The Department for Work and Pensions (DWP) has been declared a gold-standard employer of disabled people under its own much-criticised scheme, despite being found guilty of “grave or systematic violations” of the UN disability convention.
DWP documents obtained by Disability News Service (DNS) through a freedom of information request show how it was “validated” as a “Disability Confident Leader” on 4 November 2016, just days before the report by the UN committee on the rights of persons with disabilities was published.
Among the UN’s conclusions was that DWP ministers had “regularly portrayed” disabled people as “being dependent or making a living out of benefits, committing fraud as benefit claimants, being lazy and putting a burden on taxpayers”.
DWP “strongly” disagreed with the UN report, and appeared to suggest this week that its findings were not relevant “because Disability Confident assessments look at an organisation’s employment practices and commitment to supporting both disabled employees and potential candidates”.
The validation also came despite a Civil Service survey last year which showed how more than 1,400 disabled DWP civil servants claimed they had faced discrimination in the workplace, an increase of nearly a quarter on the previous year.
The Disability Confident validation process, carried out by the Business Disability Forum (BDF), of which DWP is a member, makes no mention of those figures, or the UN report.
According to the scheme, a Disability Confident Leader – the highest of the scheme’s three levels – must ensure “there are no barriers to the development and progression of disabled staff” and that managers “are aware of how they can support staff who are sick or absent from work”.
BDF’s validation of DWP’s own self-assessment also fails to mention the DWP decision to impose a cap on annual payments made under the Access to Work scheme, which has particularly hit Deaf workers who use British Sign Language interpreters.
Instead, BDF praised DWP for policies such as offering guaranteed interviews to disabled candidates who meet a role’s minimum criteria; for taking part in the Ambitious About Autism work experience scheme; and for having an established framework for making adjustments for disabled staff.
Despite focusing on how organisations perform as employers of disabled people, Disability Confident also encourages them to provide an inclusive and accessible environment for “staff, clients and customers”.
In its validation of DWP, BDF praised the department for making adjustments for disabled customers, “which includes offering two-way communication in a number of formats”, while DWP says in its self-assessment that staff “can also communicate by e-mail, an interpreter or through a claimant’s representative or intermediary”.
Again, the validation and self-assessment are in stark contrast to the experience of disabled people who rely on DWP’s support and services.
Earlier this year, DNS reported how a disabled benefit claimant, Mark Lucas, was taking DWP to court over its refusal to allow him to communicate with its civil servants via email.
Despite DNS having heard a recording of a member of staff in DWP’s personal independence payment department telling Lucas: “We will not communicate via email,” DWP insisted again this week that claimants are “entitled to request to receive all communications from the department by email on the grounds of disability under the Equality Act 2010”.
There is also no mention in DWP’s self-assessment, or the validation by BDF, of concerns raised about the accessibility of benefit assessment centres, which are managed by the property company Telereal Trillium.
Instead, DWP claims its sites are “fully accessible for both staff and customers”, while it insists that “DWP as a service provider ensures that for disabled customers, relevant reasonable adjustments are implemented to ensure that there are no barriers which are the direct result of an individual’s disability”.
David Gillon, a disabled campaigner and one of the most prominent critics of the Disability Confident scheme, said it was “barely a year since headlines about their soaring staff discrimination rate… how can they suddenly have no problem?
“What we are seeing is the fundamental weakness of Disability Confident.
“Statements of good intent are easy to make, and we know from Two Ticks [the previous DWP scheme for employers, which Disability Confident is replacing] just how easy they are to abuse.”
“This inaccessibility is no secret, it has repeatedly been national news, yet DWP’s Disability Confident assessors took their statement at face value.”
He added: “DWP has a notoriously adversarial relationship with its disabled customer population. Nowhere in the evidence or the audit report is this even raised.”
Gillon said: “What we really see with this evidence is that even an organisation with notorious issues with both its own disabled staff and with its disabled customer population simply has to say, ‘We’ve got a procedure for that,’ to be handed Disability Confident Leader on a silver platter.”
BDF declined to respond to concerns that its report had ignored the discrimination revealed by the Civil Service survey, the cap on Access to Work, and the UN report.
Despite the scheme’s reference to “providing an environment that is inclusive and accessible for staff, clients and customers” – and DWP’s lengthy response to that in its self-assessment – a BDF spokesman insisted that Disability Confident was “about an organisation as an employer”.
And he said BDF supported DWP’s strategic approach to supporting their disabled employees, and “recognised their commitment in accrediting them under the scheme”.
He said: “Business Disability Forum sees Disability Confident as a way forward for employers in developing and improving their offer for their employees.
“In accrediting an organisation under Disability Confident, Business Disability Forum supports it in moving in the right direction and helping it shape what it does around disability.”
A DWP spokesman also insisted that the department deserved its validation as a Disability Confident Leader.
He said: “We are committed to equality of opportunity for all and do not tolerate discrimination on any grounds”.
He added: “Whilst we have greatly improved our efforts to be a more inclusive workforce, we know there is more work to do, [and] this will be reflected in our departmental diversity and inclusion strategic plan that we are currently developing with our employees.”
He said: “The Disability Confident scheme supports employers to make the most of the talents disabled people can bring to the workplace.
“Our Disability Confident Leader status relates to DWP as an employer and we actively encourage contractors to sign up to Disability Confident.”
He said DNS had failed to provide any evidence to support claims that assessment centres were “notorious for inaccessibility”.
He added: “As I’m sure you’re aware, access guidance is included in appointment letters for face to face assessments so that alternative arrangements can be made if needed, and anyone unable to travel as a result of their condition is offered a home visit.”
He said that BDF was “a leading, impartial and evidence-based organisation advocating for disabled people’s rights”.
He added: “We have demonstrated through the self-assessment that DWP acts as a champion within our local and business community, supply chain and networks.
“And we have demonstrated that we are serious about leading the way and helping other organisations to become Disability Confident.
“There is no evidence that the scheme is in disrepute.”
11 May 2017
Two user-led groups have accused the Conservative party of “hypocrisy” after it promised to end the “burning injustices” facing mental health service-users.
Both groups pointed out that Conservative social security policies, including the coercion and bullying of benefit claimants, had created and worsened mental distress.
And they said the party had been responsible for years of drastic cuts to mental health services.
They spoke out after the Conservatives promised to replace the “anachronistic” Mental Health Act (MHA) and address the increasing numbers of people in mental distress who are detained under the act.
Prime Minister Theresa May also promised further powers to protect people from discrimination in the workplace through “sweeping changes” to the Equality Act – offering more protection to those with fluctuating mental health conditions – and to fund an extra 10,000 mental health staff working in the NHS by 2020.
But Labour pointed out that the number of mental health nurses and doctors working in the NHS in England had fallen by more than 6,600 since 2010.
Figures released to Labour by health minister Philip Dunne last October showed the number of qualified mental health nurses working in the NHS in England fell from 46,155 in 2009, to 45,384 in 2010, and then fell for each of the next five years and finally hit 38,774 in July 2016, a fall of more than 6,600 nurses in six years since the Tories came to power.
A Conservative party spokesman refused to confirm these figures.
The party said that more than 63,000 people were detained under the MHA in 2014-15, an increase of 43 per cent compared with 2005-06, with black people disproportionately affected.
It said the new mental health treatment bill would include “revised thresholds for detention”, and new codes of practice to “reduce the disproportionate use of mental health detention for minority groups, especially black men”.
The party also promised “safeguards so that when people with mental health problems have the capacity to give or refuse consent, they can never be treated against their will”.
But the Conservative attempt to take the initiative on mental health early in the general election campaign was greeted with distrust and accusations of hypocrisy by many disabled activists.
The user-led group Recovery in the Bin (RITB) described May’s plans as “window dressing at best”.
In a statement, RITB said that it was “government policies on welfare that are taking us to the brink in the first place”.
RITB calls in its statement for an end to the work capability assessment, personal independence payment, benefit sanctions – all of which have been associated with causing benefit claimants severe mental distress, and even deaths – and the new mandatory health and work conversation, as well as the “coercion and bullying” of claimants with mental health conditions.
Recovery in the Bin fears that what will replace the current Mental Health Act will be a “more punitive law” that will “possibly make it harder to detain but harsher for those detained – especially for black and minority ethnic people and for people routinely monsterised through the rhetoric of welfare reforms and neo-recovery narratives”.
It calls on the next government to scrap community treatment orders (CTOs), and stop the use of section 136 of the Mental Health Act – used by police officers if they believe someone has a mental illness and needs immediate care or control – and address the “horrific prescribing of anti-psychotic medications”.
It also calls for an end to “the consistent underfunding of mental health services and cuts to front line mental health staff”, and for compulsory mental health training for all doctors.
Denise McKenna, co-founder of the Mental Health Resistance Network (MHRN), accused the Conservatives of hypocrisy.
She said the Tories in government had “created mental distress through their austerity measures and they have withdrawn mental health services on an industrial scale from people who really, truly needed it.
“Now they say they are going to put right a problem that is of their own making. I don’t have any faith that they are going to come up with something better
“We are highly suspicious of their motives. We don’t believe people should be forcibly treated, but we are very worried about what it’s going to be replaced by.”
McKenna said the party’s focus in power had been to “get us off benefits”, with an increasing emphasis on forcing people with mental distress on the out-of-work disability benefit employment and support allowance (ESA) to accept treatment.
And she said MHRN was also concerned by the increasing emphasis on the idea that nearly everyone will have a mental health problem at some point in their lives, which “minimises the experience of people with very severe mental health issues” and makes it easier to remove their benefits and say they are fit for work.
McKenna said the way the mental health system was working was “an absolute disgrace”.
She said: “People with severe mental health problems are being discharged back to GPs, who are not trained to deal with them.”
She added: “Every time they announce something with mental health my blood runs cold because they don’t have our best interests at heart.”
Liz Sayce, chief executive of Disability Rights UK (DR UK), said it was good that mental health and the “soaring” number of compulsory detentions – a “key” issue raised by DR UK in its shadow report to the UN committee on the rights of persons with disabilities – were being discussed in the general election campaign.
But she called for new laws that were compliant with the UN Convention on the Rights of Persons with Disabilities (UNCRPD), in discussion with people with lived experience of mental distress.
She said: “We have seen in the past (eg the 2007 legislation that brought in the hated and ineffective CTOs) that law reform in mental health is not always positive. We need law based on our commitments to the UNCRPD.”
Sayce said there were calls previously for mental health laws based on capacity – as the Tories have suggested – because “at present you can be forcibly treated against your will when you are quite capable of deciding yourself”.
But she said the problem with this argument was that legal capacity law in England and Wales was also non-compliant with the UNCRPD, which says “that everyone has legal capacity and what is needed is supported decision-making, not substitute decision-making”.
She said: “We would like to see mental health law and mental capacity law replaced by legislation that genuinely supports and protects everyone’s rights; coupled with strong practical measures to make this a reality.”
She pointed to how some countries had committed to phasing out the use of restraint, which she said has been shown to work.
And she said the death of Olaseni Lewis in 2010 – who was killed by prolonged restraint by 11 police officers on a mental health ward – showed the potentially “tragic” impact of restraint.
An inquest concluded this week that excessive force had contributed to his death.
Matilda MacAttram, director of Black Mental Health UK, also welcomed the pledge to reform the Mental Health Act.
But she warned that “a change in legislation would be meaningless without a fundamental change in the power dynamics that drive the coercive way that the Mental Health Act is used as a tool of oppression against black people of African descent from the UK’s African Caribbean communities”.
She said that “the deployment of Taser firearms and the overuse of anti-psychotic medication are all part of the routine human rights abuses that disproportionately are meted out to black people of African descent”, both in the community and in medium secure and secure psychiatric settings.
As part of the announcement on mental health, the Conservatives promised that every primary and secondary school in England and Wales would have staff trained in mental health first aid and a single point of contact with local mental health services.
A Tory government would also change health and safety at work regulations “to take account of risks to mental health as much as those to physical health”, and fund the Samaritans helpline through the next parliament.
And it would end the fees of up to £150 that patients must pay their GP for a mental health and debt form to prove their mental ill-health to their creditors.
Meanwhile, the Liberal Democrats said they would spend an extra £1 billion a year on mental health – part of the £6 billion a year the party says it would raise by increasing income tax by 1p (see separate story).
Among 12 priorities for this spending, the party said it would improve waiting time standards, aim to end the “scandalous and inappropriate” use of force against mental health patients in hospitals, end out-of-area placements, prioritise national action to reduce the number of suicides, and “accelerate the roll-out” of the Individual Placement and Support back-to-work scheme.
11 May 2017
The “rash” decision to scrap the role of disability commissioner at the Equality and Human Rights Commission (EHRC) will make it harder for the watchdog to stand up to attacks on disabled people’s rights, according to two former commissioners.
Both Baroness [Jane] Campbell and Sir Bert Massie criticised the apparent decision not to appoint a new disability commissioner to replace Lord [Chris] Holmes, the disabled Tory peer who left the post in January.
Baroness Campbell was EHRC’s first disability commissioner, while Sir Bert was the chair of the Disability Rights Commission throughout its existence, and then became one of EHRC’s first commissioners alongside Baroness Campbell after its launch in 2007.
Disability News Service (DNS) reported last week that the minister for women and equalities, Justine Greening, had appointed another disabled Tory peer, Lord Shinkwin, as a new EHRC commissioner, but not as the disability commissioner.
This was despite the minister telling candidates last year that the disabled person appointed to the role would “act as the Commission’s Disability Commissioner”.
It is still not clear what parts the government and the commission played in these decisions, but it has come as EHRC’s statutory disability committee, which had significant legal powers, is being replaced by a non-statutory disability advisory committee (DAC) without such powers.
Although the government has no statutory duty to appoint a disability commissioner, both Baroness Campbell and Sir Bert say the role was important.
Baroness Campbell said: “I think it is still important to have a disability commissioner because, as the House of Lords reported on last year, the EHRC needs to be more proactive in protecting and promoting equality for disabled people.”
She said the commission used to be more proactive in the area of disability, and had “more teeth” when she was chairing the disability committee, while she had “greater authority” as the disability commissioner to raise disability discrimination issues.
She pointed also to the “groundbreaking” disability hate crime inquiry headed by Mike Smith, Lord Holmes’s predecessor as disability commissioner.
Baroness Campbell said: “I wouldn’t have thought taking away responsibility for disability oversight from a commissioner was going to help this situation.
“The EHRC has now demoted the disability committee from a statutory entity to a non-statutory working group and it now wants to go further and take away the responsibility for ensuring one of the commissioners covers disability non-discrimination appropriately and effectively.
“I think this a rash decision and it surprised me. I wonder what their rationale is, especially at a time when we are witnessing the rights of disabled people retrogressing in so many areas.”
Sir Bert said the EHRC’s disability commissioner had been able to “bring a focus” on disability at the commission in a way that an ordinary commissioner – even one who was disabled – would not be able to do.
And he said he believed that not having a disability commissioner would make it harder for the commission to stand up to the government on disability issues.
He said: “I think it will. It will make it more likely that disability issues are sidelined.”
He said the commission had already proved that it was failing to defend disabled people from government attacks, such as cuts to employment and support allowance, and its flawed disability benefit assessment regime, which he said were “blatant human rights violations”.
“Who is fighting it, apart from a few journalists? [The commission] should be shouting about it from the rooftops.
“It is almost unbelievable that the government has been able to get away with it.”
He said he believed the commission saw having a disability commissioner as a “constraint” on its work.
Anne McGuire, a former Labour minister and shadow minister for disabled people, also criticised the move.
She said: “It really doesn’t matter whether it is a statutory obligation or not to appoint a disability commissioner, the reality of past years was that there was one.
“Moving away from that position potentially undermines confidence amongst disabled people that the EHRC will give much needed focus on disability issues.
“I think it is disappointing at a time of increasing difficulties for disabled people that either the government, the EHRC or both have taken this action.
“The EHRC will have to go some way to prove that disability equality issues will not be downgraded.”
Last week, EHRC refused to answer questions about what had happened to the disability commissioner role because it was “a government appointment”, although it said that it was “considering what arrangements for chairing and membership of the new DAC will ensure we are best-placed to develop strong arrangements for engaging with disability stakeholders for the future”.
It declined to add to its statement this week.
11 May 2017
The Liberal Democrats have promised to raise £6 billion a year extra to spend on the NHS and social care, by increasing all rates of income tax by 1p.
Although there was no mention in the announcement of working-age disabled people, the Liberal Democrats said they would spent at least £2 billion of the money on social care in the next financial year, and £1 billion on mental health.
The party said the measure was its “flagship spending commitment” and its first major policy announcement of the general election campaign.
It came as Labour leader Jeremy Corbyn, in a speech at his party’s campaign launch, said Labour’s plan to “transform Britain” would mean “rebuilding our NHS and social care services with the funding they need”.
He also said a Labour government would introduce a “comprehensive programme to strengthen rights at work”, and that disabled people were among those who had been left to “foot the bill” by the “rich and powerful”.
And he told the audience in Manchester: “What’s remotely fair about the bedroom tax?
“What was fair about racking up tuition fees? Or about taking benefits away from people with disabilities?”
The Liberal Democrats said that health and social care services had been left “chronically under-funded” by the government, and the alternative to raising taxes was to “cut drastically from other essential public services, like schools and welfare, to keep the health and care system afloat”.
Liberal Democrat leader Tim Farron said: “Theresa May doesn’t care about the NHS or social care.
“People are lying on trolleys in hospital corridors and she has done nothing. The truth is you can’t have a strong NHS with a hard Brexit.
“The Liberal Democrats will rescue the NHS and social care. We are prepared to be honest with people and say that we will all need to chip in a little more.”
The party’s shadow health secretary, Norman Lamb, said the new funding would be targeted to “areas that have the greatest impact on patient care such as social care, general practice, mental health and public health”.
The party said it would set out a five-point recovery plan for NHS and social care in its manifesto.
This will include the development of a dedicated health and care tax, which would bring together spending on both services into a single budget and set out how much was spent on them on people’s payslips.
There will also be a cross-party convention on health and care, which will work with patients, the public and NHS and care staff to review the long-term sustainability of the health and care systems, and examine the need for greater integration.
And a Liberal Democrat government would introduce a statutory, independent budget monitoring agency for health and care, an Office of Health and Care Funding, similar to the Office for Budget Responsibility set up by the coalition.
This would report every three years on how much money the system needed to cover government health targets, new initiatives, and projected increases in demand.
11 May 2017
More than 10,000 disabled people have had their benefits slashed in just one month, after the government introduced a new, lower cap on the total benefits that any non-working household can receive.
The Department for Work and Pensions (DWP) figures are the first to be published since the level of the benefit cap was cut from £26,000 to £20,000 (or £23,000 in Greater London) last November.
The cap is even lower – £13,400, and £15,410 in London – for single adults with no children.
The cap was first introduced under the coalition and aims to push benefit claimants into employment, as it does not apply to households who earn a certain amount from paid work.
There are exemptions for anyone claiming disability living allowance or the new personal independence payment (PIP), or the support component of employment and support allowance (ESA).
But those in the ESA work-related activity group (WRAG) are subject to the cap, even though they have been found not yet fit for work.
This means thousands of ESA claimants have had their benefits slashed, often by more than £100 or even £150 a week, even though there is nothing they can do to escape the cap.
As well as those in the WRAG, the cap also applies to those in the lengthy ESA assessment stage.
The new figures show that more than 10,000 households that include someone claiming ESA had their benefits cut in February because of the cap, about 15 per cent of the total affected by the cap.
They also show that at least 32,000 households lost up to £50 every week – although it is not known how many of these were ESA claimants – while another 22,000 lost between £50 and £100 a week, and 8,500 lost between £100 and £150 a week.
In all, at least 66,000 households had their benefits capped in February, an increase of 46,000 since the new, lower cap was introduced.
The true figure is likely to be even higher, because some local authorities were not included in the February statistics.
The cap – first introduced in April 2013 – applies to child benefit, housing benefit, jobseeker’s allowance, income support and ESA (for those in the WRAG or the assessment phase) and is usually applied by reducing the amount of housing benefit paid to the claimant.
Evidence published by the Commons work and pensions select committee, before the DWP figures were released, shows experts raising serious concerns about the impact of the lower cap on disabled people.
Shelter described how it had helped a council tenant with mental health problems who had been hit by the benefit cap when she lost her eligibility for PIP.
She could not move to a cheaper home and struggled to pay her rent, and was threatened with eviction.
She stopped eating so that she could afford the rent, and as a result her weight plummeted to just six stone.
The Zacchaeus 2000 Trust (Z2K) told the committee that the new lower cap meant that tens of thousands more mothers with very young children, and sick and disabled claimants, were being hit for the first time.
It told the committee: “The cap results in vulnerable families facing an almost impossible choice between feeding and clothing their children, heating their homes and paying the rent.”
Z2K said it had advised many clients on ESA who were not exempt from the cap because they were in the WRAG and were therefore “incapable of escaping the cap by moving immediately into work”.
Its advisors helped some of them to apply successfully for PIP, which granted them exemption from the cap.
The social security consultancy Policy in Practice said that its analysis of claimants within a north London council area found that the “overwhelming majority” of single households that had been capped were receiving ESA, and therefore facing “significant reductions” in their benefits, even though they were unlikely to be able to move into work.
The Child Poverty Action Group told the committee that it was “clearly inappropriate” for DWP to force claimants with limited capability for work to find jobs “on pain of losing benefits”.
It pointed to the case of a couple with two children under five who had had their housing benefit reduced by £30 per week.
The father, who is disabled, had applied for PIP and a discretionary housing payment, but “in the meantime the family has had to cut back on fresh food and other necessities required for young children”.
Karen Buck, a Labour member of the committee, said: “As the benefit cap starts to bite across Britain it looks from the evidence we’ve seen so far like a drastic cut to income for people who are really unable to cut their living costs any further.
“The evidence does not show us that being plunged further into poverty encourages or helps people to find work, and the vast majority of those hit by this cut are already recognised as unable to work at the moment.”
She added: “It is very hard to see any benefit from the benefit cap.”
11 May 2017
Disabled people are being denied access to justice because of judges’ failure to make the reasonable adjustments that would make the court process accessible to them, according to a disabled human rights barrister.
John Horan said the legal profession was failing to address the discrimination faced by disabled people who rely on family and commercial courts, employment and benefits tribunals, and the criminal justice system.
One of the reasons for this failure is the pressure exerted on the legal system by government cuts to the courts and tribunals system budget, he has told Disability News Service (DNS).
He says the UN Convention on the Rights of Persons with Disabilities (UNCRPD) provides a clear duty – under article 13, on access to justice – for UK courts to provide the necessary “accommodations” to ensure that every disabled person can play an “effective role” in all legal proceedings.
But he says judges (and magistrates) are ignoring detailed guidance laid out in the Equal Treatment Bench Book (ETBB), which describes how they should treat disabled people.
In fact, he says, it is almost unheard of for judges to refer to the ETTB and provide reasonable adjustments for disabled people.
His views appear to be shared by the Equality and Human Rights Commission, and the other equality and human rights bodies that make up the independent mechanism charged with overseeing the UN disability convention’s implementation in the UK.
They told the UN’s committee on the rights of person with disabilities (CRPD) earlier this year that there “does not appear to be compulsory training for members of the judiciary on the UNCRPD or forms of reasonable accommodation to ensure equal access to justice”.
The committee seems to have been listening, as it has asked the UK – in the list of issues released ahead of a public examination in August of its progress in implementing the convention – to provide information on “the training of the judiciary and the provision of reasonable accommodation to persons with disabilities for accessing the justice system”.
Horan said: “If you deny proper access to justice to a disabled person, you are looking on them as a second-class citizen.
“Discrimination has not been taken seriously enough.”
He called for training on providing reasonable adjustments to disabled people for every judge, magistrate and barrister in the country.
Horan spoke out after a disabled person he was representing lost a long-running case in the court of appeal.
His client, Jonathan Rackham, had originally lost an employment tribunal case for unfair dismissal and disability discrimination in December 2015 against an agency that provided staff to an NHS trust, for which he had worked as a support worker.
Horan took on the case and appealed against the ruling, arguing that his client had not received a fair hearing because although the tribunal made some adjustments for Rackham, who has learning difficulties, Asperger’s syndrome and anxiety, it failed to make the necessary reasonable adjustments that would have allowed him a fair hearing.
The tribunal had refused to pay for a report from an expert in Asperger’s syndrome to determine the adjustments that needed to be made.
But the appeal found last November that the tribunal had met its legal duties to make reasonable adjustments, and the court of appeal agreed.
Horan said the court of appeal decision conflicts with the ruling in another case he was been closely involved in, this time in Northern Ireland.
That case, involving another man with Asperger’s syndrome, Patrick Galo, was an appeal against the decision of an industrial tribunal to dismiss claims of race and disability discrimination, victimisation and unfair dismissal against his former employer, Bombardier Aerospace UK.
The tribunal had failed to make reasonable adjustments for Galo, and the Northern Ireland Court of Appeal concluded, in finding in his favour, that the case “highlights perhaps the need for there to be better training of both judiciary and the legal profession in the needs of the disabled”.
The court also found it a “matter of great concern that no reference appears to have been made to the Equal Treatment Bench Book”, and said it had “formed the clear impression that the Equal Treatment Bench Book does not appear to be part of the culture of these hearings”.
It said this was “a circumstance which must fundamentally change”.
It allowed Galo’s appeal and referred his case back for a fresh tribunal hearing.
The UK’s independent mechanism drew attention to the Galo case in its submission to the CRPD.
Both the Galo and Rackham cases were only able to reach the appeal courts because lawyers, including Horan, agreed to work pro bono.
Horan said the judgement in the Galo case – for which he drafted the legal arguments presented to the court on behalf of Galo – “goes a long way to recognising that judges and lawyers are the ones who are at fault”.
But Horan said he was frustrated that the court of appeal in England and Wales had in practice ruled last month that the Galo ruling was wrong.
He said he has had other cases where judges have failed to make the necessary reasonable adjustments for disabled people.
In one case, the court of appeal refused an appeal from an employment tribunal, finding that it was up to the tribunal judge whether to commission an expert’s report on reasonable adjustments.
The tribunal judge had said there was no need to seek an expert’s report for Horan’s client, a lawyer in the middle of a gruelling regime of radiotherapy and chemotherapy for breast cancer, and no need to make any adjustments for her at all.
A spokesman for the judiciary admitted, in a statement to DNS, that reading the “full content” of the ETBB – and the other bench books – was “not mandatory” for judges.
But he said that judges were “expected to be aware of the protected characteristics in the ETBB and to seek and be able to access more detailed reference advice” when needed, through “multiple sources such as case studies and e-learning”.
He said the Judicial College was “satisfied awareness of this resource is high” among judges, and that because the ETBB was a public document “court users can ask the judge take account of the ETBB if they wish”.
He added: “The nature of the ETBB is to provide guidance which can be accessed by judiciary on a needs basis and as such the Judicial College has not sought to train judges on its contents.
“Any practical or other special needs can be flagged to the court as part of the case management process where it is appropriate.
“This will give the judge opportunity to identify and authorise any special measures, the use of intermediaries, interpreters, video links or whatever may be relevant.”
He said that many of the 400 or so seminars delivered by the Judicial College each year remind judges about the information contained in the ETBB, which is currently being updated.
The Judicial College has recently produced online “e-learning” material aimed at helping all courts and tribunal judicial office holders faced with a hearing involving an individual with communication issues, which includes “information and tips for effective preparation as well as effective communication”.
The judiciary spokesman said the e-learning “is aimed to help ensure that cases are dealt with fairly and justly and without avoidable problems with communication”, and he said that both the e-learning and the ETBB “have been advertised and drawn to the attention of the judiciary in a variety of ways”.
He also said that the Judicial College’s strategy states that “all training should include an element of the social context within which judging occurs.
“This will include all issues of equal treatment and diversity and this approach means that case studies used in jurisdictional training can have social context issues woven into them.
“Overall the Judicial College is of the view that there is sufficient training in this area but all training needs are continually evaluated and reviewed.”
11 May 2017
A critically-praised disabled writer and performer says her election as a national spokesperson for the Women’s Equality Party has allowed her to feel “equal” for the first time in her life.
Athena Stevens is one of six national spokespeople elected by Women’s Equality Party members at its conference last November, and is speaking for the party on equality in the media during the general election campaign.
The party, which was formed less than two years ago, is fighting seven seats at the general election, and says its aims are both “winning, and changing the conversation”.
It is even asking other political parties to steal its policy ideas, and to use them in their own campaigns.
The party’s top target for next month’s general election is the Shipley seat currently held by Tory Philip Davies, the “anti-feminist” who, as well as attempting to block bills aimed at promoting women’s rights, has called for disabled people to be able to work for less than the minimum wage. He will face the party’s leader, Sophie Walker.
Stevens, who is artistic director of a production company, was a founding member of the party, and has been working with the candidates for the general election, helping them connect with their disabled constituents “who might otherwise be forgotten by other parties”.
She said this had “really enabled me to have a political voice in the country”, something that she says few other disabled women enjoy.
She says this was underlined by her ongoing battle with London City Airport over the damage caused to her electric wheelchair when she tried to take a flight to Glasgow.
“It really hit me hard this autumn, just how the political voice of the disabled population is silenced and ignored in this country,” she said. “It really made me extremely depressed and I was suicidal because of it.
“I think everyone is feeling disenfranchised but I think the disabled population has it the worst.
“If a large company can destroy my wheelchair and not do anything about it… I can write all the novels in the world, that doesn’t change the reality for us, and a lot of people are depressed and angry because they don’t have a voice in Britain today.”
Being part of the Women’s Equality Party, she says, “has been something that has enabled me to give a voice to disabled people and also to be an equal in our society in a way that nothing else has, not even my work”.
She added: “To be part of a movement that actively seeks out my voice and puts it in the media is awesome.”
She is thinking of standing herself at the next general election, and says if she does it will be thanks to the “groundwork” the party is laying down now.
She said: “This is a party that believes that disabled people can change the world as much as any population and this is a party that is acutely aware of the disservice that politics has done to disabled people until now.
“This is a party more than anything else that seeks to tell real stories about disabled people and get their voices out there, influencing the public more than any other party.”
Asked about the policies of the Tory government, she says: “I think the UN is absolutely right in that we are seeing a complete attack on disability services and lack of infrastructure to help disabled people.
“This slow economic genocide has to stop because the fact is that the quickest-growing population in the UK is looking at retirement.
“We need to figure out how to help older people, how to help disabled people, because we can’t just let them die on the street.”
She also wants to see tougher measures taken to ensure that the media finally fulfils its promises to employ more disabled people; harsher punishment for abuse by care workers; and more of an effort “to see the economic potential of the disabled person”.
While she is angry at the flawed benefits assessment processes that find sick and disabled people fit for work when they are not, she is also frustrated that people with impairments like hers – she has cerebral palsy – are often seen as “unfit to work”.
She said: “I think the fact that Stephen Hawking and myself would be found unfit for work is as problematic as people who are being judged fit for work and can’t.”
Like many other disabled people, she looks at the assessment process for personal independence payment – she is only applying for it now as she was born and lived previously in the US and has only recently qualified to claim UK benefits – and is frustrated at how inaccessible and inefficient it is.
She says the party’s “progressive” policies on disability are partly explained by the fact that Walker has a disabled daughter.
Stevens said: “To have a woman who is the mother of a child with autism running a political party is awesome and that is something we need to be making disabled voters aware of.”
The party will focus a lot on the need to address the impact of Brexit, and it believes that the best way of doing that is to invest in “the caring economy”, with more money for social care for both older and disabled people, childcare and education, said Stevens.
In its manifesto, it will also highlight the harm caused by the media portrayal of disabled women as asexual, a stance that Stevens believes is “revolutionary for a political party”.
She insists that the party can appeal to men as well as women. “It’s not called the Women’s Power Party, it’s called the Women’s Equality Party because we believe that equality is better for everyone: it’s better for the economy, it’s better for the home, it raises healthier children, it puts a country at an advantage in so many ways.”
11 May 2017
A disabled mother-of-five has described how having to fight the courts repeatedly for nearly two decades for the right to keep her children has led her to set up a pressure group for disabled parents.
Joanna* had her four oldest children taken away by the courts and handed to their father because of what she believes is the system’s institutional prejudice against disabled parents, while she also had to fend off court attempts to take her youngest child.
Now she has set up the Disabled Parents’ Political Union (DPPU) to fight for new laws to safeguard the rights of disabled parents, including those who appear automatically to lose custody of their children in a divorce.
Two of her own children are disabled and she says she does not want them to face the same discrimination she has faced when they have children of their own.
She has told Disability News Service (DNS) that she has spent much of the last 20 years fighting the legal system that views her as an unfit mother purely because she is disabled, and how she was rebuffed when she approached disability charities for support with her campaign.
It is only in the last few months that she feels she has made progress, having persuaded the Liberal Democrat peer Baroness Burt to ask a question in the House of Lords.
Baroness Burt told fellow peers in February that she accepted that a child’s welfare “must be paramount, but many disabled parents feel that they are unfairly discriminated against in child custody cases.
“Some fear visiting the doctor in case the use of their medical records in court might contribute to their being designated unfit parents.”
She asked a minister to consider adding a clause to the Equality Act to “reassure disabled parents that they will be fairly treated in the family courts”.
Baroness Burt was told that judges are exempt from the act when making their decisions, but that they must act in accordance with human rights laws.
But Joanna believes that any rights to a private and family life that disabled parents have under human rights legislation are outweighed by the Children Act 1989, and its emphasis on the need to prove a parent’s “capacity” to meet their child’s needs.
She says the courts see a disabled parent and automatically assume that he or she is incapable of caring for a child.
Joanna is highly critical of the health visitors and social workers who she says believe they have a duty and a right to invade the private lives of disabled parents because of the mistaken belief that they cannot bring up their own children safely.
She is also critical of CAFCASS, which is supposed to represent children in family court cases.
She said: “Disabled parents get bullied and harassed and interviewed constantly. They have never left me alone, my whole parenting career.
“If you’re a disabled parent you can’t have a fair court hearing at all – they always assume you’re unfit because you’re disabled.
“I don’t think that should be legal. There should be something that separates the disabled parent from the abusive parent. At the moment there isn’t.
“I want someone in a wheelchair going into a family court to have the same rights as someone who is not in a wheelchair.”
DPPU’s website contains several horror stories provided by other parents, including a disabled dad who was reported to children’s services by a police officer after he reported a crime, because she noticed him limping and warned that he had either “had a stroke” or “was drunk in charge of children”.
Another disabled parent was reported to children’s services for being “non-compliant” because she refused to accept a care worker coming into her home to put her four-year-old child to bed.
A third disabled parent was reported to children’s services by a Sure Start worker who claimed she was only home educating her two children so they could care for her.
Joanna says that social workers will “not take no for an answer” when they offer support to a disabled parent.
“There are parents who take up services they don’t really want because they think that if they don’t, they will take their child away. It’s bullying.”
Joanna says she has been lobbying MPs and peers on the issue for more than 10 years but has only set up the new group in the last few weeks.
Her children are now aged nine, 14, 17, 19 and 21, and the courts eventually granted custody of four of them to her ex-partner, purely, she says, because they believed she did not have the capacity to look after them as a disabled parent.
One of her daughters was taken from her after she had a hip replacement and was temporarily using a wheelchair.
She was told it was too distressing for her disabled daughter to see her in pain.
She was also told her daughter had “too much responsibility”, even though she had no chores to do and Joanna had support in place.
Joanna said: “They wouldn’t let me present evidence that I had help in place until after they’d moved her; they didn’t look at any paperwork or records of the help and just assumed, and moved her on that.”
When her school became concerned that her daughter was arriving at school late, her class teacher – who had only met Joanna briefly at a parents’ evening – had told CAFCASS that this must be because of her mother’s care needs.
It was actually the taxis that took her daughter to school that were making her late, but the court still used her daughter’s supposed “caring” duties as an excuse to grant custody to Joanna’s ex-partner.
Joanna says she has had to fight for her youngest child, her nine-year-old son, his entire life. The first court hearing took place when he was just four months old.
“They don’t realise that rulings like these can destroy lives,” she said. “I have had depression most of my adult life because of this.
“I lost my mother over this. She said there was no way they would have taken them away for no reason. I haven’t spoken to her since.
“You blame yourself. I am always second-guessing what I do with my son.
“I don’t even tell people I have other children because once they realise they are not living with you they automatically think you did something to them, that you abused them.”
Even though her son has been with her for all but a few weeks of his nine years, she still believes that she could lose him at any moment.
She said: “It is very hard every day when you get up and think, ‘Is this going to be my last proper day with you?’”
*DNS has agreed not to publish her surname
11 May 2017
News provided by John Pring at www.disabilitynewsservice.com