PA employers are facing probes into ‘sleep-in’ minimum wage back-pay

Disabled people who employ personal assistants (PAs) are being investigated by the government for failing to pay their PAs the minimum wage during overnight “sleep-in” shifts.

HM Revenue and Customs (HMRC) has admitted to Disability News Service (DNS) that individual PA employers have been investigated, just like large service-providers such as Mencap.

The government has publicly warned – following a high-profile tribunal ruling involving the charity – that many care workers should have been paid at least the minimum wage for the hours when they were sleeping on an overnight shift.

Many of them should now be able to claim for up to six years back-pay.

But the revelation that individual disabled people who use PAs are also being pursued by HMRC for years of back-pay is now beginning to cause alarm in the independent living movement.

In April, the employment appeal tribunal ruled against Mencap and said the charity should have been paying care workers at least the minimum wage for “sleep-ins”.

Mencap is now appealing against the ruling.

The government took some action to try to calm fears about the impact on the care industry of the ruling yesterday (Wednesday) by temporarily suspending enforcement activity by HMRC – until 2 October – and scrapping fines for those who failed to pay sleep-in staff the minimum wage before 26 July 2017.

But the government statement also made it clear that it was committed to ensuring that “workers in this sector” would receive the back-pay “they are legally entitled to”.

And HMRC has today (Thursday) confirmed to DNS that it has been taking enforcement action against some individual disabled employers for allegedly failing to pay their PAs the minimum wage on overnight sleep-in shifts.

One such employer has contacted DNS to say she is being investigated by HMRC because of a complaint from a PA about back-pay dating back three years, although she has not yet provided any further details.

Sue Bott, deputy chief executive of Disability Rights UK (DR UK), said she had heard from two other disabled people who employ PAs and have been under investigation by HMRC.

She was contacted after raising concerns through the DR UK website that PA employers could be caught by the tribunal ruling.

She said the tribunal appeal ruling could have “far-reaching consequences” if it was confirmed by the court of appeal.

Bott said: “You can imagine the difficulty it will cause individual employers.

“I do think it’s right that PAs are paid the national minimum wage for each hour.

“In principle, I do think that’s right, but obviously I am concerned given the lack of resources in health and social care and how difficult it would be for individual employers to respond to a retrospective demand.”

She believes the problem of PA employers not paying the minimum wage for sleep-in hours was “pretty common”.

She said: “People just don’t receive enough money in their personal budgets to be able to pay national minimum wage for every overnight hour.”

A government spokesman said today: “HMRC enforces the National Minimum Wage and National Living Wage in line with the policy and guidance set out by the Department for Business, Energy and Industrial Strategy.

“The government is aware that people who have used their direct payments to fund sleep-in shifts could be personally liable for back-pay.

“These people are themselves extremely vulnerable, and the government is committed to doing all it can to prevent those individuals from suffering financial difficulties as a result of this issue.

“We can confirm that the pause in HMRC investigations will apply to these individuals as well as to businesses, and that HMRC will not be applying penalties.

“The particular needs of this group will also be the subject of government considerations over summer.

“The government will continue to look at this issue extremely carefully alongside industry representatives to see how it might be possible to minimise any impact on provision of social care, and ensure that action taken to protect workers is fair and proportionate.”

There is so far no agreement among independent living experts as to whether PA employers themselves would ultimately be liable legally for any back-pay.

Anne Pridmore, director of Being the Boss, a user-led organisation which supports disabled people who employ PAs, and who employs overnight PAs herself, said she was deeply concerned by the tribunal ruling and the government statement.

She said she believed that “the buck stops with us” as employers of PAs, even if local authorities or clinical commissioning groups have not been paying enough in care packages to afford to pay minimum wage for overnight hours.

She should be safe herself from any action by HMRC, as her current package allows her to pay more than minimum wage as an average hourly payment across her PAs’ 24-hour shifts.

But she fears that when the national minimum wage rises again in October, she will no longer be able to do so. Her care package has not been increased in nine years.

She said: “At the moment I am within the law, but from October I won’t be. There are many of us in the same position.”

Tracey Jannaway, director of the PA services social enterprise Independent Living Alternatives, said she believed the responsibility for meeting the back-pay would probably fall on the council or NHS body that funded the personal assistance, rather than the PA employer.

She said the legal system had previously found the funding body responsible for ensuring that PA employers had the resources necessary to meet all their legal obligations, such as the minimum wage, national insurance, pension payments and insurance.

Jannaway said it was “highly probable” that this would apply to PA employers and sleep-ins, but that it would probably take a legal test case to confirm this.

She said years of conflicting rulings on night-time pay had left many people with their “heads in the sand”.

And she said if the ruling was extended to “all people doing sleep-ins or indeed all live-in workers the implications will be far reaching and hard hitting” because “very few” people receive the necessary funding to pay for hour-by-hour overnight personal assistance.

Even if local authorities and NHS bodies are found responsible for the night shift back-pay of PA employers, the financial implications will be “colossal” and probably “result in people having their hours reduced” because of the existing social care funding crisis.

Jannaway added: “It does seem unreasonable to pay someone an hourly rate if they are genuinely doing a sleep-in where they are only ever woken in an emergency – say once or twice a year.

“It would be better for HMRC to agree what is the reasonable sum for this work. However, those people who really do work the sleep-in are entitled to be paid.

“At ILA, we argue for the hourly rate for night cover. However, some local authorities simply will not/cannot fund it.”

27 July 2017

 

 

CQC figures reveal hundreds of care homes have gone two years since last inspection

More than 300 residential care homes for younger disabled adults have not been inspected by the care watchdog for more than two years, according to official figures obtained by Disability News Service (DNS).

The figures, released by the Care Quality Commission (CQC) in response to a freedom of information request, also show that 87 care homes in England have not had an inspection since 2014.

And 10 homes have not had an inspection for between three and four years.

In all, the CQC figures show that, on 1 June 2017, there were 311 care homes for adults under 65 (out of a total of 5,358 homes across England) that had not had an inspection by the regulator in the previous two years.

Despite DNS alerting CQC to the figures on Monday, the commission failed to respond to requests for a comment by noon today (Thursday).

The commission’s press office claimed today that its “team of analysts” were not clear how the figures were compiled, even though the press office has been told that they were simply taken from a spreadsheet – provided by CQC – which showed the “latest inspection review date” of all “active” care homes for “younger adults” that were described by CQC as offering “residential social care”.

Another CQC press officer claimed yesterday that she had been unable to respond to the DNS request because she was dealing instead with a story from The Times newspaper.

Instead of commenting on the figures, CQC issued the following statement: “We have inspected and rated every adult social care service that was registered on or before October 2014, many more than once.

“In particular, we have prioritised our re-inspections on where we have the greatest concerns about quality and safety.

“Our strategy signals how we intend to do this further, as part of our wider plans for the regulation of this sector in England.

“This is so that we can ensure that people receive safe, high-quality and compassionate care and so that we can encourage improvement.”

It is just the latest in a series of concerns to be raised about the commission’s inspection regime.

In May, documents obtained by DNS following a freedom of information request showed that disabled people helping to deliver a vital part of CQC’s inspection programme – contracted out to the former government-owned disability employment business Remploy – had been refused support workers, while one had been bullied into resigning.

Last year, an NHS whistleblower found that the watchdog was failing to order urgent inspections of care homes, despite coroners warning that action must be taken to prevent further deaths of the disabled and older people who lived there.

And last summer, figures obtained through another DNS freedom of information request found that the number of inspections of adult social care services that had been cancelled or rescheduled every month had risen by more than 360 per cent in just one year.

27 July 2017

 

 

Scope’s ‘radical’ plans ‘will see it compete with DPOs’

An announcement by disability charity Scope that it will sell all its residential homes and special schools, and re-position itself as a “social change organisation”, is an attempt to invade the ground occupied by disabled people’s organisations (DPOs), say critics.

The shake-up appears to be designed to distance the non-user-led charity from its roots as a provider of segregated services for disabled people.

But one disabled activist said the decision would mean Scope would “hoover up some of the money” currently going to DPOs, and probably put the futures of many of them at risk.

Another said the move was just an attempt by Scope to “reposition itself in the marketplace”, and compared the charity to “an old pig wearing new lipstick”.

Scope’s new strategy will cut its income by 40 per cent – it was £99.5 million in 2015-16 – and reduce its workforce by two-thirds, by selling off 50 services across England and Wales, including care homes, and special schools and colleges, to other service-providers.

The money from these sales will be re-invested in new services and products, which it says will “help support disabled people and their families from an early age, to live independently and to get and stay in employment”.

Mark Atkinson, Scope’s chief executive, announced the strategy in an article published by the think tank New Philanthropy Capital (NPC).

Atkinson said the world had “moved on” since the charity was founded in 1952 – as The Spastics Society – by three parents of children with cerebral palsy and a social worker, and that Scope had been left with “a patchwork of different services that had been established over seven decades” and now reached just a few thousand people.

He said the charity needed to take “radical” steps if it wanted to “become relevant to a far larger proportion of the 13 million disabled people in the UK”.

Its services will now focus on providing information, advice and support, mostly delivered online, while it would also concentrate on campaigning and seeking to influence public policy.

A Scope spokesperson said services would be paid for by “a broad base of funders, including corporate partners, trusts and foundations, individual donors and our network of shops”, as well as “tens of thousands of very committed supporters who we are confident will continue to support our work in the future”.

Although Scope said it would not seek any employment contracts under the government’s new Work and Health Programme, it “may still seek and receive government funding for some specific areas of work, like research, on a case by case basis”.

And instead of taking part in the Work and Health Programme, Scope said it would build on its “current range of independent, specialist, personalised employment support services”.

Last October, Scope backed the government’s new work, health and disability green paper, with Atkinson praising it for setting out “bold ideas for reform” in the Department for Work and Pensions’ own press release.

This allowed work and pensions secretary Damian Green to claim in the House of Commons that criticism of the green paper – which has been heavily-criticised by disabled activists – was “completely out of touch with those who represent disabled people”.

Atkinson said in the article that he wanted the charity to “focus on the areas in which disabled people face the greatest barriers and move away from being a charity that ‘does’ to one that ‘facilitates’”, creating a platform “that allows disabled people, through Scope, to drive change” and so move “ever closer to everyday equality”.

These words are similar to the slogan used by the DPO Disability Rights UK (DR UK), which describes itself as “disabled people leading change, working for equal participation for all”.

Atkinson’s article has raised concerns among some disabled activists that Scope wants to establish itself as the leading voice on disability, and will crowd out disabled people’s user-led organisations with far fewer resources.

When asked if there was an argument for saying that there was no reason for Scope to continue to exist at all, and that it should pass all its resources to DPOs, the spokesperson said: “As our strategy, developed with disabled people and their families, makes clear, life is still too tough for many disabled people.

“We believe that disabled people should have the same opportunities as everyone else. Until then, we’ll be here.

“Scope will continue to work closely with disabled people and disabled people’s organisations and continue to put disabled people at the heart of everything that we do.

“We believe that we can achieve more by working together than we can alone.”

Prominent disabled activists have so far delivered a mixed response to Scope’s announcement.

Dr Theo Blackmore, an independent researcher, welcomed Scope’s move away from segregated provision, but he said its latest rebrand was “a clear attempt to move yet further into the ground that is occupied by the many much smaller DPOs that exist across the country.

“Scope, as a consequence, will undoubtedly hoover up some of the money that is currently going to these much smaller groups, and will probably imperil many of them.”

He said there was still a place for an organisation to work with and support families of disabled children, according to Scope’s original purpose.

But he said there was also a place for organisations run and controlled by and employing disabled people.

He said Scope and other large disability charities had often fought hard for government and council contracts, often against DPOs, “depriving these much smaller organisations of disabled people of much needed funding” and leading many of them to close.

He said the latest changes would “again see Scope in competition with DPOs” but that nowhere in its announcement did it say that it would increase the number of disabled people it employed or had on its board of directors.

He added: “Scope is an organisation with an annual income in the region of £100 million.

“With this much spending power and clout it is easy to see how much of a threat Scope, and other large disability charities, are to DPOs.

“If they, and the other major disability charities, really wanted to make a difference to the lives of we disabled people they could work out how they could better work with DPOs, to strengthen the voice of disabled people at the local level by shifting some of their enormous income to support these local organisations.”

Kamran Mallick, the new chief executive of DR UK, said he welcomed the Scope changes “and the principles that underlie them”.

But he added: “The best, most effective, lasting change comes when it’s driven by disabled people.

“That doesn’t mean that other organisations, concerned about the rights of disabled people, have no impact at all.

“Any organisation which aims to be more relevant to disabled people is a good thing and organisations become more relevant if they are driven by the voices of those with lived experience.

“This is central to the disabled people’s movement, however that alone doesn’t make them disabled people’s organisations.

“We’d like all charities concerned about disability issues to be run by and for disabled people, which includes not just disabled trustees but senior managers and other staff.”

Lorraine Gradwell, former chief executive of the Manchester-based DPO Breakthrough UK, said the changes appeared to be about “offloading sections of the business that are falling out of favour or failing to make money, dressed up as a change of mission and direction”.

She said: “This would be fine if the links with disabled people and their organisations were outlined, and Scope could show how they’ve worked with DPOs to lay out their mission and design their strategy.”

But she said Scope did not appear to have done this and instead had “looked inwards”, and although it may have consulted individual disabled people, there was “no evidence they’ve reached out to organisations”.

She said Scope was “trying to reposition itself” and possibly “establish fresh credentials”, and was attempting to establish itself as “a leading voice” on disability, and has “probably got the resources to do it”.

She added: “I also think a lot of DPOs would be quite willing to work with Scope, and they have said so in the past.”

Bob Williams-Findlay, a former chair of the British Council of Disabled People, who has written previously of his experiences attending a residential school run by The Spastics Society, said he was deeply distrustful of Scope’s announcement.

He said he saw it as an extension of the new form of disability politics that emerged from New Labour in the 1990s, which “exploited the language and concepts of the social model of disability and transformed them into tools for the neoliberal agenda of commodifying disabled people’s lives”.

He pointed out that Dan Corry, chief executive of NPC, was head of the (New Labour) Number 10 Policy Unit and senior adviser to the prime minister on the economy from 2007 to 2010.

Williams-Findlay said Scope’s talk of “transformation”, “social change”, and “addressing disabled people’s barriers” reminded him of the hypocrisy of disability charities that took part in the Hardest Hit campaign, when they “had their feet on the streets and noses in the government’s feed”.

He said: “What Scope says and what it does are often at odds with each other – look at their embarrassingly pathetic End The Awkward campaign.

“Why would disabled people trust a charity like Scope with a history like theirs?”

He added: “Atkinson’s statement cherry picks their history, still ignoring the charity’s oppressive role up to the present day.

“This shift is not just yet another rebranding exercise, it is an attempt by Scope to re-position itself in the market place and with an array of digital outputs.

“I repeat, why would disabled people trust a charity like Scope; an old pig wearing new lipstick?”

27 July 2017

 

 

Supreme Court tribunal fees win, but minister hints charges could be reintroduced

The Supreme Court has ruled that the government broke the law by introducing fees for disabled people and others who take cases for discrimination or other illegal or unfair treatment to employment tribunals.

The court ruled unanimously yesterday (Wednesday) that the government’s introduction of fees of up to £1,200 to take a case against an employer to an employment tribunal, in July 2013, was unlawful under UK and European Union law because it “effectively prevents access to justice”.

The court also ruled that the introduction of the fees by the government discriminated against women.

The Ministry of Justice (MoJ) has confirmed that it will scrap the fees and provide “full refunds” to those who have paid tribunal fees since 2013, but implied in a statement that it could reintroduce fees at a different level.

It pointed to the statement by one of the Supreme Court justices that fees “can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice”.

When asked whether it had ruled out reintroducing fees, an MoJ spokeswoman refused to comment.

The case against the lord chancellor had been taken by the union Unison, which said the “landmark” court victory – following a four-year legal battle – meant that anyone treated illegally or unfairly at work would no longer have to pay to take their employer to court.

And it said the government would now have to refund more than £27 million to the thousands of people charged for taking claims to tribunals since they were introduced by lord chancellor Chris Grayling in July 2013.

In April, the Equality and Human Rights Commission – which intervened in the Unison case – pointed out that the number of employment tribunal claims for disability discrimination had fallen from 7,492 in 2012-13 to 3,449 in 2015-16, a drop of more than half (54 per cent) since the fees were introduced.

The Supreme Court ruling was welcomed by two newly-elected disabled Labour MPs, Jared O’Mara and Marsha de Cordova.

O’Mara welcomed the ruling, but said it addressed only “one small part of the wider issue of the erosion of access to justice” presided over by the Conservative and Conservative-Liberal Democrat governments since 2010.

He said there was also a need to address the government’s cuts to legal aid for employment and discrimination cases “as a matter of urgency”.

He said the Unison case highlights the “lack of respect for UK law” of the prime minister, Theresa May, who was home secretary at the time employment tribunal fees were imposed.

And he said that May and Grayling – who is now transport secretary – should “now both apologise for being complicit in breaking the law and actively demonstrate their remorse by resigning from their current roles”.

He said: “To refuse to do so would be an insult to the British people and would further demonstrate the contempt in which they hold our legal system.”

De Cordova also welcomed the Supreme Court decision, saying on Twitter: “Tribunal fees are a huge obstacle to justice. This is a great victory for unions and for workers’ rights.”

David Buxton, chief executive of the London-based disabled people’s organisation Action on Disability, said: “This is very good news for disabled employees fighting what were often cases of discrimination.

“Disabled people are entitled to equal treatment at work and within the justice system.

“I welcome this news and look forward to a future of more enlightened employers making fair and reasonable adjustments for disabled employees both in accordance with the law but also because it makes sound economic sense.”

He added: “The TUC’s Disability and Employment Report (2015) states that disabled people are as productive as their colleagues, take less sick leave, stay longer in their jobs, have fewer work accidents and enhance the employer’s brand.

“How can you argue against such facts?

“Action on Disability is proud to work with a number of employers on exciting work programmes, internships, job coaching and in-work support of disabled people and wishes to see more funding for initiatives of this kind rather than the penalising of disabled people who only wanted to work and to be treated fairly.”

Philip Connolly, policy manager of Disability Rights UK, also welcomed the Supreme Court ruling.

He said: “Access to justice is a basic right. All our hard-won rights depend upon our ability to enforce them.

“I am delighted by Unison’s success in challenging the imposition of fees for employment tribunals.”

David Isaac, EHRC’s chair, speaking before the government agreed to scrap the fees, said: “The right to justice must be based on the merit of your case, not your ability to pay.

“Thousands may have been denied of this right and priced out of getting justice.

“The judgment of the Supreme Court is a damning verdict on the current regime.

“It is a licence to discriminate for employers and must be scrapped. The law only works if people know that it is a fair and just system and the biggest and strongest will not always win.”

Justice minister Dominic Raab said: “In setting employment tribunal fees, the government has to consider access to justice, the costs of litigation, and how we fund the tribunals.

“The Supreme Court recognised the important role fees can play, but ruled that we have not struck the right balance in this case.

“We will take immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid.

“We will also further consider the detail of the judgment.”

The Ministry of Justice pointed out that Lord Reed, as part of the judgement, said that fees “can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice”.

But Lord Reed said that the lord chancellor “cannot, however, lawfully impose whatever fees he chooses in order to achieve those purposes”.

27 July 2017

 

 

Supreme Court tribunal fees ruling: ‘I couldn’t afford to gamble on justice’

A graphic designer who was prevented from taking a disability discrimination case against his former employer because he could not afford the tribunal fees has welcomed the Supreme Court’s ruling that the government’s decision to introduce the charges was unlawful.

The fees were introduced in 2013, a year before Ross Minton was made redundant from his job with a large UK company.

Because he could not afford to pay the fees, in case he lost the case, he could not challenge his employer in a tribunal for alleged disability discrimination.

He spoke out after the Supreme Court ruled unanimously yesterday (Wednesday) that the introduction of tribunal fees of up to £1,200 by the government in July 2013 was unlawful under UK and European Union law because it “effectively prevents access to justice”.

The court also ruled that the fees introduced by the government discriminated against women.

The Ministry of Justice has confirmed that it will scrap the fees and provide “full refunds” to those who have paid tribunal fees since 2013, although it has not ruled out reintroducing fees at a different level.

The case against the lord chancellor was taken by the union Unison, which said the “landmark” court victory – following a four-year legal battle – meant that anyone treated illegally or unfairly at work would no longer have to pay to take their employer to court.

In April, the Equality and Human Rights Commission pointed out that the number of employment tribunal claims for disability discrimination fell from 7,492 in 2012-13 to 3,449 in 2015-16, in the wake of the introduction of the tribunal fees, a drop of more than half (54 per cent).

Ross Minton, from Shropshire, was one of those disabled people who would have taken their cases to tribunal if it had not been for the introduction of the fees in 2013.

He has a very rare muscle condition and had asked his employer to provide him with a high-backed chair, on his doctor’s advice.

But it took more than a year for the company to buy the £150 chair, and soon after it arrived he was made redundant.

He was later told that the company removed the high-backed chair and sent it back for a refund just half an hour after he was escorted from the building in 2014.

Shortly after he left, his employer recruited a replacement, who was given a similar job title and even sat at his desk.

But the father-of-two decided he could not risk taking his former employer to a tribunal, because the fees were likely to be between £500 and £1,000, and could have reached as much as £1,200.

He said: “£1,000 was a hell of a lot of money, especially when you haven’t got a job. Even £500 was a month’s rent.

“Do you gamble £1,000 just to get justice? Eventually we decided that we had to let them get away with it. It was completely unfair.

“It was obviously cheaper for them to get rid of me than to get me a chair. My employment status wasn’t even worth the value of a bog-standard, high-backed office chair.

“I would have loved my day in court, just to tell my story, even if I had been proved wrong.”

He was given just one month’s pay as a redundancy settlement, having worked at the company for nearly two years.

27 July 2017

 

 

 

Activists fighting ‘assisted suicide’ laws now need ‘hard facts’ for battle ahead

Disabled activists will need to seek out more “hard facts” if they want to fight off the continuing threat of efforts to persuade the courts to legalise assisted suicide, according to a crossbench peer.

Baroness [Jane] Campbell spoke out after the campaign group of disabled people she founded, Not Dead Yet UK (NDY UK), intervened in a court case last week for the first time to try to defeat the latest attempt to persuade judges to weaken the law.

NDY UK’s barrister, Catherine Casserley – who was acting pro bono – was allowed to respond to the arguments of Conway’s legal team in court, and to submit a witness statement from Baroness Campbell herself, despite previous concerns that this would not be allowed by the court.

The judicial review has been taken by Noel Conway, who is terminally-ill with motor neurone disease and wants the court to find that the Suicide Act – which makes it illegal to assist someone to take their own life – is incompatible with the European Convention on Human Rights.

Conway’s case is backed by the pro-assisted suicide campaigning organisation Dignity in Dying (DiD).

He argues that the current law prevents him exercising his right to choice and control over his death, and that the right to an assisted suicide would give him “great reassurance and comfort” and allow him “to decide when I am ready to go, rather than be forced into a premature death by travelling abroad or be left at the mercy of a cruel illness”.

Baroness Campbell (pictured) was in court for three of the four days of last week’s judicial review.

She said it was almost certain that whichever side loses will appeal, when the three high court judges deliver their ruling later this year.

She told Disability News Service that her experience of witnessing the judicial review had convinced her that NDY UK “cannot rest on this issue” and needs to find fresh evidence to back up its arguments, both for any appeal and future cases supported by DiD (formerly known as the Voluntary Euthanasia Society).

She said: “The court is interested only in facts and they must be evidenced. For every argument advanced, the judges respond, ‘Prove it!’ If you can’t, they’re not interested.”

Baroness Campbell said this meant that NDY UK would have to “search out more hard facts to support our arguments”, or even commission fresh research to look at what has happened in those countries and US states that have legalised assisted suicide.

But it will also be seeking evidence of cases in the UK in which someone has attempted to take their own life because of “coercion” by a loved one or relative, or because they felt they were a “burden”.

This is likely to mean that NDY UK will be seeking more pro bono help, this time from researchers.

Baroness Campbell said NDY UK had been “on a very steep learning curve” with its first intervention in a court case, and had not had “the time or resources to research copious piles of evidence”, unlike DiD, which had been preparing for its next court battle since the defeat of a private member’s bill put forward by Labour MP Rob Marris two years ago.

And she warned that yet another judicial review is due to be heard in court soon, which will argue that the rights of Omid, a disabled man from north London who has multiple system atrophy but is not terminally-ill, are being breached by UK law, which prevents him from being helped to take his own life. That case is not supported by DiD.

Baroness Campbell said that Omid’s lawyers are likely to use evidence from Canada, where its supreme court ruled in favour of assisted suicide in 2015, in a case which had similarities to the one being taken by Omid and led to new assisted suicide laws the following year.

Pro-assisted suicide groups in Canada are already campaigning to widen the scope of that legislation.

Baroness Campbell said: “This court case reminded me why we cannot rest on this issue.

“We are constantly under siege from the DiD supporters, who will not accept that disabled and terminally people are a fact of life and should be supported to live as equal human beings.

“That way, maybe they wouldn’t fear the unknown so much that they want to blot it (us) out.

“This entire issue never fails to make me feel miserable and uneasy and this was bought into sharp focus during the four-day court hearing.

“We really don’t have a choice other than to fight back.”

 

 

 

 

Councils ‘should be shamed into action’ on taxi access laws

A disability activist has called on disabled people to shame their local councils into action, after his research showed more than a quarter had no plans to take one simple step that would protect wheelchair-users who use taxis from discrimination.

On 6 April, the government finally brought into force legislation that imposes fines of up to £1,000 on drivers of taxis and private hire vehicles who refuse to accept wheelchair-users, try to charge them extra, or fail to provide them with appropriate assistance.

But the new laws only apply in those areas of England, Scotland and Wales where the local authority has drawn up a list – under section 167 of the Equality Act – of all the wheelchair-accessible taxis and private hire vehicles in their area.

The government has been encouraging councils to start drawing up such lists for the last seven years.

But three months of research* by disabled campaigner Doug Paulley – including freedom of information requests sent to all 366 licensing authorities, and the exchange of thousands of emails – shows that only 11 per cent of licensing authorities have so far introduced a section 167 list, with another 30 per cent planning to introduce a list this year, in line with government guidance.

But he found that 18 per cent of local authorities were still undecided on whether to produce a list, while more than a quarter (26 per cent) had no plans to set one up, and another 15 per cent planned to produce a list but had no particular deadline.

He concludes in his research that “serious flaws” in the legislation mean that it is currently of “little benefit to wheelchair users in most areas of the country”.

He added: “It is disappointing that the government’s intent in bringing in this legislation is being undermined by the failure of many councils to undertake the required office work, meaning that taxi drivers can continue to discriminate against wheelchair users with impunity.”

Paulley, whose work has been supported by the charity Muscular Dystrophy UK, called on disabled people and their allies to raise the issue with their local councils.

He told Disability News Service (DNS): “Councils have known this was coming since the law was enacted in 2010.”

He said the bureaucratic work was “not unduly onerous” for councils and all they had to do was “put the list together in the required format and shove it on their website.

“I fail to see what is difficult about this, or any good reason not to do it. Why can’t they just get on with it?”

He added: “Lots of councils haven’t got any idea what a section 167 list does.

“Simply forcing them to understand that the only effect of a section 167 list is to put drivers of wheelchair accessible taxis under a duty not to discriminate against wheelchair users can often have the desired effect; as can explaining that the council still needs to produce a list even if all of their taxis are accessible, or very few of their taxis are accessible, or indeed that their existing ‘voluntary list’ doesn’t do the job.”

He is hoping that raising the profile of the issue will convince MPs and peers to take it up in parliament.

Previous research by Muscular Dystrophy UK has suggested that a quarter of disabled people have been refused service by a taxi driver because of their impairment.

The Department for Transport (DfT) refused to say if ministers were disappointed by the number of licensing authorities that have set up section 167 lists so far.

But a DfT spokesman said in a statement: “We brought this law into force to ensure that passengers in wheelchairs can use taxi and private hire vehicles, free from the fear of discrimination and in the knowledge that the assistance they require will be provided.

“We have been talking to councils about their role implementing this legislation and have issued them with guidance to support them.

“We recognise some authorities will need time to bring in the policy change and intend to speak to them again soon reminding of their role bringing in the new rules.”

In his research, Paulley contrasts the situation for wheelchair-users in areas like Sheffield – which has had a ‘voluntary’ list of accessible taxis for decades, where all licensed taxis are wheelchair-accessible and drivers have to undertake disability awareness training, and which implemented section 167 on the day it was commenced in April – with others like Spelthorne, in Surrey.

Spelthorne council has told Paulley it has no plans to implement section 167, does not force drivers to undertake disability awareness training and has only two wheelchair-accessible taxis licensed in the whole borough.

Dawn Morrison, communications and licensing manager for Spelthorne council, told DNS that the council had decided not to set up a list because there were only two wheelchair-accessible taxis in the borough, and one of the drivers was currently ill and not working and the other was fully-booked with regular disabled customers, and so “the risk of them refusing fares is non-existent”.

Paulley has previously told the council that “having insufficient wheelchair accessible taxis makes it more important to take this simple measure to ensure that the drivers don’t discriminate against wheelchair users”.

Morrison said the council offered half-price licensing fees for wheelchair-accessible vehicles and had tried to persuade the industry “that there is a demand out there”.

She said: “I do feel we can be doing more but we do not have the large operators we can reason with.”

She agreed that the council did not have an impressive record, but added: “We don’t want to be over-burdensome at a time when they are struggling to compete with Uber.

“We will look at it again. I will speak to the licensing officers. It is maybe something that can be taken forward.”

*Paulley’s research data, showing which councils have failed to draw up a section 167 list, can be found on his blog

27 July 2017

 

 

Police force twice erased video footage before watchdog inquiries

A police force is facing questions over its treatment of disabled people, after two reports by the independent watchdog into the way its officers dealt with young autistic men.

In both reports, the Independent Police Complaints Commission (IPCC) investigation was impeded because crucial video evidence had been erased by Northamptonshire Police.

Last year, the force admitted that it had launched an internal review of the way it treats disabled people, in the wake of the two incidents, despite originally denying that it was taking place.

It has refused to say this week if that review has been completed.

In the first case, an officer was caught on mobile phone footage apparently punching an autistic 17-year-old several times and swearing at him, after he and a trainee police constable had responded to reports of a disturbance at a house, in August 2015.

The two officers had been asked by the owner of the house to remove the 17-year-old, who apparently refused to let the officers search him.

By the time IPCC investigators launched their investigation, the officer had “accidentally” deleted his own footage of the incident that had been captured by his body-worn video camera, after showing it to his supervisor.

Despite the IPCC investigator concluding that the officer should face disciplinary charges of gross misconduct, Northamptonshire Police and an IPCC commissioner decided these charges should be downgraded to misconduct.

The officer was later given a written warning for “failing to treat the teenager with respect and courtesy by using inappropriate language, failing to properly record use of force”, and deleting his camera footage.

The officer’s supervisor was also disciplined after it emerged that he had viewed the footage but took no steps to ask the officer about his use of force, or to save the footage.

An edited version of the mobile phone footage of the incident, which took place in the bedroom of a friend of the 17-year-old, was subsequently shared widely on social media and in the mainstream media.

The Crown Prosecution Service (CPS) decided there was insufficient evidence to bring any prosecution against the officer for alleged excessive force.

Disability News Service has also been passed an IPCC report into a second set of allegations against the force.

This report investigated concerns about the way Northamptonshire Police dealt with a young autistic man who was held in a cell for eight hours, after he had defended himself from a vicious disability hate crime in a local park in Rushden, in October 2015.

Daniel Smith was only finally able to clear his name after a six-month ordeal which saw him dragged through the criminal justice system by the police and CPS, before he was eventually cleared of assault charges by magistrates.

He had been left bloodied and bruised after the attack but ended up being prosecuted for assault after the police refused to investigate the hate crime and charged him instead.

He spent eight hours in the cell, without medical treatment for his injuries, even though he told officers he had only been defending himself against “the bullies”.

But despite Daniel’s father, Owen, informing the force eight days later that he wanted to complain about the incident, the custody sergeant at the centre of the allegations was not interviewed by the IPCC until February 2017, 16 months later.

And because the force refused to accept the complaint until Owen obtained written consent from his son – who by that time had returned to his home in Devon – CCTV footage of what took place in the police station had been recorded over by the time the complaint was accepted.

An IPCC spokeswoman said the case had only been referred to them by Northamptonshire Police in June 2016, after the end of Daniel Smith’s trial.

When asked why the custody sergeant who had dealt with Daniel was not interviewed until February 2017, a further seven months later, she said: “Investigators spent the initial stages of the investigation gathering relevant evidence, including interviewing Daniel, to assist with their interview of the custody sergeant.

“CCTV from custody suites is automatically recorded over after 30 days as a national standard, unless a request is made to secure it, for example, when a formal complaint is made.”

Daniel’s father insists that his son told officers that he had Asperger’s syndrome, but the IPCC report concludes that “none of them recall” him telling them of any impairment.

The IPCC investigator concluded that there was “insufficient evidence” to justify the custody sergeant facing a misconduct hearing.

IPCC had failed to say by noon today (Thursday) whether it believed the force should have taken steps to preserve the CCTV footage.

When asked whether it was just a coincidence that vital footage that might have been used to prove a case against officers from the force was deleted in both of the investigations, an IPCC spokeswoman said: “There is no evidence to suggest the two incidents are related in any way.”

She said that the force’s internal review of its treatment of disabled people was “a matter for Northamptonshire Police”.

And asked if the two cases showed the force had a problem with dealing with autistic people, she said: “We have conducted two thorough investigations looking at each complaint individually.

“In both of these cases, there is insufficient evidence to suggest officers involved were aware of the complainant’s autism.”

Owen Smith is also angry that neither the force nor IPCC have examined the failure to treat the attack on his son as a disability hate crime.

The IPCC spokeswoman said this was not part of the IPCC investigation and that Northants police carried out its own investigation into the incident that led to Daniel’s arrest.

Northamptonshire Police had not responded to requests for a comment by noon today (Thursday), despite being asked for a response on Monday.

27 July 2017

 

News provided by John Pring at www.disabilitynewsservice.com