Another week begins and it really does feel wintry. The oak tree at the bottom of my garden is finally giving up its leaves, which I always think is a signal that winter is upon us. There are so many berries around that we haven’t started putting out nuts for the birds yet. This is a huge disappointment for our resident squirrels that usually steal the lot. Now too more serious matters.
You will have seen the outcome of the recent appeal by five disabled people to stop the closure of the Independent Living Fund. This is covered in more detail later in this blog.
The interest in the story has been considerable and I was asked to appear on Shrink Wrapped on BBC 3 Counties Radio on Sunday afternoon to discuss the impact of the ruling.
An interesting programme with a number of local disability organisations participating. The only notable absence was a government spokesperson. What is this government afraid of? Why is it so difficult for them to consult and then listen? If they’d done both over the Independent Living Fund debate then they might have avoided the public humiliation meted out by the Court of Appeal.
Independent Living Fund victory: Joy and relief after court win
Users of the Independent Living Fund (ILF) have described their joy and relief on hearing a court rule that the government’s decision to close the fund was unlawful.
The unanimous decision to quash the closure, by three court of appeal judges – Lord Justice Elias, Lord Justice Kitchin and Lord Justice McCombe – was issued in a 24-page judgment at the Royal Courts of Justice (RCJ) in London.
They ruled that Esther McVey, the former minister for disabled people, breached the Equality Act’s public sector equality duty, which required her to have “due regard” to the need to eliminate discrimination and advance equality of opportunity for disabled people.
Her ministerial replacement, Mike Penning, will now have to rethink the decision on the closure of ILF “with proper attention” to the government’s legal obligations. He has yet to say whether he plans to appeal to the Supreme Court, make a fresh decision to close the fund, or accept defeat and keep it open.
The legal challenge to a high court decision made in April was taken by five disabled people: Anne Pridmore, Gabriel Pepper, Stuart Bracking, Paris L’Amour, and John Aspinall. They were represented by lawyers fromDeighton Pierce Glynn and Scott Moncrieff and Associates.
The five claimants believe that closing ILF – a government-funded trust which helps more than 18,000 disabled people with the highest support needs to live independently by topping up their local authority-funded support – would “threaten their right to live with dignity” and could force them into residential care.
The singer John Kelly, who was originally part of the court action but later had to withdraw from the case for work reasons, was in court 63 at the RCJ this week as the ruling was read out.
He said he had been convinced that the government would win the case, and became “really emotional” when he realised the five had won.
He said: “I am so happy. This matters to me. I wouldn’t be here this morning if I didn’t have the ILF. This means essential control over my own life. This really matters.
“We are taking on the government and we are not the strongest of people, we haven’t got the loudest voice and we are really trying hard to have that voice and to be heard.
“There are so many people who wanted to be here to hear this but they can’t be here.”
He added: “We want to see the ILF stay. We want to see it expand so more disabled people can get it, not less.
“This is about fundamental human rights. This is about equality, it is not about having anything extra than anyone else has in life.”
Kelly said the judgment was probably “a spanner in the works that says [to the government]: ‘We are not going away!’”.
Stuart Bracking, one of the five claimants, said the judgment was “very positive” and had given ILF-users and their families confidence that the fund could be saved.
“Before the appeal court victory, the closure of the fund and limits on the level of funding of personal assistance for some and a return to residential care for others seemed to be our destiny. This is not the case now.”
He added: “The appeal court victory now gives ILF-users a small window of opportunity to demand sense prevails, and work to secure the ILF’s long-term future.”
He called on Penning to stop the closure, and reopen it to new applicants with “realistic levels of funding to meet the expected demand”.
Sue Elsegood, an ILF recipient for more than 20 years and a close friend of two of the claimants, said the judgment “means everything to me”.
She said: “It is going to have a massive impact on people’s lives. They will hopefully be able to continue to live, rather than simply exist.”
Elsegood, who was in court with Kelly to hear the judgment, added: “If I lost the ILF funding it could have meant that I would be forced into an institution or left neglected at home. It filled me with fear.
“Now I have more confidence that I can continue to live independently with personal assistance and participate in activities in the community.”
She said she believed that government ministers still struggled to understand the importance of ILF, and “what we have to deal with day to day”.
She said life would be “very, very depressing and impossible” without ILF. “I rely 100 per cent on my PA support. I just cannot imagine how I would manage.”
ILF has enabled her to train as a counsellor at university. “I would not be here today to hear the judgment without the support that ILF gives me to pay for my PA’s wages.”
Tracey Lazard, director of Inclusion London, one of the campaigners who waited in the rain outside the courts for the judgment, said the ruling was a “damning indictment of this government’s decision-making, particularly the lack of consideration for disabled people, our dignity, our quality of life and our rights”.
She said: “This judgment clearly says that the minister didn’t take into consideration the impact of this closure on disabled people, which is something we knew all along.”
She said the judgment confirms that the reasons the government put forward for the closure were “a sham” and “done in bad faith”, while the decision was “a cut dressed up as reform”.
Lazard said that ILF was cheaper to administer than social services provision and should be seen as a “fantastic model” for 21st century care provision.
She added: “I just hope that this is such a strong and damning judgment that they really pause for thought here.”
Andrew Lee, director of People First Self Advocacy, another of the campaigners who waited in the rain for the judgment, said: “I was really, really, really pleased for the people that use the ILF because they were really panicking about what they could do when the fund stops, how do they have some kind of quality of life.
“It is the first step in making sure that people with learning difficulties are able to live independently, using the ILF to have a good standard [of living] and do basic things like get up in the morning and have the support they need to try and have a level playing-field like anybody else.”
He said he was pleased that the court had ruled that closing ILF would have an adverse impact on disabled people. “To actually get legal recognition of that fact is really important.”
Despite the outpouring of relief, one disabled activist did strike a sour note.
Simon Stevens, a disability consultant, wrote in a blog on the Huffington Post website that keeping ILF open would be a disaster for disabled people, as the fund was “likely to make a hatchet job” of the inevitable cuts it would have to make, because it did not have the same “sophistication and experience of managing limited resources” as councils.
He said the appeal was won on a “political correct notion of equality” and “potentially guaranteed inequality as it supports a two tier system for people with high support needs”, with those on ILF receiving higher levels of support than those who are not.
Stevens, who has repeatedly and aggressively criticised the grassroots network Disabled People Against Cuts, which has campaigned against the ILF closure, wrote: “The fund was always elitist, and I say that as [a] user, and now that elitism has been protected by the courts, simply to please the anti-government lobby.”
So far, the Department for Work and Pensions has refused to say whether keeping ILF open is one of the options it is now considering.
Independent Living Fund victory: McVey silent over possible resignation
The former minister for disabled people has refused to say whether she will resign from her new post in the same department, after her decision to close the Independent Living Fund was overturned in the court of appeal.
Campaigners waiting in the rain outside the Royal Courts of Justice in London were told that three senior court of appeal judges had unanimously upheld an appeal challenging Esther McVey’s decision to close the fund in 2015.
The judges ruled that McVey had breached the public sector equality duty of the Equality Act when making the decision to close the fund in December 2012.
McVey was heavily criticised by the judges, with one saying there was no evidence that she had “directed her mind to the need to advance equality of opportunity”.
Another said he was convinced that she “was sufficiently aware of the very real adverse consequences which closing the fund would have on the lives of many of the more severely disabled”.
The new minister for disabled people, Mike Penning, will now have to rethink McVey’s decision, although he has yet to signal whether he plans to appeal to the Supreme Court, make a fresh decision to close the fund, or accept defeat and keep it open.
The legal challenge to a high court decision made in April was brought by five disabled people – Anne Pridmore, Gabriel Pepper, Stuart Bracking, Paris L’Amour, and John Aspinall.
They believe that closing ILF – a government-funded trust which helps about 18,000 disabled people with the highest support needs to live independently by topping up their local authority-funded support – threatens their right to independent living.
In a 24-page judgment, the three judges – Lord Justice Elias, Lord Justice Kitchin and Lord Justice McCombe – quashed the decision to close the fund, although they did find that a consultation carried out by the government was lawful.
The judges were highly critical of both McVey and DWP officials.
Lord Justice McCombe said: “It seems to me that what was put before the Minister did not give to her an adequate flavour of the responses received indicating that independent living might well be put seriously in peril for a large number of people.”
Lord Justice Elias suggested that there was a tendency for officials “to tell the Minister what they thought she would want to hear”.
But he also said he was convinced that McVey “was sufficiently aware of the very real adverse consequences which closing the fund would have on the lives of many of the more severely disabled”.
And he said there was “no evidence” that she had her attention drawn to the need to advance equality of opportunity under the Equality Act, or the government’s obligations under the UN Convention on the Rights of Persons with Disabilities.
Lord Justice Kitchin said he believed there was no evidence that McVey had “directed her mind to the need to advance equality of opportunity”.
He added: “Nor is there evidence she considered the proposals having due regard to the need to minimise the particular disadvantages from which ILF users and other disabled persons suffer or the need to encourage such persons to live independently and to participate in public life and other activities.”
So far, the Department for Work and Pensions (DWP) has declined to comment on whether McVey would resign from her new post as employment minister in the wake of the judges’ criticism.
It has also refused to say whether keeping ILF open is one of the options it is now considering.
Under DWP plans, £300 million in ILF funding would be passed to local authorities and the devolved administrations in Scotland, Wales and Northern Ireland in 2015-16, although this money would not be ring-fenced.
DWP has been criticised for not saying whether this transition funding would be repeated in future years.
Labour’s new shadow suggests Motability is a model for the future
The new shadow minister for disabled people is considering drawing up plans that would aim to repeat the success of the Motability car scheme across other parts of the economy.
Kate Green, the MP for Stretford and Urmston in Manchester, was giving one of her first interviews since being appointed last month to replace Anne McGuire.
She told Disability News Service that there was an “extra dimension to the cost of living crisis for disabled people”, and that Labour might look at “market solutions” to the extra costs they faced in areas such as energy bills.
She said that the Motability car scheme – set up under a Labour government in 1977, so that disabled people could use their new mobility allowance to obtain an affordable vehicle – had proved to be a “good market response” and was a model “that we could start to think about for other markets”.
Green insisted that she was “just flying kites” and that the idea was not official Labour policy, but she added: “The market has to adjust [or] we will make the market adjust.
“It is already what we are seeing in relation to energy prices [with Labour leader Ed Miliband’s price-freeze policy]. I think you will see more and more of us expecting either that the market does better or that we have to regulate more tightly.”
On policy ideas, she said she was probably furthest ahead with how to design a labour market that fitted better around disabled people.
She said: “There is a lot more we could do with employers: how could employers be enabled and empowered and incentivised to do more?”
She suggested that a Labour government’s industrial strategy would be focused much more on the needs of disabled people, for example by ensuring that if the further education sector was providing training courses in green engineering, disabled people would be enabled to access those courses.
She also suggested that Local Enterprise Partnerships – where councils and businesses decide investment priorities for roads, buildings and facilities – could provide opportunities for ensuring that investment projects benefit disabled people.
Asked if she wanted to see less of a role for the big Work Programme and Work Choice providers like Seetec, A4E and Ingeus in helping disabled people into work, she said she wanted to see “less of an approach that is national, centralised contracting, which is what the programme is”, and more of an emphasis on local provision.
She also said she was particularly concerned about the series of “hostile, punitive” stories about disabled people that have appeared in the media over the last three years, often about “benefit fraud, and a disabled person lounging on the sofa…”
She said: “I see no indication that ministers are seeking to question that narrative. It feeds into hate crime.”
Green – who was chief executive of the Child Poverty Action Group (CPAG) before she became an MP – said she wanted to focus on how to enable disabled people’s “full participation” in society, whether through paid employment or voluntary work in their local community.
She pointed to evidence presented to the Manchester Poverty Commission, which she sat on, about a disabled man who had set up a popular drop-in centre, but then had to abandon it because the “bedroom tax” forced him to move out of the area.
On the key question of whether she wanted a Labour government to reverse the coalition’s planned cuts to spending on working-age disability living allowance (DLA) and its replacement, personal independence payment (PIP), she said: “We are not making firm spending commitments until we know how we are going to pay for them,” a line she repeated later in the interview.
But she did suggest that she would want to analyse the longer-term costs and benefits of cutting DLA and PIP, suggesting that she has listened to those campaigners who have argued that the costs of such cuts would eventually outweigh the savings.
Green said: “It is already an argument that has come back from the government [PIP] consultation and so I think it bears investigating, and I do want to see how we could investigate it further.”
She pointed to work carried out by CPAG and the Joseph Rowntree Foundation, which concluded in 2006 that the cost of not eliminating child poverty was about £26 billion a year.
She said: “I think it would be interesting to look at that, the cost to the health service, the lost economic productivity to disabled people – either they don’t work or they don’t work to their full potential – the cost of care.”
Speaking before the court of appeal announced this week that the government’s decision to close the Independent Living Fund in 2015 was unlawful, she would not say whether she would want to reverse the closure.
But she said she had met people in her constituency who “absolutely loved” ILF, and with the right support they had been “really able to make it work for them”.
She said: “In some way we need to get the essence of what it did, the autonomy that it gave people, but I just can’t say what we are going to do about it. We need to not lose sight of what it was seeking to achieve.”
In contrast with Mike Penning, the Conservative minister she is shadowing, Green appears to come into the job with a clear understanding of the social model of disability.
The problems disabled people face, she said, are not about their impairments but about “the way society is structured that they are expected to fit into”.
Among other areas she is looking at, Green pointed to the “quite shocking fall” in the number of disabled people claiming support in the workplace through the Access to Work scheme, since the coalition came to power in 2010.
Green also said she wanted to look at disabled parents and whether the government was “doing everything to enable them [to be parents] to the very best of their ability”.
Another area she said she wanted to focus on was social care, working with Labour’s shadow care services minister Liz Kendall, because there was now a “once-in-a-lifetime moment to design a system that actually works”.
Green’s priority will not be older people, who have received the majority of attention from politicians and the media so far, but to “make sure we are designing a set of policies that would work for working-age disabled adults”.
Peers fight for disabled apprentices facing English and maths barrier
People with dyslexia and other learning difficulties are being prevented from qualifying as apprentices because they are not allowed to use assisted technology to help them pass vital English and maths tests, according to a disabled peer.
The Liberal Democrat peer Lord Addington, who has dyslexia himself, has been campaigning for government action on the issue for more than three years.
He told fellow peers debating the committee stage of the children and families bill that the problem lay with legislation on apprenticeships introduced by the last Labour government, which states that apprentices must pass both English and maths tests to secure accreditation.
He said the Alliance for Inclusive Education had raised similar concerns about problems faced by apprentices with learning difficulties, while the British Dyslexia Association had so far had 60 meetings with civil servants in a bid to resolve the issue.
Lord Addington said he had discovered that the use of assistive technology was not allowed because it was incompatible with the format of the tests.
His fellow Liberal Democrat peer Baroness Walmsley said: “I am very proud of this government’s record on apprenticeships but they must not exclude talented young people who are able to get through all the practical side of the apprenticeship, often with flying colours, and show tremendous commitment, hard work, conscientiousness and all those qualities that we are looking for, but simply need a little help with written material.”
Another disabled peer, the Countess of Mar, a crossbencher, said: “It seems ridiculous that we are putting these kids on the scrapheap.
“We criticise young people for not going out to work, and when they try to get qualifications, we fail them.”
The disabled Labour peer Baroness Wilkins added: “I am mildly dyslexic, and I assure noble Lords that in terms of daily frustration, it is a million times more frustrating than being in a wheelchair.
“There is a great deal of support for being in a wheelchair, but there is very little support for being dyslexic.”
She praised the government’s commitment to apprenticeships, but said it was “a tragedy that it should be undermined in this way”.
The Conservative peer Earl Attlee, for the government, said he had had mild dyslexia himself when he was younger.
He said that if the government introduced an additional duty on employers to solve the problem, it would “increase the regulatory burden on many hundreds of private businesses, which goes directly against the considerable efforts of the government to reduce red tape for businesses”.
But he promised that the government had “listened to what noble Lords have said in committee” and would “look very carefully and consider what steps we need to take to meet the concerns of noble Lords”.
Lord Addington withdrew his amendment, but he warned that although peers had “gone as far as we can today… we must have an end game soon”.
Care bill ‘means little without new funding’
The government’s new care bill is unlikely to have a major impact on disabled people’s lives and well-being unless significant new funding is found, say campaigners.
They spoke out as members of the all party parliamentary disability group (APPDG) held a seminar on the bill, which has just finished its passage through the Lords and will soon be debated in the Commons for the first time.
The bill aims to modernise care and support legislation in England and replace the current complex web of laws.
The bill also aims to prioritise the “wellbeing” of individuals, and introduce a new funding system based on the recommendations of the Dilnot commission on the funding of long-term care, including a cap on lifetime costs for eligible needs.
Baroness [Jane] Campbell, co-chair of the APPDG, who was not able to attend the seminar, has previously warned fellow peers that independent living for disabled people could become “just a memory” if the government did not put enough money into the social care system.
Among changes to the bill made in the Lords, Baroness Campbell persuaded the government to provide freedom of movement for disabled people with care and support packages (known as “portability”).
And her fellow disabled peer Lord [Colin] Low defeated the government with an amendment securing protection under the Human Rights Act for disabled and older people in private sector and charity-run residential homes.
But the seminar heard that Lord Low’s amendment could be at risk of being overturned by the coalition in the Commons.
Several speakers repeated Baroness Campbell ‘s warning that the care bill would have little or no impact if the government did not invest significant sums of money into the care and support system.
Sue Brown, vice-chair of the Care and Support Alliance, said that although it was not mentioned directly, it was “impossible to have a discussion about the bill without talking about the funding of social care”.
She added: “This bill cannot prevent local authorities from failing to deliver if they do not have sufficient funding… There is not something magic about a piece of legislation that can create money where there is none.”
John Nawrockyi, director of adult social services for Greenwich council and co-chair of the physical disabilities network for the Association of Directors of Adult Social Services, said the bill came at a time when there were “multiple impacts on disabled people arising from welfare reform”, while council services were being squeezed.
He said: “The challenge towards allocation of resources will not be affected. We will still have to ration.”
Conan Doyle, a member of Disabled People Against Cuts (DPAC), told the seminar that the incidence of rickets and other conditions caused by vitamin deficiency was increasing because parents could not afford to feed their children.
The chief medical officer, Dame Sally Davies, suggested last month that the rising incidence of the disease should be tackled with free vitamin supplements for all under-fives.
Doyle said: “How can we possibly say we are trying to care for people when we are funding a generation who will be disabled because of their sheer poverty?”
Anne McGuire, co-chair of the all party group, and until last month Labour’s shadow minister for disabled people, added: “Who would have thought we would be discussing rickets in the first years of the 21st century?”
After the seminar, Andy Greene, a member of the steering group of DPAC – which has until now concentrated mostly on cuts to social security and the Independent Living Fund (ILF) – said they were likely to focus much more now on local authority social care funding.
He said that the resource allocation system – which decides how high your support needs must be to secure council funding – in the London borough of Islington had been tightened eight times in the last 18 months.
He said: “Personalisation in language is happening. In reality, people are being cut off from each other and budgets are being slashed.”
Henrietta Doyle, policy officer for Inclusion London, said the bill would “not become meaningful unless the government addresses the whole question of funding”.
Ellen Clifford, another member of the DPAC steering group, said that individual disabled people would need to take judicial reviews against local authorities that failed to fulfil their new well-being duty when the bill became law.
But she said the government’s legal aid reforms and cuts would make that virtually impossible.
Andrew Lee, director of People First Self Advocacy, said he believed that people with lower or moderate learning difficulties were “screwed”, because they were “not going to get any support at all”.
He said: “The collective view is that there needs to be a recognition that the funding and support structures need to be brought into the 21st century.”
Disability hate crime ‘not rising’, says EHRC
At least 70,000 disability hate crimes are committed every year, although the true number is likely to be far higher, according to new research by the equality watchdog.
The Crime and Disabled People report by the Equality and Human Rights Commission (EHRC) found there were about 72,000 incidents of disability hate crime every year from 2007-08 to 2011-12 in England and Wales.
But it said its analysis suggested that there had been no “statistically significant” rise in the number of disability hate crimes in the four years to 2011-12.
The research was carried out in the wake of the commission’s disability-related harassment inquiry, and its subsequent report, Hidden in Plain Sight, which was published in 2011, so as to provide a measure of what progress was being made in tackling disability hate crime.
Hidden in Plain Sight found that for many disabled people, disability-related harassment was a “commonplace experience”, while the cases that came to public attention, for example through the courts or the media, were just the “tip of the iceberg”.
The new EHRC report – which uses figures from the Crime Survey for England and Wales (formerly known as the British Crime Survey) and the Scottish Crime and Justice Survey – concludes that the extent of disability hate crime is likely to have been “greatly underestimated”.
It adds: “The clearest message from the analysis in this report remains the fact that disabled people in all age groups are more likely than non-disabled people to be the victims of crime.”
Only last week, Bristol Crown Court heard how a disabled man, Bijan Ebrahimi, was murdered after being kicked unconscious, doused in white spirit and then set alight.
Ebrahimi, who lived in a council flat in Brislington, on the edge of Bristol, had been the victim of false rumours that he was a paedophile, which it appears was part of a continuing campaign of harassment.
The EHRC report says there were 15 disability hate crime incidents per year per 10,000 households, and that an estimated 39,000 adults per year were victims of disability hate crime, in the four years to 2011-12.
From 2007-08 to 2009-10, disabled people in England and Wales were more likely to have experienced a crime than non-disabled people, with differences greater in the younger age groups.
Overall, 20 per cent of disabled people experienced a crime in the previous 12 months.
And analysis of the figures showed that disabled 10-15-year-olds were far more likely (22 per cent) than non-disabled young people of the same age (13 per cent) to have been a victim of crime.
The commission is to analyse the figures again in two and four years’ time.
Stephen Brookes, a coordinator of the Disability Hate Crime Network, said he agreed that the extent of disability hate crime had probably remained roughly static, but he said he believed that the “visibility” of such incidents had risen, because “the current climate of cuts has increased the media interest in disabled people and those crimes which are reported”.
But he said his main concern was the level of under-reporting of disability hate crime, and the reasons for that under-reporting.
More than a third of people surveyed said the reason they did not report a hate crime was that “the police could not have done anything”, while almost one third said they believed “the police would not have been interested”, and about one in six said they believed the incident was “too trivial to report”.
Brookes said these figures showed why it was important to continue work on promoting third-party reporting centres – safe, neutral environments where disabled people can report hate crimes – and “increasing the knowledge of what can be reported and breaking down the perception (sometimes sadly justified by some police forces who are well behind others) that nothing will be done”.
News provided by John Pring at www.disabilitynewsservice.com