Police fail again, Bus access and the criminal law, Bedroom Tax court appeal, DWP admits mistakes, Peers urge parity on social care, Transport report ‘too rosy’

So here we are again and its already 2014! Happy New Year and I hope you had a lovely time over the Christmas holiday. Anyone still finishing off the turkey? Did you forget to take down the decorations before the twelve-day? Who can’t remember whom they have to thank for the socks? We were fortunate in having three grandchildren under the age of five cavorting about the place so the magic of Christmas as seen through their eyes was rejuvenating. Mind you I still feel a little guilty about reinforcing the idea of a jolly rotund chap with facial hair visiting every child throughout the world all in one night!

So we’re getting back to normal and the news doesn’t seem to get any better perhaps things will improve for disabled people as a result of the efforts that many of you are making. Let’s hope so.

News Roundup

Police fail again on disability hate crime

Another police force has admitted failing to treat repeated, targeted, violent offences against a disabled person as disability hate crimes.

Craig Kinsella was kept as a slave in a garage by a Sheffield family, beaten on a daily basis, and forced to scavenge for food.

Kinsella, who has learning difficulties, was kept imprisoned in “squalid” conditions for more than five weeks by three members of the Rooke family.

He had originally been paid to clean the family’s ice-cream vans, but they refused to let him leave after asking him to sleep overnight in their garage to watch out for burglars.

Kinsella was imprisoned and forced to work for nothing between May and 6 July last year, when police received a call reporting that a man was being assaulted outside the Brookes’ bungalow in Halifax Road, Sheffield.

Officers attending the scene found Kinsella in the back garden. He was taken to hospital, and found to have a broken arm, a fractured rib and chin, extreme bruising to his back and around his kidney, and cuts, lumps and bruises to his head and legs.

He told police that the Rookes had repeatedly attacked him over the previous five or six weeks. The beatings were captured on the family’s own CCTV system.

David Rooke was jailed for six-and-a-half years at Sheffield Crown Court this week, after admitting a charge of false imprisonment and five counts of actual bodily harm. The 44-year-old was also ordered to pay £15,000 compensation to Kinsella.

Rooke’s wife Donna, aged 40, admitted a charge of battery and was jailed for four months, while their son Jamie, 19, pleaded guilty to five counts of actual bodily harm and a charge of affray, and was given a four-and-a-half year prison sentence.

The trio pleaded not guilty to a number of other charges, which have been left to lie on file.

But South Yorkshire police finally admitted today (Friday) that they had not treated the offences as disability hate crimes.

If offences are treated by a judge as disability hate crimes, the sentences must be given an “uplift” under section 146 of the Criminal Justice Act.

A police spokeswoman said: “Was this crime treated as a disability hate crime? No, it wasn’t.”

She said that Kinsella was treated as “vulnerable” but not disabled, but when asked why he was described as vulnerable she said: “I’m not really sure I can answer that. Just that he was a vulnerable man.”

Asked if she accepted that he had learning difficulties, she said: “He has some degree of learning difficulties. I don’t believe that there has ever been an assessment on him.”

The Crown Prosecution Service has so far failed to comment.

Stephen Brookes, a coordinator of the Disability Hate Crime Network, said he was hugely frustrated at yet another example of a force failing to recognise a disability hate crime.

He said: “Nobody knew, nobody did anything. They have failed in their responsibility to the victim to investigate this case properly.

“We seem to be returning to some very dark ages in terms of what is and is not recognised as a disability hate crime.

“There needs to be far more consistent training – by disabled people – for frontline officers into what is and what isn’t a disability.”

In statement released shortly after sentencing, detective inspector Vicky Short, who led the investigation, said the physical and mental abuse meted out to Kinsella had “plumbed the depths of depravity”.

She said: “David, Donna and Jamie Rooke abused Mr Kinsella for their own pleasure until his spirit and will to stand up for himself and fight back was crushed.

“It has hard to understand how any human being could treat an individual in such a grotesque, callous and inhuman manner.

“I am confident that if we had not received that phone call that day last July we would have been investigating a murder.”
Criminal law ‘could be next weapon in bus access war’

Bus-drivers who prevent wheelchair-users travelling on their vehicles are potentially committing a criminal offence and should be prosecuted, according to a disabled campaigner.

Wheelchair-user Doug Paulley discovered the existence of the criminal offences while researching public transport regulations, as part of his campaign to improve disabled people’s access to buses.

But the Department for Transport (DfT) has admitted that – as far as it knows – no-one has ever been prosecuted under the PSVAR rules.

Paulley said: “My interest is the same reason that disabled people back in the 80s and 90s chained themselves to buses: Let us ride! We should all be able to use the public transport system.”

Drivers have refused to stop as he hailed them from a bus stop near his home in Wetherby, west Yorkshire, with one even waving Paulley away as he drove past.

Others have refused to clear the wheelchair space for him when it was occupied by mothers with pushchairs, or to operate a wheelchair-ramp because they claimed they had not been trained to use it.

Paulley is now questioning why there has never been a single prosecution, despite the regulations placing clear legal duties on bus-drivers.

Disabled campaigners have so far relied on the Equality Act to try to force companies to ensure their buses are accessible.

But Paulley believes that the Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) (Amendment) Regulations 2002 – which detail how public service vehicles should be made more accessible to disabled people – could prove to be more powerful.

Paulley is one of two wheelchair-users taking cases against bus companies – under the Equality Act – for failing to ensure they have priority in using the wheelchair space.

Although Paulley was successful in his county court action, the other claimant lost her case. The two cases will be heard together by the court of appeal later this year.

Paulley discovered the criminal aspect of the transport regulations by reading the papers that had been prepared for his court case.

He subsequently submitted a Freedom of Information Act request to DfT, which has confirmed that it was unaware of any bus-driver being prosecuted for failing to comply with the duty.

Paulley said: “Why would they go to the point of passing that legislation and then have nobody ever enforce it?

“Next time a driver tells me they haven’t been trained to operate the ramp, or drives straight past me when I’m clearly indicating I want to catch the bus, or similar, I may well call the police and insist they enforce the law; if necessary, by personally blocking the passage of the bus until they do.”

Lianna Etkind, campaigns and outreach coordinator for the user-led charity Transport for All, added: “Disabled transport users might well ask themselves why the law governing the obligations of bus drivers towards their passengers exists, if it cannot be enforced.

“Cuts to legal aid mean it is increasingly difficult for disabled passengers to see justice carried out when we experience discrimination. We would like to see the police take contravention of PSVAR regulations far more seriously.”

A DfT spokesman said: “Contravention of these regulations is a criminal offence. It is the department’s view that these may be enforced by any relevant prosecuting authority that has an interest or by any person who feels that a breach of the regulations has taken place.”

But he added: “Following completion of the government’s recent Red Tape Challenge, the Department for Transport is committed to review these regulations and we will shortly be undertaking a public consultation exercise.”

A Crown Prosecution Service spokeswoman said: “We can only deal with cases referred to us by an investigating body.

“If such a matter were to be investigated as a criminal matter and a file was passed to us, we would make a charging decision as we would with [any other case].”
‘Unacceptable’ ruling on ‘bedroom tax’ set for court of appeal

Five disabled people who face losing their homes because of the government’s much-criticised “bedroom tax” will ask the court of appeal later this month to rule that the policy discriminates against them.

The five lost their high court case against the Department for Work and Pensions (DWP) last summer, but subsequently won permission to appeal. The three-day hearing will begin on 20 January.

Housing benefit regulations introduced last April mean that tenants in social housing are punished financially if they are assessed as “under-occupying” their homes.

But the subsequent high court ruling confirmed the government’s position that the regulations apply to disabled adults who need their own bedrooms for impairment-related reasons, but do not apply to disabled children in similar situations.

Anne McMurdie, of Public Law Solicitors, which is representing three of the claimants, said that this “anomalous situation” was “very odd”.

She said: “This case is extraordinarily important to our clients, all of whom need the accommodation that they have and none of whom have the resources to make up the shortfall if they are unsuccessful.

“It leaves them all in a very anxious and insecure position, so it is very important, as it is for the thousands and thousands of other disabled people who are affected.”

Linda Burnip, co-founder of Disabled People Against Cuts, added: “Thousands of disabled people and their families are being driven into further poverty by the bedroom tax and the failure of the legislation not to discriminate against disabled people.

“This is unacceptable and we hope that the court will rule it is also illegal.”

Freedom of Information Act requests by the National Housing Federation have revealed that nearly a third of disabled people in England who have been affected by the bedroom tax and applied for support were turned down by their local authority.

The Green MP Caroline Lucas told the House of Commons in November that there were 300 council tenants in arrears in her Brighton and Hove constituency who had not been in arrears before the bedroom tax was introduced, and 205 of them were disabled people.

And in a letter to Conservative work and pensions secretary Iain Duncan Smith, the Disability Benefits Consortium warned that nine in 10 disabled people affected by the bedroom tax were “having to cut back on food and heating to pay the shortfall in rent”, with many forced “deeper and deeper into debt” and at risk of eviction.

The consortium was then forced to correct the prime minister, David Cameron, after he mistakenly told MPsthat “disabled people who need an extra room” were “exempt” from the bedroom tax.

The two judges who heard the high court case last summer concluded that the bedroom tax does discriminate against disabled people, but that this discrimination was justified under the Human Rights Act, and was therefore lawful.

The government’s decision to provide some extra funding for discretionary housing payments (DHPs) – which helps some tenants with some of the shortfall in their rent – was seen by the court as a reasonable approach to the difficulties faced by many disabled people.

But McMurdie said that local authorities had made it clear that DHP funding was limited and for short-term use only.

She said that losing the appeal would give the green light to the government to introduce further cost-cutting measures with a disproportionate impact on disabled people, as long as it could prove there was a budgetary “rationale” for such a move.

The high court also ruled last summer that Duncan Smith had fulfilled his public sector equality duty (PSED) under the Equality Act because he had “properly considered” the effects of the bedroom tax on disabled people.

Lawyers for the five disabled claimants will be fighting the case in the court of appeal on the grounds of breaches of both the PSED and the Human Rights Act.
DWP admits mistake in ‘bedroom tax farce’

The government’s admission that thousands of people hit by the “bedroom tax” have had their housing benefit cut by mistake is yet another “complete farce” caused by the Department for Work and Pensions, say disabled activists.

Campaigners fear that many of those affected by the error could already have been evicted or forced to move home, with research suggesting that about two-thirds of people hit by the bedroom tax are disabled.

The government’s “spare room subsidy removal” (SRSR) policy – known by its opponents as the bedroom tax – was introduced last April and punishes tenants in social housing financially if they are assessed as “under-occupying” their homes.

But this week DWP was forced to release a housing benefit “urgent bulletin”, confirming that anyone who has continuously claimed housing benefit on the same property since before 1 January 1996 should never have been subject to SRSR.

DWP claimed today (9 January) that this would affect “fewer than 5,000 people”, because many long-term claimants would now be over pensionable age and therefore would not have been subject to SRSR.

But one campaigning blogger who has helped spread news of the DWP error has estimated that more than 40,000 households could be affected. Many of them will be owed hundreds of pounds in arrears.

As disabled people are less likely to move home, it is probable that most of these 40,000 households will contain a disabled person.

Anne McMurdie, of Public Law Solicitors, which is representing three disabled people in a legal battle to secure exemption from SRSR for disabled adults who need their own bedrooms for impairment-related reasons, said: “Given the qualifying criteria for the protection (ie lengthy continuous occupation and continuous receipt of housing benefit), the class of people currently protected are likely to include a disproportionate number of disabled people.”

Linda Burnip, co-founder of Disabled People Against Cuts, said it was “yet another complete farce initiated by the DWP”.

She added: “This is yet another example of implementing policies which have not been properly thought through.

“It only helps to illustrate the complete chaos DWP is now in with regard to introducing a range of failing initiatives designed to further increase the despair disabled people are facing every day.”

Asked how this error had been allowed to happen, a DWP spokesman said: “I don’t have the background on that. You are probably very aware of how complex benefit rules and regulations are.”

He said DWP was currently considering what action it needed to take to correct the mistake, such as introducing new regulations.

The bulletin makes it clear that those now eligible to have their housing benefit recalculated will be reassessed and have the SRSR reapplied “once the legislation is amended”.
Peers urge parity for social care in children and families bill

Peers are urging the government to ensure that local authorities have a firm duty to provide disabled children and young people with the social care part of the coalition’s new education, health and care plans (EHCPs).

The birth-to-25 plans – which will replace statements of special educational needs and will set out all the support a family should receive – are a key part of the children and families bill, which has nearly completed its progress through parliament.

The crossbench peer Lord [Brian] Rix proposed an amendment this week – during the bill’s continuing report stage – which would impose a duty on local authorities to provide the social care element of a child’s EHCP, and pointed out that the bill already imposed similar duties on the education and health parts.

The disabled crossbench peer Lord [Colin] Low, who supported the amendment, said there was “very little point in assessing a child or young person’s needs, identifying social care needs and putting them in the education and health plan, and then not making the plan enforceable in respect of social care”.

The disabled Labour peer, Baroness [Rosalie] Wilkins, added: “For this system to be truly joined up, all parts of the education, health and care plan need to be enforceable; otherwise, social care will be, as has been described, the poor cousin – the element within the EHC plan that will be considered to be of least importance.”

More than 1,000 people have written to the government to ask it to “ensure that social care will be an equal partner in education, health and care plans”, she said.

Lord Nash, the Conservative junior education minister, said the government would bring forward an amendment at the bill’s third reading to “address some of those concerns”.

But he said that, “as a targeted service for vulnerable children and young people, social care is different from education and health services”.

Lord Low also backed another of Lord Rix’s amendments to the bill, which would ensure a single point of appeal for EHCPs, rather than forcing families to launch three separate appeals if their child’s needs cut across the three areas of education, health and social care.

Lord Low said that it made no sense to create EHCPs “with a view to sweeping away barriers of bureaucracy by putting in place an integrated system of provision, and then give people a wholly unintegrated system of enforcing their entitlement”.

Lord Nash told peers that work was “already in hand to improve the situation”, and that the government had announced that day a £30 million fund to recruit more than 1,800 independent supporters, who would help parents obtain the services their children were entitled to under the EHCP process.

But he said there were “significant” problems with pulling the three appeal systems together, although it was “something that we are taking seriously and are in active discussions, which will continue, with the Department of Health”.

He said he hoped to confirm a “strong package” of measures by the time of the bill’s third reading.

Lord Nash also stated that there was a “clear duty” in the Equality Act for education and training providers to make reasonable adjustments so that disabled people were not put at a disadvantage compared to other learners.

He made the clarification in response to concerns raised by Lord Addington, the Liberal Democrat peer, who has been trying for more than three years to help apprentices with dyslexia who have been unable to obtain their final qualifications because they could not pass the compulsory English or maths test.

Lord Nash paid tribute to Lord Addington’s “passion and persistence” on the issue, and said the government would remind education and training providers of their duty “to support young people with learning difficulties or disabilities and of their responsibility for providing reasonable adjustments, including the use of assistive technology where appropriate”.

He said that clear information would be provided on the National Apprenticeship Service website outlining the support available to disabled apprentices, and including information about assistive technology and reasonable adjustments.

The minister also announced measures to help those who had failed the tests in past years because of a failure to make reasonable adjustments.

Lord Addington, who himself has dyslexia, praised the minister, who he said had “probably made the lives of a substantial number of people considerably better by his actions”.

But he added: “Unfortunately he should not – as I should not – have had to battle away for this long.”
Doubt cast over accessible transport progress report

A government progress report paints far too rosy a picture of the accessibility of public transport, say campaigners.

The Department for Transport (DfT) report – which mostly relates to England – updates progress on its accessibility action plan, which was published in December 2012.

The report includes figures on the accessibility of buses, taxis and trains, but campaigners believe it exaggerates progress and ignores many of the barriers still facing disabled passengers on public transport.

It says that more than 150 rail stations will have an accessible route for passengers by 2015, as a result of the Access for All station improvement programme, while more than 1,100 stations have received smaller scale access improvements.

But Lianna Etkind, campaigns and outreach coordinator for the user-led charity Transport for All, said that less than one-fifth of rail stations were accessible – 452 of 2,533 UK railway stations have step-free access via lifts or ramps to all platforms – despite the Access for All funding.

Etkind said Access for All had achieved “some really worthwhile things” for disabled people who lived near the stations that had benefited, but the funding allocated to it was “a drop in the ocean” of what was needed.

And she said that although the progress report stated that 78 per cent of buses met government accessibility regulations, this failed to take into account the number of bus routes that were being removed due to funding cuts.

She added: “It is great that disabled people by and large… can travel for free, but for so many people they may have a bus once a week or not at all.

“Many, many bus routes have been cut in the last year, and many more are expected to be cut.”

And she pointed out that having a wheelchair space in an accessible bus was “next to useless” if bus companies were not prepared to ensure it could be used by wheelchair-users.

The court of appeal is set to deliver a definitive ruling later this year on disabled people’s right to access the wheelchair spaces on buses.

Etkind said the action plan itself showed a “horrifying lack of ambition” when the aim – as laid out by the Office for Disability Issues in Roadmap 2025, under the last Labour government – was for disabled people to have equal access to transport by 2025.

She said it was “difficult to see how this will be achieved” if the pace of change did not increase.

Dr Sarah Campbell, a prominent disabled campaigner, said she was bemused by the government’s claim in the progress report that 58 per cent of the 78,000 taxis in England and Wales were wheelchair accessible (in London this is 100 per cent).

In her local area, taxi accessibility “isn’t anything close to that”. The biggest provider has “several” accessible vehicles, she said, but “they are not suitable for electric wheelchairs and they will not guarantee to send you one on time”.

She added: “Most other fleets similarly only have one or two and elsewhere there are simply no vehicles at all.

“If this is the situation here, I would very much like to know how on earth they can reach a 58 per cent estimate UK-wide.”

Campbell said that travel problems for disabled people were “compounded by our local bus policy which currently does not compel passengers to move out of the wheelchair space if they do not want to”.

She added: “Currently, if I wish to travel independently with my electric wheelchair, my only safe option is to use a single taxi provider which I have to book 24 hours in advance.

“This is a very far call from a majority of accessible buses and taxis which this report seems to think is available. Am I simply unlucky or are things even worse than the report admits?”

News provided by John Pring at www.disabilitynewsservice.com

Author: PhilFriend

Dr Phil Friend (OBE FRSA) himself a wheelchair user, is acknowledged as the UK's foremost consultant on disability matters. A powerful and highly popular communicator, his company – Phil & Friends – has provided consultancy to many of the country's best-known companies. In addition to his professional activities, he is also a respected champion for equal opportunities and diversity in general, where his special blend of humour and direct speaking has won admirers from around the world.

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