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An analysis of UK disability policy with reference to international law…

With the United Nations Convention on the Rights of Persons with Disabilities and the optional protocol signed by the United Kingdom in 2009, the UK are now legally bound to the Convention and the protocol that enables individuals/groups to report – against government policies – to the Committee on Rights of Persons with Disabilities if they believe the government is breaking the Convention’s stipulations. However, many have recognised the problems of poor implementation regarding the Convention despite the Convention having the highest number of signatures on the opening day of a Convention in the UN’s history, alongside having the highest level of participation by civil society in a human rights convention.

For my degree, one of my modules involved an analysis of disability policies in line with international and national policy frameworks within a specific country. I studied France, finding that despite being one of the most advanced countries in the world, it still presides over a raft of poverty and authoritarian behaviour re disabled people shaped by ever-increasing neoliberal, European and international associated, pressures of deficit and debt reductions. Organisations such as Ni Pauvre, Ni Soumis are fighting the abject poverty many disabled people experience on a daily basis, given many of their benefits are below the poverty level. Ironically, a French company, ATOS healthcare (paid over £100m a year to run their ‘tests’) – a division of ATOS Origin, are primal architectures of the assault upon disabled people’s rights within the UK and the breaching of the UN Convention.

Below, I intend to demonstrate, through utilising specific articles from the UN Convention, how the UK are ignoring the framework they have ratified to law and why disabled organisations, disabled people and people in general are justifiable angry at the ideologically callous direction of this government and why the recent Disability Alliance legal challenge of the UK’s policies has power behind it.

Background Knowledge

Below is a quote from a recent Guardian article regarding a key change to disability benefits, just to contextualise the blog:

Since 2008, anyone claiming sickness or disability-related benefits for the first time has been required to take the Atos-administered Work Capability Assessment (WCA); from the end of this month (February 2011), all existing incapacity benefit claimants will be reassessed using this test, as the old benefit is phased out and a new system, employment support allowance (ESA), is brought in.

If they are awarded 15 points, they will be moved on to ESA, which has two levels – the support group, where claimants are judged to be too disabled or unwell to be expected to work, and the work-related activity group, where claimants are deemed to be capable of working, provided they are supported into employment.

If they don’t score 15 points, they will be moved on to the regular jobseekers’ allowance. This is around £25 a week less than incapacity benefit, and will leave people with their income cut by just over a quarter. This lower benefit also lacks the immediate, intensive support for getting back to work that ESA is designed to provide.

Article 13 – Access to justice

1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

With the recent news that legal aid will be stopped for those on benefits, the government is clearly breaking Article 13, 1. I recount a recent blog entry, where I quoted a disability activist’s comments regarding the stopping of legal aid for disabled people and the deeply disturbing reasons, driven by neoliberal ideology, for why the government wants to end such provision:

It’s partially due to the failure of ESA – appeals are won at 40%, with an advocate, usually paid for by legal aid they jump to 70%. Cut the legal aid cut the number of people legally claiming what they are entitled to and it’s a double save. Also stops both the government and ATOS looking quite so incompetent and will stop it looking so necessary to reform or scrap the failing benefit and its corrupt test. They don’t want the same to happen with the new PIP – because it was legal aid that helped win the case-law that brought DLA into line with the equality legislation and therefore widened the criteria to all those who should be entitled not just the smaller group the government wanted to give as a gesture towards equality and independence for disabled people. The blind are a prime example, until very recently no one who was blind could get the higher rate of mobility – through challenges in the courts someone who needs a lot of support to get out and about can now qualify. That’s a completely new group of claimants who really do deserve the money who have been denied it for decades. It’s also why the claimant rate for DLA has gone up so much, because as legal challenges were made and won new groups became entitled to it and so they claimed and it made their lives easier and them more independent. They can’t get rid of the equality legislation no matter how much they drool over the thought, nor the payments towards independence, so they will fiddle around with the criteria, move the goal posts a bit and remove legal aid to make sure that no one can bring it back into line with what is actually fair and legal. Barely anyone outside the disabled community will blink because the propaganda about scroungers is so embedded into everyone’s heads they think we are all faking. They are so certain we are all faking they’ve forgotten if you look really ill your probably genuine and that the fakes are running around looking like the rest of them until they have an ATOS visit. 

Obviously, Labour signed the Convention and initiated many of the controversial aspects to the government’s disability onslaught, especially Employment Support Allowance (ESA). However, the current government is carrying out the plans with more ferocity; consider my analysis of the coalition’s initial agreement document where there was no mention of disability in line with equality, and the ignorance towards the independent living movement, instead focusing upon ‘care’ (interesting when considering Article 19 below). It was a year ago I wrote a blog regarding the BBC Scotland and the Citizens Advice Scotland’s report on ESA; the key findings, reported include:

  • It is “unfit for purpose”
  • It targets the most vulnerable
  • 2/3rds of claimants are being found to be fit for work – 20% more than estimated by the previous government
  • One of the most commonly appealed against benefit, with around 8,000 cases a month and around 40% decisions being reversed

The last point highlights the argument made by the disability activist above; the high number of appeals causes a problem for a government intent on pretending the system works and that the people are the problem. However, this doesn’t also consider the many stories of ATOS recalling successful appeal claimants for new tests, where one person for instance was said to have died through the stress and another who committed suicide because of it with the local job centre conceding there needs to be a review into the Work Capability Assessments:

Dismayed to find his benefit claim rejected, he had appealed against the decision, and won at tribunal. But shortly after that decision, he was called in for another assessment, and for a second time scored zero points and was told he did not qualify for the benefit. He began appealing against the decision again, but a few days before another tribunal date was set, he hanged himself.

It also says something when one of the main creators of the ESA system, Paul Gregg, has labelled the process a ‘complete mess’. There is no consideration of the waiting times involved when being assessed for ESA (discussed below), for instance. The Work Capability Assessments are what are used to analyse whether claimants are fit to work. These assessments have been heavily criticised, as has the company, ATOS, mentioned above. Even the TUC have been critical of the company, arguing that the tests are there to save money (especially when the government has estimated, because of the tighter conditions, it will save them around £1bn over five years; nothing when you think about the billions wasted by corporations and institutions such as bankers!):

 “The new incapacity benefit assessment is a much tougher test than previously and is designed to save the government money by excluding more people. The TUC has heard from disabled people all around the UK who feel the tests have been unfair and ineffective, and it is interesting to see that 39% of appeals against initial judgments are successful.”

To even believe that you can understand and assess competently someone’s disability through a computer led programme beggars belief. This is especially true when it comes to mental illness, but even the self-completion questionnaires that are often used to ‘track’ depression and hand out drugs are created by the drug companies themselves! Questions, alongside ‘side-ways’ questions such as “do you watch Eastenders”, included in the test illustrate the sheer ignorant and restricted nature of the assessment:

How did you get here, by train, by bus? How do you spend your day? Do you watch TV? Do you listen to the radio? Do you go to the pub? Do you drink alcohol? Do you have pets? Do you have a social life? What time do you get up? Do you do housework? Do you follow the news? What floor do you live on? Do you have thoughts of suicide or self-harm? Are you able to cook? Can you go to the shops? Can you get yourself dressed?

Whilst providing background knowledge beyond relevance to this specific article (13), the information above illustrates the government’s inadequacy when it comes to ensuring disabled people have access to justice. With a system so flawed, prone to a very high rate of appeals, to then reduce the legal aid available to those on benefits is deeply troubling and clearly a breach of disability rights – as is the system itself.

Article 19 – Living independently and being included in the community

States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

  1. Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
  2. Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community

There are warnings by disability charities that such negative portrayals of disabled people, constructing them as ‘threats’ to society in order to take attention away from the government’s actions and rather to justify repressive policies that curtail the rights of those being attacked, will likely lead to violence against disabled people. As mentioned above, if claimants fail to score more than 15 points on the Work Capability Assessments they are placed onto job seekers allowance meaning that they lose around £25 a week. Furthermore, whilst waiting for the assessment to go through, claimants are placed on very low levels of income:

During the assessment phase you are paid a ‘basic allowance’. This is set at a similar level to that of jobseeker’s allowance. If you are aged under 25 you will receive a reduced rate of this basic allowance. Once you have completed the assessment period the reduction for under 25s does not apply.

This can make all the difference, especially when it comes to independent living given the extra costs associated with disability. As many have expressed, the employment market is poor in general – disabled people are often seen as too much trouble to hire and so inevitability many will be reduced to poverty with a quarterly long-term cut in income. Furthermore, there is the possibility that disabled people may find specific aspects regarding job seekers harder to meet and therefore end up losing or having their benefit suspended.

Rather than utilising a social model approach, which concentrates on the need to remove the social barriers, shaped by neoliberal political and economic conditions, so that disabled people are included within society instead of being shut out and then blamed – the government focuses upon the individual in a capitalist centric fashion. This point was highlighted by Labour’s Anne Begg who argued that without sanctions enforced upon ATOS when appeals occur:

“[It] adds to the suspicion that you are a private company, you are driven by a profit motive, and the incentive is to get the assessments done, but not necessarily to get the assessments right.”

This is especially concerning when considering the cost of appeals to the taxpayer, with some having their benefits stopped after not attending a test they weren’t told they had:

More than 150,000 people deemed fit to work by French IT company Atos have won appeals in a process costing taxpayers more than £30million a year, it found.

ATOS have been given the contract to assess claimants for the new personal independence payments, to replace the disability living allowance in 2013 and currently being piloted with 1,000 volunteers (which the Disability Alliance are critical of given they were not consulted), causing understandable concern across the disability community, especially the focus upon cost-cutting when it comes to the Welfare Reform Bill alongside limited testing criteria with Scope arguing that this is very much like the problems associated with the ESA tests:

PIP is in danger of being a poorly-targeted payment, which will see many disabled people, especially those with less complex impairments but high disability-related costs, losing out on vital financial support (Scope, Richard Hawkes).

Disability living allowance has already been cut back, including the potential removal of the mobility compartment of DLA for those living in residential care, confining and institutionalising disabled people en mass with 60,000-80,000 people affected. PIP will carry this on, as people in care homes, prison and hospitals will not receive it. However, Disability Alliance have launched a legal bid against the government’s cuts to DLA, citing the UN Convention as one of the laws the UK is breaking illustrating the Convention’s significance. In their statement outlining the reasons for the bid, Disability Alliance state their concern that the movement towards targeting the benefit to those with the ‘most need’ (illustrating connections to Scope’s comments above, regarding the ignorance of less complex impairments) will lead to many losing the lower rate of the benefit (around £19 a week):

Disability Alliance is especially concerned over plans to abolish Disability Living Allowance (DLA) for working age people (defined as 16-64 years of age by DWP) and introduce a new benefit (Personal Independence Payment – PIP) which will have a £2.17 billion lower budget by 2015. PIP will not provide an equivalent level of support for the 652,000 disabled people currently receiving low rate care DLA payments.

The practice of awarding DLA automatically to those with certain conditions will be removed, with regular assessments every few years introduced. Essentially, the desire to cut DLA by 20% is at the driving seat of these reforms. It is worth noting that the income-related Employment and Support Allowance, different to contribution-based Employment and Support Allowance, will be replaced by a generalised controversial Universal Credit system. The new PIP system is set to also further the time claimants have to wait until they can receive financial payments for their disability:

Under the old system, claimants would have to meet the criteria for three months before receiving payment (which was not backdated). I felt this was scandalous. PIP addresses this issue – by extending this period to six months, which is downright cruel…The proposed extension is for all long-term disabilities with the very specific exception of the terminally ill with a life expectancy less than six months.

PIP’s restricted requirements will again penalise disabled people, who often find themselves in poverty alongside trying to meet higher living costs – as the Disability Alliance have expressed, there is concern that such conditions will really undermine the benefit’s use and application:

This ‘real life’ aspect to the assessment is also affected by the rigid assessment which makes no consideration of where disabled people live and the accessibility of local produce.

Furthermore, in another attack against disabled people’s independence, the cuts to housing benefit are set to lead to 450,000 disabled people being affected, losing on average £13 a week, and potentially losing their homes. Again, the changes discussed clearly break a key aspect of the Convention, with disabled people’s independence being seriously threatened as their resources, living and freedom are attacked in a cost cutting neoliberal ideologically driven ‘exercise’.

Article 27 – Work and employment

2. States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour.

For me, the Work Capability Assessments and ATOS – given the flaws so endemic within their practices – are central to the government breaking Article 27.1, as disabled people are literally forced into working or onto an inadequate job seekers allowance. This is especially true now legal aid has been cut, reducing people’s ability to appeal such provision. With independent living continually being threatened, this also undermines disabled people’s autonomy – again forcing many into situations that breach their civil, political and human rights.

This point is excellently evidenced in a recent Guardian article regarding the problems of the ATOS tests:

Since its preliminary rollout in 2008, people with terminal cancer have been found fit to work, people with mental health problems have complained their condition is not taken seriously, people with complex illnesses report that the tick-box system is not able to cope with the nuances of their problems. A revised, even more stringent version introduced this month means that blind and deaf people will no longer automatically receive sickness benefit, and are unlikely to qualify for extra help finding work.

This relates well to the brief discussion regarding the effectiveness of computer based analysis for such a complex area of life. Disability Alliance are highly critical of the omission within the assessments of considering the impact upon claimants if they are prevented or lose DLA; not to mention their survey that found that a half of those at work would stop working if they lost DLA. Furthermore, the Alliance refers to the exclusion of disability organisations when creating the Work Capability Assessments – these omissions of disability organisations within the disability related policy processes is a clear abbreviation of the Convention and goes against the high level of civic engagement when writing the Convention.

Article 28 – Adequate standard of living and social protection

1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.
2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures:

c) To ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State with disability-related expenses, including adequate training, counselling, financial assistance and respite care.

Fundamentally, the article as a whole illustrates the government’s breaking of the Convention rather well, especially given a third of disabled people live in poverty. Disabled people are being forced into a position of poverty, where their rights, standard of living and resources are being attacked in an ideological vendetta of sickening neoliberal hatred and callous desire to punish the most vulnerable whilst the top 1% is heavily represented by the cabinet.

ATOS, a private driven enterprise, is the epitome of what is wrong with this government. Instead of people’s needs and interests being considered, the destructive desire for profit and greed is promoted as neoliberal cost cutting targets are implemented with a devastating effect upon people’s lives. MPs on mass, from different parties, have criticised the system – with many questioning the ability of ATOS to deliver the ‘substantial savings’ they promised when their contract was lengthened to 2015. Furthermore, ATOS as a centre isn’t very accessible for many disabled people, as stated in a competent blog post regarding the problems of ATOS:

More problems occur because at least a fifth of ATOS medical centres are not wheelchair accessible. Only one third of the centres have onsite parking, while visitors are required to walk from car parks several minutes away for other centres, and just one has a parking space for disabled people. 30 of the centres are not on the ground floor some don’t even have lifts! Considering that people only visit these buildings when they are sick or disabled and a huge number of them will be using walking sticks or wheelchairs, this is ridiculous.

In fact, there is a recent Work and Pensions Select Committee report regarding the changes to disabled people’s benefits, which has been highly critical of the loaded negative language and misquoting of facts by the media regarding disability (also see here for a good analysis of biased media reporting regarding disability statistics; also here for a good analysis of the facts that illustrates that in reality incapacity benefit rates have been declining since the 80/90s when there was an movement towards removing many unemployed people out of the labour market, and the disproportionate focus upon long-term claimants ignoring the short-term temporary nature of many claimants’ impairment). Specifically, the report concentrates on the 1.5 million incapacity benefit claimants currently being assessed by ATOS via the Work Capability Assessments. I am planning to do another blog focusing upon the report’s findings.

Work In a Neoliberal World

I have discussed the importance of work in our capitalist neoliberal framed society before. As I made clear then, work is important – but it shouldn’t be the be all and end all. It shouldn’t be so important that without it people are made to feel worthless, not ‘normal’ and have limited resources, opportunities and income. That’s not a society you nor I should want to live in. As demonstrated throughout the blog, these changes are clearly breaking an international convention that the UK are legally obliged to meet. This highlights the problems with the United Nations as an enforcing body, but also the potential for disability activists to use such a valuable tool in our fight against this government’s callous actions.