impact of the Disability Strategy.
As part of the work being undertaken by the Office for Disability
Issues (ODI) within the Department for Work and Pensions, which
is developing the Strategy for Government, it is looking at how
to achieve this, through various means, including for example,
gathering information on the lived experience of disabled people.
Legislative underpinning of the right to independent
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.
The evaluation of the Right to Control Trailblazers
will be published in the spring of 2013. A final decision on the
future of Right to Control will be made when all the evidence
has been received and considered.
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
As the Committee notes in Conclusion 7, there is
already an existing matrix of legislation which protects and promotes
the rights of disabled people and which helps deliver independent
living. The foundation is the Equality Act whichthrough
the requirement for public bodies to take account of the needs
of disabled peopleis the key legislative vehicle for delivery
of the obligations of the Convention, including independent living.
The Government believes the right approach is to ensure that disabled
people have the personalised outcome focused support and services
they need to live independently, and is committed to working with
disabled people and their organisations to achieve that. The new
Disability Strategy will be outcome- focused and based on the
principles of independent living as described by disabled people
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.
The Department of Health is considering the Law Commission's
proposals in this area as part of its broader approach to law
reform in social care. It has committed to responding formally
to the Law Commission's report in the soon to be published White
Paper, and publishing a draft Bill in the coming session as per
the recent Queen's Speech. We still intend to legislate at the
earliest opportunity. The Department thinks that a set of outcome-focused
statutory principles will be an important element of the new legal
framework for care and support, to act as a unifying purpose for
the law. It is considering the best design for statutory principles
to capture outcomes and assumptions and the best way to give effect
to the concept of independent living in the law.
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 nongovernmental,
immediately start work on assessing the need for and feasibility
of freestanding legislation to give more concrete effect in UK
law to the right to independent living.
The Commission on the Bill of Rights is independent
of Government and therefore will decide for itself how it discharges
its wide-ranging terms of reference. It is clear from the Commission's
published minutes that it is considering a wide range of options,
including the possibility of adding additional rights to those
already protected in law in the UK. However, it is also clear
that it has not yet reached final conclusions on any of those
options or on the central question of whether a case for a UK
Bill of Rights has been made. In line with its terms of reference,
the Commission should aim to report no later than the end of 2012.
As set out in the written Ministerial statement announcing its
establishment, the Commission will report to the Justice Secretary
and the Deputy Prime Minister.
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.
The Government submitted the first UK report on implementation
of the Convention to the UN Committee on the Rights of Persons
with Disabilities in November 2011. When the Committee has considered
that Report and made any recommendations, the Government will
consider very carefully how to respond, including in respect of
any recommendations made for implementation of Article 19.
Protecting and promoting the right to independent
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.
The new cross-government Disability Strategy will
aim to provide a coherent and joined up approach to removing barriers
and creating opportunities for disabled people. As has been described
under recommendation 3 above, the Strategy will frame the approach
around three overall themes, whilst recognising that delivery
of services for disabled people and the decisions that affect
them may be made at local level. This overarching approach does
not mean that the Government will be prescriptive or directive
regarding how local authorities deliver their statutory duties.
The Government is committed to strengthening local accountability.
Localism is an essential policy to drive forward policies to increase
the personalisation of support and enable greater flexibility
in the delivery of services so that they are responsive to local
needs rather than national targets.
In developing the Strategy, the Government is looking
at how progress can be monitored at national and local level,
and is involving disabled people in those discussions. The Strategy
will be a living document that will continue to develop as progress
is made, and to reflect changing circumstances and priorities.
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 anotherand 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.
The Government agrees that nature of independent
living is complex, and that individual disabled people will have
different expectations and aspirations towards independence in
their lives. The new Disability Strategy therefore will have as
one of its three themes focused on Individual Control, which aims
to enable disabled people to make their own choices and have the
right opportunities to live independently. Work around the other
two themesRealising aspirations and Changing attitudes
and behaviours is also relevant (recommendation 3 above refers).
The Disability Strategy will draw the links between different
actions so that dependencies and key transition points are clear.
The Strategy will take a holistic approach and address achievement
of independent living from the perspective of a disabled person.
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.
The Government's new Disability Strategy will take
the Convention as its basis, and will build on progress made to
date. The Government agrees that the Strategy should be robust,
targeted and deliverable. The Strategy will focus on actions that
are realistic and will have the most impact. It will reflect what
disabled people themselves have said are the important issues
through the discussions around Fulfilling Potential.
The Government agrees that ongoing monitoring of
the Strategy is an important issue. The Strategy will be a living
document that will evolve over time to reflect progress made,
and the development of new actions and policy directions. In the
discussions around Fulfilling Potential, the Office for
Disability Issues (ODI) has asked disabled people for their views
on how they think delivery of the Strategy should be monitored,
and how they can be involved in this so that their voice is heard.
The ODI also intends to ensure it gathers the data needed to allow
progress to be measured, and will, for example, capture first
hand the lived experiences of disabled people to inform an understanding
of what impact the Strategy is having.
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.
The UK Government will ensure implementation of the
Convention. As the first UK report to the UN Committee on the
Rights of Persons with Disabilities explains, most of the areas
that the Convention covers are devolved, and the devolved administrations
are therefore developing their own strategic responses to it in
the light of their own assessment of needs, resources and priorities.
In line with the spirit of the devolution settlements and the
Sewel Convention, the UK Government will not seek to impose detailed
requirements on the devolved administrations in this regard
The obligations of the Convention are fulfilled through
existing UK legislation. At local level, this means that local
authorities will already be taking the needs of disabled people
into account. The public sector Equality Duty means that local
authorities must have 'due regard' to the need to eliminate unlawful
discrimination, advance equality of opportunity and foster good
relations between people from different groups. To have 'due regard'
a local authority will consider the effect its policies will have
on equality for disabled people.
The Government is not prescriptive or directive regarding
how local authorities deliver their statutory duties and is committed
to strengthening local accountability. Localism is an essential
policy to drive forward policies to increase the personalisation
of support and enable greater flexibility to delivery services
that are responsive to local needs rather than national targets.
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.
The report to which the Committee refers was produced
by the Office for Disability Issues (ODI) for the UK Government
in response to a request from the Office of the UN High Commissioner
for Human Rights, following a resolution of the UN Human Rights
Council in 2009. The report describes the approach to national
implementation and monitoring of the Convention required by Article
33. This was also described in the first UK Government report
to the UN Committee on the Rights of Persons with Disabilities.
The approach to national implementation and monitoring remains
as described. The ODI acts as the focal point for UK Government,
and England, and has regular meetings with the focal points in
the devolved administrations to discuss Convention-related issues,
including progress on the development of strategic responses to
the Convention. These will continue. The Government will consider
the need to provide further information on this in the light of
work on the Disability Strategy.
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.
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.
The Government notes the Committee's points, which
are for the devolved administrations in Northern Ireland, Scotland
and Wales to consider.
Ensuring that public authorities comply with the
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.
The Equality Act is the key legislative vehicle for
delivery of the obligations of the Convention, although other
legislation and a range of non-legislation measures are relevant
also. The Equality Duty specifies duties, which the Committee
referred to, are only part of this broad picture.
The specific duties that support the Equality Duty
are deliberately less prescriptive than those supporting the earlier
race, gender and disability duties. The Government believes that
those earlier specific duties, which required the production of
equality schemes, action plans, staff training schedules, annual
reports, and so on, drove unproductive bureaucracy and a culture
of box-ticking, rather than action to promote equality.
The Government announced on 15 May that is bringing
forward the planned review of the specific duties and will broaden
out the review to cover the general duty.
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.
The Office for Disability Issues (ODI) has worked
across Government and with the devolved administrations, the independent
mechanism (the Equality Human Rights Commission, the Northern
Ireland Human Rights Commission, the Equality Commission Northern
Ireland and the Scottish Human Rights Commission) and with disabled
people and their organisations, to raise awareness of the UN Convention.
ODI will continue to explore how to raise awareness and understanding
of the Convention with key stakeholders, including whether there
is a need to raise awareness amongst public and local authorities,
how that might be achieved and the role that Government and disabled
people themselves can play in this.
The Disability Strategy will take the Convention
as its basis and it will serve as the key vehicle to show how
actions that support Convention rights are being taken. As part
of the process of developing the Strategy, ODI is looking at how
it will be supported by a monitoring process to measure the impact,
and who should be involved in that in addition to Government.
The devolved administrations will consider arrangements for monitoring
their own strategic responses to the Convention on areas that
are devolved. ODI and focal points in each of the devolved administrations
meet regularly to discuss Convention-related issues, and this
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
The Government is committed to the implementation
of the Convention, and recognises that policy reform and developments
that will affect the lives of disabled people should help it take
forward its obligations under the Convention. The Government will
set out its approach when an announcement is made to Parliament
on publication of the Disability Strategy.
The UK takes international obligations of this nature
very seriously. If after scrutiny of the first UK Government report
on implementation of the Convention that was submitted in November
2011, the UN Committee on the Rights of Persons with Disabilities
makes recommendations in respect of UK policy and practice, the
Government will consider these very carefully in order to make
an appropriate response.
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 policymaking
process with the full involvement of those likely to be affected
by the policy.
The Government is encouraging public bodies to consider
equality issues at an early stage in policy development process,
and to record that consideration in a proportionate and non-bureaucratic
manner. The Government is concerned that equality impact assessments
often become lengthy, bureaucratic, box-ticking documents, produced
after key decisions have been taken, and are ineffective in terms
of influencing policy development and promoting equality.
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.
The ability to undertake cumulative analysis is limited
because of the complexity of the modelling required and the amount
of detailed information on individuals and families that is required
to estimate the interactions of a large number of different policy
The Disability Strategy will be accompanied by a
process to allow monitoring of progress at national and local
level and which will draw on the lived experiences of disabled
people. It will be a living document that will continue to develop
as progress is made, and to reflect changing circumstances and
priorities. It will be for the devolved administrations to consider
their approaches in the light of their devolved responsibilities.
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.
The Government's position on the Equality Duty and
impact assessments is set out above (recommendations 17 and 20
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.
In line with the Secretary of State for Justice's
comments at his evidence session before the Committee on 20th
December 2012, the Ministry of Justice has contacted the Scottish
Human Rights Commission to start a dialogue about its work on
a human rights impact assessment methodology and to see the lessons
that might be learnt. As the Secretary of State for Justice also
made clear in his response, the Ministry of Justice's further
consideration of this work will be closely focused on the value
it adds and avoiding another formal form filling requirement.
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.
The Government agrees that poor quality, untimely
equality impact assessments (EIAs) would be ineffective in influencing
policy development. As recommendation 20 above notes, the Government
is encouraging public bodies to consider equality issues earlier
in the policy development process, and to record that consideration
in a proportionate and non-bureaucratic manner. The Government
has been consistently clear in its messaging that there is no
statutory requirement to conduct or publish an Equality Impact
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.
This is an issue for the Commissions as part of their
work as the independent monitoring mechanism for the Convention.
The Government will welcome any contribution that they offer to
discussions on the development of the Disability Strategy, and
hopes that the devolved administrations will be similarly responsive
to the Commissions' engagement.
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.
The Government believes that disabled people are
experts in their own lives and is committed to their involvement
in the development of policies that affect them. The Government
has reflected this in the approach taken to the UK Government
Report on implementation of the Convention and in the active co-production
with disabled people of the new Disability Strategy, and in the
process of development of welfare reforms such as Personal Independence
The Government has focused its approach to development
of the Strategy around the discussion document Fulfilling Potential.
This sets out three broad themes framed around the issues that
disabled people have said are important to them. During the discussion
period, the Government provided support to more than 60 organisations
of disabled people to run over 100 events to reach out to disabled
people and give them opportunity to shape the strategy. The Government
did things differently precisely so that disabled people who would
not normally take part in developing Government policy could get
involved. To help them with that Government provided funding to
a wide-range of organisations for expenses to assist them in running
events involving disabled people. The Government estimates that
through this approach, over 5000 disabled people have taken the
opportunity to put forward practical ideas for making a real difference
to their lives.
The Government's aim has been to get ideas from disabled
people not just about the barriers that they may face, but their
ideas on how those barriers can best be overcome and how they
want to be involved in ongoing monitoring. The Disability Strategy,
which is still being developed, will show how the Government captured
and built on those ideas.
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.
It is wrong to suggest that the Equality Duty or
the specific duties do not encourage the involvement of disabled
people. On the contrary, the guidance makes clear that involving
relevant parties may be essential in some cases to comply with
the Equality Duty; and reporting that involvement may be necessary
to comply with the specific duties. The Equality and Human Rights
Commission has produced a detailed guide on this issue, Engagement
and the equality duty: A guide for public authorities, and
the Government has funded an online toolkit to help voluntary
and community organisations to understand the Equality Duty and
engage with public bodies about it.
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.
The Government will centre the new Disability Strategy
on the lives and experiences of disabled people, in order to make
a reality of the Convention. The Government will explore the need
for awareness raising of the Convention within the work undertaken
with disabled people on development and implementation of the
An important part of the Strategy will be about ensuring
that disabled people can access information, advice and advocacy
services to help them secure their rights. The Government recognises
that Disabled People's User Lead Organisations (DPULOs) have a
key role in helping provide that support. In order to help build
DPULO's capacity and sustainability, the Government is funding
a £3 million programme to help organisations grow and to
strengthen the role disabled people play in local communities
giving them a greater role in shaping the local decisions that
will affect their everyday lives.
The impact of current reforms
Local authority expenditure
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
As the Committee recognises, the current economic
situation faced by the UK is both challenging and complex. Nonetheless,
the Government remains committed to implementation of the Convention
and to the removal of barriers that disabled people face. This
cannot simply be a question of spending more money. The approach
must also be one that looks beyond purely financial measures to
address the root causes of entrenched disadvantage, such as poor
educational achievement and worklessness. The approach must also
look at how the available resources are spent to maximise their
effectiveness. This includes recognising that the extra costs
that disabled people may face are often very specific and individual.
By working to personalise services where appropriate, for example,
by rolling out personalised budgets to give disabled people and
their carers more control and purchasing power, the Government
is ensuring that resources can have more impact on the lives of
individual disabled people.
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
In the Spending Review, the Government recognised
the pressures on the adult social care system within a challenging
settlement for local government, and took the decision to prioritise
adult social care by allocating an additional £7.2 billion
to the system over the four years to 2014/15 to support local
authorities in delivering social care. The Government's Spending
Review assessment was broadly corroborated by a report from the
King's FundSocial care funding and the NHSwhich
showed that, in its worst-case scenario, councils would need to
find efficiency savings of 3.5% p.a. to meet the demand pressures
on the system.
The Government believes that the extra investment
it has set out, combined with a rigorous focus on efficiency,
means that there is funding available to protect people's access
to care in the Spending Review
How local authorities use the available resources
is for them to determine in the light of their assessment of local
priorities. This Government is committed to scaling back ring-fencing
as part of its agenda of decentralisation. The removal of ring
fencing has enabled councils to manage their budgets in line with
the priorities of their residents to protect key frontline services,
protect the local taxpayer, reduce burdens and drive efficiencies.
The Government notes that a recent report by Demos
and Scope, Coping with the Cuts, suggests that there is
no direct correlation between the budget reductions faced by adult
social care services and the impact upon local people. The report
also shows that the councils that have 'coped' best with budget
reductions are in a mixture of affluent and deprived areas, urban
and rural. This demonstrates that if local authorities make appropriate
efficiency savings and develop innovative solutions, authorities
can maintain and improve people's outcomes and access to the services
that people need, including outcomes related to independent living.
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
The Government has recognised the importance of enabling
individuals to lead independent lives with personalisation being
one of its seven principles of social care, as set out in its
Vision for Adult Social Care. This includes expanding the use
of personal budgets so that individuals choose the most appropriate
care for them.
As well as giving individuals more control over their
care, the Government has moved away from institutionalised care
towards support in the community for an independent life. To support
this, and the whole of adult social care, the Government has allocated
an additional £7.2bn to local authorities over this spending
review period. It must be for local authorities to decide how
to spend their budget in the light of their assessment of local
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.
The Government is committed to protecting the vulnerable
in society and Article 19(a) is not contravened by Fair Access
to Care Services (FACS) criteria, as the aim of FACS is to ensure
that all individuals, assessed as eligible for care services,
can access the care they need. The Department of Health published
Prioritising need in the context of Putting People First: A
whole system government approach to eligibility for social care,
guidance on eligibility criteria for Adult Social Care England
2010, to assist councils with adult social services responsibilities.
The guidance, that helps determine eligibility for adult social
care, in a way that is fair, transparent and consistent, came
into effect on 1 April 2010.
In addition, the Social Care Institute for Excellence
published Facts about FACS 2010: A guide to Fair Access to
Care Services in April 2010. This provided guidance for frontline
staff and managers using FACS criteria to make funding decisions,
as well as guidance on the assessment process.
Adult social care is a locally delivered system and
local authorities choose how to manage their own resources when
supporting the needs of disabled people within their communities.
However, the Government is convinced that the extra investment
set out, combined with a rigorous focus on efficiency, means that
there is funding available to protect people's access to care
in the Spending Review.
If local authorities do decide to make changes to
eligibility criteria, these should be consulted on with the wider
population so that they are aware of such changes. Local authorities
should provide clear written explanations when making changes
to an individual's care package. Local authorities can use a variety
of methods to address an individual's care needs, but when using
their eligibility criteria framework they should work with individuals
to identify the outcomes they wish to achieve and to identify
any unmet needs.
Disability Living Allowance
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
The Government is committed to supporting disabled
people to exercise choice and control and lead active independent
lives. By introducing Personal Independence Payment (PIP), the
Government wants to create a fairer, more transparent and sustainable
system. Overall, spending on PIP and DLA will be higher in real
terms in 2015/16 than spending on DLA was in 2009/10 (£13.2
billion compared to £12.4 billion). Meanwhile, support will
be better focused on those with greatest challenge to living independent
lives and a higher proportion of the caseload are likely to receive
the highest rates of the benefit than under DLA.
Like DLA, PIP is designed to make a contribution
towards the extra costs that disabled people face. However, the
Government does not think it would be feasible to measure the
actual costs that individual disabled people incur. Such an approach
would result in a subjective, inconsistent, complicated and lengthy
assessment. Instead the Government intends to consider a proxy
for these extra costs. DLA uses individuals' care and mobility
needs as this proxy while PIP will consider an individual's ability
to participate in society. Entitlement will not be based on the
medical diagnosis of the claimant.
The draft assessment criteria look at an individual's
ability to carry out a range of key everyday activitiesfor
example, relating to his/her ability to access food and drink,
manage personal care and therapy, communicate and get around.
The proposed assessment criteria, weightings and entitlement thresholds
are intended to reflect and differentiate between the barriers
and extra costs faced by disabled people, considering issues such
as the support they need from other people or whether they need
to use aids and appliances. They take into account that impairments
can affect people in different ways depending on severity and
personal circumstances. As such the level of priority an individual
will receive will vary according to their particular needs.
PIP has been designed to target support on disabled
people who are least able to participate and live independently.
As such, if individuals are participating well with the use of
aids or appliances, the Government believes that this should be
taken into account. The proposal is to take into account aids
that are actually used by individuals and which could reasonably
be expected to be used, in the same way as in DLA currently. There
is no assumption that using an aid removes an individual's need
and the Government recognises the need to ensure that the assessment
does not create any incentives for disabled people not to take
up aids. Points will usually be awarded in the assessment where
aids or appliances are required, recognising the need, and it
will be entirely possible for people using aids to qualify for
the benefit, depending on their circumstances.
The Government has developed the assessment criteria
in collaboration with a group of independent specialists in disability,
health and social care, including representatives of disabled
people. In addition, significant consultation, co-production and
testing have already been carried out and have played a considerable
role in shaping the draft criteria. This work is ongoing, with
a 15 week formal consultation on the second draft assessment criteria
having closed on April 30. The Government will carefully consider
all of the responses received and the further changes that may
need to be made to the assessment criteria. Further testing will
be carried out if needed. We will publish our response to the
consultation and final draft regulations later this year. The
final regulations will also be subject to Parliamentary scrutiny
through the affirmative procedure.
Given the significant involvement of disabled people
and their organisations in the development process and the testing
work that has been carried out, the Government is confident that
the assessment criteria will work effectively before they are
introduced in 2013. As such it does not feel that an independent
review is necessary at this stage. However, the Government will
ensure that throughout the initial and ongoing implementation
of PIP there is continuous and thorough monitoring of all aspects
of the claims process, including the assessment. Changes will
be made where necessary. The operation of the PIP assessment will
also be subject to two independent reviews, reporting to Parliament
within two and four years of implementation.
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.
The Government's position on Personal Independence
Payment is set out above (recommendation 33 above refers).
Independent Living Fund
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.
Today's social care system is almost unrecognisable
from the system in place when the Independent Living Fund (ILF)
was first established in 1988. The ILF played an important role
in that transformation. The ILF is, and has been since it was
established, a discretionary funding stream and payments from
the fund do not take precedence over the responsibility of local
authorities to assess and fund care and support needs.
The Government closed the ILF to new users because,
as was concluded by an independent review of the fund in 2007
but not acted upon by the previous administration, it was no longer
sustainable to administer this funding through a separate Non-Departmental
Public Body (NDPB) in parallel to the mainstream care system.
Local Authorities are funded to meet those needs
as explained under response 30.
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.
The Government recognises the important role that
adaptations play in enabling people to lead active and independent
lives and has protected funding for Disabled Facilities Grant
(DFG) within the 2010 Spending Review. By the end of the Spending
Review period, the national allocation to local authorities for
DFG will have increased from £169 million in 2010/11 to £185
million in 2014/15. An additional £20 million was made available
in January 2012 for DFG in 2011-12 bringing the total investment
in DFG over the Spending Review period to £745 million. Funding
is also available for schemes such as home repairs and adaptations,
and local advocacy services to enable disabled people to make
informed choices about their housing and care. For example £51m
has been allocated to the Handypersons scheme and £1.5m invested
in the FirstStop information and advice service.
The Government's commitment to promoting choice and
providing housing opportunities for people with long-term disabilities,
enabling them to live independent lives, goes wider. The Home
Ownership for people with Long-term Disabilities (HOLD) scheme
is designed to help people with long term disabilities who need
to live in a specific location and are unable to access the Government's
mainstream new build low cost home ownership programme. The scheme
enables them to buy a property on the open market on shared ownership
terms with a registered housing provider. The Department for Communities
and Local Government (DCLG) through its Affordable Housing programme
will continue to provide funding to housing providers to assist
with the purchase of the home so it can be offered on shared ownership
The Government's commitment also extends to enabling
people to make an informed choice about their housing and care.
The Government is investing £1.5 million in the FirstStop
information and advice service. FirstStop provides joined-up advice
across a range of housing, care finance and rights. This includes
investment in the development of local Firststop partnerships
to offer more intensive local support and advocacy services for
people requiring higher support need.
The National Planning Policy Framework, which was
published on 27 March, asks local planning authorities to ensure
that their Local Plan meets the full, objectively assessed needs
for market and affordable housing in their housing market area.
Local planning authorities should also deliver a wide choice of
homes and plan for a mix of housing based on demographic trends
and the needs of different groups in the communities, such as
older people and people with disabilities. Housing applications
should be considered in the context of the presumption in favour
of sustainable development. It is for local authorities to determine,
engaging with their communities and key partners, the type of
housing that is needed in their area. The Framework is available
on the Department for Communities and Local Government's website
The design of neighbourhoods is also vital in enabling
independence. In January, DCLG published the independent Lifetime
Neighbourhoods report to share good practice and enable local
partners to create inclusive neighbourhoods where everyone can
participate fully in his/her local community, regardless of age
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
The support for Discretionary Housing Payments has
already trebled and the Government has added a further £30
million on top of that to assist some of those affected by the
introduction of social sector size criteria into the calculation
of Housing Benefit from April 2013. This additional funding from
2013/14 is aimed specifically at two groups. The first is disabled
people who live in significantly adapted accommodation; the extra
funding is to enable them to remain in their existing homes. The
second group is foster carers, including those who need to keep
an extra room when they are in between fostering.
The Government believes that Discretionary Housing
Payments are a more effective approach than providing blanket
exemptions for every situation where the claimant faces a shortfall
between their rent and the amount of Housing Benefit payable.
Local decision makers are far better placed to make informed judgements
about relative priorities and needs and to target limited resources
The Government is making it easier for all social
tenants to move, through changes to the allocation rules contained
in the Localism Act and the introduction of a national home swap
scheme, HomeSwap Direct. In addition, DCLG has allocated £13m
over the next four years to help local councils support under-occupying
social tenants who wish to downsize, as well as funding an action
team within the Chartered Institute of Housing to work with all
social landlords to help them promote moves.
The Government will keep the wider position under
review as the overall package of Housing Benefit reforms takes
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.
As the response to recommendation 21 above notes,
the Government's programme of welfare reform will be fully implemented
in 2017/18 and many policy details are still being finalised.
The effect of these changes, and those in the tax system and in
Government spending since 2010 is complex. The Government is committed
to enabling disabled people to make their own choices and to live
independently. The new Disability Strategy will restate this commitment.
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.
The Governmentthrough the work of the Office
for Disability Issueswill monitor disabled people's experiences
of independent living as part of the monitoring set in place for
the Disability Strategy. For example, at local level, the ODI
will develop processes to capture the lived experiences of disabled
people and ensure that mechanisms are in place to address issues
that are identified through the monitoring process.
At national level the ODI will continue to monitor
a range of indicators including, for example, the following which
look specifically at independent living:
- People with long-term conditions
supported to be independent and in control of their condition.
- Disabled people's perception of the choice and
control their have over their lives.
- Take up of direct payments.
- People supported to live independently through
- Suitability of accommodation for disabled people
requiring adaptations to their home.
- Households living in non-decent accommodation.
Adult social care
Personalisation of 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.
Local authorities are primarily accountable to their
own population for the performance of services and the outcomes
achieved for local people. However, the Government is clear that
there should not be limitations on the uses of personal budgets
as long as they accord with a care plan. The Department of Health
is currently considering how local authorities should work with
individuals to ensure their outcomes are met through true choice
and control, both of which are crucial mechanisms to the personalisation
agenda. The policy position will be set out in the soon to be
published White Paper.
The Department of Health and the social care sector
has published guidance to local authorities to ensure personal
budget holders received the support they required to take control
and obtain services. Among these publications are the 2009 "Guidance
on direct payments: For community care, services for carers and
children's services"; "Think Local, Act Personal"
and in October 2011 "Re-thinking support planning: Ideas
for an alternative approach".
It is important to note that local authorities should
not view or implement the personalisation agenda as a means to
achieve cost savings.
Recent reports from the Audit Commission have suggested
that personalisation is more likely to lead to better value for
money from improved outcomes, rather than cost savings. The Government's
extra investment over the next years combined with a rigorous
focus on efficiency will ensure people's access to care is well
In the context of adult social care, local authorities
are not performance managed on a national basis. However, the
Department of Health is responsible for setting the information
requirements made on local authorities (including the Adult Social
Care Outcomes Framework), which supports monitoring and analysis
by the social care sector, the Department, local communities,
and other interested parties.
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.
Increasing choice and control are at the heart of
personal health budgets. An independent evaluation of the current
pilot programme is due to be published in October 2012; to date
four interim reports have been published, with a fifth due shortly.
Subject to the evaluation, the Government's aim is to extend personal
health budgets nationally on a voluntary basis. The longer-term
aim is to introduce over time a right to a personal health budget
for people who would benefit from one, informed by the evidence
from the evaluation. In October 2011, the Government announced
that, subject to the evaluation, by April 2014 everyone in receipt
of NHS Continuing Healthcare will have a right to ask for a personal
health budget, including a direct payment. Clinical commissioning
groups, overseen by the NHS Commissioning Board, will have responsibility
for delivering personal health budgets, including ensuring people
have real choice and control over how their health needs are met.
The independent evaluation is reviewing a number of areas, including
the services people choose and the effect on NHS services. The
budget holders' experiences and their carers' will be part of
the evaluation. The fourth interim report, published in October
2011, showed that early experiences have been broadly positive
so far. Many people have started seeing the benefits of personal
health budgets through an improved experience, greater satisfaction
with services and an increased ability to live independently.
They can also see the health benefits personal health budgets
Portability of care
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.
Measures to address portability of care were recommended
both by the Law Commission and the Commission on Funding Care
and Support. The Government is considering the recommendations
in advance of a White Paper on care and support and progress report
on funding reform, which will be published soon. The White Paper
will cover a number of areas, which will contribute to individual
choice and so contribute to ensuring people benefit from the rights
under Article 19.
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.
The Care Quality Commission (CQC) regulates all care
homes in accordance with statutory regulations and national standards.
CQC was established by the Health and Social Care Act 2008 and
took over the regulation of social care, including care homes,
from the Commission for Social Care Inspection. As well as establishing
CQC, the 2008 Act strengthens regulatory powers to ensure CQC
can enforce regulatory requirements that are in line with the
relevant provisions of the European Convention on Human Rights.
The Office for Disability Issues (ODI) will explore with the CQC
how awareness of the Convention on the Rights of Disabled People
can be developed amongst residential care home providers,
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.
The Government recognises the potential for those
receiving social care to undertake paid employment and is keen
to ensure that there are good incentives for so doing. The Department
of Health is currently looking at the charging regulations for
social care, and will work across Government, especially with
the Office for Disability Issues, on the treatment of earned income
in residential care.
The role of inspection and regulation
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
All providers of regulated activities must be registered
with the Care Quality Commission (CQC), and continue to meet 16
essential safety and quality registration requirements.
The 16 registration requirements reflect the essential
levels of safety and quality of care that people should be able
to expect, and are built around the main risks inherent in the
provision of health and adult social care services.
They include a requirement to respect and involve
people who use services which includes promotion of autonomy,
independence and community involvement.
Under the Health and Social Care Act 2008, CQC is
responsible for developing and consulting on its methodology for
assessing whether providers are meeting the registration requirements
and published its Guidance About Compliance in March 2010.
The Government expects CQC to work with people who use services
and their representatives in drawing up its methodology, and the
2008 Act requires CQC to have regard to the experiences of people
who use health and social care services, their families and friends.
CQC is an executive non-departmental public body
accountable to the Secretary of State for discharging its functions,
duties and powers efficiently and effectively. The Department
monitors CQC's financial and operational performance and risks
at a general and strategic level through regular formal accountability
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.
The NHS Commissioning Board's legal powers will be
restricted to issuing guidance to the operation of clinical commissioning
groups (CCGs) not to health and wellbeing boards which will be
a committee of the local authorityneither local authorities
nor health and wellbeing boards would be under a duty to adhere
to any guidance published by the NHS Commissioning Board.
Health and wellbeing boards are not required to produce
commissioning strategies themselves, although some of the statutory
members (clinical commissioning groups, directors of public health,
directors of children's services and directors of adult social
services) are, within their operation of those roles. These commissioning
plans should be based on the work of the health and wellbeing
board in undertaking Joint Strategic Needs Assessments (JSNAs)
and Joint Health and Wellbeing Strategies (JHWSs).
The Department of Health is developing statutory
guidance for health and wellbeing boards on undertaking JSNAs
and JHWSs which will make it clear that health and wellbeing boards
must comply with the Public Sector Equality Duty in undertaking
them, and should also consider issues such as inequalities and
independence. As local strategic processes, central Government
will not be specifying the form or content of JSNAs and JHWSs,
however the Department is working emerging health and wellbeing
boards to explore what good practice looks like and how to support
it, including considering equality issues and inequalities for
people in vulnerable circumstances, such as those with disabilities
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.
All providers of publicly arranged health and social
care services, including private and voluntary sector providers,
should consider themselves to be bound by the duty imposed by
section 6 of the Human Rights Act 1998 and not to act in a way
that is incompatible with a Convention right.
Any amendment to the Human Rights Act in relation
to third sector and private providers of home care, such as provision
in the Health and Social Care Bill, that explicitly specifies
that they are subject to the section 6 duty, risks casting doubt
about the interpretation of the Human Rights Act in other sectors.
Specific provisions tend to weaken the applicability of the general
test and raise doubt about bodies that have not been specified
explicitly in the legislation.
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
- 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;
- implement the advocacy provisions in sections
1 and 2 of the Disabled Persons Act 1986 when reforming community
The Government agrees that more can be done to strengthen
the existing guidance on information and support. The Law Commission,
the Report of the Commission on Funding of Care and Support (Dilnot
Review) and the Caring for Our Future engagement exercise
identified that access to good quality information at both national
and local levels are crucial mechanisms to support the personalisation
agenda. The White Paper will set out the Government's proposals
to improve the information and advice available to support people
to make more informed choices about their care and support. Alongside
the White Paper, the Government will publish its formal response
to the Law Commission's recommendations including the right to
advocacy contained in the Disabled Persons (Services, Consultation
and Representation) Act 1986.
The Government recognises the important role that
Disabled People's User Lead Organisations play. The Office for
Disability Issues is funding a £3 million programme to help
them grow and strengthen the role disabled people play in local
communities. This aims to give them a greater role in shaping
the local decisions that affect their everyday lives.
Access to housing and to community facilities
on an equal basis with others
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
The Government recognises the importance of removing
barriers to disabled people's access to housing, transport, public
space and public services that may stand in the way of them being
able to live independent lives. The Disability Strategy will set
out what action is being taken in these areas and how progress
will be monitored. For example, the Department for Transport (DfT)
like other departments will be contributing to the Strategy. To
complement the Strategy, DfT is also developing a disability action
plan that will spell out the actions and measures it is taking
to improve access to transport for disabled people, including
those aimed at reducing harassment on the transport network.
As part of the work on developing the Strategy, the
Government is looking at how it can be supported by a monitoring
process to measure the impact, and who should be involved in that
in addition to Government. In doing so, the Government is mindful
of the role that disabled people and their organisations can play,
and in the discussions around Fulfilling Potential have
asked disabled people how they want to be involved.
The Government is also mindful of the need to avoid
a cumbersome process. The Government is, for example, committed
to reducing the burden that collation of data placed on local
authorities and announced the end of over 50 separate data collections
in 2010. This will allow councils to redirect resources to the
frontline and meet local priorities free from top-down, centralised
performance management structures. The Secretary of State for
the Department of Communities and Local Government has made a
public commitment that councils will not be required to provide
any new unfunded data collections over and above those catalogued
in the single data list.
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.
The Government is committed to ensuring that everyone
has the freedom to live their lives free from fear of targeted
hostility or harassment on the grounds of a particular characteristic,
Despite strong legislation to protect victims, hate
crimes remain hugely under-reported. Victims may be reluctant
to come forward, for various reasons such as fear of further abuse.
The Government recognises that it has a key role to play in setting
the direction at national level, including making more and better
national-level data available so that there is better understanding
of these offences and support to victims can be improved.
The Government is meeting its commitment to improve
the recording of such crimes and, from April 2011, all police
forces now report hate crimes centrally. Published data from the
Association of Chief Police Officers show that there were increases
in the number of hate crimes reported relating to disability in
2010 (a 21.3% increase on the recorded figures for 2009). This
is a positive stepand reflects the efforts of the police
and others to encourage victims to report hate crime and to better
The Government is also working with the police and
other partners to encourage more victims to come forward for example,
by developing third party reporting centres, where hate crimes
can be reported to those organisations and then forwarded to the
The Government believes that hate crimes in all its
forms is intolerable, and that disability hate crime should be
viewed just as seriously as that based on race, religion, sexual
orientation or transgender. In March 2012 the Government published
its cross-Government Hate Crime action plan setting out its approach
to tackling hate crime for the remainder of this Parliament. The
plan includes specific actions to protect and support disabled
people. The review of sentencing provision provides the opportunity
to consider changing the law. Perpetrators of hate crime should
be subject to the same level of
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.
The Government is committed to combating stereotypes
and prejudice relating to disabled people, and to raising awareness
of their abilities. One of the key areas the Disability Strategy
will address is changing attitudes and behaviour - promoting positive
attitudes and behaviours towards disabled people to enable them
to participate in community life and wider society, tackling discrimination
and harassment wherever they occur.
The Government is very careful about the language
it uses when referring to welfare reform as it is clear that it
is the system itself that has for too long trapped people in a
life of welfare dependency. That is why this Government is making
such a radical overhaul of the benefits system to restore its
integrity and ensure that those who need help and support receive
Access to redress and justice
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.
The Government is committed to ensuring that legal
aid is available to those who need it most, and for those cases
that require it. Government is confident that it has met its obligations
under the Equality Act 2010 in developing its proposals for reform.
The Government is also committed to assessing the impact of the
Legal Aid, Sentencing and Punishment of Offenders Bill once enacted
and implemented, and is currently developing a range of approaches
to improve its evidence base on legal aid clients, including those
with a disability.
In the first UK report to the UN Committee on the
Rights of Persons with Disabilities, the Government stated clearly
its commitment to equality of access to justice for disabled people
and actions taken to enable this. In development of the Disability
Strategy, the Government is considering what additional actions
may be taken in this area.
1 Definition developed by disabled people. Disability
Rights Commission, 2002, Policy Statement on Social Care and Independent