UN Comittee on the Rights of Persons with Disabilites

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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A ‘human catastrophe’ – New UN condemnation for UK human rights record

Disability Wales Press Release
31st August 2017
 
The UK Government’s claim to be a ‘world leader in disability issues’ has today been crushed by the UN Committee on the Rights of Persons with Disabilities. The Committee has released damning Concluding Observations on the UK, following its first Review of the government’s compliance with the Convention.
 
 The highlights of the press conference held by the UN Committee on the Rights of Disabled People at this afternoon are:
·        The Committee has made the highest ever number of recommendations to the UK.
·        The UK’s retrogression in ensuring Independent Living is a major concern. There is not adequate funding, resulting in too much institutionalisation.
·        There is a significant problem with Deaf and disabled people’s standard of living. Disabled people continue to be disadvantaged in employment, and are not adequately compensated for disability by the state.
 
The Observations conclude last week’s public examination of the UK Government’s record on delivering disabled people’s rights. The examination was declared by the UK rapporteur Mr Stig Langvad, to be “the most challenging exercise in the history of the Committee”. Mr Langvad raised deep concerns on the UK Government’s failure to implement the rights of disabled people. He also noted the government’s “lack of recognition of the findings and recommendations of the (2016) Inquiry” which found ‘grave and systematic violations of disabled people’s human rights’.
 
Deaf and Disabled People’s Organisations (DDPOs) were hailed as the genuine “world leaders” for their efforts in bringing to light the injustices and human rights violations inflicted on disabled people in the UK.
 
The UK Delegation of Deaf and Disabled People’s Organisations has issued the following joint statement:
 
“Today the UN(CRPD) Committee has, once again, condemned the UK Government’s record on Deaf and Disabled People’s human rights. They have validated the desperation, frustration and outrage experienced by Deaf and Disabled people since austerity and welfare cuts began. It is not acceptable for the UK Government to ignore the strong and united message of the disability community.
 
UK Government representatives committed during the review to rethinking the way they support Deaf and Disabled People to monitor our rights. We welcome this commitment.  However, we are clear that our involvement must be genuine and inclusive and that we cannot accept anything less than progress on delivering the human rights enshrined in the Convention, and denied us for too long.
 
DDPOs have established themselves as a force to be reckoned with following a long campaign of challenging the Government’s blatant disregard for the lives of Deaf and disabled people in the UK. The unity and solidarity demonstrated by the Committee and the UK Independent Mechanism in supporting our calls for justice continue to strengthen us.”
 
Rhian Davies, Chief Executive of Disability Wales said, “It is a relief to see that the UK Government’s appalling treatment of disabled people has been called out by the UN Committee. The Concluding Observations give a clear sense of direction for the UK and devolved Governments. We welcome Welsh Government’s commitment to a strengthened Framework for Action on Independent Living since much of the implementation of the UNCRPD is devolved to Welsh Government.
 
However, as a devolved nation, it is not possible to entirely mitigate the impact of UK austerity policies and we will continue to join forces with our sister organisations across the UK in our quest to safeguard disabled people’s human rights in Wales.”

Austerity policies have created a “human catastrophe” – UN Committee Chair condemns the UK’s record on human rights.

Deaf and Disabled People’s Organisations welcome the public unity of the UN Committee on the Rights of Persons with Disabilities in their clear criticism of the UK Government’s ‘grave and systematic violations’ of disabled people’s human rights.

Chairperson Theresia Degener in her closing questions stated, “Evidence before us now and in our Inquiry procedure as published in our 2016 report reveals that social cut policies has led to human catastrophe in your country, totally neglecting the vulnerable situation people with disabilities find themselves in.”

The Committee condemned the UK’s attempts to misrepresent the impact of policies through unanswered questions, misused statistics and a smoke screen of statements on policies and legislation which fail to implement the rights of disabled people in reality.

Committee member Coomaraval Pyaneandee said “[I] Want to see you come back as a world leader which at the moment, I’m afraid you are not, but DPOs I congratulate. [They] are in fact, the world leaders in your country.”

The UK Independent Mechanism further reinforced the concerns of DDPOs in their concluding statement which called for:

  • Gaps and inconsistencies in disability discrimination legislation to be addressed including the legal basis for British Sign Language
  • Steps to be taken to embed the CRPD in domestic law, maintaining the protections in the Human Rights Act
  • A coordinated approach to implementing the Convention and the Committee’s recommendations across the UK, with fully resourced and meaningful involvement of disabled people.

Tara Flood, Alliance for Inclusive Education and Reclaiming Our Futures Alliance said, “The UK’s track record on article 24 is not acceptable. The Chairperson made it clear and unequivocal that inclusive education is not a choice, it is a right. We are not surprised but always disappointed by UK Government’s lack of commitment to inclusive education for disabled children and their efforts to mask segregation.”

Devolved Nations also had the opportunity to address questions put to them by the Committee.

Patrick Malone, Disability Action Northern Ireland said, “It is not acceptable for the UK Government to hide behind lack of an Executive or Ministers for NI for the disparity of equality in legal protection for disabled people in Northern Ireland as compared to the rest of the UK. The Government must ensure that all of the disability provisions of the Equality Act 2010 are fully implemented in Northern Ireland as a matter of urgency.”

Rhian Davies, Disability Wales said, “We welcome Welsh Government’s commitment to a strengthened Framework for Action on Independent Living since much of the implementation of the UNCRPD is devolved to Welsh Government. However, as with the rest of the UK there is much more to be done in Wales in safeguarding disabled people’s human rights. This has been a historical week for the disabled people’s movement and one that we are proud to have played our part in.”

Sally Witcher, Inclusion Scotland said, “We wholeheartedly welcome the Committee’s comments on the UK. The government has not been allowed to get away with evasive responses which disregard the lived experiences of Deaf and Disabled people throughout the UK. We were disappointed that the opportunity was not available for Scottish Government to reply to all of the questions directed towards it, such as its plans to implement supported decision making for people with learning disabilities and how it will address the failings of the social care system. However, we anticipate opportunities to address these issues in response to the Committee’s concluding observations.”

Disability Wales calls out UK Government on human rights violations of disabled people

PRESS RELEASE

Disability Wales calls out UK Government on human rights violations of disabled people.

Disability Wales and Deaf and Disabled People’s Organisations (DDPOs) from across the UK join forces in Geneva this week, presenting evidence of ongoing human rights violations to the UN Committee on the Rights of Disabled People.

In a closed session on Monday 21st August, Disabled People’s Organisations will highlight the UK Government’s failure to respond to many of the questions put to it by the Committee throughout this process, and will tell the Committee of the systemic failure to support disabled people to live independently and to have access to social, educational and employment opportunities.

Key issues include:

  • The UK Government’s failure to answer the questions put to it by the UN Committee on the Rights of Disabled People in their List of Issues.
  • The retrogression in implementation of disabled people’s rights in the UK.
  • The UK Government’s dismissal of the 2016 Inquiry recommendations and lack of respect for implementing the range of human rights Conventions.

Disability Wales will also call for Welsh Government to strengthen its own approach to fulfilling its obligations under the CRDP. Recent engagement with disabled people across Wales regarding the review of the Framework for Action on Independent Living, confirmed that barriers to achieving disability rights and equality in Wales, remain firmly in place.

The Public Examination of the UK and devolved Governments will take place on Wednesday 23rd and Thursday 24th August.

This is the first time the Committee will review a State that it has previously had under Inquiry for violating the Convention on the Rights of Disabled People. Disability activists will draw attention to the UK Government’s dismissal of recommendations for action noted by the Inquiry.

Rhian Davies, Chief Executive of Disability Wales says: “Disabled people are being failed by the UK Government and we are in Geneva to call out these violations of our rights.

The recent Supreme Court ruling overturning Tribunal Fee charges is just one example of where discriminatory policies have been deemed unacceptable. There are many more policies that need throwing out in order to protect the rights and lives of disabled people and their families.

This is our opportunity to show that we will not stop challenging Government sanctioned discrimination and exclusion of disabled people in the UK.”

In a closed session with the Committee, DDPOs will be identifying issues that have the most severe impact on disabled people in the UK.

We will request that the Committee make recommendations to the UK and Welsh Governments on actions they should take to progress the rights, access and inclusion of disabled people in all areas of their lives.

Wendy Ashton, Chair of Disability Wales said, “The Examination gives disabled people a voice and shines a spotlight on decisions the Government has taken to marginalise us.

In Wales, devolution provides the opportunity to do things differently. It is essential that Welsh Government strengthen the role of the Framework for Action on Independent Living since there is no other overarching mechanism in Wales that outlines our rights.

We must make sure that a human rights based approach identifies and meets the needs of disabled people living in Wales and call upon Welsh Government to support us as we fight for a better future for all disabled people.”

 

Disability Wales Press Release

PRESS RELEASE

Disability Wales in Geneva to take evidence of human rights violations to UN Committee on the Rights of Disabled People

Disability Wales and Disabled People’s Organisations from across the UK join forces in Geneva today to meet with the UN Committee on the Rights of Disabled People.

During the first ever investigation of the UK Government’s compliance with the UN Convention on the Rights of Disabled People, we will be providing evidence of systemic failure to support disabled people to live independently and to have access to social, educational and employment opportunities.

This is the first time the Committee will review a State that it has previously had under Inquiry for violating the Convention.

Rhian Davies, Chief Executive of Disability Wales says: “Disabled people are being failed by the UK Government and we will not be quiet whilst our rights continue to be violated.

Not only have the UK Government been dismissive of rights violations noted by the Inquiry, they have continued to progress policies and cuts that attack the rights and lives of disabled people and their families. We will continue to hold our Governments to account and put pressure on public institutions to value and uphold the rights of disabled people in Wales.”

In a closed three hour session with the Committee, DPOs will be identifying issues that have the most severe impact on disabled people in the UK. We will request that the Committee ask questions of the UK and Welsh Governments on actions they will take to progress the rights, access and inclusion of disabled people in all areas of their lives.

Returning from Geneva, Disability Wales will launch the Wales report on 15th March at the Cross Party Working Group on Disability.

The three key messages from Wales are:

  • To strengthen the Framework for Action on Independent Living by ensuring greater local accountability for delivering the Framework to enable genuine choice and inclusion in all areas of life, including employment.
  • Ensure that upcoming infrastructure projects are fully inclusive in creating an accessible Wales, from transport to provision of information and services and access to the built environment.
  • To address the barriers in accessing justice by improving provision of advice, advocacy and specialist legal representation.

Wendy Ashton, Chair of Disability Wales said, “It is important that disabled people realise that we do have a voice and are using this process to make the world aware of how we are being failed in the UK.

In Wales, devolution provides the opportunity to do things differently and we will continue to work closely with Welsh Government to press for implementation of our calls for action. We must make sure that a human rights based approach identifies and meets the needs of disabled people living in Wales and call upon Welsh Government to support us as we fight for a better future for all disabled people.”

 

Disability Wales Press Release

PRESS RELEASE

FOR IMMEDIATE DISSEMINATION

Open letter to oppose Government’s disability benefit cuts

Ahead of next week’s Budget, Disability Wales are supporting a UK wide call for the Government to reconsider planned cuts to the Work Related Activity Group (WRAG) of the disability benefit Employment Support Allowance (ESA), which will see new claimants lose out on £30-a-week, £1500 a year.

Wales has a higher proportion of disabled people than the rest of the UK with a greater proportion of disabled people also living in poverty.

The UK Government claims this cut to ESA will ‘incentivise’ disabled people to get in to work, despite a recent Work and Pensions Select Committee report highlighting that evidence towards this is ‘ambiguous at best’. Disability Wales argues that instead of halving the disability employment gap, the cuts will directly undermine this aim pushing disabled people closer to or into poverty, with a survey of over 500 disabled people finding:

* Almost 7 in 10 (69%) say cuts to ESA will cause their health to suffer

* More than a quarter (28%) say they sometimes can’t afford to eat on the current amount they receive from ESA

* Almost half (45%) of respondents say that the cut would probably mean they would return to work later

* Just 1% said the cut would motivate them to get a job sooner

A recent Disability Wales survey highlighted the desperate struggle of many disabled people dealing with the stress of a system that continues to obstruct and not support. We will be calling upon Welsh Government to put pressure on UK Government to reverse the policies of further cuts.

Rhian Davies, Chief Executive of Disability Wales said:

“The UK Government has been heavily criticised by the UN Committee on the Rights of Persons with Disabilities for breaching the rights of disabled people through its ongoing programme of austerity and welfare reform.  To continue to target disabled people with further cuts is beyond comprehension or humanity.

Poverty, poor housing, lack of access to transport, local services, education and skills training means that the odds are stacked up high against disabled people seeking employment. Increasing insecurity and distress by cutting income will do nothing but bring more harm to disabled people in Wales.”

Disability Wales will be taking evidence to the UN Committee on the Rights of Persons with Disabilities on March 13th which will demonstrate how the UK Government is continuing to fail disabled people in Wales and across the UK. The delegation will lobby for recommendations to be made to UK and Welsh Governments to take action to reverse the impact of these severe attacks on the rights of disabled people.

Open letter

“Dear Prime Minister,

“We urge the Government to reconsider the £30-a-week cut to Employment and Support Allowance (ESA) and Universal Credit facing sick and disabled people. The cut has caused deep concern among the sector and unease among MPs from all parties and we remain united as a sector in our opposition.

“The cut to new claimants in the Work-Related Activity Group of ESA and within Universal Credit (UC) from 1st April 2017 will affect many people found currently ‘unfit for work’ but will also impact many disabled people in work and on low wages due to the way UC works.

“Almost 70% of sick and disabled people surveyed said this cut would cause their health to suffer and just under half said they would probably not be able to return to work as quickly, therefore undermining the Government’s attempts to halve the disability employment gap – something we wholeheartedly support.

At a time when 1 in 3 households with a disabled member are living in poverty, £30 a week can be a huge loss in income. We therefore urge the Government to halt this cut immediately.”

Notes to editors:

1. Disability Wales is the national association of disabled people’s organisations in Wales championing the rights, equality and independence of all disabled people.

2. The Disability Wales response to the “Improving Lives: Work, Health and Disability” Green Paper highlights the detrimental impact of welfare reform on disabled people seeking work and accessing benefits such as Employment Support Allowance. It can be accessed here: http://www.disabilitywales.org/wordpress/wp-content/uploads/FINAL-Disability-Wales-response-to-Improving-Lives-Green-Paper.docx

3. The UN Committee on the Rights of Persons with Disabilities investigation throughout 2017 will assess what steps the UK has taken to implement the UN Convention on the Rights of Persons with Disabilities. The Committee is a body of experts, nominated and elected by governments, the majority of whom are disabled people.

4. The committee postponed its assessment of the UK (originally due in 2015) to investigate a complaint of the violation disabled people’s rights as a result of welfare reform. This was brought under the optional protocol of the Convention. That investigation looked only at a part of the UN Convention – with a particular focus on the impact of austerity measures and welfare reform. The current report looks at a much wider set of issues, including our laws on mental health and mental capacity, policies on employment and education and more.

5. For media enquiries, please contact:

Natasha Hirst on 029 2088 7325 or via Natasha.hirst@disabilitywales.org