Sheila Gilmore MP today welcomed a report from the Work and Pensions Select Committee – of which she is a member – that calls on the Government to pay sick and disabled people benefits while they appeal against incorrect ‘Fit for Work’ decisions.

Employment and Support Allowance (ESA) provides support for people who cannot work due to a health condition or disability. Entitlement is determined by the controversial Work Capability Assessment (WCA). Previously claimants who were declared ‘Fit for Work’ and wished to challenge their decision were paid ESA at a reduced rate throughout the appeal process. However since October 2013 claimants have had to submit an informal appeal – known as a mandatory reconsideration – to a DWP civil servant, and only if they are still refused benefit can they take their case to a judge.

During mandatory reconsideration, a claimant’s only option is to claim Jobseekers Allowance, which entails applying for jobs and attending an interview. As a result many sick and disabled people have been refused JSA or sanctioned, leaving them stuck between benefits and without any income. The DWP Committee have today called on the Government to pay claimants ESA during the mandatory reconsideration process.

In addition current statistics show that, since it replaced Incapacity Benefit in 2008, one in ten ESA claimants who are declared ‘Fit for Work’ successfully appeal this decision and are awarded ESA. However it emerged last year that the proportion of incorrect decisions could be a lot higher, as figures on the outcomes of mandatory reconsiderations were not being published. The DWP Committee have today called on Ministers to publish these statistics.

Sheila Gilmore said:

I regularly meet sick and disabled people who are unable to work but who have been declared fit to do so following a flawed ESA assessment.

Since last year people in this position have been forced to claim Jobseekers Allowance when they initially challenge an incorrect decision. Many are refused or quickly sanctioned, leaving them stuck between benefits for periods of up to ten weeks.

Ministers should implement the Work and Pensions Select Committee’s recommendation that claimants are paid ESA throughout the application process. This shouldn’t cost the Government any money, unless DWP are already factoring in sick and disabled people being unable to claim JSA.

Until recently we thought that the assessment was getting about one in ten fit for work decisions wrong – far too many in most people’s eyes – but since it emerged that the Government were withholding key figures, the reality could be much worse. Again the Government should do as the Select Committee says, and publish this data without delay.

Notes to Editors

• The key paragraph of the Committee’s report reads: ‘However, DWP needs to set a reasonable timescale for the MR process, rather than this being left open-ended. The current illogical arrangement whereby claimants seeking MR are required to claim Jobseeker’s Allowance (JSA) instead of ESA should be abolished. Official statistics showing the impact of MR on the number of appeals and on outcomes for claimants should be published as a matter of urgency.’
• Sheila Gilmore led a debate on mandatory reconsideration statistics in the House of Commons on 9 April 2014 where she summarised the issue as follows: ‘I acknowledge this is quite a hard argument to follow so let’s say, hypothetically, 100 people claim ESA. We are initially told that 50 are awarded benefit and 50 are declared Fit for Work. We are then told that 25 of this latter group successfully appeal their decision, so we can say that the assessment process is getting one in four decisions wrong. What if we then found out that 25 of the 50 who were initially awarded ESA only got benefit following an informal appeal to a civil servant? We would have to say that the assessment process was getting one in two decisions wrong – a level of performance significantly worse than previously thought.’
• For more information Sheila Gilmore maintains dedicated pages on mandatory reconsiderations and reconsideration statistics on her website.
• For more information please contact Matt Brennan, Parliamentary Assistant to Sheila Gilmore MP, on 020 7219 7062, 07742 986 513 or matthew.brennan@parliament.uk.

Independent report shows systematic failings in the way benefit sanctions are communicated and processed.

Posted in The Guardian, Tuesday 22 July 2014, by Patrick Wintour.

The government is to overhaul the way it treats benefit recipients threatened by sanctions, after an independent report it commissioned  showed systematic failings in the process, including disproportionate burdens placed on the most vulnerable.

[The inquiry into sanctions was demanded by the Labour Party last year]

The report found that the way in which the Department for Work and Pensions (DWP) communicated with claimants was legalistic, unclear and confusing. The most vulnerable claimants were often left at a loss as to why their benefits were stopped and frequently they were not informed about hardship payments to which they were entitled, the report said.

It also revealed serious flaws in how sanctions were imposed; providers of the government’s work programme were required to bring in sanctions when they knew the claimants had done nothing wrong, leaving those people “sent from pillar to post”.

The independent report was written for the DWP by Matthew Oakley, a respected welfare expert who has worked as an economic adviser for the Treasury and for the centre-right thinktank Policy Exchange.

The report was completed some weeks ago, but publication of its 17 reform proposals was delayed.

Oakley said that the system was not fundamentally broken, but his criticism was all the more damaging for a government that has consistently described the benefit sanctions regime as fair.

The DWP responded to the report by saying it would be altering the way it talked to benefit claimants, setting up a specialist team to look at all communications, including claimant letters.

The sanctions regime, and the confusing way in which it is administered, has been one reason behind the growth in the public’s use of food banks.

In a new commitment, the DWP promised that if vulnerable claimants claimed for hardship on or before their signing day, they would receive a hardship payment at their normal payment date.

The department also promised it would take steps to ensure local authorities did not dock housing benefit and that they gave claimants a clear chance to comply with sanctions, and that there was consideration over whether work programme providers could be empowered to make decisions on sanction referrals.

Oakley’s report said: “No matter what system of social security is in place, if it is communicated poorly, if claimants do not understand the system and their responsibilities, and if they are not empowered to challenge decisions they believe to be incorrect and seek redress, then it will not  fulfil its purpose. It will be neither fair nor effective.”

His terms of reference, he said, were about the way sanctions were administered on mandatory back-to-work schemes (covering a third of those claimants at risk of being sanctioned), but the proposed reforms would be relevant to the entire benefits system.

The report said sanction letters “were, on the whole, found to be complex and difficult to understand”.

It added that partly owing to the legal requirements the department had to fulfil when it wrote to claimants, the letters were overly long and legalistic in their tone and content; they lacked personalised explanations of the reason for sanction referrals; and they were not always clear about the possibility of, and process surrounding, appeals or applications for hardship payments. The letters were particularly hard to understand for the most vulnerable claimants – so those most in need of the hardship system “were the least likely to be able to access it”.

The report said: “Actual and sample letters that the review team saw were hard to understand (even for those working in the area), unclear as to why someone was being sanctioned and confusingly laid out.”

The review found that many people “expressed concerns that the first that claimants knew of adverse decisions was when they tried to get their benefit payment out of a cash point but could not”.

The report also said that Jobcentre advisers had highlighted the damage that sanctions imposed on the most vulnerable.

It stated: “Many advisers also highlighted the difficulties of communicating with particular groups of claimants. In particular, many advisers identified a ‘vulnerable’ group who tended to be sanctioned more than the others because they struggled to navigate the system. This concern for the vulnerable claimants was consistent throughout the visits.

“For these groups, particular difficulties were highlighted around the length of time it could take to ensure some claimants fully understood what was required of them, and in conveying that a ‘sanction’ could entail the loss of benefit for a prolonged period of time.”

The report also criticised the failure of Jobcentres to highlight hardship payments. It said: “A more specific concern surrounding the hardship system was that only those claimants that asked about help in Jobcentre Plus were told about the hardship system. Advisers, decision-makers and advocate groups argued that this meant that groups with poorer understanding of the system were less likely to gain access.

“Since, on the whole, more vulnerable claimants are those with the poorest understanding of the system, this suggests that some of those most in need are also those least able to access hardship.”

The report also found that providers of mandatory work schemes were unable to make legal decisions about claimants’ reasons for missing appointments and so had to impose sanctions.

“This means that they have to refer all claimants who fail to attend a mandatory interview to a decision-maker even if the claimant has provided them with what would ordinarily count as good reason, in Jobcentre Plus.

“This situation results in confusion as the claimant does not understand why they are being referred for a sanction. A very high proportion of referrals for sanctions from mandatory back-to-work schemes are subsequently cancelled or judged to be non-adverse.”

Maslow’s Hierarchy of needs

It’s a biological and psychological fact that benefit sanctions can only ever serve to demotivate, rather than “incentivise”, and that they severely limit people in fulfilling their potential.

We all know that there are basic physical requirements – such as food, fuel, shelter – that are universally essential for human survival. If these requirements are not met, the human body cannot function properly and will ultimately fail. Benefit sanctions mean that people are being deliberately placed at risk of failing to meet their fundamental survival needs.

Such a grossly punitive approach to welfare will never serve to achieve positive outcomes for those needing supportive provision. It’s a simple, basic fact that people cannot possibly find the motivation and resources to seek work and meet the benefits “conditionality” criteria when they are reduced to struggling for basic survival.

And some people are dying as a direct consequence of the Tory-led draconian benefit sanction regime – please see ‘Lessons must be learned’ from diabetic former soldier, who died after benefits sanction and Man starved to death after benefits were cut.

Maslow’s basic humanist philosophy about universal human needs underpins Human Rights Laws and our welfare provision – well, it did so up until recently.

It’s utterly chilling and truly Orwellian that the government claim imposing arbitrary sanctions on the most vulnerable, and reducing them to desperation is “helping people into work”. Such a cruel measure is NOT helping anyone: it’s creating desperation, extreme distress, anxiety, harm, suicides and death. Furthermore, for the many being punished that are genuinely seeking work, the alleged employment opportunities simply do not exist.

Benefit sanctions have nothing to do with “helping” people, but have everything to do with conservative political ideology.

It really is a brutal, HARMFUL policy of draconian control, using right-wing  propaganda, misinformation, pseudo-psychology and an unforgivable, persistent denial of truth.

Although the government claims that there is a hardship fund available for those who are sanctioned, many people are being denied this support. Described as a “basic financial safety net” – which is basically what welfare was intended to be – the hardship fund has to be repaid, causing a further vicious cycle of hardships to individuals and their families.

Benefit sanctions are profoundly unjust, they are most damaging to the very people that need support the most, as the very vulnerable are being disproportionately and opportunistically targeted. There is simply no credible justification for benefit sanctions, on any level. And this policy really needs to be changed.

Kittysjones.

Further reading:

Jobcentre was set targets for benefit sanctions

Rising ESA sanctions: punishing the vulnerable for being vulnerable

The targeting, severity and impact of sanctions on benefit claimants needs urgent review

Many thanks to Rob Livingstone

By Helen Wildbore, Research Officer, Human Rights Futures Project, LSE
Protest.

Some examples of what difference the Human Rights Act (HRA) has made.

• Protest: Preventing demonstrators reaching a protest is unjustified intrusion into right to freedom of assembly.

The decision by the police to stop a coach of demonstrators reaching an anti-war demonstration in 2003 was challenged under the HRA. The police concluded that a breach of the peace was not imminent but decided to send the coaches home with a police escort to prevent a breach of the peace occurring at the demonstration when the passengers arrived. The court said that the police must take no more intrusive action than appeared necessary to prevent the breach of the peace.

The police had failed to discharge the burden of establishing that the actions they took were proportionate and constituted the least restriction necessary to the rights of freedom of expression (Article 10) and freedom of peaceful assembly (Article 11). It was wholly disproportionate to restrict a person’s exercise of her rights under Articles 10 and 11 because she was in the company of others, some of whom might, at some time in the future, breach the peace.

The House of Lords referred to the “constitutional shift” brought about by the Human Rights Act, so that its no longer necessary to debate whether we have a right to freedom of assembly. (1)

• Kettling to be used only as last resort.

To be lawful, crowd control measures by the police, such as kettling, must be resorted to in good faith, be proportionate and enforced for no longer than is reasonably necessary. (2)

The police must have a reasonable apprehension of an imminent breach of the peace, i.e. that it is “likely to happen”. Kettling had to be a last resort and no more intrusive than appeared necessary to avoid a descent into violence. This test of necessity would only be met in extreme and exceptional circumstances. Kettling a group of protesters at the G20 summit where the risk of a breach of the peace was not imminent, was an unlawful deprivation of liberty under Article 5.3

• Freedom of expression and the media.

Responsibly written articles on matters of public interest are protected
The common law defence of qualified privilege in libel cases includes a public interest defence for the media. (4)

Although this was developed in a case just before the HRA had come into force, but after it was passed, the court referred to the need for the common law to be developed and applied in a manner consistent with the right to freedom of expression (Article 10). The court listed ten matters to be taken into account in deciding whether the reporting was responsible.

More recently, this list has been held to be guidance, not hurdles, and the defence is to be applied in a flexible and practical manner. (5)

As a result, the media have much more freedom when reporting matters of public interest, where it may not be possible to subsequently prove the truth of the allegations, provided that they act responsibly and in the public interest.

• Anonymity orders set aside to protect media’s right to free expression.

A group of media organisations successfully applied to set aside anonymity orders made in favour of individuals who were alleged to have links with Al-Qaeda and were suspected of facilitating acts of terrorism. The individuals had been designated under the Terrorism (United Nations Measures) Order 2006 and their assets were frozen.

The Supreme Court had to weigh the competing claims of the right to free expression of the press (Article 10) and the right to respect for private life of a relative of two of the individuals (Article 8), who would be identified if the anonymity orders were lifted. The court ruled that, in the circumstances, there was a powerful general public interest in identifying the relative which justified curtailment of his right to respect for private life. The anonymity orders were therefore set aside. (6)

• Freedom of expression includes the right to receive information.

The right to freedom of expression (Article 10) includes not only the freedom to impart information and ideas but also to receive. The media have been granted access to a hearing in the Court of Protection, (7) when such hearings had previously been closed. (8)

• Privacy: Damages awarded for unjustified intrusion into private life.

Where an invasion of private life is a matter of legitimate public interest because a public figure had previously lied about the matter, there will be a strong argument in favour of freedom of expression under Article 10 that will often defeat a claim of privacy under Article 8.

The publication of the fact that a public figure had taken drugs and was seeking treatment was necessary to set the record straight given her previous statements to the contrary, but the additional information published in the stories, including a photograph, was an unjustified intrusion into private life. Balancing the competing interests, the right to privacy under Article 8 outweighed the newspaper’s freedom of expression under Article 10 and damages were awarded for the breach. (9)

• Retention of DNA and fingerprint evidence a breach of right to private life.

The blanket and indiscriminate retention of fingerprints, cellular samples and DNA profiles of people suspected but not convicted of offences failed to strike a fair balance between the competing public and private interests. The court* ruled that it was a disproportionate interference with the right to respect for private life (Article 8) and could not be regarded as necessary in a democratic society. (10)

Following this decision at the European Court of Human Rights, two men have brought a case in the domestic courts claiming that the retention of their DNA and fingerprints is a breach of their right to respect for private life (Article 8). One was arrested but released without charge, the other was charged of an offence but acquitted at trial. Both men had their requests to destroy their samples refused by the police, as there were no ‘exceptional circumstances’ for destroying them, as stated in the Association of Chief Police Officers guidelines.

The court made a declaration under the HRA that those guidelines on retention of biometric data are unlawful because they are incompatible with Article 8. The court noted that it was the intention of the government to bring new legislation on this issue into force later this year. (11)

• Local authority snooping on family is intrusion of private life.

A council’s surveillance of a mother and her children to determine whether they lived within a school catchment area was ruled unlawful and a breach of their right to respect for private life (Article 8). The Council used surveillance powers given to it by the Regulation of Investigatory Powers Act 2000 but a tribunal found their use of the powers was improper and unnecessary. (12)

• Stop and search regime a breach of ECHR.

The stop and search powers under section 44 of the Terrorism Act 2000 are a breach of the right to respect for private life (Article 8). Under section 44 senior police officers can authorise the police to stop and search vehicles and people without the precondition of reasonable grounds of suspicion. Authorisations under section 44 covering the whole of Greater London have been made continuously for successive periods since section 44 came into force in February 2001.

The court* ruled that the use of coercive powers conferred by anti-terrorism legislation to require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the right to respect for private life. The powers of authorisation and confirmation as well as of stop and search under s44-45 were not in accordance with the law, in violation of Article 8.13.

• Family life: Naming a deceased father on birth certificate.

Dianne Blood successfully challenged the provision of the Human Fertilisation and Embryology Act 1990 which prevented her from registering her deceased husband as the father of her two children conceived by IVF on the children’s birth certificates. The provision was declared to be incompatible with the right to respect for private and family life (Article 8) and the right to be free from discrimination (Article 14). (14)

The law was amended by the Human Fertilisation and Embryology (Deceased Fathers) Act 2003.

• Right to respect for family life includes establishing details of identity.

A woman conceived by artificial donor insemination successfully challenged the decision by the Department of Health and the Human Fertilisation and Embryology Authority not to secure for her any information (even non-identifying information) relating to her donor parents. Referring to need for ‘flexible concept’ of family life and positive obligations, the High Court said that the right to respect for private and family life (under Article 8) means that everyone should be able to establish details of their identity, including a right to information about biological parents. (15)

The law was amended through the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 so that people conceived as a result of sperm, egg or embryo donation are able once they reach the age of 18 to request non-identifying information about their donor from the Human Fertilisation and Embryology Authority.

• Unmarried couples protected from unjustified discrimination.

The Adoption (Northern Ireland) Order 1987, which said only married couples or single people could be considered as adoptive parents, was successfully challenged under the HRA by an unmarried couple. The court said their right to respect for family life (Article 8) was engaged and therefore the policy could not be applied in a discriminatory way (under Article 14, the prohibition on discrimination).

As the HRA prohibited discrimination against married people, the court said it must follow that discrimination on the grounds of not being married must also be prohibited. The discrimination against unmarried couples would have to be justified. The court ruled that, although the state was entitled to consider that generally it was better for a child to be brought up by parents who were married, it was altogether another thing to say that no unmarried couples could be suitable adoptive parents.

The presumption in the Adoption Order contradicted the fundamental adoption principle of the best interest of the child and was disproportionate. The court declared that the unmarried couple were entitled to apply to adopt a child. (17)

• Scheme to prevent sham marriages disproportionately interferes with right to marry.

The scheme under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004,which required certain people subject to immigration control to obtain a certificate of approval from the Secretary of State before they were allowed to marry, other than in an Anglican ceremony, was challenged under the HRA. The court said while states have the right to regulate marriage and to seek to prevent marriages of convenience, the conditions imposed by the scheme were relevant to immigration status but had no relevance to the genuineness of the proposed marriage.

The scheme imposed a blanket prohibition on the exercise of the right to marry by all in the specified categories, irrespective of whether their proposed marriages were marriages of convenience or not (although there was a discretionary exception for compassionate circumstances). That was a disproportionate interference with the exercise of the right to marry under Article 12.

The court used their powers under the HRA to read the legislation compatibly with Article 12. The court also made a formal declaration that the legislation was incompatible with the prohibition of discrimination (Article 14) as it discriminated between civil and Anglican marriages. (18)

A remedial order under s10 HRA was laid before Parliament to abolish the certificate of approval scheme. (19)

• Outside courts: Fostered children secure visits to their mother in supported care

A mother with mental health problems was placed in 24 hour supported care and her children were fostered. The agreed three meetings per week for the children were gradually reduced to just one a week due to the authority’s lack of staff. This greatly distressed the mother and children.

The mother’s advocate invoked the children’s right to respect for
family life (Article 8) and convinced the mental health team to invite children’s services staff to the next care programme approach meeting so that the children’s interests could be represented. The three visits per week were restored as a result. (20)

• Right to life can include positive obligation to protect life.

The right to life under Article 2 not only prevents the State from intentionally taking life, it also requires States to take appropriate steps to safeguard life. The court* ruled that the State’s duty includes putting in place effective criminal law provisions to deter the commission of offences and law-enforcement machinery.

Article 2 may also go beyond that to imply in certain well-defined circumstances a positive obligation on authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual. This duty will be breached where it can be shown that the authorities failed to do all that could reasonably be expected of them to avoid a “real and immediate” risk to the life of an identified individual about which they knew, or ought to have known. (21)

• Jurisdiction of HRA extends beyond UK territory.

The duty on public authorities under the HRA to comply with the Convention rights applies not only when a public authority acts within the UK but also when it acts outside the territory of the UK but within the jurisdiction of the UK. This will apply when the authority has effective control over the area outside the UK.

A man who had died as a result of injuries sustained in a detention unit in a British military base in Iraq was “within the jurisdiction” of the UK and covered by the HRA. Iraqi civilians who, it was claimed, had been unlawfully killed by members of British armed forces in southern Iraq in 2003, had not been within the jurisdiction of the UK when they were killed because the British troops did not have effective control over the area where the killings occurred. (22)

• Soldiers on UK military bases in Iraq fall under the jurisdiction of the HRA. 

A British soldier serving in Iraq who died from hyperthermia in a UK military base after complaining that he couldn’t cope with the heat, was subject to the jurisdiction of the HRA. The circumstances of this soldier’s death gave rise to concerns that there might have been a failure by the army to provide an adequate system to protect his life (Article 2). An inquest was necessary to establish by what means and in what circumstances he met his death. (23)

• Investigations into deaths.

Duty to investigate death in custody Where a death has occurred in custody the state is under a duty to publicly investigate before an independent judicial tribunal with an opportunity for relatives of the deceased to participate. (24)

• HRA secures inquest into murder

The human rights organisation Liberty used right to life (Article 2) arguments to secure the re-opening of the inquest into the death of Naomi Bryant, who was killed in 2005 by convicted sex offender Anthony Rice. (25)

• Disability: Duty to take positive action to secure physical integrity and dignity.

Where a local authority knew that a disabled tenant’s housing was inappropriate and prevented her from having a normal family life, but did not move her to suitably adapted accommodation, they failed in their duty to take positive steps to enable her and her family to lead as normal a family life as possible and secure her physical integrity and dignity (under Article 8). Damages were due for this failure. (26)

• Policies on lifting must consider competing rights.

Health and Safety Executive guidance on manual lifting was updated in 2002, highlighting the need to comply with the HRA and the Disability Discrimination Act. It was aimed at a balance between health and safety policy and the needs and rights of disabled people. (27)

A lifting policy should balance the competing rights of the disabled person’s right to dignity and participation in community life and the care workers’ right to physical and psychological integrity and dignity (Articles 3 and 8). Following a challenge under the HRA, East Sussex local authority amended its Safety Code of Practice on Manual Handling to include consideration of the dignity and rights of those being lifted. This was circulated to other local authorities, NHS trusts and care providers to encourage them to review their  policies. (28)

• Keeping autistic man in support unit against his and his family’s will violates HRA.

A 21 year old man with autism and a severe learning disability who lived with his father moved into his local authority’s support unit for a couple of weeks when his father was ill, as part of his respite care regime. The local authority then kept him there for nearly a year, against his and his father’s wish whilst it considered a long-term residential placement. The Court of Protection (29) ruled that the positive obligation under Article 8 (the right respect for family life) meant that the removal of vulnerable adults from their relatives or carers could only be justified when the state would provide better quality of care.

Keeping this man away from his home for almost a year was a breach of Article 8 HRA, and also Article 5 HRA (the right to liberty and to have a speedy decision by a court of the lawfulness of detention). (30)

• Outside courts: Disabled married woman secures special double bed.

A disabled women who was unable to leave her bed, needed a special bed which would allow carers to give her bed baths. Her authority refused her request to have a double bed so that she could continue to sleep next to her husband, even though she offered to pay the difference in cost between a single and double bed.

After she invoked her right to respect for private and family life (Article 8), the authority agreed to pay the whole cost of the double bed. (31)

• Deaf patient challenged lack of interpreter during operation.

Ms J, a profoundly deaf patient, was treated for a heart condition in Manchester in 2001. The hospital consultant refused to allow a British Sign Language interpreter into the operating theatre on health and safety grounds. This meant that during part of the procedure – carried out under local anaesthetic – Ms J was conscious but with no interpreter present was unable to communicate with medical personnel, which she found extremely frightening.

She contacted RNID who reminded the hospital that qualified interpreters work to very high standards and follow a Code of Practice. The relevant human rights that the hospital should have considered included freedom of expression (Article 10), prohibition of discrimination (Article 14), and prohibition of degrading treatment (Article 3).

The hospital admitted its error and apologised to Ms J, and agreed to provide an interpreter for future operations, ensuring the dignity and equal treatment of disabled patients. (32)

• Learning disabled couple challenge use of CCTV in their bedroom at night.

A couple with learning disabilities were living in residential care with their child so that their parenting skills could be assessed by social services. CCTV cameras were installed to observe them performing parental duties, including in their bedroom, even though the baby slept in a separate nursery. The couple were distressed by the use of the cameras in the bedroom at night and successfully used their right to private life to get the cameras switched off during the night. (33)

• Age: Before closing a care home, the effect on the residents must be investigated.

Where a local authority residential care home was being closed, the authority had to ensure that any consultation investigated the effect of the closure on the residents’ emotional, psychological and physical health and comply with its obligations under the HRA.34

• Outside courts: Older couple helped to stay together in care home.

A husband and wife had lived together for over 65 years. He was unable to walk unaided and relied on his wife to help him move around. She was blind and used her husband as her eyes. They were separated after he fell ill and was moved into a residential care home.

She asked to join him but was told by the local authority that she did not fit the criteria. After a public campaign by the family, supported by the media and older people’s organisations, which argued that the local authority had breached the couple’s right to respect for family life (Article 8), the authority agreed to reverse its decision and offered the wife a subsidised place in the care home with her husband. (35)

• Older woman supported to stay at home rather than move to residential care.

An older woman was staying in hospital following a number of strokes. She suffered a range of trauma related mental health problems following her internment as a prisoner of war in WWII and was observed re-enacting various behaviours from this period. Against her wishes, the hospital sought to discharge her and move her into residential care on cost grounds.

Her advocate was concerned that being in an institution was causing her
regression and used human rights arguments that she should not be placed in residential care but allowed to return home as she wanted. As a result, funding was secured to support her care at home. (36)

• Sexual orientation: HRA provides protection against discrimination on grounds of sexual orientation. 

The courts have used their powers under the HRA to eliminate the discriminatory effect of  para 2, Schedule 1 of the Rent Act 1977 which meant that the survivor of a heterosexual couple could become a statutory tenant by succession but the survivor of a homosexual couple could not (in breach of the prohibition on discrimination under Article 14, read in conjunction with the right to respect for private and family life under Article 8). (37)

• Same-sex partner given ‘nearest relative’ status.

The same-sex partner of a detained mental health patient, whom the local council had refused to afford the status of ‘nearest relative’, challenged this decision under the right to respect for private life (Article 8) arguing that private life includes issues of sexuality, personal choice and identity. The court accepted that same-sex partners should be covered by the co-habiting rule applied to heterosexual couples who qualify as ‘nearest relative’ after 6 months co-habitation. (38)

• Race and religion: Changes to cell-sharing policies.

Following the murder of a prisoner by his racist cell-mate and a successful challenge under the HRA for a public inquiry (under the right to life in Article 2), the Prison Service introduced changes to its policy and procedures relating to cell-sharing risks, allowing information-sharing to identify high risk factors. (39)

• An attack against a religious group which is incompatible with the values of the ECHR will not enjoy the protection of Article 10.

A member of the BNP who placed a poster in the window of his house depicting on of the Twin Towers in flames that said “Islam out of Britain” and “Protect British people” was convicted of an offence under section 5 of the Public Order Act and of committing the offence in a religiously aggravated way and fined.

His appeal to the High Court was rejected (40) on the grounds that the restriction upon his right to freedom of expression (Article 10) was proportionate to the legitimate aim of protecting the rights and freedoms of others, given also the fact that the speech arguably fell within Article 17 of the Convention (no right to act with the aim of destroying the rights in the Convention). (41)

His appeal to the European Court of Human Rights was found inadmissible because the anti-Islam images were a public attack on all Muslims in the UK and fell within Article 17, being incompatible with the values proclaimed in the Convention, so did not enjoy the protection of Articles 10 or 14 (prohibition on discrimination). (42)

• A school uniform did not breach the right to religion.

A uniform policy that did not allow students to wear a jilbab did not breach their right to manifest their religion (Article 9), and that even if it did, the school’s decision was objectively justified. The court stressed the need in some situations to restrict freedom to manifest religious belief, the value of religious harmony and tolerance between opposing or competing groups and of pluralism and broad mindedness and the need for balance and compromise. (43)

New guidance was issued to schools by the Department for Children, Schools and Families stating that schools must be sensitive to the needs of all pupils and should consult the community, parents and pupils before setting or changing a uniform policy. Schools must act reasonably in accommodating pupils’ requirements but may have to balance the rights of an individual against the best interests of the whole school community. It is for a school to determine what sort of uniform policy is appropriate for it. (44)

• Gender: re-assignment requires legal recognition.

A successful challenge was made against the different treatment for transsexual people in obtaining marriage certificates and a declaration was made that the Matrimonial Causes Act 1973 was incompatible with the right to respect for family life (Article 8) and the right to marry (Article 12). The government altered the law and the Gender Recognition Act 2004 now entitles a transsexual person to be treated in their acquired gender for all purposes,including marriage. (45)

• Separation of mother and baby in prison requires flexibility.

Following a challenge to the blanket Prison Services rule, requiring compulsory removal of all babies from imprisoned mothers at 18 months, the Prison Service amended the requirements for the operation of Mother and Baby Units. The removal of the child had to be a proportionate interference with her right to respect for family life (Article 8). It was necessary to consider the individual circumstances and whether it was in the child’s best interest to be removed. (46)

• HRA protects against modern-day slavery.

The Metropolitan police accepted that their failure to investigate a victim’s report of threats and violence by her employer, who withheld her passport and wages, had breached the prohibition of slavery and forced labour (Article 4) after the human rights organisation Liberty took judicial review proceedings under the HRA. The police agreed to reopen the investigation and the employer was found guilty of assault. (47)

• Outside courts: Woman fleeing domestic violence helped to find accommodation.

A woman fleeing her violent husband, who moved towns with her children whenever he tracked them down, eventually arrived in London and was referred to the local social services department. Social workers told the mother that she was an ‘unfit’ parent and that she had made the family intentionally homeless. An advice worker helped the mother challenge this claim using the right to respect for family life (Article 8) and prevented the children being placed in foster care. Instead the family was offered help to secure accommodation. (48)

• Children: Unnecessary physical restraint of young people in custody is a breach of HRA.

The Secure Training Centre (Amendment) Rules 2007 allowed officers working in these institutions for young offenders to physically restrain and seclude a young person to ensure‘good order and discipline’. These amendments were passed with very limited consultation and with no race equality impact assessment. The court ruled that any system of restraint that involves physical intervention against another’s will and carries the threat of injury or death, engages the prohibition on inhuman and degrading treatment (Article 3).

This is particularly so when it applies to a child who is in the custody of the state. The Secretary of State could not establish that the system was necessary for ensuring ‘good order and discipline’ and the Rules breached Article 3. The Rules were quashed. (49)

• Procedural rights for children in decisions affecting their family life. 

The right to respect for private and family life (Article 8) affords children procedural rights in relation to decision-making processes which fundamentally effect their family life. If the child has sufficient understanding, and direct participation in such proceedings would not pose an obvious risk of harm, separate representation may be required. The court had to accept, in the case of articulate teenagers, that the right to freedom of expression (Article 10) and participation outweighed the paternalistic judgment of welfare. (50)

• Right to religion did not allow corporal punishment in schools.

Although the ban on corporal punishment in schools did interfere with parents and teachers right to manifest their religion (Article 9), this interference was necessary in a democratic society for the protection of the rights of children. The court ruled that corporal punishment involved deliberately inflicting physical violence and its ban was intended to protect children against the distress, pain and other harmful effects this infliction of physical violence might cause. The means chosen to achieve that aim were appropriate and not a violation of the right to manifest one’s religion. (51)

• Outside courts: Young girl with learning disabilities secures school transport.

A local authority had a policy of providing school transport for children with special educational needs living more than 3 miles from their school. A young girl with learning disabilities lived 2.8 miles from the special school she attended but was denied the transport, despite being unable to travel independently.

A parent supporter helped the girl’s mother to challenge the decision using the right to respect for private life (Article 8), given the failure to consider her special circumstances, and the decision was reversed. (52)

• Mental health: Reversal of onus of proof in mental health cases.

The Mental Health Act 1983 was successfully challenged under the HRA, leading to an amendment to put the burden of proving that continued detention for treatment for mental illness is justified under the right to liberty (Article 5) on the detaining authority, and not the patient. The court made a formal declaration of incompatibility under the HRA, which was followed by a fast-track remedial order to bring the law into line with Article 5.53

• Protection of an incapacitated person in a psychiatric hospital.

Where an autistic man, who lacked the capacity to consent or object to medical treatment, was admitted as an ‘informal patient’ at a psychiatric hospital and then eventually detained under s5(2) of the Mental Health Act, he successfully challenged the time spent in the psychiatric hospital as an informal patient as a deprivation of his liberty (Article 5). The court* said that the right to liberty is too important in a democratic society for a person to lose its protection because they may have given themselves up to be taken into detention, especially when it is not disputed that someone is legally incapable of consenting to or disagreeing with the proposed action.

The lack of procedural safeguards (fixed procedural rules by which the admission and detention of compliant incapacitated persons was
conducted) gave rise to a violation of Article 5(1).

• Destitution of asylum seekers: Restrictions and deprivations on asylum seekers should not result in inhuman or degrading treatment.

A group of asylum seekers were excluded from support for ccommodation and essential living needs under asylum legislation (55) because the secretary of state had decided that they had not made their claims for asylum as soon as reasonably practicable after their arrival in the UK. They challenged this under the HRA.

The court ruled that as soon as an asylum seeker makes it clear that there is an imminent prospect of his treatment reaching inhuman and degrading levels (Article 3) – such as sleeping in street, being seriously hungry and unable to satisfy basic hygiene requirements – the secretary of state had a power under asylum legislation and a duty under the HRA to avoid it. (56)

Following the court’s decision, the Immigration and Nationality Directorate adopted a new approach to s55 to comply with the CA judgment: “no claimant who does not have alternative sources of support, including adequate food and basic amenities, such as washing facilities and night shelter, is refused support.” (57)

• No torture: Evidence procured by torture must not be admitted in court.

The Special Immigration Appeals Commission (Procedure) Rules 2003, which said the Commission could receive evidence that would not be admissible in a court of law, did not extend to statements procured by torture. The Commission could not receive evidence that had or might have been procured by torture inflicted by officials of a foreign state even without the complicity of the British authorities.

This conclusion was based on the common law rule excluding evidence procured by torture and gave effect to the absolute prohibition against torture in Article 3. The Commission should refuse to admit evidence if it concluded on a balance of probabilities that the evidence had been obtained by torture. If the Commission was left in doubt as to whether the evidence had been obtained by torture, then it should admit it, but it had to bear its doubt in mind when evaluating the evidence. (58)

• Deportation where there is a real risk of torture would violate ECHR.

Deporting an individual to a country where there was a real risk that they would be subjected to torture, inhuman or degrading treatment would be a breach of Article 3. The court* ruled that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3. The prospect that the person might pose a serious threat to a community if not returned to his country of origin did not reduce in any way the degree of risk of ill treatment that the person may be subject to if deported. (59)

• Liberty: Detention of suspected international terrorists without trial is breach of HRA.

A group of foreign nationals who had been certified by the secretary of state as suspected international terrorists under the Anti-terrorism, Crime and Security Act 2001, and detained without charge or trial, challenged their detention. The House of Lords formally declared that s23 of the Anti-Terrorism, Crime and Security Act was incompatible with the HRA as the detention provisions were disproportionate and discriminated on the ground of nationality or immigration status.

The measures did not rationally address the threat to the security of the UK presented by Al Qaeda terrorists because they did not address the threat presented by terrorists who were UK nationals. The detention of some suspects and not others, defined by nationality or immigration status, violated the prohibition of discrimination (Article 14) and could not be justified. The provisions were repealed by the Prevention of Terrorism Act 2005, which put in place a new regime of control orders. (60)

The claimants received (modest) damages for the violation of their right to liberty (Article 5) at the European Court of Human Rights. (61)

• Control orders must not violate right to liberty.

The non-derogating control orders imposed on a group of Iraqi and Iranian asylum seekers under the Prevention of Terrorism Act 2005, which, among other things, imposed an 18-hour curfew and prohibited social contact with anybody who was not authorised by the Home Office, amounted to a deprivation of liberty contrary to Article 5.

The government responded by issuing new orders, subjecting the men to less restrictive conditions. (62)

• Fair trial: Secret evidence in control order cases violates right to fair trial.

Control orders have also been successfully challenged under the right to a fair trial (Article 6) due to the use of ‘secret’ evidence. The right to a fair hearing means that a defendant must be given sufficient information about the allegations against him to enable him to give effective instructions to the special advocate representing him. (63)

A trial will not be fair where the case against the ‘controlled person’ is based on ‘closed materials’, the nature of which is not disclosed to them. As a result of the case, the Home Secretary has revoked two control orders rather than disclose the ‘secret’ evidence against the ‘controllees’. (64)

The government sought to get around this problem by introducing control orders with lighter, more limited obligations on ‘controlled persons’ that they said did not require them to disclose further evidence (the ‘controlled persons’ were still required to report to a police station daily and give two days written notice if they wished to sleep outside their present address).

The High Court rejected the government’s argument and ruled that there was an “irreducible minimum” of information that had to be provided even in the case of light control orders: “the approach to disclosure is the same for any control order”. (65)

References:

1
R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55
2
Austin v Commissioner of Police of the Metropolis (2009) UKHL 5.
3
R (Moos and McClure) v Commissioner of Police of the Metropolis [2011] EWHC 957 (Admin). See also Castle et al v Commissioner of the Police of the Metropolis [2011] EWHC 2317 where kettling was justified as a reach of the peace was imminent.
4
Reynolds v Times Newspaper (2001) 2 AC 127
5
Jameel v Wall Street Journal Europe [2006] UKHL 44
6
In the matter of Guardian News and Media Ltd and others Sub Nom Mohammed Jabar Ahmed and others v HM Treasury: Mohammed Al-Ghabra v HM Treasury: HM Treasury v R (Hani El Sayed Sabaei Youssef) [2010] UKSC 1
7
The Court of Protection adjudicates about people who lack mental capacity to make decisions themselves.
8
A v Independent News and Media and others [2010] EWCA Civ 343.
9
Campbell v Mirror Group Newspapers [2004] UKHL 22. See also Douglas v  hello! Ltd (2005) EWCA Civ 595 and HRH Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776.
10
Marper v UK European Court of Human Rights Grand Chamber, 4 December 2008
11
R (GC) v Commissioner of Police of the Metropolis; R(C) v Commissioner of Police of the Metropolis [2011] UKSC 21
12
Paton v Poole Borough Council, decided by the Investigatory Powers Tribunal, 2 August 2010.
13
Gillan and Quinton v UK, European Court of Human Rights 12.01.10
14
Blood and Tarbuck v Secretary of State for Health, 2003, unreported.
15
Rose v Secretary of State for Health and Human Fertilisation and Embryology Authority [2002] EWHC 1593 (Admin)
16
R (L and others) v Manchester City Council, High Court, 26.09.01
17
Re P and others [2008] UKHL 38
18
R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53.
19 Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial Order) 2010.
20 ‘The Human Rights Act – Changing Lives’, Second Edition, British Institute of Human Rights, 2008.
21
Osman v UK European Court of Human Rights, 28 October 1998.
22
R (Al-Skeini) v Secretary of State for the Defence [2007] UKHL 26
23
R (Smith) v Oxfordshire Assistant Deputy Coroner and Secretary of State for Defence [2010] UKSC 29.
24
R (Amin) v Secretary of State for the Home Department [2003] UKHL 51. See also R (Middleton) v HM Coroner for Western Somerset [2004] UKHL 10; R (Takoushis) v HM Coroner for Inner North London et al [2005] EWCA Civ 1440  and D v Secretary of State for the Home Department [2006] EWCA Civ 143.
25
See http://www.liberty-human-rights.org.uk/media/press/2011/inquest-secured-by-human-rights-act-finds-institutional-.php
26
R (Bernard) v Enfield [2002] EWHC 2282 Admin
27
Health and Safety Executive, ‘Handling Home care: Achieving safe, efficient and positive outcomes for care workers and clients’, 2002.
28
R (A and B) v East Sussex County Council [2003] EWHC 167 (Admin)
29
The Court of Protection adjudicates about people who lack mental capacity to make decisions themselves.
30
Hillingdon London Borough Council v Neary [2011] EWHC 1377.
31
‘The Human Rights Act – Changing Lives’, Second Edition, British Institute of Human Rights, 2008.
32
‘Human Rights and the Human Rights Act’, Equality and Diversity Forum, June 2006.
33
‘The Human Rights Act – Changing Lives’, Second Edition, British Institute of Human Rights, 2008.
34
Cowl et al v Plymouth City Council [2001] EWCA Civ 1935 and R (Madden) v Bury MBC [2002] EWHC 1882
35
‘The Human Rights Act – Changing Lives’, Second Edition, British Institute of Human Rights, 2008.
36
‘The Human Rights Act – Changing Lives’, Second Edition, British Institute of Human Rights, 2008.
37
Ahmad Raja Ghaidan v Antonio Mendoza [2004] UKHL 30
38
R (SG) v Liverpool City Council October 2002 (unreported)
39
R (Amin) v Secretary of State for the Home Department [2003] UKHL 51
40
Norwood v DPP [2003] EWHC 1564 (Admin)
41
Art 17: “Nothing in the Convention may be interpreted as implying for any State, group or person any right to engage in activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for the in Convention.”
42
Norwood v UK (2005) 40 EHRR SE11
43
R (Begum) v Denbigh High School [2006] UKHL 15. See also R (X) v Y School [2006] EWHC 298 (Admin).
44
See http://www.teachernet.gov.uk/management/atoz/u/uniform
45
Bellinger v Bellinger [2003] UKHL 21. See also Goodwin v UK, European Court of Human Rights, 2002.
46
R (P and Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151
47
See http://www.liberty-human-rights.org.uk/human-rights/victims/forced-labour/index.php
48
‘The Human Rights Act – Changing Lives’, Second Edition, British Institute of Human Rights, 2008.
49
R (C) v Secretary of State for Justice [2008] EWCA 882
50
Mabon v Mabon [2005] EWCA Civ 634
51
R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15
52
‘The Human Rights Act – Changing Lives’, Second Edition, British Institute of Human Rights, 2008.
53
R (H) v Mental Health Review Tribunal (North and East London Region) [2002] QBD 1
54
HL v UK European Court of Human Rights, 5 October 2004.
55
They were excluded from support granted under the Immigration and Asylum Act 1999 Part VI by the Nationality,
Immigration and Asylum Act 2002 s.55(1).
56
R (Limbuela and others) v Secretary of State for the Home Department [2005] UKHL 66
57
Home Office, ‘Asylum Statistics: 4th quarter 2005 UK’, 2005.
58
A and others v Secretary of State for the Home Department [2005] UKHL 71
59
Saadi v Italy European Court of Human Rights Grand Chamber, 28.02.08 * In this case the European Court of Human Rights
60
A and others v Secretary of State for the Home Department [2004] UKHL 56
61
A and others v UK, European Court of Human Rights Grand Chamber, 19.02.09
62
Secretary of State for the Home Department v JJ and others [2007] UKHL 45. See also Secretary of State for the Home Dept v AP [2010] UKSC 24 where a control order which required the controlee to move 150 miles from his family was also found to breach Art 5 and the residence requirement was quashed by the Supreme Court.
63
Secretary of State for the Home Department v AF and others [2009] UKHL 28.
64
See Secretary of State for the Home Department v AN [2009] EWHC 1966 (Admin). A further control order was quashed by the Court of Appeal on the basis that evidence relied upon to impose it was too vague and speculative; BM v Secretary of State for the Home Department [2011] EWCA Civ 366.
65
Secretary of State for the Home Department v BC and BB, QBD (Admin), decided 11/11/09.

By Kate Green, shadow minister for disabled people, first published: JULY 16, 2014 in Left Foot Forward

This weekend, members of my party will be meeting to shape the policy programme that Labour will take into government.

At the heart of those discussions will be a determination to deliver the vision of One Nation Britain that Ed Miliband has committed us to. Nowhere will that commitment matter more than in relation to our policies for the equality, inclusion and participation of disabled people.

Today, we can see that, under the coalition government, that ambition is way off track.

Last week, an analysis by Just Fair, a consortium which campaigns for a fairer and more just society, demonstrated just how damaging the government’s policies have been for disabled people. Just Fair argue that the UK risks  breaching our international obligations to the rights and equality of disabled people as a result of the government’s policies.

Labour is determined that our approach will be to ensure that all our policies advance the equality, dignity and participation of disabled people. Last week, in Scotland, Rachel Reeves announced a set of early commitments for a Labour government that demonstrate our seriousness about that.

Our first priority will be to secure disabled people’s right to fair and decent employment, in two important ways:

We will reform the discredited work capability assessment to ensure it’s fit for purpose. Under our plans, everyone who’s assessed will receive a personal statement of how their condition or impairment impacts on their ability to work, as a gateway to defining and assembling the package of support they’d need if they are able to do so.

We’ll also introduce penalties on assessors for wrong assessments, and we will continue with the independent review process, with a formal role for disabled people to advise and inform the way the assessment works.

The work programme has been a disaster for disabled people, getting only around one in 20 into sustained work. It’s clear that a top down, centrally driven programme can’t deliver the right support for disabled people.

So we will push commissioning of employment programmes down to local level, enabling commissioners who know and understand the local labour market and the support and advice that’s available in the community to design and procure the services that will work for disabled people and ensure they share in our economic success.

One of the most pernicious examples of the government’s failure to secure the rights of disabled people is that they are twice as likely to live in poverty as non disabled people, and this year we have seen an extra 400,000 disabled families facing absolute poverty.

Earlier this year, the independent taskforce on poverty and disability, chaired by Sir Bert Massie, recommended a number of measures to break this disgraceful link. Key among them was scrapping the hated bedroom tax, which has pushed more disabled people and their carers into poverty, and undermined their right to live independently.

It will be Labour’s priority in government to abolish this unworkable and vicious tax.

We will also sort out the chaos that characterises the personal independence payment, working with disabled people to ensure PIP protects them from the risk of poverty, as well as exploring the ideas in the Massie report to address the higher living costs that disabled people face.

These early measures are important in and of themselves to improve the position of disabled people and address the disadvantage they experience.

But they are also emblematic of our overarching commitment to making rights a reality for disabled people, as our international obligations require. Engaging disabled people directly in the design and review of the policies that affect them, and devolving decision-making to local level, will ensure disabled people take a central role in the management of their own lives.

They sit on all fours with the principles of reducing poverty, securing the right to work for those who are able to do so, and protecting the right of disabled people to live independently where and with whom they choose.

They go to the heart of our determination to achieve greater equality, to respect the human rights of disabled people, and to create a One Nation Britain in which every disabled person can realise their potential and live their life to the full.

–

Further reading:

Labour calls on Government To Save Independent Living Fund

Labour will work with disabled people to improve services – Jon Cruddas

The Labour Party commissioned Poverty and Disability Taskforce Report in a nutshell

Rising ESA sanctions: punishing the vulnerable for being vulnerable

Clause 99, Catch 22 – State sadism and silencing the vulnerable

However, senior ministers have proposed that the rules should be reviewed in order to reduce the “huge” numbers of people who are declared unfit for work due to mental health problems.

As a testimony to how bad this idea is, Sarah Wollaston, the Conservative chairman of the health select committee, has responded by saying that forcing people into counselling would present “profound ethical issues”.

She urged David Cameron to “squash” the proposals amid concerns about the damage they are doing to the image of the Conservative party. She said: “Consent is a very important principle and to link some kind of compulsion to that treatment would be grossly unethical. There would be a serious risk of a doctor being challenged and taken to the GMC”.

“You would get people going to GPs having a prescription so they could demonstrate they have got treatment. Enormously wasteful of time. Far better to get on with parity of esteem.”

The first of four government pilots is already being trialled at four job centres – Durham and Tees Valley, Surrey and Sussex, the Black Country and Midland Shires.

The pilot will “test whether combining talking therapy with employment support based on the “individual placement and support” model works better than the usual jobcentre or mental health support for Employment Support Allowance (ESA) claimants”, said the Department for Work and Pensions.

Tom Pollard, policy and campaigns manager at Mind, said: “If people are not getting access to the support they need, the government should address levels of funding for mental health services rather than putting even more pressure on those supported by benefits and not currently well enough to work.”

The government says it spends around £13bn a year on ESA and incapacity benefits. It estimates that it could save £1.41 for every £1 it spends on this “new mental health treatment.” See more here on such Nudge Unit inspired nonsense.

It’s against the law to force anyone to undertake medical treatment.

Meanwhile, ESA sanctions had increased fourfold in the space of a year – up to December 2013 – and are particularly targeted at claimants with mental health conditions.

The number of sanctions applied to ESA claimants rose 334% between December 2012 and December 2013, according to  Department of Work and Pensions statistics.

The report shows that since the new Employment Support Allowance (ESA) sanctions regime was introduced on 3 December 2012, there has been a steady increase in the number of sanctions applied, from 1,102 in December 2012 to 4,789 in December 2013.

The total number of adverse sanction decisions over the period 3 December 2012 to 31 December 2013 was 28,702:

• 5,889 were applied for failure to attend a mandatory interview and
• 22,814 were applied for failure to participate in work related activity

In addition, the statistics show that, of the 28,702 decisions:

• 13,994 were reviewed and in 8,508 cases, the decisions were overturned. This equals a “success” rate of nearly 61% and
• 331 cases were appealed, 90 of those (27%) were overturned on appeal

Since the new Job Seekers Allowance (JSA) sanctions regime was introduced on 22 October 2012, there have been a total of 1,028,819 adverse JSA sanction decisions up to the end of December 2013.

Of those 1,028,819 decisions:

• 317,411 were reviewed – 146,486 were overturned
• 34,503 were appealed – 6,158 were overturned at appeal

The Department of Work and Pensions statistical release is available on the .Gov website

Six out of every ten sanctioned ESA claimants are extremely vulnerable people with a mental health condition or learning difficulty, according DWP figures, obtained under the Freedom of Information Act. The proportion has risen from 35% of sanctioned claimants in 2009 to 58% in 2013. The statistics demonstrate that sanctions are now overwhelmingly aimed at the most vulnerable individuals by a government department which is using a policy of institutional discrimination to cut benefits costs.

Sanctions of £71.70 a week are imposed when ESA claimants in the work-related activity group are forced onto the work programme and then fail to meet mandatory conditions imposed on them by private sector companies.

However, for a person to get into the ESA work-related activity group on mental health grounds, they need to score a minimum of 15 points at assessment for problems with issues such as:

• planning new activities,
• changes in routine,
• going to new places,
• talking to new people,
• avoiding behaving aggressively or inappropriately when stressed.

So, it’s pretty obvious that many will struggle to cope with regular and punctual attendance on training courses and work-experience placements with strangers in unfamiliar places. Even if some people manage to attend, they may not succeed in participating to the satisfaction of those running the courses or placements. People are being coerced by the DWP to engage in activities that they are simply not well enough to undertake.

Debbie Abrahams, a Labour MP, and a member of the Work And Pensions Committee, has been leading the calls for an inquiry into the issue of sanctions. She said:

“As a member of the work and pensions select committee I’ve been very concerned about the growing evidence of inappropriate sanctioning and demanded that that a second independent inquiry into the issue is established.

“When I made my demands face-to-face with Esther McVey at a Committee session back in November she agreed to set up an independent investigation into the ‘appropriateness of sanctions’ and her offer was welcomed by the Committee in their following report. But, in a deliberate snub to the Committee, the Government have now said they won’t set one up.

“My question is this: If sanctions are currently being applied correctly, an independent review will testify to that, so just what are Ministers trying to hide?

“It’s just another example of how Iain Duncan Smith and Esther McVey are using smoke and mirrors to avoid any criticism about the mess and misery they are creating in the social security system.

“No-one is arguing with the fact that anyone who is on work related benefits should do all they can to find appropriate employment. But there is a growing body of evidence that the way the government is implementing sanctions means vulnerable people are being targeted disproportionately and suffering terribly as a result.

“The last thing Iain Duncan Smith and Esther McVey want is for that uncomfortable truth to be uncovered by a focussed and independent investigation.”

Polly Toynbee from the Guardian has interviewed an anonymous jobcentre manager who says that the Department for Work and Pensions now have targets for bullying claimants off ESA.

Polly met the jobcentre manager, in secret, who told her how the sick are treated and what harsh targets she is working under to force very vulnerable people off benefits.

“I just met a jobcentre manager. It had to be in secret, in a Midlands hotel, several train stops away from where she works. She told me how the sick are treated and what harsh targets she is under to push them off benefits. A high proportion on employment and support allowance have mental illnesses or learning difficulties.

The department denies there are targets, but she showed me a printed sheet of what are called “spinning plates”, red for missed, green for hit. They just missed their 50.5% target for “off flows”, getting people off ESA. They have been told to “disrupt and upset” them – in other words, bullying. That’s officially described, in Orwellian fashion, as “offering further support”. As all ESA claimants approach the target deadline of 65 weeks on benefits – advisers are told to report them all to the fraud department for maximum pressure. In this manager’s area 16% are “sanctioned” or cut off benefits.

“Of course it’s not written down anywhere, but it’s in the development plans of individual advisers or “work coaches”. Managers repeatedly question them on why more people haven’t been sanctioned. Letters are sent to the vulnerable who don’t legally have to come in, but in such ambiguous wording that they look like an order to attend. Tricks are played: those ending their contributory entitlement to a year on ESA need to fill in a form for income-based ESA.

But jobcentres are forbidden to stock those forms. These ill people’s benefits are suddenly stopped without explanation: if they call, they’re told to collect a form from the jobcentre, which doesn’t stock them either. If someone calls to query an appointment they are told they will be sanctioned if they don’t turn up, whatever. She said: “The DWP’s hope is they won’t pursue the claim.”

“Good advisers genuinely try to help the mentally ill left marooned on sickness benefit for years. The manager spoke of a woman with acute agoraphobia who hadn’t left home for 20 years: “With tiny steps, we were getting her out, helping her see how her life could be better – a long process.”

But here’s another perversity: if someone passes the 65-week deadline, they are abandoned. All further help is a dead loss to “spinning plates” success rates. That woman was sent back to her life of isolation: she certainly wasn’t referred for CBT. For all this bullying, the work programme finds very very few jobs for those on ESA.”

Polly Toynbee’s full article in the Guardian is here

Thanks to Robert Livingstone for his brilliant memes.

Cabinet reshuffle day is considered the perfect opportunity for government departments to bury bad news. And it’s surely too much of a coincidence that on this of all days, the Department for Work and Pensions has published its much-anticipated 163-page interim report of the impact of the Bedroom Tax. One of the most striking and damning findings is that disabled people are being unfairly and disproportionately affected, with seven out of ten households adversely affected having householders that are caring for someone with a disability.

The report also found difficulties among these 370,000 or so households in successfully claiming discretionary housing payments.The payments were intended to alleviate the effect of the policy among vulnerable groups.  This policy is causing devastating hardship for the most vulnerable citizens.

Originally posted on Union-News.co.uk on 16th July 2014:

The TUC has accused the government of yesterday “shamefully” sneaking out a report on the bedroom tax that shows many affected tenants are being pushed into arrears.

TUC general secretary Frances O’Grady said: “The government has shamefully sneaked out a report, under the cover of the reshuffle, that lays bare the damage wreaked by the bedroom tax. It shows how people affected by the tax are simply not able to move and instead are being pushed into rent arrears. As a result, many could end up losing their homes altogether.

“Government claims that the bedroom tax will free up under-occupied housing stock are farcical. The number of households affected by the tax during the first five months of its operation has fallen by less than five per cent.

“The bedroom tax is widely feared by tenants and the verdict from landlords and housing support workers is equally damning. Fewer than one in ten landlords say that government help for struggling tenants is working well and local authorities report that it is making it more difficult for them to house homeless single people.

“The bedroom tax is one of the most pointlessly cruel welfare policies instigated by a government that remains determined to take away the safety net that so many rely upon. It is shameful that ministers are now trying to hush up the damage it’s causing.”

–

See also:

Bedroom tax bites as low-income tenants choose between ‘heat or eat’

Political Scrapbook

Evaluation of Removal of the Spare Room Subsidy – Interim report

Welfare reforms break UN convention

Government wrongs, Human Rights and a call for evidence from Raquel Rolnik

‘Bedroom tax’ study raises serious questions

 Many thanks to Robert Livingstone for his excellent illustrations of Tory lies, cruelty, and repertoire of illegal policies and practices.