Friday, 4 May 2012

Disabled people do have rights....

The disability movement has for many years campaigned for a legal right to practical assistance for those who need support to go about their daily lives.  While others talk of ‘care’ for ‘vulnerable’ people, we have made the case for a right to the kind of assistance, adaptations and equipment which enable disabled people to access the kind of life that non-disabled people take for granted.  The right to choose when you get up in the morning, the right to assistance over necessary personal care, the right to the help needed to participate in family and community life and in society generally. 

The first time that anything like this kind of right was included in British legislation was the 1970 Chronically Sick andDisabled Persons Act (originally a Private Members’ Bill campaigned for by Alf Morris MP). Section 2 of this legislation says that, if a disabled person is assessed as needing assistance, equipment or adaptations, then their local authority has a duty to make arrangements to ensure those needs are met. 

This entitlement was strengthened in the late 1980s when further legislation was passed – the Disabled Persons (Services, Consultation and Representation) Act 1986 - to provide an entitlement to an assessment of needs covered under Section 2 of the 1970 Act.  However, it took many years of campaigning and advocacy for disabled individuals to access their rights under this legislation. One key initiative was an Advocacy Project run by RADAR in the early 1990s which sought to increase awareness amongst both local authorities and disabled people of the statutory rights provided under Section 2.  The advocacy provided by this project - which published a report called 'Disabled People have Rights' - led directly to a series of court cases which established some important precedents.

One of the most important involved Gloucestershire County Council who, in order to make cuts to their social care budget, had reduced the amount of support provided to those receiving home care services.  A series of legal challenges established, firstly that support could not be arbitrarily reduced without re-assessing an individual’s needs, and secondly that, as lawyer Luke Clements explains, “once a local authority has decided that a person has ‘eligible needs’, these must be met irrespective of resource arguments”.

The Gloucestershire and other cases established that, while a local authority could take resources into account in their definition of ‘eligible needs’, once it has been decided what levels of need are to be classified as ‘eligible’, then, if a person is assessed as meeting that level of need, arrangements have to be made to meet those needs – and the arrangements have to be related to the circumstances of that particular individual. 
  
Unfortunately, in practice, the legislation and case law does not provide sufficient protection of disabled people’s rights – primarily because some local authorities continue to ignore their statutory duties. Often they do this as a result of ‘custom and practice’ – in other words it isn’t written down as a formal policy but is something that is part of the everyday practice of decision-making.  One of the most common examples of this is the practice of placing a limit on the amount of funding that will be approved for individual care packages.  This amount usually varies according to which ‘social care’ group someone is placed in, for example the ‘cost ceiling’ applied to home care or residential care placements for older people is lower than that for people have learning disabilities and/or physical impairments.

Occasionally, local authorities are bold enough to put such illegal practices in their policy documents and recently the website False Economy highlighted one of these.  In a budget paper titled “A fair budget for a fairer city”, Newcastle City Council set out its proposal to:

          
It is unusual for a council to be open about this kind of action (and indeed about their existing policy relating to older people), not least because it is in clear breach of community care law.  A local authority should not take a decision that an individual’s needs will be responded to by providing no more than a certain level of service or funding.

Even without such a blatant statement which contravenes statutory obligations, funding panels often act in ways which are open to legal challenge. This is because they often fail to take full account of the needs and circumstances of the individual who has been assessed and instead apply a depersonalised and generalised format with the sole purpose of rationing resources. As Luke Clements and Pauline Thompson point out, in their book Community Care and the Law, such practices have been successfully challenged in the courts, though in many instances, individual cases have been settled to avoid litigation.

Such illegal rationing mechanisms are particularly worrying in the context of the closure of the Independent Living Fund and the government’s assumption that local authorities will replace the funding that would previously have been received from the ILF by people who have high levels of support needs. It is also worrying in the context of the continuing dearth of advocacy services and of reductions in entitlement to legal aid.  Rights are meaningless unless people know about them and have effective means of redress.

The current legislative framework for social care does not provide a full entitlement to independent living of the kind argued for by many of us (and most recently by the JCHR’s Inquiry into independent living).  However, it does provide some important rights for disabled people and places key statutory duties on local authorities. We need greater awareness about these rights and duties, and the help of organisations and lawyers to enable disabled people to resist the casual denial of their rights which has been all too common in the past, and which will undoubtedly increase in the context of the severe pressure on social care budgets.  We also need a statutory right to advocacy, as set out originally in the Disabled Persons Act 1986 but never enacted.  Perhaps someone can start thinking about how to get this into the next Labour Party manifesto?

9 comments:

  1. Please can you get your facts right as no decision has been made about ILF and I am fed of hearing these sick movement pretending to be the disabled movement lies. The council is only doing what you want, to take money off real disabled people and keep it to every scam artist pretending to be disabled, which you and your friends protect, what they want who will shout hate crime if they do not get red carpet treatment. Maybe do your homework if you really care about the people movement does not care about and get involed in DH policy rather than demanding rights without resposibilites as vulnerable people.

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    1. Perhaps you should get your facts right Simon, right now we are facing an unprecedented attack on REAL disabled people.

      Fraud on DLA is 0.7% so why is the government trying to take it off if a whole lot more than 1% of the people who get it? 0.7% fraud is a tiny amount, the government loses more money to inept book keeping, but you don't see them training their clerks better.

      There is no army of "fake sick" people, the government is lying to you so you won't listen to REAL disabled people telling you the truth.

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    2. I am a real disabled person Simon. I can walk a few steps with crutches and use a wheelchair outdoors. Because of the vile stories in the press which people like YOU obviously believe, and perpertuate, I was spat at and called a 'stupid spastic scrounger'. I worked for over 20 years and only stopped because my disability made it impossible to carry on. I am not a scam artist but I AM in the government's firing line. They realise that there is next to no fraud and they also realise that supporting the genuinely disabled is where the money is spent - that's why they are, amongst other things, reforming disability living allowance. I suggest you go online and have a look at the draft proposals for the new personal independence payment. If you know ANYTHING about disability, you will realise that if this goes ahead, the ONLY people who will lose are the genuinely disabled. Wake up and smell the coffee and stop perpetuating government propaganda - I can tell you from first hand experience that it has real consequences.

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    3. Wake up and smell the coffee Simon, and stop perpetuating the government propaganda that gets disabled people attacked in the street. I am a 'real' disabled person. I have spina bifida, can walk a few steps with crutches and use a wheelchair outdoors. Despite this I was spat at yesterday, and called a 'stupid spastic scrounger'. Would you call this 'red carpet' treatment and how do you account for the public not knowing the difference between a real disabled person and a 'scam artist'??!! I worked for over twenty years until my disability forced early retirement and despite the fact that my medical exam confirmed I am unable to work, the government will be removing my employment and support allowance next year when it starts to means test everything in line with universal credit. This is a contributory benefit for which I have worked - I will also be right in the firing line when disability living allowance is replaced by personal independence payment. The government are targeting 'real' disabled people Simon - that's where the money is spent and that's where it will be cut. If you are in any doubt have a look at the draft proposals for the new benefit and if you know ANYTHING about disability you will know at a glance that if this goes through as planned it will wreak havoc among disabled people and it's only the tip of the iceberg.

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    4. Just to clarify so that people don't get confused by Simon's inaccurate statement above re no decisions having been made about the ILF: the Independent Living Fund has been closed to new applicants since June 2010 and in December 2010 the government announced it would be permanently closed to new applicants (see DWP website http://www.direct.gov.uk/en/DisabledPeople/FinancialSupport/OtherBenefitsAndSupport/DG_4019444). Those people currently receiving ILF grants will continue to receive them until 2015 but the future of these grants will be resolved in the context of the government's plans for the long-term funding of adult social care - which have yet to be announced. The government's stated position is that DWP funding (via the ILF) for what they consider to be 'social care' needs is an anomaly and that this responsibility should be transferred to local authorities. However, the Association of Directors of Adult Social Services told the Joint Committee on Human Rights Inquiry into Independent Living that, in the current climate, they are unlikely to provide replacement funding for all those who would previously have qualified for ILF grants. http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/inquiries/protecting-the-right-of-disabled-people-to-independent-living/

      Thank you to Pamela and Lelenth for defending disabled people against attempts to divide us into the 'deserving' and 'undeserving' (or 'real' disabled people from 'scam artists' as Simon puts it). As one of my previous posts pointed out the state and the media have been trying to do this since the days of the Poor Law. It causes enormous distress to many disabled people and is a major part of the oppression we experience - as the two comments above make clear.

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    5. Jenny, you led people to believe the ILF as a whole organisation was close and a blamant and offensive lie to abuse real disabled people and make them fight on behalf of sick people since the sickness movement needs the public real disabled people to add some creditability to the lies because told. Also, we have never be united nor should we be as why should someone who been disabled a week have the right to dicate the way I must think. People with cerebral palsy have been abused by the sickness movewment and your demand for medical model pity, segration and cold hard cash for those who are lazy by turning a blind eye to the systematic murder of real disabled people and endorsement of abuse by informal carers. If people stopped moaning and make a positive contribution to society instead of sitting on their bean bads demanding the government spoon feds them, then maybe disabled people wouled you need the pity you demand their get.

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  2. I've been tidying my office and came across my copy of Radar's 'Putting Teeth into the Act' published in 1982. This tells their story of challenging local authorities to implement the 1970 Chronically Sick and Disabled Persons Act. Each time they came up with a test case the local authority concerned would settle the matter by providing that individual with a service, thereby avoiding a judgement that might commit them to expenditure on other people.
    Section 4 of the 1986 Disabled Persons (Services, Consultation and Representation) Act which gave disabled people the right to an assessment was necessary because local authorities were attempting to avoid their duty to arrange the provision of services, by not assessing need.
    There is a long history of denying disabled people services and as the government restricts funding, local authorities will find new ways of doing this.

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  3. Simon, not everyone is able to make a contribution to society. Some people are sick and dying, some have considerable learning disabilities, and some mental ill health. All these things are being made worse by having their support withdrawn by this government. For example some people are unable to get to hospitals for chemo because they cannot cover the travel fare, some are unable to work because of backlogs with processing pip awards, some are starving to death because of wrongly applied sanctions.
    Some people ARE trying to make a contribution but without ILF (or alternative support being ringfenced by local authorities) they will not even be able to physically get out of bed in the morning, go to the toilet, feed themselves etc. I know several people in this position and it is a very real, very scary situation to be in.
    But I think you know all this already and just want to make a name for yourself as being the devils advocate. Unfortunately you are just perpetuating the lies and hatred towards ALL disabled people (not just the ones you deem unworthy).

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  4. Simon, not everyone is able to make a contribution to society. Some people are sick and dying, some have considerable learning disabilities, and some mental ill health. All these things are being made worse by having their support withdrawn by this government. For example some people are unable to get to hospitals for chemo because they cannot cover the travel fare, some are unable to work because of backlogs with processing pip awards, some are starving to death because of wrongly applied sanctions.
    Some people ARE trying to make a contribution but without ILF (or alternative support being ringfenced by local authorities) they will not even be able to physically get out of bed in the morning, go to the toilet, feed themselves etc. I know several people in this position and it is a very real, very scary situation to be in.
    But I think you know all this already and just want to make a name for yourself as being the devils advocate. Unfortunately you are just perpetuating the lies and hatred towards ALL disabled people (not just the ones you deem unworthy).

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