Disabled campaigners ‘one step closer to justice’, despite court setback

Disabled campaigners believe they are “one step closer to justice”, despite losing a legal case against the government over the potentially ruinous costs of taking discrimination cases through the courts.

A high court judge yesterday (Wednesday) dismissed an application for judicial review by Esther Leighton, co-founder of the disabled-led campaigning organisation Reasonable Access.

Leighton had challenged the government’s failure to reduce the financial risk faced by disabled people taking discrimination cases through the county court system.

She wanted the government to extend a system called Qualified One Way Cost Shifting (QOCS) – which is used for personal injury claims – to Equality Act cases.

But Mr Justice Cavanagh dismissed her application, concluding that the Ministry of Justice (MoJ) was acting lawfully because it had not yet decided whether to extend QOCS to discrimination cases.

Leighton had argued that the government had had seven years to make that decision and had still not done so.

But the government convinced the judge that it needed more evidence that disabled people were being denied access to justice.

But the judge also made it clear that if justice secretary Robert Buckland decides to “kick the issue into the long grass”, the government could eventually be seen to be taking a “definite decision” not to extend QOCS.

This would provide another opportunity for a legal challenge by disabled people.

The judge said the case was of “general public importance”, but although he found that Leighton and others bringing discrimination claims were being treated less favourably than personal injury claimants, he found that this was not unlawful discrimination.

He also made it clear in his ruling that extending QOCS would “improve matters” for county court discrimination cases.

Leighton has brought many successful claims for disability discrimination in the county court, representing herself because of the cost of paying a solicitor, but she has often had to withdraw from more complex cases of discrimination by large corporations because she could have been asked to meet the other side’s costs if she lost.

Although she said she was “very disappointed” when she heard the case had been dismissed, she told Disability News Service yesterday that she realised after reading the 105-page judgement that there was much in it that was “fundamentally positive”.

Leighton, who was represented by legal firm Deighton Pierce Glynn, with the case funded by the Equality and Human Rights Commission (EHRC), said: “The fight goes on.

“The judge made it very clear that if they make a decision and it’s not to extend QOCS we can challenge that, and we will.”

Francesca Di Giorgio, a campaigner with Reasonable Access, who attended yesterday’s hearing, said she, like many other disabled people, was “routinely discriminated against every day”.

She said: “I’m very well versed in my rights, but without legal representation I don’t have the time, money and confidence to take cases.”

She said the kind of protection available to people taking personal injury claims was not available to her in her efforts to defend her right to access society as a disabled person.

But she said: “We are a step closer to justice.

“The court has decided that disabled people are discriminated against.

“It is disappointing that the Ministry of Justice and the government have not taken steps since the legal reforms introduced seven years ago to make sure disabled people’s rights that exist in law can be protected in practice.

“We are calling on the government now to practice what they preach by putting in those protections.”

Doug Paulley, another leading disabled campaigner, who like Leighton has taken discrimination cases through the courts, was also in the high court yesterday.

He said he was disappointed with the ruling, but said it was still a “step forward”.

He said: “The judgement makes it pretty clear that this is not a satisfactory situation and the government needs to get on and make a decision after more than seven years of not doing so.”

Paulley said the government now needed to “get on with the decision” on whether to extend QOCS to discrimination cases, as the current situation “prevents people bringing legitimate cases of discrimination”.

He and his fellow campaigners now want a meeting with Buckland to ask how he plans to make disabled people’s Equality Act rights a reality.

Paulley said: “This is genuinely a step forward in that it has made it clear that the government must stop procrastinating.”

After the case, the disabled people’s organisation Inclusion London, which intervened in the case and also attended the hearing, called on Buckland to “extend cost protections to Disabled people to enable us to use the Equality Act to tackle disadvantage and discrimination”.

An EHRC spokesperson said: “We funded Esther Leighton’s case because we believe that the risk of high legal fees often prevents victims of discrimination from bringing claims.

“We are disappointed in the ruling and hope that the government announces its plans to address this risk as soon as possible.”

A Ministry of Justice spokesperson said: “We will consider this judgement carefully and respond in due course.”

20 February 2020


Tories refused to answer access questions in letter from their own equalities minister

Successive chairs of the Conservative party snubbed a request from their own equalities minister, after she asked them to explain how they intended to support more disabled people to become MPs and councillors.

Penny Mordaunt wrote last April to the chair of her party, Brandon Lewis, to “confirm what plans you have in your party to support disabled candidates on a longer-term basis”.

The letter was written because the government had refused to set up a new permanent, long-term fund to meet the extra disability-related costs that many disabled candidates face when seeking elected office as councillors and MPs.

It had scrapped the short-lived Access to Elected Office Fund (AEOF) in 2015 and eventually replaced it three years later with the temporary EnAble fund – which offered only limited support – in response to a legal action taken by a trio of disabled politicians.

In her letter, secured by Disability News Service (DNS) through a freedom of information request, Mordaunt said she believed that “the provision of support for disabled candidates should ultimately be the responsibility of political parties”.

And she asked Lewis to confirm the Conservatives’ long-term plans to support disabled candidates.

She said this would “help us to identify ways in which Government can continue to work with you on this important issue”.

She later received a letter apologising for the delay in replying and insisting that she would receive a response the following week. That letter never arrived.

It now appears that Mordaunt and her successors as minister for women and equalities – Amber Rudd and Liz Truss – made no attempt to follow up on this failure to respond to these questions by their own party.

But the Conservatives were not the only party that Mordaunt wrote to and that failed to answer her questions.

The Liberal Democrats and Greens joined the Tories in producing short holding responses to the letter, explaining that they would reply in detail in due course.

Neither of them ever did.

Labour said it had no record of ever receiving Mordaunt’s letter.

DNS has been able to confirm the lack of response to Mordaunt’s letter through freedom of information requests to the Government Equalities Office (GEO).

Now, more than nine months after Mordaunt’s original letter, a GEO civil servant has told DNS that the three holding responses sent by the Conservatives, Liberal Democrats and Greens were the only ones received by the GEO, now based in the Cabinet Office.

The civil servant added: “Penny Mordaunt MP’s letter was sent to the Chairs of the Labour Party, Conservative Party, Liberal Democrat Party and Green Party in April 2019.

“I have considered the points you make about whether there were any ‘further responses made’ and can confirm that no further correspondence was received by the Cabinet Office.”

DNS reported last month that GEO’s policy on supporting disabled candidates to stand for elected office was in chaos after the government suggested it could offer funding through the EnAble fund to those standing to be police and crime commissioners, but not to those who wanted to become local councillors or MPs.

GEO has been accused of breaching the Equality Act and the UN Convention on the Rights of Persons with Disabilities after refusing to ensure a level playing-field for disabled candidates in December’s general election.

It insisted again that it was the responsibility of political parties to meet the disability-related costs of their candidates, but it is now considering retrospective payments to disabled people who faced extra costs during the general election campaign.

The Conservative party this week refused to comment on its failure to respond to its own minister’s questions.

And a GEO spokesperson refused to say why Penny Mordaunt, Amber Rudd and Liz Truss had not made any effort to secure responses to the letter from the four parties over the last nine months.

But she said: “Financial support for candidates is a matter for political parties and we expect them to take action, but the government is also considering what support it might provide to succeed the interim EnAble fund.

“Political parties were fully informed that the fund was for a limited period, and strongly encouraged to put support for their candidates in place.”

A Labour spokesperson said in a statement: “Labour is absolutely committed to tackling the under-representation of disabled people in politics, to ensure parliament more closely reflects the society we live in.

“One of the specific ways we do this is to offer bursaries to disabled people to help with the costs associated with standing as a parliamentary candidate.”

The Liberal Democrats refused to say why they had not responded to Mordaunt’s letter.

But a Liberal Democrat spokesperson said the party had been responsible for introducing AEOF when in coalition with the Conservatives between 2010 and 2015, and was “deeply disappointed when Penny Mordaunt and the Conservatives subsequently abolished this fund for an inadequate replacement”.

He said the Liberal Democrats were the only party to introduce disabled-only shortlists for selecting candidates to fight some parliamentary seats, and also “provide reasonable adjustments at all stages of the candidate journey to ensure that everyone receives a fair opportunity” as well as “bespoke training and mentoring, provided by experienced staff and members”.

The Green party claimed it did not respond to Mordaunt’s questions because it was not clear which minister was responsible for supporting disabled candidates after the Tories called a leadership election last summer.

A spokesperson said: “When the government informs us who is now leading work to support disabled candidates, we will provide further information to them about the support we offer as a party.”

He said that Green MP Caroline Lucas had continued to press for AEOF to be reopened, as had the party’s general election manifesto.

He added: “We support our local parties through our field staff to anticipate barriers to the participation of disabled members in our activities, and help with removal of those barriers.

“We also help our local parties with reasonable adjustments that any member or candidate may need.”

20 February 2020


Errol Graham: Coroner pledges to press DWP on safeguarding review

The coroner who heard an inquest into a man who starved to death after his benefits were wrongly removed is to press the government for information about a promised review into how it protects “vulnerable” claimants.

Dr Elizabeth Didcock, Nottingham’s assistant coroner, has also welcomed the huge public interest in the “very sad and tragic death” of Errol Graham, since it was first reported by Disability News Service (DNS) last month.

Last week, the family of Errol Graham called on Dr Didcock to reopen the inquest into his death so she could write an official report that would demand urgent action from the Department for Work and Pensions (DWP) to prevent further such deaths.

But Dr Didcock has now written to DNS to point out that she has no legal powers to do so.

She said she had carried out a “broad and detailed” inquiry into the circumstances of Errol Graham’s death, and that her decision not to write a prevention of future deaths (PFD) report – that would have sought urgent changes by DWP – was based on the evidence she heard at the inquest.

DNS had asked her if she would consider reopening the inquest to consider evidence that DWP hid from the inquest and which demonstrated its decade-long history of failing to act on warnings that its “fitness for work” assessment process was linked to the deaths of benefit claimants.

Dr Didcock concluded at the end of last June’s inquest that the “safety net that should surround vulnerable people like Errol in our society had holes within it”.

She also said that DWP should have obtained more evidence from his GP at the time his employment and support allowance was stopped so it could “make a more informed decision about him”.

But she concluded that she did not need to write a PFD report to demand changes to DWP’s procedures because the department had promised her it was already completing a review of its safeguarding and that this would focus on “support and safety for vulnerable people”.

That review was supposed to conclude last autumn but it does not yet appear to have been completed or published.

Dr Didcock has now told DNS that she does not have the legal powers to reopen the inquest.

But she said she would ask DWP what had happened to its safeguarding review.

She wrote: “The Investigation into this case is now complete, and the case is closed.

“I have no further legal basis for considering further evidence, nor for issuing a PFD report.

“Furthermore, I have no power to review the findings and conclusions of cases heard by other Coroners and it would be quite improper for me to do so.

“I can however request an update on the DWP Safeguarding Policy Review if this has not been completed, and I shall do so.”

Alison Turner, the partner of Errol Graham’s son, who has led the fight to secure justice, said: “It’s disappointing that the coroner doesn’t have those powers when there is a question of being misled [at the inquest] but I do respect her position.”

She said she would ask the coroner to share with her any information she secured from DWP about the safeguarding review.

A DWP spokesperson failed to comment by noon today (Thursday) on the progress of the safeguarding review.

20 February 2020


Remploy loses inspection contracts after years of concerns over performance

A discredited US company that earns hundreds of millions of pounds a year through benefit assessment and employment support contracts has lost the right to run large parts of a care inspection scheme, following repeated concerns about its performance.

Maximus, which has been running three of the four regional Experts by Experience (ExE) schemes since 2016, has lost out in a lengthy bidding process to a consortium headed by a UK charity.

The ExE scheme uses disabled people, family carers, and other people with experience of using services to provide expert input into Care Quality Commission (CQC) health and social care inspections across England.

Three of the ExE regional schemes are currently managed by Remploy, the disability employment business which was previously owned by the government but is now mostly owned by Maximus.

But Remploy/Maximus is now about to lose all its ExE contracts, with a new single national contract worth £11.4 million over three years awarded instead to a consortium headed by the charity Choice Support, which currently runs the other regional contract and will take over the whole scheme from 1 April.

Choice Support will be working with organisations representing local communities, including small social enterprises and user-led organisations.

There had always been concerns about the decision in late 2015 to award the three regional contracts to an organisation mostly owned by Maximus, which already had a huge chunk of Department for Work and Pensions contracts and had a lengthy record of discrimination, incompetence and alleged fraud in the US.

Disability News Service (DNS) has been reporting on concerns about Remploy’s poor ExE performance since it began work on the contracts in early 2016, with initial reports of confusion, cutbacks and a stream of resignations, and some Remploy ExEs even being told to print their own ID badges.

It then emerged that Remploy had lied about the involvement of user-led organisations in the contracts.

Remploy/Maximus also cut the pay of ExEs to £9 an hour after it took over the contracts, while Choice Support paid its own ExEs £15 an hour in the central region, and will continue to do so for all ExEs across England.

A group of 30 current and former ExEs wrote to CQC repeatedly with evidence of Remploy’s poor performance.

In a 2018 letter to the regulator’s board, they described it as “poor, ineffective, chaotic, unfair, reactive and damaging to Experts, but more importantly, a disservice to people who use health and social care services”.

They accused Remploy of failing to ask for references when employing ExEs, providing poor induction and training, failing to offer feedback to ExEs, and asking them to travel more than 50 miles to inspections.

The process of tendering for the new contract had to be abandoned and restarted when only two organisations – Remploy and the Choice Support consortium – were willing to enter detailed negotiations.

And last month, a fresh scandal saw CQC forced to re-inspect scores of services after it emerged that two Remploy ExEs and a specialist advisor had been simply cutting and pasting comments from past inspections to use in their reports.

One disabled Remploy ExE, who is hoping to work for the new consortium, said none of her colleagues were surprised that the company had lost out to Choice Support, after Remploy’s poor performance over the last four years.

Although she loves the work, she said that she and her colleagues had grown increasingly concerned at Remploy’s failure to provide them with support, to train them properly and to check and provide feedback on their inspection reports.

She also said the cut and paste scandal had not been a surprise.

She said: “It’s not surprising because Remploy does not check our reports.

“I have never had feedback and I had never done that work before I started working as an ExE.

“I kept asking Remploy for feedback on my reports, but I didn’t get it.”

A Remploy/Maximus spokesperson said in a statement that the company was “proud of our work delivering the contract and of our consistent record of high performance, meeting all service targets in recent years”.

He claimed that Remploy/Maximus provided “ongoing training and support to ExEs, and in our most recent survey more than 98 per cent felt they had the right skills, experience and training for the activities they undertake.

“On the very rare occasions that those who work with us have not delivered the service to the standards we expect, we have taken immediate action and removed them from the programme.

“We take quality assurance and accuracy of reports incredibly seriously.”

A CQC spokesperson declined to answer questions about why the contract was not awarded to Remploy/Maximus because it said that would involve “commercially sensitive information”.

But she said: “The evaluation of bids took place between November and December 2019. Following which, the contract was awarded to Choice Support.

“It is anticipated that from 1 April 2020, Choice Support will deliver ExE services through a new single national contract, across all four regions.

“The contract award is for three years and contract value is estimated £11.4 million.

“We have written to all current ExE to inform them of the contract award and to reassure them of our continued commitment in the programme and next steps for them.”

Choice Support said it was “very pleased” to secure the contract.

Kim Arnold, the charity’s national ExE lead, said: “Choice Support have been working with CQC since 2010 to provide Experts by Experience and we are proud of our record for consistently delivering against all our key performance indicators.

“We believe that our Experts by Experience colleagues make an important and valuable contribution to the CQC inspection programme and are committed to working with CQC to ensure the continued success of the Experts programme.”

20 February 2020


ESA sanctions fall close to zero, but concerns remain over JSA and universal credit

The number of disabled people on the main out-of-work disability benefit who are being sanctioned by the government for failing to meet strict conditions has fallen close to zero, following years of criticism of the harsh regime.

Department for Work and Pensions (DWP) figures published this week show that only 122 employment and support allowance (ESA) claimants were subject to a sanction in June last year, although the average (median) sanction being faced by those claimants last June was still as long as 98 days.

Such sanctions only apply to those ESA claimants placed in the work-related activity group (WRAG) who have failed to attend a mandatory interview or take part in work-related activity.

The figure of 122 claimants (0.04 per cent) under sanction compares with a peak of 5,565 claimants (1.04 per cent) being sanctioned in April 2014.

The June 2019 figure could be even lower, as the new data includes those sanctions that are subsequently overturned.

Despite the apparent loosening of the regime, the DWP figures fail to provide any information about how many disabled claimants of the mainstream jobseeker’s allowance (JSA) were being sanctioned.

The figures also show that the proportion of all universal credit (UC) claimants under sanction (2.38 per cent, in November 2019) had fallen sharply from its peak in March 2017 (9.3 per cent).

But there are no figures to show the proportion of disabled UC claimants in the limited capability for work group (the equivalent of WRAG) who were being sanctioned.

DWP yesterday (Thursday) refused to comment on the new figures, or to explain why it was now sanctioning fewer ESA claimants.

It also refused to comment on its apparent failure to publish figures showing how many disabled claimants of JSA and UC are being sanctioned.

But a DWP spokesperson said: “Sanctions are only used when someone fails to fulfil their benefit commitments and people are given the opportunity to explain why they had not done so before any decision is made.”

Last July, Disability News Service revealed that the JSA system had been discriminating against disabled claimants throughout most of the previous decade, as disabled JSA claimants were more likely to have their benefits sanctioned than non-disabled people in all but two of those years.

Campaigners have also warned that it is impossible to tell how many disabled people are being sanctioned on UC.

House of Commons briefing paper from September 2018 said that sanction rates under UC appeared to be “several times higher” than under the benefits they were replacing.

20 February 2020


News round-up: Capita, basic income, immigration, arts diversity, UC… and Motability

The performance of one of the government’s disability benefit assessment contractors has worsened over the last year and has remained well outside a government target it has never met, new figures have revealed.

They show that the proportion of personal independence payment (PIP) assessment reports written by Capita healthcare professionals and found to be of an “unacceptable” standard – following an audit – increased from 3.6 per cent in 2018 to 4.3 per cent in 2019, compared to a target of less than three per cent.

Capita refused to explain why its performance had worsened in 2019 but claimed it was “continuously working to improve our service to claimants”.

Despite Capita never having achieved the three per cent target over more than six years, a Department for Work and Pensions (DWP) spokesperson said: “We set the highest possible standards for assessment providers and small fluctuations in performance are normal as we uphold this.

“We have robust quality assurance measures in place, which continue to deliver improvement in assessment quality performance.”

Disability News Service (DNS) spent months investigating allegations of dishonesty by PIP assessors in late 2016 and throughout 2017, hearing eventually from more than 250 disabled people in less than a year about how they had been unfairly deprived of their benefits, with such cases still continuing to come in more than three years after that investigation began.

Last September, DNS revealed that PIP claimants were now almost twice as likely to win their tribunal appeal than disability living allowance claimants were almost a decade earlier.

The new figures on Capita’s performance were secured by the SNP’s Marion Fellows, following earlier figures which revealed that the other PIP contractor, Atos, was also still failing to meet the DWP quality target, with 3.9 per cent of its assessment reports “unacceptable” in 2019.

The disabled people’s organisation Inclusion Scotland has raised concerns at growing calls for the introduction of a basic income social security scheme in Scotland.

It warned that disabled people were not being adequately considered in the debate, and “may be actively disadvantaged” by proposed schemes.

Basic income is a regular cash payment made to every citizen regardless of their income, paid without any requirement to be in a paid job or looking for work.

But in a new discussion paper, Inclusion Scotland raised concerns that a basic income scheme could make some disabled people in Scotland poorer by diverting funds from those most in need of support.

A disabled people’s organisation says that government plans to tighten the immigration system are “deeply concerning”, because of the impact on disabled people who need access to personal assistants and care workers.

The new Australian-style points system will take effect next January, and unskilled or low-skilled workers and those who can’t speak English to a certain level will no longer qualify to work in the UK, while applicants will need a job offer with a salary of at least £25,600.

Kamran Mallick, chief executive of Disability Rights UK, said: “We are urging the government to think twice about the impacts of this move on those within British society who have the least income and need the care sector to work effectively, and to put in place robust measures to mitigate the impacts of these policies on the most vulnerable.

“These changes are not just about economics, they are about people’s lives.”

Arts Council England’s fifth annual diversity report – for 2018-19 – has shown that arts and cultural organisations have made little or no progress in increasing the proportion of disabled people working for and running their organisations.

Only six per cent of staff working for organisations funded by Arts Council England (ACE) were disabled people (a slight increase from five per cent in 2017-18), including six per cent of managers, while only five per cent of chairs and seven per cent of board members were disabled.

ACE’s own performance was generally even worse, despite the organisation having achieved “Disability Confident Employer” status under the government’s discredited disability employment scheme.

Among ACE’s staff, seven per cent identified as disabled people, compared with six per cent the previous year, but just two per cent of its directors and three per cent of its managers said they were disabled, the same as in 2017-18.

DWP has been urged to admit defeat over a long-running legal case taken by two disabled men who have been fighting for justice after their benefits were cut when they were forced onto universal credit (UC).

The two men, known as TP and AR for legal reasons, have been fighting for two years against policies that left them substantially worse off when they were forced onto UC after moving local authority area.

Because of the move, they lost the severe disability premium (SDP) and enhanced disability premium (EDP) they were previously entitled to as part of their benefits.

DWP has already been defeated twice in the court of appeal on connected cases taken by the duo, but a third case is still outstanding over the failure to compensate them for the full amount they lost out on.

They are now calling for DWP finally to admit defeat.

Tessa Gregory, from Leigh Day, the solicitor for TP and AR, said: “Our clients believe that now is the time for government to stop wasting money on legal fees, admit defeat, concede this outstanding claim and ensure that all those who have been short-changed are provided with their previous level of benefits.”

Leigh Day is continuing to bring a separate group claim, on behalf of those who previously received SDP and/or EDP and moved to UC before 16 January 2019, for the full amount they lost and compensation for the pain and distress caused by their move to UC.

The Scottish government has chosen the Motability charity to run a new programme that will allow disabled people in Scotland to use their mobility benefits to lease cars, scooters, powered wheelchairs and wheelchair-accessible vehicles.

The Scottish government is gradually taking over control of some benefits – including personal independence payment, disability living allowance and attendance allowance – from the UK government and will replace them with its own versions.

It will introduce its child disability benefit this summer and the disability assistance for working age people early next year.

Both benefits have a mobility element that can be used for the new Accessible Vehicles and Equipment Scheme.

Etienne d’Aboville, chief executive of Glasgow Centre for Inclusive Living, welcomed the launch of Scotland’s own version of the Motability scheme, which is overseen by the Motability charity and has been operating in the UK since 1977.

He said: “This is a golden opportunity for Scotland to take the best of the broadly successful Motability scheme and improve it further still.”

20 February 2020

News provided by John Pring at www.disabilitynewsservice.com