Equality Impact Assesment

Closure of the Welsh Independent Living Grant: In the cause of equality of provision for disabled people? #SaveWILG

The following article was written by Ann James and Luke Clements. It appears on their superbly informative website which can be viewed here.

We would like to thank Ann and Luke for their research and work in putting together such a comprehensive report.

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Local authorities in Wales are rushing to meet the new September deadline, set by the
Minister for Health, for the re-assessment of the 1,300 or more recipients of the Welsh
Independent Living Grant (WILG). In November 2016 the Welsh Government (following in the footsteps of the English Government) announced the closure of the WILG.

The transfer of care and support of all recipients to local authority provision has been
contentious and has left many recipients anxious and fearful that their right to Independent Living will be eroded by this decision. A strident campaign has been launched by recipients of the WILG (and the previous Independent Living Fund (ILF)) and their families and supporters under the campaign banner of #SWILG.

Closure of the Wales Independent Living Grant

The Independent Living Fund (ILF) was established by the Department of Health and
Social Security in 1988 as an independent trust to provide a weekly payment to a
small number of severely disabled people who would have suffered very significant
financial loss as a result of the abolition of supplementary benefits ‘additional
requirements’ payments in that year.4 It is however thought that about one million
disabled people experienced considerable losses as a result of the 1988 changes.

The ILF existed in various forms until it was closed by the Department for Works and
Pensions to new applications in December 2010,  at which time it was providing support
to 46,000 people with complex needs to live in the in the community.7 At that time the UK
Government argued that it was an unsustainable cost; that it perpetuated an unfair funding of services to disabled people; that distribution of ILF was inconsistent across the four nations and within the four nations; and that the advent of direct payments and individual budgets in England obviated the need for ILF.8 The ILF closed in June 2015 and the funding was devolved to English local authorities and the Scottish, Welsh and Northern Irish Governments

The WILG was set up in 2015 following a consultation exercise and gave the Welsh
Government a period of moratorium to decide on how to proceed
.
The options before the Minister were:

• the extension of current arrangements;
• an arrangement with a third party to continue to provide payments to recipients in
Wales, and;
• to transfer the responsibility and funding to local authorities in Wales over a two-year
transitional period so as to eventually provide support through nIn November 2016, it was announced that the WILG would close in March 2019 and that all recipients would be assessed by their Local Authority for care and support under the Social Services and Well-being (Wales) Act (SSWBA) 2014 by March 2018. The March deadline was extended to–September 2018 to enable local authorities to complete their assessments of WILG recipients.

The #SaveWILG campaigning group led by Nathan Davies continue to fight a vigorous campaign to persuade Welsh Government to retain the WILG and grow the provision in a similar fashion to Scotland.

The Equality Impact Assessment (EIA) carried out in advance of the closure decision in Wales conveys a Panglossian view, that is to say an overly optimistic view of what the 2014 Act will deliver following the closure of the WILG in 2019.  It also fails to acknowledge and consider the potential adverse effect on individuals who may have significant changes to provision and how this will be addressed to ensure the recipients right to Independent Living.

The rational for the closure of the WILG is in keeping with the UK Government’s arguments for the closure of the ILF. Welsh Government argues that:

  • the continuation of the WILG will perpetuate a ‘two tier’ system of provision and that this is unfair on those who receive care and support solely through their local authority.
  • the cost of maintaining a Welsh version of the Independent Living Fund is financially unsustainable as money devolved to Wales from the UK Government’s closure does not have the capacity to respond to future need of recipients nor allow for the opening of the WILG to new applicants.
  • the SSWBA 2014 and Direct Payment provision will enable and support independent living and that the need for a discrete fund is not required.

 

Transition from the WILG to local authority provision: are there messages from England?

The analysis and studies of the impact of the closure on ILF in England are bound to give concern to WILG recipients in Wales. The Shakespeare and Porter 2016 study, which focused on the impact of the transition from ILF to local authority support, found high levels of concern and anxiety about Local Authority processes and provision during this period. The Department of Work and Pensions Post-Closure Review,found both positive and negative experiences of the transition. Those who had retained their provision or had an increase in provision or a slight reduction reported satisfaction without any loss to their independence. For those who had experienced a significant reduction there was a loss of independence, greater restrictions to their independence and an increased reliance on unpaid carers. There was also a concomitant impact on the emotional and physical health of these participants.

An emerging theme from the research and reviews is the post-code lottery faced by previous recipients of ILF. The finding in Inclusion London’s  review confirmed this factor and found in addition inconsistent practice in relation to NHS Continuing Health Care (NHS CHC) referrals for funding and failings in the implementation of the Care Act 2014 which left services users without essential provision.

Many disabled people who will be transiting from the WILG will be legally eligible for NHS CHC funding or at least NHS joint funding. In addition to the well-documented procedural hurdles they encounter in obtaining this support, in Wales a more troubling challenge exists.  The Welsh Government has made it clear that it will not permit direct payments to be made for people eligible for NHS CHC (unlike in England such payments can be made.  Many LHBs appear reluctant to facilitate direct payments via a trust arrangement (often referred to as an Independent User Trust (IUT)) even though the High Court has held this to be lawful (indeed necessary in certain situations).

Anecdotally it is also reported that LHBs are placing obstacles in direct payments being made where there is a joint funding arrangement even though the Framework guidance makes it clear that where ‘an individual has existing Direct Payment arrangements, these should continue wherever and for as long as possible within a tailored joint package of care’.

 

Concluding Comments

About 1,300 people will transfer from the WILG to local authority care and support under the SSWBA 2014 by March 2019. Many of the recipients and their carers are concerned that their right to Independent Living will be compromised as local authorities re-assess and establish their eligibility to services.

The R (CWR) v Flintshire County Council (2018) Case Note illustrates the challenges that a disabled person and his/her family can face in Wales as they seek to access care and support. This case note does however, highlight the statutory requirements for a comprehensive assessment of disabled people in need of care and support and their carers. It demonstrates too, that assessments undertaken in a cavalier manner can be challenged and local authorities held accountable for their assessment, determination of eligibility and care provision. This may provide some reassurance to WILG recipients although it is perhaps questionable how many will have the energy, knowledge and courage to pursue this option.

While the term ‘well-being’ may be used in a perfunctory manner in discussion about social care, the definition in section 2 SSWBA 2014 is comprehensive and includes control over day to day life (s.2(4) (a)) and participation in work (s.2(4)(b)).

Clements notes that section 6(3)(b) stresses ‘the importance of promoting the adult’s independence where possible’ and argues that this is amplified and bolstered by para 56 of the Part 2 Code of Practice (General Function) which states that the well-being duty ‘includes key aspects of independent living as expressed in the UN Convention on the Rights of Disabled People in particular Article 19 which recognizes the right of disabled people to ‘full inclusion and participation in the community’; to choose where they live and with whom they live; and to have access to a range of community support services ‘to support living and inclusion in the community, and to prevent isolation or segregation from the community’. Assessment, eligibility determinations and decisions on how to meet need will need to be infused by these principles.

R (JF) v. Merton LBC highlighted the requirement for an assessment to have regard to the dimensions of well-being set out in stature.

A comprehensive overview of assessment, eligibility and meeting needs can be found at www.lukeclements.co.uk/wp-content/uploads/2017/11/Wales-SS-Well-being-Act-26.pdf page 9.

This ‘post’, written by Ann James and Luke Clements, appears in Rhydian: Wales Social Welfare Law on-line (2018) 23-26: to access this click here.

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Silenced by Disability Wales

As I write this blog, I am feeling quite insulted as I have just received an email from the good people at Disability Wales who have sent me the agenda for their annual conference in Cardiff. It makes for interesting reading – not because of what it includes, but rather because of what it does not mention.

Of course, there are many important topics up for discussion with some excellent speakers – as well as Carl Sargeant AM. There is no doubt that this will be a well-organised and informative day, but to my mind there is one key issue that is missing from the agenda.

I received an email many moons ago, advising me that Disability Wales could not support my #SaveWILG campaign because of some political bias. This was disappointing and frustrating as I think that everything is political to a certain degree and I have made every effort to make my campaign about the future of independent living in Wales and beyond, rather than focusing on the failures of any political parties.

My campaign has been going really well without the support of Disability Wales. I have had my petition discussed by the Petitions Committee in the Senedd and they have agreed to the following :

  • Consider the petition further in the context of the budget announcement due later that afternoon; and in the meantime
  • Write to the Minister for Social Services and Public Health to share the concerns of the petitioner and ask:
    • whether she will publish the results of the public consultation and minutes of the stakeholder group as requested by the petitioner;
    • whether an Equality Impact Assessment of the decision was carried out and can be provided to the Committee and petitioner; and
    • for her views as to whether the planned transitional arrangements will ensure that the aims of the Social Services & Wellbeing (Wales) Act will have been put into practice by local authorities before the planned closure of the Welsh Independent Living Grant.

This has all been achieved by me and my comrades so to be airbrushed from the main platform for disability activism in Wales is quite an insult. It is especially annoying as the reason that my campaign could not be supported by DW is so that they do not upset their funders even though my campaign is in the interests of DW members. I believe something’s are worth fighting for and I will continue fighting for my principles no matter who I disagree with.

I hope everyone enjoys the DW Conference and that the day is a success, but members should remember that they will not hear the voices of all disabled activists in Wales. If anyone who attends wants to contribute to the #SaveWILG campaign, please do get in touch via Twitter, Facebook or the Contact page.

Hello,
You are invited to the following event:

Annual Conference and AGM 19th October 2017

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Event to be held at the following time, date and location:

Thursday, 19 October 2017 from 09:30 to 15:30 (BST)

Orbit Centre
Rhydycar Business Park
CF48 1DL
United Kingdom

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During 2017, the review of the Framework for Action on Independent Living and the UN’s examination of the UK and Welsh Government regarding implementation of the Convention on the Rights of Disabled People has provided a timely focus on whether policies and provision in Wales deliver on disability rights and equality.

Furthermore, as arguments over ‘hard’ and ‘soft’ Brexit rage, what impact will it have on disabled people and following the outcome of the General Election, where does it leave the UK Government’s austerity agenda?

Disability Wales’s Annual Conference Defending our Rights: Challenging Attitudes explores these questions and issues with the assistance of a panel of expert speakers and round-table discussions.

  • Find out how Welsh Government proposes to take forward its commitment to disabled people’s rights from the Cabinet Secretary for Communities and Children, Carl Sargeant AM
  • Hear how Access Consultant Dan Biddle challenges work place discrimination and barriers to employment
  • Learn about the EHRC’s approach to tackling discrimination faced by disabled people from Ruth Coombs, the new Head of Wales
  • Be inspired to campaign for change by leading disability rights activist Tara Flood from the Reclaiming our Futures Alliance
  • Network and exchange ideas with fellow DW members, stakeholders and supporters.
  • Be the first to preview DW’s new website as a tool for sharing information, resources and expertise on disability rights and equality

Annual Conference and AGM

Defending our Rights: Challenging Attitudes

Programme

9.30am:     Registration & Refreshments

10.15am:   Welcome and Scene Setting

                             Rhian Davies, Chief Executive

10.30am:   Personal Perspectives

Dan Biddle, Managing Director, Nationwide Access Consultants Ltd

10.45am:   Campaigning for Change

                             Tara Flood, Reclaiming our Futures Alliance

11.00am:   Regulating our Rights

                             Ruth Coombs, Head of Wales, EHRC

11.15am:   Panel Discussion

11.30am:   Break

11.45am:   Round Table Discussions

12.20pm:   Driving Forward Disability Rights

Carl Sargeant AM, Cabinet Secretary for Communities and Children

12.45pm:   Summary

1.00pm:     Lunch

2.00pm:     Website Launch

                             Demonstration: Promo Cymru

2.30pm:     AGM and Project Presentations      3.30pm:         Close

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We hope you can make it.

Best,
Disability Wales