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Category: Human Rights
Theresa May considering scrapping Human Rights Act following Brexit
January 19, 2019 January 19, 2019 · 17 Comments ·
The prime minister is to consider repealing the Human Rights Act after Brexit, despite promising she is "committed" to its protections, a minister has revealed. This is, after all, a government that has always tended to regard the human rights of some social groups as nothing more than a bureaucratic inconvenience. Many of us have been very concerned about the implications of Brexit for human rights in the UK.
The House of Lords EU Justice Sub-Committee has exchanged correspondence with the Government about clarifying the wording of the Political Declaration regarding the European Convention on Human Rights.
There is no justification for editing or repealing the Human Rights Act itself, that would make Britain the first European country to regress in the level and degree of our human rights protection. It is through times of recession and times of affluence alike that our rights ought to be the foundation of our society, upon which the Magna Carta, the Equality Act and the Human Rights Act were built – protecting the most vulnerable citizens from the powerful and ensuring those who govern are accountable to the rule of law.
Observation of human rights distinguishes democratic leaders from dictators and despots. Human Rights are the bedrock of our democracy, they are universal, and are a reflection of a society's and a governments' recognition of the equal worth of every citizens' life.
Nonetheless, the government will decide on the future of the landmark legislation once "the process of leaving the EU concludes", according to a letter submitted to a parliamentary inquiry.
This disclosure comes despite the Brexit white paper stating last year that the UK would remain in the European Convention on Human Rights (ECHR), after following a warning from the European Union (EU) that pulling out would jeopardise a future security deal. However, the prime minister has previously pledged to leave the ECHR, expressing frustration because there was no Commons majority for doing so.
It is in this context of previous statements of intent that the wording of the letter was described as "troubling" by the Lords EU Justice Sub-Committee, which has warned that the letter casts doubt on more recent, repeated pledges from the government to protect the ECHR.
"Is the government sincere in its commitment to the ECHR?", Baroness Kennedy of The Shaws, the committee's chair, asked.
"If so, why has it failed to give assurances that it will not repeal or reform the Human Rights Act, which in essence incorporates the rights set out in the ECHR into domestic British law?"
The committee wrote to the Ministry of Justice after the alarm was raised by the wording of the political declaration, which was agreed with the EU in December alongside the legally binding divorce deal.
The declaration said the UK would merely agree "to respect the framework of the European Convention on Human Rights" – dropping the previous pledge of being "committed" to it. Previous plans to replace the Human Rights Act with a 'British Bill of Rights' appeared in the 2010 Programme for Government, and in the Conservative manifesto in 2015. included an emphasis on interpreting rights more subjectively, rather than regarding them as 'absolute'.
In response, Edward Argar, a junior justice minister, wrote: "The difference in wording does not represent a change in the UK's position on the ECHR
"A central tenet of our future relationship with the EU is our mutual belief in the importance of human rights and fundamental freedoms."
But he went on to suggest that the Human Rights Act may be scrapped when Brexit is concluded.
He wrote: "Our manifesto committed to not repealing or replacing the Human Rights Act while the process of EU exit is underway."
"It is right that we wait until the process of leaving the EU concludes before considering the matter further in the full knowledge of the new constitutional landscape.
Many Conservatives are critical of Labour's Human Rights Act, claiming it gives "too many rights to criminals" and some have even claimed it undermines "personal responsibility."
However, in 2015 Amnesty UK commissioned a poll that indicated the British public are not particularly willing to see any change to existing Human Rights legislation, with only one in 10 people in the UK (11%) believing that scrapping the Human Rights Act should be a government aim.
It's extremely worrying that a government thinks it should pick and choose which rights we are entitled to and select who they deem worthy of them. The whole point of rights and protections is that they are universal: they must apply to everyone equally in order to work at all.
It took people in the UK a very long time to claim the rights we have and we mustn't let the Conservatives take them away with the stroke of a pen.
The peers said it would imperil human rights if the government "intend to break the formal link" between the UK courts and the EHCR.
Baroness Kennedy said: "Again and again we are told that the government is committed to the European Convention on Human Rights, but without a concrete commitment, and with messaging that is changing and becoming diluted."
The government have played a long game, however, and have almost certainly always intended to repeal the Human Rights Act. One issue that prevented that happening over the last few years is the Good Friday Agreement, as the Labour government also committed to incorporate the European Convention of Human ECHR into the law of Northern Ireland and to the establishment of a Northern Ireland Human Rights Commission.
The politics of regression
In 2015, wrote about how the government has quietly edited the ministerial code, which was updated on October 15 without any announcement at all. The code sets out the standard of conduct expected of ministers. The latest version of the code is missing a key element regarding complicity with international law.
The previous code, issued in 2010, said there was an "overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life".
The new version of the code has been edited to say only that there is an"overarching duty on ministers to comply with the law and to protect the integrity of public life".
A Conservative party policy document had revealed that the ministerial code will be rewritten in the context of the UK withdrawing from the European convention on human rights. In order to help achieve these aims the document says: "We will amend the ministerial code to remove any ambiguity in the current rules about the duty of ministers to follow the will of Parliament in the UK."
In the original Conservative proposals to scrap our existing human rights framework, and replace it with their own, one sentence from the misleadingly titled document –Protecting Human Rights in the UK, (found on page 6 ) – is particularly chilling: "There will be a threshold below which Convention rights will not be engaged."
Basically this means that human rights will no longer be absolute or universally applied – they will be subject to state stipulations and caveats. And discrimination. The government will establish a threshold below which Convention rights will not be engaged, allowing UK courts to strike out what are deemed trivial cases.
The Conservatives' motivation for changing our human rights legislation is to allow reinterpretations to work around the new legislation when they deem it necessary. The internationally agreed rights that the Conservatives have always seen as being open to interpretation will become considerably prone to ideological bias, prejudice and open to subjective challenge.
Breaking the formal link between the European Court of Human Rights and British law would mean any judgement from Europe would be treated as "advisory" only, rather than legally binding, and would need to be "approved" by parliament. Such a Bill would profoundly disempower citizens because it will shift the balance of democracy completely, placing power almost entirely in the hands of the state.
Whatever constitutional or political configurations emerge following Brexit, the present threat to rights and equality is a major threat to citizens' liberties and freedoms. It demands coherent and collective action in the public interest.
My work is unfunded and I don't make any money from it. This is a pay as you like site. If you wish you can support me by making a one-off donation or a monthly contribution. This will help me continue to research and write independent, insightful and informative articles, and to continue to provide support others who are affected by the welfare 'reforms'.
Government changes to Mental Health Capacity Act places human rights of disabled people in jeopardy
Under the Conservative government, applications for the Deprivation of Liberty of citizens have soared. (Source: Court of Protection hub.)
Last month I wrote an article about the government's under the radar proposed changes to the Mental Capacity Act, raising my concerns about how it threatens human rights – Government changes to Mental Capacity Act threatens human rights of vulnerable citizens.
Deprivation of Liberty, which is defined in part of the Mental Capacity Act 2005, is there to ensure that there are checks and balances for a person placed in care, that decisions are made in their best interest and that an independent advocate can be appointed to speak on their behalf in these decision making processes. The government asked the Law Commission to review the legal framework that is called Deprivation of Liberty Safeguards (DoLs) which is put in place when a person who lacks capacity is placed in a care home. The Commission made recommendations to change the law, following public consultation.
However, the government has not included all of the recommendations in their Bill.
The new legislation has been worded carefully, and its effect will be to risk the removal of key human rights; it also ignores the entire concept of best interests and has put decision making power over people's liberty and rights in the hands of organisations and their managers with a commercial interest in decisions and outcomes.
Any statutory scheme which permits the state to deprive someone of their liberty for the purpose of providing care and treatment must be comprehensible, with robust safeguards to ensure that human rights are observed. However, the proposed Bill has been widely criticised because it contains insufficient safeguards and is not fit for purpose in its current form. It requires serious reconsideration and extensive revision.
The Law Society has issued a rather damning briefing on the Mental Capacity (Amendment) Bill 2018 that moved to a Lords committee stage in early September.
The Society says that the Bill is not fit for purpose: "While agreeing that simplification is needed and acknowledging that there are resource constraints, these constraints are "insufficient justification for not implementing fully the safeguards recommended by the Law Commission."
Inclusion London have also raised grave concerns about this amendment Bill:
"Right now the government is pushing a new law through Parliament that will make it easier to deprive someone of their liberty if they are judged unable to make decisions for themselves. It could mean people are forced to live in care homes because it's cheaper and easier for the local council even though it's not what they want or need.
"It's hugely important as many people as possible sign our petition. We need to let the government know there is widespread opposition to their proposals. Please sign our petition to help us change the bill:
38 Degrees Petition to protect the human rights of people receiving care and support
"In July 2018 the government introduced The Mental Capacity (Amendment) Bill in Parliament. The Bill will amend the Mental Capacity Act 2005 (MCA). It will affect the human rights of over 300,000 citizens in England and Wales with conditions including dementia, learning difficulties, autism and brain injuries, as well as their families and supporters"
Inclusion go on to say: "We recognise the existing system needs to change, but not in the way proposed by the Bill. We are very much concerned that the bill weakens the existing safeguards that people have and does nothing to ensure support and care is provided in a way that promotes and maximises Disabled people's liberty.
In fact the Bill will make it easier to deprive Disabled people of their liberty. We are also concerned that there has been very little consultation with Disabled people who will be affected by the Bill.
"We are working together with People First Self Advocacy, other Deaf and Disabled People's (DDPOs) Organisations, lawyers and academics to ensure the Bill is changed.
"We want as many DDPOs and self-advocacy groups as possible to get involved in this work. Please let Inclusion London know if you are interested and we'll keep you in the loop.
Read Inclusion London's briefing about the Bill, it will tell you exactly what changes the government wants to make and what our main concerns are:
Briefing on Metal Health Capacity Amendment Bill
Easy read version: Briefing on Mental Health Capacity Amendment Bill- Easy Read
And please sign their important petition: 38 Degrees Petition to protect the human rights of people receiving care and support
UN Rapporteur gathers evidence of the utter devastation caused by universal credit in Newcastle
November 9, 2018 November 11, 2018 · 29 Comments ·
UN Rapporteur, Philip Alston, visited Newcastle. He has said it is not "an acceptable position" for the government to use foodbanks as a social safety net.
In July I reported that the United Nations extreme poverty and human rights Special Rapporteur, Philip Alston, was to make an official visit to the UK.
Alston is a Professor of Law at New York University, and he works in the field of international law and international human rights law. He has extensive experience as an independent UN human rights expert. He previously chaired the United Nations Committee on Economic, Social and Cultural Rights for eight years (1991-98) and was United Nations Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions (2004-10).
His resume can be found here.
Some of the previous destinations for Alston have included Saudi Arabia, China, Ghana and Mauritania. He is currently visiting the UK, the sixth richest country in the world. His visit will focus, in accordance with his mandate, on the inverse relationship between poverty and human rights in the UK.
Alston is set to spend twelve days in the UK visiting ten places. Yesterday he came to Newcastle. He is tasked with gathering evidence and Newcastle was the first city to introduce universal credit (UC ). The council says central government cuts and rising demand for services mean 60% has been taken from its spending capacity between 2010 and 2020.
His itinerary is as follows:
This is the third day of the fact-finding mission across the UK, and Alston met with council bosses in Newcastle and went to the country's biggest foodbank to see first hand the impact of universal credit and the government's swingeing cuts to local funding.
Newcastle was once a place of thriving industry, but now, more than a fifth of the city's 270,000 population live in the most deprived 10% of wards in England and Wales in terms of income, work, education, health, housing and crime. One in five households have no one in them aged over 16 earning money and child poverty is 50% higher than the national average, according to a briefing complied by the council for Alston.
Alston examined the impact of austerity in the city and spoke with struggling residents. During a visit to Newcastle's West End foodbank, Philip Alston said the foodbank's users were "under a huge amount of pressure". Despite the government's claim that it had lifted hundreds of thousands of people out of poverty and into work, Alston said foodbanks play "a really crucial role… a real safety net so that [people] don't quite starve".
He added it was unacceptable, however, and said it should be the government that provides the safety net.
"To the extent that places like this succeed, you risk sending the message that government doesn't need to play the central role and government can just outsource these things," he said.
It cannot "just hope that a private community is going to take it up and keep people alive."
He added: "People feel that they have all got problems of one kind or another that brings them here, and they have a fairly shared experience in the sense that the funds that they get out of Universal Credit are not sufficient to enable them to cope.
"So the foodbank plays a really crucial role in the sense of providing that extra top up, that real safety net so that they don't quite starve. That is very important".
A sample of citizen accounts outlining their harrowing experiences of universal credit
Among the foodbank users he spoke to were Denise Hunter and her son Michael, from Fenham.
The West End Foodbank in Benwell (Image courtesy of the Newcastle Chronicle)
The family use the foodbank every Wednesday and said that problems with their universal credit payments had left them struggling to survive, and fearful of the financial cost of doing basic things like boiling a kettle.
Mrs Hunter said: "I've now waited for months and months for universal credit.
"Without these people here, with the free meal and everything, I couldn't live," she said.
Her 20-year-old son, Michael, said the controversial benefit, universal credit, had "tipped us over the edge" and said that he regularly goes hungry.
"We've been living where we're to turn the heating on because it eats electric or, if you turn the oven on for cooking and have it on too long, we can't pay the bill," he said.
"If it wasn't for this place I don't know what would happen.
"If they sorted out universal credit then people would not have to come here. It makes me feel low coming here, like I can't support my children. Sometimes I do get depressed about that."
Her 20-year-old son added that universal credit had "tipped us over the edge" and that he regularly goes hungry. He said "I'm scared to eat sometimes in case we run out of food."
People on universal credit have to go online to keep their financial lifeline open, but computers need electricity – and with universal credit leaving a £465 monthly budget to stretch across the three people in Michael's family (about £5 each a day), they can barely afford it on metered electricity. He said "I have to be quick doing my universal credit because I am that scared of losing the electric."
John McCorry, West End Foodbank chief executive, said that the true scale of poverty in Newcastle is "hidden" and that universal credit has "undoubtedly" had an impact.
He added: "Our wish is that the people with the power to influence and make decisions take the opportunity to see first hand what the UN delegation has, and perhaps that might shape their thinking about the future."
Alston said: "I think the work being done here is unbelievably impressive, the people are clearly very dedicated. They have a large number of people coming in on a regular basis and, certainly in the conversations I had, people have expressed great gratitude not just for the food but what impressed me is that they see this as a community centre.
"I think one of the issues in England is the extent to which many of the places in which people used to meet together are being closed down. Places like this end up filling part of the need."
The West End foodbank feeds about 42,000 people every year and has been giving out about 20% more food than six months ago, according to the Local Democracy Reporting Service.
The Hunters' family's account was just one of a long list of stark insights into life in absolute poverty delivered by the people of Newcastle to Alston during his trip to uncover what austerity is doing to the people of the UK and "to investigate government efforts to eradicate poverty".
It is highly likely that Alston will report that the UK government is far from doing enough to meet its obligations. In 1976 the UK ratified the UN covenant on economic, social and cultural rights and in doing so, agreed that policy changes in times of economic crisis must not be discriminatory, must mitigate, not increase, inequalities and that disadvantaged groups of people must not be disproportionately affected.
The government has not honoured that agreement.
Tracey Whitenstall, a mother of three, said that because of a 10-week delay in getting universal credit payments, she couldn't afford her son's bus fare and lunch money and so didn't send him to school for several weeks as he was preparing for his GSCEs. As a result his grades slipped.
"It was the worst, him missing out on education," she said, in tears.
At Citizens Advice in the city centre Alston met Sharon Morton, who hasn't had hot water or heating for a year. She washes in a way to minimise spending on boiled water. "I wash in what I call a birdbath – a little hot water in a basin and have a spruce down," she said.
She added "To keep warm I wrap up in layers and layers. I never thought I would be 48 and in this position."
Thushara Chandrasiri, who has a disabled right hand said he was told by a disability benefits assessor that he could now work and was refused benefits.
"What I found disgusting was that when I said I had the condition a long time, they said you should be used to it by now," he said. "Because I am right handed they said 'you've got a left hand, use it'."
The dehumanisation of DWP decision-making
Alston heard citizens' accounts about the distress, serious material hardships and frustration of dealing with the universal credit syste. He heard how messages they post on online journals take days to be answered. People explained how an anonymous figure, known only as "the decision maker" was often cited in correspondence, but they never knew who this was.
That sounds like a weirdly anonymised form of totalitarianism. Like the oprichniki of Ivan the Terrible. It's a strategy of psychological terrorism and boot-stamping-on-a-human-face-forever type of unaccountability, which belongs in a dystopian novel about a collapsing society and a regime of extremist despots. It reminds me of the Milgram experiment, but with real starvation instead of fake electric shocks as the centrepiece of the study of conformity and obedience to authority.
Outside of the food bank, which featured in Ken Loach's film about austerity, I, Daniel Blake, Alston said: "When you have rates of maybe a third of children living in poverty and you have a food bank clientele at a place like this that is growing and growing and growing, you have issues here. Is the situation in the UK as good as it could be?"
The Labour leader of the city council, Nick Forbes, also briefed Alston, expressing his anger at cuts and the "pain and misery" of universal credit.
"We had people coming to us who hadn't eaten for several days," he said. "It angers me beyond belief that the government has simply failed to listen to warnings that are supposed to come from a pilot [study]."
In Newcastle, universal credit has caused a huge increase in demand for short-term help to pay rent and electricity, the council says. The council's emergency housing payments budget – £100,000 in 2012 – is expected to hit £1m this year. The number of people needing emergency money for power is running at a rate 30 times higher than in 2016, before the rollout of UC began in earnest.
Alston drove to North Shields and spoke to residents at the Meadow Well estate, scene of riots in 1991 driven in part by poverty. Things had improved since then, but are getting worse again now, he heard.
Some people have to work five zero-hours jobs to make ends meet, said Phil McGrath, chief executive of the Cedarwood Trust community centre. The trust is encouraging residents to engage in local and national politics to have their voice heard. It is paying off with some people who have never voted turning out at the last general election, he said.
A former colleague of mine, Mike Burgess, who runs the Phoenix Detached Youth Project, told Alston how 18 publicly funded youth workers in the area in 2011 had dwindled to zero today. He described how a young man he worked with was in hospital for months after having a kidney removed. The jobcentre said he had to get back to work or face being sanctioned. He went to work in pain, but his employer realised he was not fit for work.
"There's no safety net for my lad or people with mental health problems," he said.
And that is the hidden cost facing many at the sharpest end of austerity in Newcastle.
"In the last two or three weeks we have seen a massive increase in numbers of people with mental health issues and people with breakdown," said McGrath, blaming benefit sanctions and a lack of social and mental health workers to catch people. "People are just being ground down."
In response to Alston's visit the Department for Work and Pensions said, with a gaslighting flourish, that the UK government was "committed to upholding the rule of law and rules-based international systems" and insisted that on an absolute measure of poverty, "a million fewer people and children were living in hardship compared with 2010."
When a government imposes austerity on the poorest citizens, further reducing the income of people already on the lowest incomes, it isn't possible that they would somehow become better off.
No matter how many inadequate jobs the government claims it has created.
People in work are experiencing absolute poverty, because wages have stagnated and people are coerced by the state to take any employment available, regardless of conditions, security and wage. By reducing welfare to the point where it no longer meets people's basic living needs, the government are fulfiling an ideological preference for supply side economics, creating a desperate reserve army of labour, which employers may exploit, which serves to push wages down further.
Now that's a 'poverty trap' and 'perverse incentives' in action.
Meet Helena McAleer: a humane, thoroughly decent private landord who cares about her tenants
October 18, 2018 October 18, 2018 · 5 Comments ·
Five days ago, I wrote an article about why private landlords are calling for a 'major overhaul' of universal credit. I discussed why some are refusing to let properties to 'high risk' universal credit claimants. Mortgage lenders often refuse to give mortgages to buy-to-let landlords with tenants who claim welfare support. Universal credit has created further concern because of the larger shortfall in rent allowance and rent price, and the new policy is leaving large numbers of tenants struggling with hefty arrears in part because of the long wait for the claims to be processed, too.
I also talked about Helena McAleer, a private landlord who was reduced to tears after NatWest said she had breached her mortgage terms by letting her two-bedroom property in Belfast to a tenant in receipt of support from the state. The tenant is an older woman, who suffers from mental health problems and would struggle with the moving process, Helena explained.
She was given the cruel ultimatum of making her tenant homeless or footing a £2,500 bill to leave the NatWest deal, after asking for a further advance from the lender.
She told Mortgage Solutions: "I was angry at the fact that another human being could ask me to kick out another human being.
"It was very black and white… they don't think about that person, you're just an anonymised piece of data… that's what hurt me, that's not fair."
She added: "[The tenant] is a vulnerable older lady, she has mental health issues; I'm not putting her out on the street."
The marketing innovation manager remortgaged to NatWest in January through broker Habito, providing information about her tenant's situation to the digital adviser.
But when Helena approached NatWest about taking money out of the property to buy in London in September, the lender said it had not been disclosed that the tenant was in receipt of government support.
She refused to remove the tenant and asked NatWest to reconsider.
The tenant has been in place since 2016 and is set to stay for the foreseeable future.
Helena has been in touch to tell me about her petition, which calls on the government to stop banks discriminating against welfare recipients.
She says "Some banks refuse mortgages to buy to let landlords who let to welfare recipients. My bank instructed me to "seek an alternative tenant" if I wished to keep my mortgage because my tenant was a welfare recipient.
"The government must close these loopholes, as they are a breach of basic human rights.
"A survey of 1,137 private landlords for housing charity Shelter in 2017 found that 43% had an outright ban on letting to such claimants (welfare recipients)."
This isn't only because landlords are discriminatory, many banks prohibit landlords from renting to reliable tenants just because of their circumstances. Welfare recipients are not 2nd class citizens they deserve access to safe, secure, habitable, and affordable homes as is their Human Right.
Helena goes on to say in her Facebook post: "You may not know this but I have a buy-to-let mortgage with NatWest and on the 27th September they asked me to "seek an alternative tenant" simply because my tenant is in recipient of "Social Security/Government benefits" or my other option is to find a new mortgage elsewhere and pay a £2500 penalty for moving.
"I was beyond disgusted by the statement. Actually more than that I cried my eyes out for hours, how could a bank, a person at a bank make the decision that I had to kick someone out of their home simply because of their circumstances, because fundamentally that's what they are asking me to do.
"She has been an extremely reliable tenant for over 2.5 years and I have only had the NatWest mortgage for 6 months. They initially didn't question the fact that the rent money was coming into my account from the NIHE (Northern Ireland Housing Executive), when questioned on this they said it wasn't their job to check where the money was coming from only that i was receiving it. So as far as I am concerned they failed to do their due diligence and neither I nor my tenant should suffer because of this. They stated "the mortgage should not have been agreed by our underwriters if NatWest were aware the payments were coming from DSS."
"Everyone here knows me, you know there's no way I'd ever ever make someone homeless, so I am currently in the process of moving my mortgage to a more ethical provider and leaving Natwest, I mean moving my current account savings accounts the whole shebang. And knowing me, you'll know that I won't stop there, I will always fight to the end for something I believe to be right.
"However, what I have since discovered since this began, is that this policy is symptomatic of discrimination across the entire buy-to-let banking system. "A survey of 1,137 private landlords for housing charity Shelter in 2017 found that 43% had an outright ban on letting to such claimants (benefit recipients). A further 18% preferred not to let to them." But this isn't because landlords are necessarily discriminatory, that's not the real story, this is because banks prohibit many landlords like myself from renting to reliable tenants just because of their circumstances. These people are not second class citizens they deserve the opportunity to live to the same standards as the rest of society.
"The facts are, that there are more than one million families in the UK waiting on the government to provide social housing. This could be alleviated by landlords being allowed to let to these families. According to Shelter, eight million people are only one paycheck away from being unable to pay for their home. This issue could affect us all, not just those currently receiving social benefits.
"In the last few weeks, I have spoken with several charities who have pledged their support, including Shelter who are supporting from a legal perspective, the battle isn't over yet, so watch this space. I have spoken with the Labour Minister for housings' office who is speaking directly with Natwest. The story has been published in the press and i've started this petition. I've been busy .
"So this is why I now need your help, I created this petition to get the government to put legislation in place that would prevent banks, even banks owned by the state, that's you and me, from discriminating against people on benefits fundamentally denying them their basic human right to safe, secure, habitable, and affordable homes.
"To make this a success I need the support of as many people as possible, I need you to sign and share this petition as far and wide as possible to get the government to take action We need 100,000 signatures (that's doable) to have this debated in parliament.
"Please sign the petition and share on Facebook, twitter and any other social platforms you happen to be on.
"We have a real opportunity to make a difference to so many people's lives. We are lucky to live in a world where determined individuals can make an impact on the world in ways that might not have been possible before.
"If anyone has any contacts who would like to know more information to help me spread this story further, please get in touch."
Please sign the petition and share this widely.
Thank you Helena for your hard work. And for caring.♥
Some further information
Shelter has a guide on 'convincing' a landlord to rent to you. It says local councils may keep lists of private landlords who accept tenants on housing benefit, and that some websites such as SpareRoom allow you to select a "DSS OK" filter. There is also a website called Dssmove that connects tenants with agents and landlords "that say yes to DSS".
Smartmove can also help tenants make a claim for housing benefit and Discretionary Housing Payments.
The House of Commons Library has produced a briefing on this issue.
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David Clapson
The sister of David Clapson, a 59-year-old ex-soldier who died in 2013 after he was sanctioned by the Department for Work and Pensions (DWP), issued a judicial review and human rights claim in the High Court last year, challenging the refusal by the Senior Coroner for Hertfordshire to hold an inquest into her brother's death.
Clapson, who had type 1 insulin dependent diabetes, was found dead in his home on 20 July 2013. His benefits had been stopped by Department for Work and Pensions staff who knew that he suffered from diabetes.
At the time of his death, Clapson had been unable to pay for his metered electricity as he had been rendered destitute by the sanction. His life saving insulin could not be refrigerated due to having no electricity, and he had no food available to feed himself. Clapson starved and this was aggravated by a severe drop in blood sugar. He died because he could not feed himself or refrigerate his insulin without access to lifeline State benefits. His death happened after being sanctioned for a month because he missed a single Job Centre meeting.
The coroner said that he hadn't eaten for at least three days prior to his death.
In 2014 Clapson's sister, Gill Thompson started a petition with Change.org which gained over 200,000 signatures and helped to secure a Parliamentary Select Committee Inquiry in March 2015, which came up with 26 recommendations.
However, the government rejected the Select Committee recommendation that the number of peer reviews into deaths of persons subject to a sanction be made public.
The government also rejected Thompson's calls for an Independent Review into David's death and the deaths of others in similar circumstances and refused to create an independent body to conduct more reviews into the deaths of those in receipt of 'working-age' benefits. The Government response can be found here.
The Coroner has declined to open an inquest. Further pre-action correspondence was sent, supported by reports by Diabetes UK and a leading Diabetes Consultant. Both reports confirmed that insulin-dependent diabetes is a chronic illness and that food and insulin refrigeration are of crucial importance in order to manage the condition.
Both reports expressed concern at the current Department for Work and Pensions (DWP) misleading guidance on diabetes, which states that "JSA claimants are likely to have well controlled diabetes".
The Coroner maintained his refusal to open an inquest and, without mention of the medical reports provided, concluded that Clapson's death was 'not unnatural.' The effect of the Coroner's refusal is that no official investigation will be conducted into how it was that a vulnerable diabetic, known to the DWP and dependent on State benefits to live, came to die in his home from starvation, alone and without the means to feed himself or refrigerate his insulin in 21st century Britain.
Gill Thompson said: "The thing that continues to haunt me is that the DWP knew David was an insulin dependent diabetic yet they stated: '…we followed procedures and no errors were made….'
"Diabetes is a serious condition, which in cases such as David's requires both food and insulin to stay healthy. I feel that the sanction resulting in my brother being left destitute and having no money to chill his insulin or to buy food, ultimately, led to his untimely death.
"Going to Court is an option of last resort but I feel compelled to use every effort to ensure that the impact of the DWP imposed benefit sanction on David's death is properly and independently investigated. I believe the DWP continue to impose sanctions on diabetic benefit claimants and not only for my brother's sake, but also for others at risk, I hope the High Court grants me permission to challenge the Coroner's decision.
"All I want is for no one else to die like that, we are meant to be a civilised country."
The government have been presented with many cases of extreme hardship, suffering and deaths because of sanctions, but they simply deny there is any "causal link" between the negative impacts, distress and deaths and their policies, despite the ever-growing and distressing evidence to the contrary. There is no evidence that there isn't a "causal link" either. To establish such a link requires an inquiry and further investigation of an established correlation between the government's policies and adverse impacts. If the government are so confident that their claim is right, then surely an inquiry would provide a welcomed verification of this. However, the government continues to refuse to do so.
Sanctions led to health deterioration, diabetic ulcers and leg amputation
David Boyce has diabetes. He was sanctioned for five months by the DWP, which meant he had no money whatsoever to meet his basic needs. As a result, he had to sell his belongings, but couldn't afford to eat properly and subsequently in 2016, he had to have his leg amputated, as his medical condition spiralled out of control. A healthy diet is essential as part of the management and treatment for diabetes.
David Boyce
Boyce said that by July, 2016 complications from diabetes had already caused irreversible damage. His health deteriorated because he had no money to live on: he couldn't control his insulin intake and was unable to follow his strict diabetic diet.
Subsequently he suffered diabetic ulcers and was diagnosed with the flesh-eating infection, necrotizing fasciitis, and doctors were forced to amputate one of his legs.
Boyce was a photographer who used to own a business, but was forced to give up his work because of ill-health. There was a dispute with the DWP about his jobseeker's agreement and he was sanctioned numerous times. David said that his benefits were frozen fourteen times because of "issues with paperwork."
However, it's clear that the sanctions happened because of a flawed decision-making process on the part of the DWP and he won an appeal which successfully overturned every sanction, with support from Salford's Unemployed and Community Resource Centre. He was eventually awarded the money that had been wrongfully withheld from him
The government have claimed that benefit sanctions are an "incentive" to "help" people like David Boyce into work. However, David has been pushed even further away from the job market, because he's now been left with a greater degree of disability: horrifically, the sanctions have cost him his leg.
Government denial of the impact of their punitive policies is costing people their lives
Amy Driver with her partner Clifford Watson
Amy Driver had type one diabetes and claimed Employment and Support Allowance. She was given a four-week sanction after she missed one appointment at the Job Centre due to a hospital appointment, according to her partner, Clifford Watson. Amy died because of complications of her condition caused by having no income to meet her basic needs.
He said that the halt in their income meant Amy couldn't afford to eat properly – which triggered hypoglycemica (a low blood sugar attack.) When the couple expressed their concerns and complained, Job Centre staff told Amy to go to a food bank.
Clifford says Amy's support was stopped multiple times over the last two years and in May 2017 she was sanctioned again despite showing documentation of the medical appointment she attended. He said: "We showed the evidence that she had a 94 per cent attendance rate and she was told she would get her money the next day but that didn't happen.
"Next thing we're told is that she had a four-week sanction and no one could explain why."
He added that money was tight surviving on his ESA alone and the sanction threw Amy into a depressive episode.
Not having enough food to provide glucose for the body can cause dangerously low blood sugar levels (hypoglycemia) which can lead a state of ketoacidosis and if left untreated, to diabetic coma and death. Hypoglycemia is a serious condition and should be treated as a medical emergency. It requires prompt treatment, without which it may be fatal.
Amy was initially classed as being unwell enough to be placed in the Employment and Support Allowance (ESA) 'support group'. People placed in this group after their assessment are considered too ill to work, paid indefinitely and don't generally have to take part in work-related activities. However, Clifford says that in 2016 their local job centre lost her paperwork.
"After her claim was messed up she was then having to attend classes aimed at getting her into work. She would go to the Job Centre and vomit. We kept trying to tell them that she really wasn't well but no one would listen."
Clifford said that having diabetes had caused Amy's eyesight and hearing to deteriorate and she had been discovered by himself and family members lying on the floor unconscious many times. "She would sleep and sleep – I had to make sure I was with her every four hours to make sure she had her insulin injections. She would just sleep through her alarms," he said.
"Amy needed to follow a low sugar diet, and these foods for a specific diet aren't cheap. I went without food to try to help her.
"It got her really down and she wouldn't get out of bed or even watch TV. She hardly left the bedroom.
"One day I encouraged her to go visit her dad and she went to see him. When he saw her he told her she looked pale and suggested she have a lie down. Then he took a shower and after that found her body cold.
"I was at home making her a roast dinner when her brother called me to say she'd passed away."
Clifford, who had been Amy's partner for eight years, said: "Amy's diabetes made her extremely unwell. We had no food in the house at the time. She was told to go to a food bank – we called one and they said they didn't have suitable food for diabetics.
"She was literally killed by the Government."
Amy was 27 years old.
Clifford said that last month he was evicted from the flat that the couple had shared in Hoxton, east London, by Hackney Council.
"The council have taken my home away from me as it was in Amy's name. I fought them to get a tenancy for the last 14 months but they kicked me out on the streets. I slept on park benches.
"I'm staying with my parents now but there is no room for me there as they're in a one-bedroom house. It's a struggle finding landlords who will accept housing benefit and the council aren't helping me."
The Department for Work and Pensions and Hackney Council have been approached for comment, but have not yet responded.
More than a million benefits sanctions have been imposed on disabled people since 2010 – and last month the government quietly released a report of their own study that found there is "no evidence" that benefit sanctions work in the way that ministers have claimed.
The DWP published the findings in the paper Universal Credit: in-work progression randomised controlled trial on the government's website on 12 September, as MPs prepared for party conference season. There was no ministerial announcement about the results of the study.
The research, which was carried out over three years, found "no evidence" that sanctions for failing to apply for additional work, or undertake additional training "helped motivate participants to progress in work." Rather than having the 'beneficial effects' the Conservatives insist they have, sanctions "damaged the relationship between the work coach and the claimant," the report said.
In a statement that can at best be described as utterly deplorable gaslighting, a spokesperson for the DWP said: "The 'in work progression trials' helped encourage claimants to increase their hours, seek out progression opportunities and take part in job-related training."
"The trials delivered positive results for many of the lowest paid people who claim Universal Credit and we are now considering the findings."
The Conservatives have a track record of denying empirical findings that don't match their ideological expectations. They simply deny and dismiss any criticism of their prejudiced and discriminatory policies. Damian Green, the Work and Pensions Secretary at the time of the UN inquiry report, famously claimed that cuts to support for disabled people did "not necessarily mean worse outcomes."
The government uses techniques of neutralisation:
Techniques of neutralisation are strategies used to switch off the conscience when someone plans or has done something to cause harm to others. They can also be used to switch off the conscience of others by perpetrators.
The idea of techniques of neutralisation was first proposed by David Matza and Gresham Sykes during their work on Edwin Sutherland's Differential Association in the 1950s. Matza and Sykes were working on juvenile delinquency, they theorised that the same techniques could be found throughout society and published their ideas in Delinquency and Drift, 1964.
They identified the following psychological techniques by which, they believed, delinquents justified their illegitimate actions, and Alexander Alverez further identified these methods used at a socio-political level in Nazi Germany to "justify" the Holocaust:
1. Denial of responsibility. The perpetrator(s) will propose that they were victims of circumstance or were forced into situations beyond their control.
2. Denial of harm and injury. The perpetrator insists that their actions did not cause any harm or damage.
3. Denial of the victim. The perpetrator believes that the victim deserved whatever action the offender committed. Or they may claim that there isn't a victim.
4. Condemnation of the condemners. The perpetrator maintain that those who condemn their offence are doing so purely out of spite, 'scaremongering' or they are shifting the blame from themselves unfairly.
5. Appeal to higher loyalties. The perpetrator suggests that his or her offence was for the 'greater good', with long term consequences that would justify their actions, such as protection of a social group/nation, or benefits to the economy/ social group/nation.
6. Disengagement and Denial of Humanity is a category that Alverez
added to the techniques formulated by Sykes and Matza because of its special relevance to the Holocaust.
Nazi propaganda portrayed disabled people, Jews, and other non-Aryans as subhuman. A process of social division, scapegoating and dehumanisation was explicitly orchestrated by the government. This also very clearly parallels Gordon Allport's work on explaining how prejudice arises, how it escalates, often advancing by almost inscrutable degrees, pushing at normative and moral boundaries until the unthinkable becomes tenable. This stage on the scale of social prejudice may ultimately result in murder and/or genocide.
Any one of these six techniques may serve to encourage violence by neutralising the norms against prejudice, aggression and violence to the extent that when they are all implemented together, as they apparently were under the Nazi regime, a society can seemingly forget its normative rules, moral values and laws in order to engage in wholesale prejudice, discrimination, exclusion of citizens, hatred and ultimately, in murder.
Ministers have accused citizens and the opposition of 'scaremongering', the Conservatives are denying responsibility for the consequences of their policies, denying harm, denying distress; denying the victims and condemning the condemners.
Meanwhile, for many, the government's approach to social security has become punitive, random, controlling, dangerous and an unremitting, Orwellian trial.
Sanctions are callous, dysfunctional and regressive, founded entirely on traditional Conservative prejudices about poor people and ideological assumptions. It is absolutely unacceptable that a government treats some people, including some of the UK's most vulnerable citizens, in such horrifically cruel and dispensible way, in what was once a civilised first-world liberal democracy.
Welfare sanctions can't possibly "incentivise" people to work. Here's why
Disabled people are sanctioned more than other people, according to research
Nudging conformity and benefit sanctions: a state experiment in behaviour modification
Research shows that Tory 'hostile environment' of welfare sanctions doesn't help people to find work
Two key studies show that punitive benefit sanctions don't 'incentivise' people to work, as claimed by the government
The Nudge Unit's u-turn on benefit sanctions indicates the need for even more lucrative nudge interventions, say nudge theorists
I don't make any money from my work. But you can make a donation if you like, to help me continue to research and write free, informative, insightful and independent articles, and to provide support to others. The smallest amount is much appreciated – thank you.
Yesterday I wrote an article about the government's shameful lack of progress on disability rights in the UK. I discussed the details of a new report and the recommendations made by the UK Independent Mechanism update report to the UN Committee on the Rights of Persons with Disabilities.
This is a summary of some key concerns that I only touched on in my original write up, and it also focuses on one of the important themes that emerged in the report: the potential impact of Brexit on disabled people's rights.
The new report and submission to the UNCRPD – UK Independent Mechanism update report to the UN Committee on the Rights of Persons with Disabilities (published October 2018) – provides an independent assessment of the UK Independent Mechanism (UKIM) on the "disappointing" lack of progress by the UK governments to implement the UN's recommendations since August 2017.
A year on, there is still no comprehensive UK-wide strategy demonstrating how the UK will implement the CRPD Committee's recommendations. There has also been "continued reluctance" from the UK Government to accept the conclusions of the CRPD Committee's inquiry report on the impact of the UK Government's policies on the rights of disabled people.
Disabled people across the UK continue to face serious regression of their rights to an adequate standard of living and social protection, to live independently and to be included in the community. UKIM has reiterated that the grave and systematic violations identified by the CRPD Committee need to be addressed as a matter of urgency and that the overall approach of the UK Government towards social security protection requires a complete overhaul, so that it is informed by human rights frameworks, standards and principles, to ensure disabled people's rights are respected, protected and fulfilled.
Despite the empirical evidence presented from a variety of researchers and the UN investigation concerning the significantly adverse effect of welfare reform on disabled people's rights to independent living and to an adequate standard of living and social security, the UK Government has failed to act on this evidence and to implement the CRPD Committee's recommendations regarding these rights.
The authors of the report remain seriously concerned about the continued failure of the UK Government to conduct an assessment of the cumulative impact on disabled people of multiple policy, cuts and law reforms in relation to living standards and social security.
In the section about prejudice and negative attitudes, the report also cites a shameful example of rhetoric from the government that has potentially reinforced negative attitudes and the stigma surrounding mental health and disability: "This includes the Chancellor of the Exchequer, Philip Hammond, stating before a Committee of the UK Parliament: 'It is almost certainly the case that by increasing participation in the workforce, including far higher levels of participation by marginal groups and very high levels of engagement in the workforce, for example of disabled people – something we should be extremely proud of – may have had an impact on overall productivity measurements.'
Many people understood this statement as indicating that the increase in disabled people in employment is partly responsible for the UK's decreasing productivity."
The report also says that employment rates for disabled people have actually risen only very marginally.
Conservative prejudice is embedded in social security policy and administration
The UKIM report says that government has not taken appropriate measures to combat negative and discriminatory stereotypes or prejudice against persons with disabilities in public and the media, including the government's own claims that 'dependency' on benefits is in itself a disincentive of employment. This is important because it shows just how embedded Conservative prejudice is in policies and within our social security administration.
The idea that welfare somehow creates the problems it was designed to alleviate, such as poverty and inequality, has become almost 'common sense' and because of that, it's a narrative that remains largely unchallenged. Yet international research has shown that generous welfare provision leads to more, better quality and sustainable employment.
Moreover, this ideological position has been used politically as a justification to reduce social security provision so that it is no longer an adequate amount to meet citizens' basic living needs. The aim is to discredit the welfare system itself, along with those needing its support. The government have long wished to replace the publicly funded social security provision ultimately with mandatory private insurance schemes.
The idea that welfare creates 'dependency' and 'disincentivises' work has been used as a justification for the introduction of cuts and an extremely punitive regime entailing 'conditionality' and sanctions. The governenment have selectively used punitive behavioural modification elements of behavioural economics theory and its discredited behaviourist language of 'incentives' to steadily withdraw publicly funded social security provision.
However, most of the public have already contributed to social security, those needing support tend to move in and out of work. Very few people remain out of work on a permanent basis. The Conservatives have created a corrosive and divisive myth that there are two discrete groups in society: tax payers and 'scroungers' – a class of economic free riders. This of course is not true, since people claiming welfare support also pay taxes, such as VAT and council tax, and most have already worked and will work again, given the opportunity to do so. For those who are too ill to work, as a so-called civilise society, we should not hesitate to support them.
In the recommendations, the authors say the government should implement broad mass media campaigns, in consultation with organisations representing persons with disabilities, particularly those affected by the welfare reform, to promote them as full rights holders, in accordance with the Convention; and adopt measures to address complaints of harassment and hate crime by persons with disabilities, promptly investigate those allegations, hold the perpetrators accountable and provide fair and appropriate compensation to victims.
As a society we take tend to take human rights for granted. We seldom think about rights because much of the time, there is no need to. It's not until we directly experience discrimination and oppression that we recognise the value of having a universal human rights framework. Our rights define the relationship between citizen and state, and ensure that there is no abuse of power. However, we no longer have equal access to justice and redress for human rights breaches and discrimination.
The high demand for advice on disability benefits since the government's welfare reform means that the almost complete removal of welfare benefits from the scope of legal aid has had a disproportionate impact on disabled people or those with a long-term health condition.
People entitled to disability benefits relied on legal aid to support appeals of incorrect decisions and to provide a valuable check on decision-making concerning eligibility for welfare support. The revisions to the financial eligibility criteria for legal aid have had a disproportionate impact on various groups including disabled people, women, children and migrants. This is because of the restrictions that the government placed on legal aid accessibility with the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
There has been a 99% decrease in support provided by the Legal Aid Agency for clients with disability-related welfare benefits issues, compared with pre-LASPO levels, and the total number of such claims has plummeted from 29,801 in 2011/12 to 308 in 2016/17.
The government has failed to ensure access to justice, removing appropriate legal advice and support, including through reasonable and procedural accommodation for disabled people seeking redress and reparation for the violation of their rights, as covered in the report.
It's difficult to imagine that this wasn't a coordinated effort on the part of the government to restrict citizen freedoms, support and access to justice for precisely those who need justice and remedies the most.
Human rights don't often seem as though they matter, until they do. But by then, it may be too late.
Concerns about the impact of Brexit on the human rights of disabled people
In 2016, I wrote an article about concerns raised regarding the rights of disabled people following Brexit. Earlier this year, I wrote another article about my concerns that the European fundamental rights charter was excluded in the European Union (EU) withdrawal Bill, including protection from eugenic policy.
The result of the EU referendum on the UK's membership of the European Union, and forthcoming withdrawal, carries some obvious and very worrying implications for the protection of citizens rights and freedoms in the UK. Historically the UK Conservative government has strongly opposed much of Europe's social rights agenda.
So it was very concerning that the House of Commons voted down a Labour amendment to ensure that our basic human rights are protected after Brexit, as set out in the European Union Charter.
The EU Withdrawal Bill threatened to significantly reduce existing human rights protections. It excluded both the EU Charter of Fundamental Rights (in its entirety) and the right of action for violations of EU General Principles from domestic law after the UK's withdrawal. It also handed sweeping powers to ministers to alter legislation without appropriate parliamentary scrutiny, placing current rights and equality laws at risk.
Worryingly, Suella Fernandes, who was promoted to the Brexit department earlier this year warned in November last year that transposing the 'flabby' charter into British law would give UK citizens additional protections on issues such as "biomedicine, eugenics, personal data and collective bargaining."
However, the very fact that anyone at all in government objects to retaining these fundamental rights and protections indicates that we do very clearly need them.
It should be inconceivable that a democratic legislature would vote to take away citizens rights. The regressive step means the loss of the Charter goes rights that simply don't exist in the Human Rights Act or in our common law. Gone is the enforceable right to human dignity. Gone are our rights to data protection, comprehensive protection for the rights of the child, a free-standing right to non-discrimination, protection of a child's best interests and the right to human dignity, refugee rights, the right to conscientious objection, academic freedom and wide-ranging fair trial rights to name but a few. Then there are the losses of economic and social rights. Gone too, are the right to a private life, freedom of speech, equality provisions and employment rights governing how workers are treated. These are all laws that protect us all from abuses of power.
A group of more than 20 organisations and human rights legal experts, including the Equality and Human Rights Commission, signed an open letter on the importance of the Charter of Fundamental Rights ahead of the EU (Withdrawal) Bill returning to Parliament on 16 January this year. The letter was published in the Observer.
Trevor Tayleur, an associate professor at the University of Law, explained that the charter, although narrower in focus than the Human Rights Act, offers a far more robust defence of fundamental rights.
"At present, the main means of protecting human rights in the UK is the Human Rights Act 1998 (HRA) ," he said. "This incorporates the bulk of the rights and freedoms enshrined in the European convention on human rights into UK law and thereby enables individuals to enforce their convention rights in the UK courts. However, there is a significant limitation to the protection afforded by the HRA because it does not override acts of parliament.
"In contrast, the protection afforded by the EU charter of fundamental rights is much stronger because where there is a conflict between basic rights contained in the charter and an act of the Westminster parliament, the charter will prevail over the act."
Under the HRA, only an individual who is a "victim" of a rights violation can bring a claim, whereas anyone with "sufficient interest" can apply for judicial review based on the Charter (see this briefing at p 11)
In their report, UKIM say: "There are fears that the significant uncertainty in relation to Brexit will lead to a further deterioration of disabled people's rights.
"The lack of a devolved government in Northern Ireland is also a specific concern to that jurisdiction, because it is significantly inhibiting the relevant departments from taking the required steps. Without a clear and coordinated plan for how the UK and devolved governments will address the UN recommendations systematically, the limited steps taken so far are unlikely to be enough to address the concerns raised by the CRPD Committee."
The report goes on to say: "Following the European Union (EU) referendum in June 2016, there continues to be significant uncertainty regarding the future applicability of existing human rights protections in the UK that derive from EU law. The EU Charter of Fundamental Rights was excluded from the European Union (Withdrawal) Act 2018, meaning that from 'exit day' it will no longer apply in domestic law.
"As a result, domestic protections are more vulnerable to repeal. The Charter goes further than the non-discrimination provisions in the Equality Act 2010 or the European Convention on Human Rights (ECHR). Article 26 of the Charter, in particular, is a useful interpretive tool to support disabled people's right to independence and integration and participation in the community.
The European Union (Withdrawal) Act 2018 also leaves human rights protections at risk of being changed through the use of wide-ranging delegated powers. This means that changes to fundamental rights currently protected by EU law can be made by ministers through secondary legislation [statutory instruments, usually reserved for 'non-controversial policy amendments] without being subject to full parliamentary scrutiny.
The Conservatives have used secondary legslation to try and quietly push through several very controversial policies over recent years, such as £4bn-worth of cuts to family tax credits, and the removal of maintenance grants from around half a million of the poorest students in England. The changes mainly hit disabled, ethnic minority and older students.
The government have introduced swathes of significant new laws covering everything from fracking to fox hunting and benefit cuts without debate and scrutiny on the floor of the House of Commons. Many of these policies were not included in the Conservatives' election manifesto and were nodded through by obscure Commons committees without the substance of the change being debated.
After the House of Lords successfully challenged the tax credit instrument, the Government then proposed limiting peers rights to reject statutory instruments. This would mean if one was rejected by the Lords, the ministers would simply have to retable it and it would pass automatically. All of this should be seen alongside other Conservative proposals – including limits on freedom of information, changes to constituency boundaries and electoral registration, attempts to choke the opposition of funding within the Trade Union Bill, and the Lobbying Act.
In light of this repressive pattern of behaviour, you could be forgiven for thinking that we've entered the realms of constitutional gerrymandering, with an authoritarian executive waging war on the institutions that hold them to account. With its fear of opposition and loathing of challenge, the government wants to stifle debate, shut down opposition and block proper scruting and democratic accountability.
It is within this authoritarian political context that many of us have raised concerns about the impact of Brexit on the human rights of disabled citizens.
I'm always concerned that language use sometimes reinforces prejudices against disabled people by focusing on us as a group as 'vulnerable' and as 'those in need', as opposed to citizens and rights holders. However, grave and systematic violations of disabled peoples' human right inevitably increases our vulnerability to further political abuse.
The Yogyakarta Principles, one of the international human rights instruments use the term "vulnerability" as such potential to abuse and/or social and economic exclusion. Social vulnerability is created through the interaction of social forces and multiple "stressors", and resolved through social (as opposed to individual) means.
Social vulnerability is the product of social inequalities. It arises through social, cultural, political and economic processes.
While some individuals within a socially vulnerable context may break free from the hierarchical order, social vulnerability itself persists because of structural – social, cultural economical and political – influences that continue to reinforce vulnerability. Some campaigners are very critical of the use of the word 'vulnerability', because they feel it leads to attitudes and perceptions of disabled people as passive victims.
Since 2010, no social group has organised, campaigned and protested more than disabled people. Many of us have lived through harrowing times under this government and the last, when our very existence has become so precarious because of targeted and cruel Conservative policies and disproportionate cuts to our lifeline support. Yet we have remained strong.in our resolve. Despite this, some of our dear friends and comrades have been tragically lost – they have not survived, yet many of them were very strong in their resolve to challenge discrimination and oppression.
In one of the wealthiest democratic nations on earth, no group of people should have to fight for their survival. Vulnerability is rather more about the potential for some social groups being subjected to political abuse than it is about individual qualities. Disabled people currently are and have been. This is empirically verified by the report and conclusions drawn from the United Nations inquiry into the grave and systematic violations of disabled people's human rights here in the UK, by a so-called democratic government.
The government's 'paternalism' is authoritarian gaslighting
Over recent years, Conservative policies have become increasingly 'paternalist', also reflecting the authoritarian turn, in that they are designed to act upon us, to 'change' our behaviours through the use of negative reinforcement ('incentives'), while we are completely excluded from policy design and aims. Our behaviours are being aligned with neoliberal outcomes, conflating our needs and interests with the private financial profit of the powerful.
As one of the instigators of the United Nations investigation, to which I regularly submitted evidence regarding the government's systematic violations of the human rights of disabled people, and as a person with disability, I don't care for being described by Damian Green as "patronising" or being told that disabled people – the witnesses of the investigation – presented an "outdated view" of disability in the UK. This is a government minister attempting to discredit and re-write our accounts and experiences while ignoring the empirical evidence we have presented. Such actions are profoundly oppressive.
The only opportunity disabled people have been presented with to effectively express our fears, experiences and concerns about increasingly punitive and discriminatory policies, to voice a democratic opinion more generally and to be heard, has been in dialogue with an international human rights organisation, and still this government refuse to hear what we have to say. Nor are we consulted with, democratically included or invited to participate in the executive's decision-making that directly affects us. As UKIM note:
"There is a continued lack of action from the UK and devolved governments on the CRPD Committee's recommendations. This includes setting up systems that will ensure that disabled people and their organisations are involved in the design, implementation, and monitoring and evaluation of legislation, policy or programmes that affect their lives. It remains unclear how the new Inter-Ministerial Group on Disability and Society will work with disabled people and their organisations, and UKIM, to promote and monitor implementation of UN CRPD.
"It is particularly concerning that the UN CRPD's requirement to effectively involve disabled people and their organisations is not specifically reflected in the inter-ministerial group's terms of reference. Nor do the terms of reference refer to the CRPD or the CRPD Committee's recommendations."
Oppression always involves the objectification of those being dominated; all forms of oppression imply the devaluation of the subjectivity and experiences of the oppressed.
This is very evident in the government's approach to designing policies that act upon us. The government has consistently failed to actively consult, engage with and include disabled people, our representative organisations and give due consideration to our views in the design, implementation, monitoring and evaluation of any legislation, policy or programme action related to our rights. Furthermore, the current Minister of State for Disabled People, Health and Work, Sarah Newton, has refused to meet with disabled people and allied organisations. (See also I'm a disabled person and Sarah Newton is an outrageous, gaslighting liar.)
Last year, Theresia Degener, who leads the UN's Committee on the Rights of Persons with Disabilities (CRPD), said the UK Government has "totally neglected" disabled people, during a two day meeting with UK government officials in Geneva.
Degener told them: "Evidence before us now and in our inquiry procedure as published in our 2016 report reveals that social cut policies have led to a human catastrophe in your country, totally neglecting the vulnerable situation people with disabilities find themselves in."
The Government's welfare cuts have resulted in "grave and systematic violations" of the rights of disabled people – a claim opposed by ministers but supported by UK courts.
For example, Judges have ruled that three of the government's flagship welfare policies are illegal because of the impact they have on disabled people and single parents. In January 2016, the Court of Appeal declared the so-called 'bedroom tax' unlawful because of its consequences for disabled children, as well as victims of domestic violence.
Sanctions imposed on people who refused to or could not take part in the Department for Work and Pension's 'back to work' schemes were also thrown out by Court of Appeal judges in April 2016. In June 2017 the High Court said the government's benefit cap is unlawful and causes "real misery for no good purpose". This year, a High Court ruling found that the Personal Independence Payments (PIP) policy had discriminated against people with mental health conditions.
Between 2011 and 2017 the Department of Work and Pensions (DWP) underpaid more than £450,000,000 in means-tested benefits, due to its mishandling of the process by which claimants were moved from incapacity benefit to employment and support allowance.
When announcing its plans to remedy those underpayments on 14th December 2017, the DWP claimed the law 'barred' it from paying claimants any underpayments arising before 21st October 2014. That would have had two serious effects: first, up to £150,000,000 of the underpaid benefit would have been kept by the Government instead of passed to citizens who were deprived of it through no fault of their own; and second, any arrears which were paid to disabled people could after 52 weeks have been treated as 'capital', and reduced or stopped their ongoing entitlement to benefit.
In March 2018 the Child Poverty Action Group, acting for one affected claimant, brought judicial review proceedings in R (Smith) v Secretary of State for Work and Pensions JR/1249/2018 arguing that the DWP's position was unlawful. The DWP accepted that it 'got the law wrong'. The DWP said it will now start making those payments. It was necessary to take legal action against the Government because it said it had no legal power to fully remedy the consequences of a major error it had made in transferring claimants from incapacity benefit to employment and support allowance.
Ministers have also accused by the UN of misleading the public about the impact of Government policies by refusing to answer questions and using statistics in an "unclear way."
The CRPD Committee has requested that the State party (the government) disseminate the concluding observations of their inquiry widely, including to non-governmental organisations and organisations of persons with disabilities, and to disabled people themselves and members of their families, in national and minority languages, including sign language, and in accessible formats, including Easy Read, and to make them available on the government website on human rights.
That hasn't happened and is unlikely to do so in the future. So please do share this article, The government's shameful lack of progress on disability rights in the UK – new report update and submission to the UNCRPD Committee, and the UKIM update and shadow report widely.
I don't make any money from my work. I'm disabled through illness and on a very low income. But you can make a donation to help me continue to research and write free, informative, insightful and independent articles, and to provide support to others. I co-run a group online that helps people with ESA and PIP claim, assessment, mandatory review and appeal, increasingly providing one to one emotional support, too.
The smallest amount is much appreciated – thank you.
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In 2014, a Supreme Court judgment significantly widened the definition of deprivation of liberty, meaning more people were subsequently considered to have their liberty deprived. There was a ten-fold increase in the number of deprivation of liberty applications following the judgment. Services struggled to cope, deadlines were "routinely breached" and the Law Commission decided that the system should be replaced.
Law Commissioner Nicolas Paines QC said the Deprivation of Liberty Safeguards were designed at a time when fewer people were considered deprived of their liberty and now it was "failing" people it was set up to protect.
"It's not right that people with dementia and learning disabilities are being denied their freedoms unlawfully," he said.
"There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need."
Over the last eighteen months, the Law Commission – a statutory independent body created by the Law Commissions Act 1965 to keep the law of England and Wales under review and to recommend reform where it is needed – has been reviewing the framework that is called Deprivation of Liberty Safeguards (DoLs) which is put in place when a person who lacks capacity is placed in a care home.
Deprivation of Liberty, which is defined in part of the Mental Capacity Act 2005, is there to ensure that there are checks and balances for the person placed in care, that decisions are made in their best interest and that an independent advocate can be appointed to speak on their behalf in these decision making processes.
The Commission made recommendations to change the law, following public consultation. The recommendations included:
Enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need.
Greater prominence given to issues of the person's human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised.
Extending protections to all care settings, such as supported living and domestic settings, therefore removing the need for costly and impractical applications to the Court of Protection.
Widening the scope to cover 16 and 17 year olds and planned moves between settings.
Cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions.
Extending who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS healthcare setting.
A simplified version of the best interests assessment, which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.
However, the Law Commission recognised that many people who need to be deprived of their liberty at home benefit from the loving support that close family can provide. These reforms, which aimed to widen protections to include care or treatment in the home, were designed to ensure that safeguards can be provided in a simple and unobtrusive manner, which minimises distress for family carers.
Importantly, the Commission also recommended a wider set of reforms which would improve decision making across the Mental Capacity Act. This is not just in relation to people deprived of liberty. All decision makers would be required to place greater weight on the person's wishes and feelings when making decisions under the Act.
Professionals would also be expected to confirm in writing that they have complied with the requirements of the Mental Capacity Act when making important decisions – such as moving a person into a care home or providing (or withholding) serious medical treatment.
The government responded and put forward proposals for changing the Mental Capacity Act. However, though this new legislation has been worded carefully, its effect will be to risk the removal of key human rights; it also ignores the entire concept of best interests and has put decision making power over people's liberty and rights in the hands of organisations and their managers with a commercial interest in decisions and outcomes.
Any statutory scheme which permits the state to deprive someone of their liberty for the purpose of providing care and treatment must be comprehensible, with robust safeguards to ensure that human rights are observed.
In July 2018, the government published the Mental Capacity (Amendment) Bill, which if passed into law, will reform the Deprivation of Liberty Safeguards (DoLS), and replace them with a scheme known as the Liberty Protection Safeguards (although the term is not used in the Bill itself).
The Bill draws on the Law Commission's proposals for reforming DoLS, but generally does not address some of the wider Mental Capacity Act reforms that the Law Commission suggested. Proposed reforms around supported decision making and best interests are not included, for example, and these omissions are very controversial.
In a statement accompanying the proposals the government claims that £200m per year will be saved by local authorities under the new scheme, though the increased role of the NHS and independent sector providers will lead to increased costs elsewhere.
The new responsibilities being imposed on care homes, Clinical Commissioning Groups (CCGs) and hospitals will need some thought, resources and training.
Members of the House of Lords have already warned that the Bill to reform the law on deprivation of liberty does not adequately secure the rights of people subject to restrictive care arrangements. In Parliament's first debate on the Mental Capacity (Amendment) Bill on 16 May this year, peers questioned several elements of the legislation.
The Liberty Protection Safeguards are designed to provide a much less bureaucratic system than DoLS for authorising health and social care arrangements that involve a deprivation of liberty to which a person cannot consent.
The proposed Bill has been widely criticised because it contains insufficient safeguards and is not fit for purpose in its current form. It requires serious reconsideration and extensive revision.
The vast majority of both home care and residential care in England is now provided by private companies. Both the quality of care in adult social care and the terms and conditions of the workforce have declined over the past two decades as a result of privatisation.
The Department of Health's review of Adult Social Care in 2015/16 discussed the introduction of red tape reduction options in non-statutory areas of DoLS applications, in the private sector, and concluded that these had been 'exhausted'.
The review report (page 30) says: "As such, the Department has funded the Law Commission (as the experts in law reform) to perform a fundamental review of DoLS "with a view to minimising pressures on care providers."
That must not come at the expense of safeguarding adults from exploitation for private profit.
In October 2017, the Prime Minister also commissioned a review of the Mental Health Act 1983, seeking to address concerns about how the legislation is currently being used.
The government called for an Act in step with a 'modern mental health system', giving special attention to rising rates of detention and the disproportionate number of people from black and minority ethnic backgrounds being detained under the Act. Terms of reference for the review are available to view online. The review was tasked to appraise existing practice and evidence, formulating recommendations to improve legislation and/or practice in the future.
The chair of the review is Simon Wessely. He said "The Mental Health Act goes to the core of the relationship between the individual and the state.
"It poses the question: 'When is it legitimate to deprive someone of their liberty, even when they have done nothing wrong?' It sets rules that require professionals to judge if a mentally ill person poses a risk to themselves or others, and hence needs to be detained in order to safely receive treatment. It tries to strike a fair bargain with the detained person, giving them safeguards like second opinions and tribunals to ensure due process.
"Reviewing the Act isn't just about changing the legislation. In some ways that might be the easy part. The bigger challenge is changing the way we deliver care so that people do not need to be detained in the first place. In my experience it is unusual for a detention to be unnecessary – by the time we get to that stage people are often very unwell, and there seems few other alternatives available.
"But that does not mean this was not preventable or avoidable. The solutions might lie with changes to the legislation, but could also come from changes in the way we organise and deliver services. It would also be naïve to deny that much wider factors, such as discrimination, poverty and prejudice, could be playing a role."
Wessely said his final report will make recommendations that require 'significant' new investment in the sector. However the government is looking to save money.
Wessely has played a notorious key role in the demedicalisation of myalgicencephalomyelitis / chronic fatigue syndrome (ME/CFS) research. Serving as an advisor to the hugely controversial PACE trial, Wessely has defended the study of these illnesses, and the proposed treatment regime of CBT and graded exercise, stating "this trial was a landmark in behavioral complex intervention studies." Wessley's purely psychological approach to these physiological illnesses has been widely criticised, he has been accused of "unsupported conclusions derived from faulty analyses."
In 1988 the public water supply in Camelford in England was accidentally contaminated with aluminium sulfate. Wessely published a paper in 1995 playing down the effects of the pollution and suggesting 'significant psychological factors' were involved. The government formally and unreservedly apologised in 2013, 25 years later, to those whose health was affected by the water supply contamination.
Things Wessley has said about ME/CFS include "The worst thing to do is tell them to rest", "exercise is good for these patients" and "[Welfare] Benefits can often make patients worse". See Notes on the involvement of Wessely et al with the Insurance
Industry and how they deal with ME/CFS claims .
I'm not confident that either the stated aims or in the outcome of this 'independent' review. The government have already amended the Mental Capacity Act, removing Practice Direction 9, which provided safeguards for people with degenerative illnesses and brain injury in the event of the proposed withdrawal of nutrition and hydration by doctors (See British Medical Association proposals deemed passive 'euthanasia by stealth' for disabled people with degenerative illnesses).
See also: Independent review of the Mental Health Act: interim report.
The Law Society's condemnation of the government's Mental Capacity (Amendment) Bill 2018
The Briefing also sets out six recommendations for change, reflecting what the authors feel should be the principles underpinning the new framework and why they are concerned that the Bill does not meet those principles, as it includes:
an already overly complex scheme being further complicated by a replacement scheme which instead of placing the cared-for person at the centre of the process, significantly dilutes and even removes the existing protections for them
the risk of increased burdens on local authorities who will bear ultimate responsibility for mistakes and poor implementation rather than building on the learning from the problems with DoLS and retaining those elements that have been effective whilst removing those which are unnecessary and bureaucratic
the cared-for person will not be at the centre of the process but side-lined with decisions being made without proper or even basic protections
the removal of the invaluable role of Best Interests Assessors and Relevant Person's Representatives would leave vulnerable people without protection from unnecessary detention.
You can read the Law Society's full Briefing here: Parliamentary briefing: Mental Capacity (Amendment) Bill – House of Lords committee stage (PDF 196kb).
Junior health and social care minister Lord O'Shaughnessy opened the debate at the Bill's second reading in the House of Lords by saying the Liberty Protection Safeguards (LPS) would be less burdensome than DoLS on people, carers and local authorities, saving the latter an estimated £160m a year.
He said it would do this by making consideration of restrictions on people's liberties a part of their overall care planning and eliminating repeat assessments and authorizations. However, peers from across the House of Lords agreed that several aspects of the bill risked weakening safeguards for people deprived of their liberty.
Labour peer Lord Touhig, vice-president of the National Autistic Society (NAS), voiced concerns about the rights of autistic people under the bill's proposals, insisting that many of the problems with the existing system had not been addressed.
He cited, as particularly problematic, the removal of the best interests assessment currently provided under DoLS, which ensures that arrangements to deprive a person of their liberty are in the individual's best interests, necessary to protect them from harm and proportionate to the likelihood and seriousness of that harm.
Under the LPS, the equivalent requirement would be to establish that the arrangements are 'necessary and proportionate', one of three criteria that must be met for a LPS authorisation, the others being that the person lacks capacity to consent and is of 'unsound mind'.
Touhig said: "The new criteria risk losing sight of what is best for the individual and what the individual wants.
"Let us be wary of enacting legislation that pays scant regard to the individual, in particular an individual who is perhaps the most vulnerable in society."
Liberal Democrat peer Baroness Barker highlighted problems with the ability of bodies authorising LPS arrangements to rely on historic assessments of mental capacity, which may have been carried out for other purposes.
She said: "There is a danger that we might end up with decisions being made about a person's capacity to make one decision which rests on information that was gathered for a wholly different purpose. That would not be right."
Under the new title, 'Liberty Protection Safeguards,' the proposals mean that the Deprivation of Liberty Safeguard is removed from the Mental Capacity Act 2005, with a new administrative scheme for authorising arrangements when it comes to the deprivation of liberty.
In the Bill it says that the person responsible for decision making should 'reasonably believe', action to deprive someone of liberty is necessary to prevent 'serious deterioration.' One problem is that there is no guarantee in place that ensures a sharp focus on ensuring decisions are made in the best interest of vulnerable individuals. It is also important to ensure the new legislation allows for deprivation of liberty to be a very last resort.
There is also nothing in the Bill that explores what training will be made available to acting mental capacity professionals and where the costs of this will fall.
While the new system aims to remove the problems associated with getting authorisation when moving between a care home and hospital setting will be welcomed, whether this places new pressures on the sector will also need some consideration. It is therefore expected that the debate will consider the cost of new arrangements, with close attention being paid to the £200m a year the government project the system will save local authorities.
The government's recent amendment is regressive and the changes, instead of looking after people's best interests, appear to have become a cost-cutting exercise that can only lead to people's human rights being removed.
In summary, key features of the Liberty Protection Safeguards (LPS) include:
Like DoLS (but contrary to the Law Commission's suggestion) they start at 18. There is no statutory definition of a deprivation of liberty beyond that in the Cheshire West and Surrey Supreme Court judgement of March 2014 – the acid test.
Deprivations of liberty have to be authorised in advance by the 'responsible body'
For hospitals, be they NHS or private, the responsible body will be the 'hospital manager'.
For arrangements under Continuing Health Care outside a hospital, the responsible body will be the local CCG (or Health Board in Wales).
In all other cases – such as in care homes, supported living schemes (including for self-funders), the responsible body will be the local authority.
For the responsible body to authorise any deprivation of liberty, it needs to be clear that:
The person lacks the capacity to consent to the care arrangements
The person is of unsound mind
The arrangements are necessary and proportionate.
To determine this, the responsible body must consult with the person and others, to understand what the person's wishes and feelings about the arrangements are.
An individual from the responsible body, but not someone directly involved in the care and support of the person subject to the care arrangements, must conclude if the arrangements meet the three criteria above (lack of capacity; unsound mind; necessity and proportionality).
Where it is clear, or reasonably suspected, that the person objects to the care arrangements, then a more thorough review of the case must be carried out by an Approved Mental Capacity Professional.
Where there is a potential deprivation of liberty in a care home, the Bill suggests the care home managers should lead on the assessments of capacity, and the judgment of necessity and proportionality, and pass their findings to the local authority as the responsible body. This aspect of the Bill has generated some negative comment, with people feeling that there is insufficient independent scrutiny of the proposed care arrangements.
Safeguards once a deprivation is authorised include regular reviews by the responsible body and the right to an appropriate person or an IMCA to represent a person and protect their interests.
As under DoLS, a deprivation can be for a maximum of one year initially. Under LPS, this can be renewed initially for one year, but subsequent to that for up to three years.
Again, as under DoLS, the Court of Protection will oversee any disputes or appeals.
The new Bill also broadens the scope to treat people, and deprive them of their liberty, in a medical emergency, without gaining prior authorisation.
A critical summary of changes from Law Commission proposals
Although the Bill is based on the proposals produced last year by Law Commission following a government-commissioned review of the law on deprivation of liberty in care, the government has not included several of the commission's key proposals in the Bill.
Those in government working on the bill had "selectively picked" from the Law Commission's proposals in place of accepting the "whole package of measures" that had been created to produce "a robust defence" for individuals.
Among Law Commission proposals that have been omitted are the application of the LPS scheme to 16- and 17-year-olds, reforming the best interests test under the Mental Capacity Act 2005 to place a greater weight on people's wishes and feelings and reforming section 5 of the Mental Capacity Act to restrict the availability of the defence from liability for care staff acting in relation to a person whom they reasonably believe lacks capacity to consent to the actions concerned.
Some amendments have already been tabled to the Bill by Labour shadow health minister Baroness Thornton. These would apply the reforms to people 16- and 17-year-olds and specify that the provisions must be read in a way which is compatible with Article 5 of the European Convention of Human Rights, which secures the right to liberty.
With several questions regarding the Bill and the government's decision to stray from the Law Commission's proposals, it is expected that there will be more challenges.
The Commission's original reference to necessity/proportionality is no longer tied specifically to risk of harm/risk to self, but simply, now, necessity and proportionality;
The Law Commission's proposed tort of unlawful deprivation of liberty (actionable against a private care provider) has gone;
The LPS 'line' of excluding the LPS from the mental health arrangements has been changed, and the current status quo (i.e. objection) as regards the dividing line between the MCA/MHA in DOLS is maintained.
Lord O'Shaughnessy appeared to address this fact in his final comments during the second reading, saying the government would "reflect on" whether changes could be made.
"It has been clear from this debate that there is still much work to be done to provide the right kind of reforms that we all want to see," O'Shaughnessy said.
The first day of the Lords Committee stage of the Mental Capacity (Amendment) Bill took place on 5 September. The Hansard transcript can be found here and here.
'A backward step'
Sarah Lambert, head of policy and public affairs at the National Autistic Society (NAS), reiterated the arguments of those inside the House of Lords, saying: "NAS has substantial concerns that the bill, as drafted, does not put autistic or other individuals, who lack capacity, at the centre of decisions about their care."
"Firstly, the bill moves away from the current position, where decisions should be made in someone's 'best interests' and so risks losing sight of what is best for the individual, or what that individual wants."
"Even though someone may lack capacity to make a decision about their living arrangements, their preferences or wishes should be a central factor in any decision about their lives. This makes it a backward step in protecting the rights people who lack capacity to consent to their care."
"We will be working with members of the House of Lords and MPs as the bill passes through Parliament to make sure substantial amendments are made to secure the rights of autistic people and others."
The Bill is so contentious as it does, in places, significantly depart from the recommendations of the Law Commission. Furthermore, the Joint Committee on Human Rights (JCHR) provided a report on the Law Commission's proposals in July, and this report raised other issues that will need to be considered by Parliament.
One issue highlighted is the importance of establishing a clear definition of "deprivation of liberty" so that Article 5 (of the Human Rights Act) safeguards are applied to those who truly need them. The JCHR recognised that deprivation of liberty is an evolving Convention concept rooted in Article 5; the arising difficulty is how this is interpreted and applied in the context of mental incapacity.
The report says: "Parliament should provide a statutory definition of what constitutes a deprivation of liberty in the case of those who lack mental capacity in order to clarify the application of the Supreme Court's acid test and to bring clarity for families and frontline professionals. Without such clarity there is a risk that the Law Commission's proposals will become unworkable in the domestic sphere."
Another problem raised is that at present, the Legal Aid Agency can refuse non-means tested certificates for challenges to DoLS where there is no existing authorisation. The current system has produced arbitrary limitations on the right of access to a court. Legal aid must be available for all eligible persons challenging their deprivation of liberty, regardless of whether an authorisation is in place, particularly given the vast number of people unlawfully deprived due to systemic delays and failures, according to the JCHR.
There is also concern raised over the term "of unsound mind", little understood and arguably more stigmatising. The JCHR has recommended that "further thought be given to replacing 'unsound mind' with a medically and legally appropriate term."
The report concludes: "DoLS apply to those with a mental disorder. LPS will apply to persons of 'unsound mind' to reflect the wording of Article 5. We recommend that further thought be given to replacing "unsound mind" with a medically and legally appropriate term and that a clear definition is set out in the Code of Practice.
"The interface between the Mental Capacity Act (MCA) and the Mental Health Act (MHA) causes particular difficulties. Deciding which regime should apply is complex, and causes the courts and practitioners difficulties. The Law Commission proposes to maintain the two legal regimes: the MHA would apply to arrangements for mental disorders; the LPS would apply to arrangements for physical disorders. Inevitably, problems will continue to arise at the interface between these two regimes. We are particularly concerned by two issues.
"Firstly, this proposal requires assessors to determine the primary purpose of the assessment or treatment of a mental or physical disorder–this is difficult where persons have multiple disorders. Secondly, we are concerned that there would be essentially different laws and different rights for people lacking capacity depending upon whether their disorder is mental or physical. We consider that the rights of persons lacking capacity should be the same irrespective of whether they have mental or physical disorders."
The Law Commission's Recommendations made an attempt to include protection for a person's Article 8 rights (of the European Convention on Human Rights: right to a family and private life) within the proposed amendments to the Mental Capacity Act by specifying a list of applicable decisions that require a written record of decision making (including any decision regarding covert medication and contact restrictions).
The Bill makes no reference to this however (despite the government accepting this part of the proposal in their response), focusing only on Article 5 rights. This is likely to be of great concern to many campaigners and stakeholders and therefore may become a pertinent issue in Parliament. In the meantime, the current law on Article 8 authorisations and covert medication remains in place.
The current DOLS framework requires a best interest assessor to determine whether a deprivation of liberty is in a person's best interests. The Amendment Bill, however, requires no consideration of best interests, only requiring that the arrangements are 'necessary and proportionate.'
Although this is partly is line with the Law Commission's proposals that the LPS should remove the focus on best interests to move away from substituted decision making (in line with the Convention on the Rights of Persons with Disabilities), the Bill contains no explanation of what is meant by 'necessary and proportionate' or how these should be assessed. It is expected that concern will be raised in Parliament regarding the removal of best interests from the LPS and the lack of guidance surrounding necessity and proportionality.
The Bill will affect the fundamental human rights of hundreds of thousands of people with conditions such as dementia, learning disability and brain injury.
Commenting on the Bill Sue Bott CBE, Deputy CEO Disability Rights UK said:
"I am concerned with the contents of this Bill which takes the rights of disabled people backwards.
"There is nothing more serious for an individual than a decision to deprive them of their liberty yet, as it stands, this Bill will make challenging such decisions difficult and costly with little independent oversight and no commitment to taking the views of the individual into account.
"I hope members of the House of Lords will, through amendments, be able to radically improve the Bill."
Among the concerns highlighted by Disability Rights UK are:
The very least people, who are detained, need is information about why that decision has been made and what their rights are – there is no provision for this in the Bill
The Bill makes access to justice worse than the current system in not providing for non-means tested legal aid
There is no provision for the 'cared for' person to participate in court proceedings regarding their own liberty
Contains offensive and out-of-date language such as 'unsoundness of mind'
Too much power is being given to care home managers to decide about people being deprived of their liberty
The Bill moves UK law even further away from the UN Convention on the Rights of People with Disabilities by not providing for supported decision making and for the wishes and feeling of the person to be taken into account.
The Bill in its current form is not supported by professionals in this area.
The right to life and state compliance with Article 2 (ECHR)
The past five years have been challenging in terms of health outcomes in the UK, they add. For example, spending on health and social care year on year has increased at a much slower rate than in previous years, while outcomes in a large number of indicators have deteriorated, including a very rapid recent increase in the numbers of deaths among mental health patients in care in England and Wales. The government has a duty and a role to provide specific care for people experiencing mental health conditions at a time of vulnerability. That role must comply with Article 2, which:
Imposes an obligation on the State to protect the right to life.
Prohibits the State from intentionally killing.
Requires an effective and proper investigation into all deaths caused by the State.
Requires the State to take appropriate steps to prevent accidental deaths by having a legal and administrative framework in place to provide effective deterrence against threats to the right to life.
The Policing and Crime Act 2017 came into effect to amend the Coroners and Justice Act 2009 and relieved coroners of the duty to hold an inquest into every death where the deceased was subject to a Deprivation of Liberty Safeguards authorisation or was deprived of their liberty through provisions in the Mental Capacity Act 2005. Coroners' inquests into unnatural deaths involving health and social care organisations are on the increase.
Where a DOL is in force, the State has effectively curtailed the liberty of the patient; as such when the patient dies then the death is equivalent to a detention in custody. Article 14 of the Convention prohibits discrimination in the enjoyment of the Convention rights. This means that the State must ensure that the right to life of people with mental health conditions is given equal protection to that of other people.
There have been a number of other legal developments that change the way decisions about life-prolonging treatments are made, in addition to the recent court judgments and the government's radical withdrawal of the Court of Protection's Practice Direction 9E which addresses protections concerning serious medical treatment.
The direction was effectively abolished by the Ministry of Justice and the changes came into effect last December. The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.
One consequence of this is the British Medical Association's recent proposals in response to legal test cases in which judges ruled that qualified NHS staff and officials no longer required a court's permission to withdraw artificial nutrition and hydration from those patients who are incapacitated and unable to communicate or feed themselves.
The Supreme Court justices' decision in July supported the right of doctors to withdraw life-sustaining nutrition on their own authority, provided they had the explicit permission of the patient's family or, where no family existed, medical proxy. If there is a disagreement and the decision is finely balanced, an application should still be made to the Court Of Protection.
Changes to protections were introduced via secondary legislation – a negative resolution statutory instrument – there was very little parliamentary scrutiny. Furthermore, as the instrument is subject to negative resolution procedure no statement regarding implications in relation to the European Convention on Human Rights was required from government ministers, nor was public consultation deemed necessary. An Impact Assessment has not been prepared for this instrument.
The fact that the UK government had already made amendments to safeguarding laws to accommodate these proposals, which took effect last December, and now plan to make it easier to remove people's liberty under the Mental Health Act without public consultation, has caused deep unease. In the latest proposed changes to the Mental Health Act, the government seems to think it is appropriate to consider restrictions of people's liberties as part of their overall 'care package,' and approach which is not compatible with human rights.
Changing legislation isn't going to improve the lives of people with mental illness. Improving mental health services depends on funding, the right number of well-trained staff and the right resources to meet the needs of patients, their families and carers.
More information on concerns about the Bill can be found here
You can read the most recent debate about the Mental Capacity Amendment Bill in the House of Lords on 05 September 2018 here.
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September 15, 2018 January 15, 2019 · 13 Comments ·
On Wednesday, I travelled down to Westminster to meet with John McDonnell, Margaret Greenwood, Mike Amesbury and Marsha de Cordova and a group of disability rights campaigners, journalists, researchers and organisations. One of the issues we discussed during the meeting was the harm and distress that the roll out of Universal Credit is creating for some of our citizens.
I got back from my trip to the Commons, arriving by train back in Newcastle around eleven, I missed the last bus back to Durham. Outside of the train station, I met Liam, a young homeless man, and his partner, Michelle.
Liam told me that the couple became homeless because of the inbuilt failure of Universal Credit to support people both in and out of work. Liam took some temporary work over last Christmas, and was promised that there would be full-time posts in the new year. However there was no full-time work available, and Liam explained that although they had claimed Universal Credit over this period, the couple didn't receive any support at all. As the work was part-time and the pay was low, Liam and his partner ran up rent and council tax arrears very quickly, as they could not afford to meet their basic living costs.
When Liam's part-time work ended, he was told at the job centre that he had to start a new Universal Credit claim. Yet government ministers have assured us that this doesn't happen. It was during this time that the couple ended up with arrears which led to their eviction. The housing association that the couple rented their flat from significantly pressured Liam into signing an eviction order that was effective immediately. The couple lost most of their belongings as well as their home.
Liam told me "Once this happens, it is so hard getting out of the situation". He explained to me that when they became homeless, the couple were told at the job centre that they could no longer claim any welfare support, because they have no fixed abode. (*See below.)
The situation has quickly spiralled downwards. Liam also said that many people are just one pay cheque away from homelessness, but they don't realise that until it happens to them.
As Liam and Michelle are originally from another regional city, they cannot access Newcastle Crisis for help. Michelle has PTSD, she cannot access any support for her mental health conditions, and Liam is understandably worried about her safety and mental wellbeing on the streets. It struck me how very much they both cared deeply for each other
I made sure they have some accommodation for tonight, at least. I'm not well off but gave them what I had. Liam told me he hasn't slept for several nights, because he has to keep Michelle safe. They have to pay £15.50 for a temporary room for the night. That is the only available help they can access. As the couple cannot claim any welfare support, the fact that temporary accommodation costs them money, and of course they need to eat, leaves them with no choice whatsoever but to beg. They do access 'People's Kitchen' in the city, too. But although it helps in providing food sometimes, it isn't adequate provision for people who are homeless 24/7.
What struck me most about this couple is how friendly and humble they were, and that they are both such lovely people. One word that kept cropping up over and over in my dialogue with them was 'invisible'. Our whole society looks the other way. Liam told me it is always assumed that homeless people are substance abusers, yet neither Liam nor Michelle drink alcohol or use drugs. It's distressing enough to end up homeless without the additional prejudices and stigma attached to it.
I also witnessed first hand how the local police are trying to clear the streets and prevent begging. They are prosecuting homeless people. I was asked by a policeman how long I was planning on interviewing Liam and Michelle, but what he really meant was 'How long are you going to provide an excuse for them to be here?'
Often, anti-social behaviour powers are used to ban activities often associated with rough sleeping, and concerns have grown that an increase in the use of these powers is criminalising homelessness and is not addressing the root cause of the problem.
Begging is also an offence under section 3 of the Vagrancy Act 1824 (as amended). It is a recordable offence. The maximum sentence is a fine at level 3 on the standard scale (currently £1000). I'm wondering how people that cannot afford a roof over their head and need to beg for food would manage to somehow produce money to pay a fine.
Other provisions also criminalise 'begging behaviour': wilfully blocking free passage along a highway is an offence contrary to section 137 of the Highways Act 1980 (as amended), punishable by a level 3 fine. Using threatening or abusive words or behaviour is an offence under section 5 of the Public Order Act 1986, which also carries a level 3 fine.
Voluntary sector organisations have voiced concerns that the use of anti-social behaviour powers to tackle rough sleeping is criminalising homelessness and leaving vulnerable people in an even more marginalised position. According to Liberty, a Human Rights organisation, "PSPOs don't alleviate hardship on any level. They are blunt instruments which fast-track so-called "offenders" into the criminal justice system". Liberty has urged the Government to rethink these powers: "handing hefty fines to homeless people … is obviously absurd, counterproductive and downright cruel".
There is also a concern that enforcement activity in one area simply displaces street activity to another geographical area, and can sometimes lead to the displacement of activity (e.g. from begging into acquisitive crime). Moreover, it does not address the underlying causes of rough sleeping.
There was a notice up on the train station door that said begging is illegal. Liam has been prosecuted twice under section 35, and a dispersal order was served on him, preventing him from returning to the area for 48 hours. The policeman was stiffly polite, but he hovered around waiting for me to leave, which was a little intimidating. I told him I would hold conversation with whoever I chose to. I felt that Liam and Michelle were being harassed.
It was a stark contrast to the experience of homeless people outside of King's Cross station that I witnessed. While I was chatting to them, a charity group arrived with a table and some food, which was set up right outside. The policeman there was friendly with the homeless group and chatted to them, while they ate their meal.
Prior to becoming homeless, Liam had no criminal convictions. Now he has been criminalised for begging because he is homeless. He also told me he stole food on one occasion from the shop Greggs because the couple were starving. They seldom have enough food to get by, and the impact of hunger on their health is a major concern.
Health care for homeless people is a major public health challenge. Homeless people are more likely to suffer injuries and medical problems from their lifestyle on the street, which includes poor nutrition, exposure to the severe elements of weather, and a higher exposure to violence (robberies, hate crime, beatings, and so on). Yet at the same time, they have little access to public medical services or clinics, in part because they often lack identification or registration for public health care services. There are significant challenges in treating homeless people who have psychiatric disorders because clinical appointments may not be kept, their continuing whereabouts are unknown, their medicines may not be taken as prescribed and monitored, medical and psychiatric histories are not accurate, and for other reasons.
Yet despite the fact that the couple have had no support at all, Liam has gone into the job centre and local library pretty much every day to look for work. He has finally found a painting and decorating job, which he starts on Monday. Imagine just how difficult it is to do this without access to a regular bed, clean clothes and washing facilities.
Article 25 of the Universal Declaration of Human Rights, adopted 10 December 1948 by the UN General Assembly, contains this text regarding housing and quality of living:
"Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."
As a society, we seemed to have forgotten this fundamental human right in the punitive political era of citizen 'responsibilities not rights'. But I have yet to see a homeless person successfully punished out of being homeless.
Prior to 1983, the term homeless implied that economic conditions caused homelessness. However, after 1983, under the neoliberal regime of Margaret Thatcher, conditions such as alcoholism and mental illness also became associated with the term in the media. This narrative was often backed up with testimony made by high-ranking Conservative officials. Yet one of the major causes of home;essness is a lack of sustainable employment and adequate wage levels.
This stigmatising approach rested on the notion that the people who are sleeping on the streets are those who are homeless by choice. I have no idea how this narrative of blaming the victims of neoliberalism gained traction, but somehow it has. It is being used to drown out the voices of those that have been failed by dismal neoliberal policies.
This claim – that homelessness is about 'personal choice' and an individual's cognitive and psychological condition, untethered it from the broader structural context, and in particular, from the New Right's neoliberal reforms sweeping through the socioeconomic system. In the broader sense, it tended to portray homelessness as something that would exist even under the best economic conditions, and therefore independent of economic policies and economic conditions.
Homeless people may find it difficult to vote as they have no fixed address, they may not have identification documents, or a mailbox. However, equal access to the right to vote is crucial in maintaining a democracy.
One effect of the political and media stigmatising and dehumanising project has been a total social exclusion. Homeless people experience a profound isolation. This gives the homeless community no say in how things are. Neither government nor wider society listen to them or consider their accounts of their experiences.
Yet we can't claim to live in a democracy when increasing numbers of citizens facing destitution and living in absolute poverty are excluded politically, economically, culturally and socially.
The only way that things will ever change for the better is if we do listen. And hear about the lived experiences of Liam, Michelle and the growing numbers of others who have been made destitute by a broken system.
*It's important that people know they are still eligible for Universal Credit if they become homeless.
If you are told you are not at the job centre, you should challenge this.
Justin Tomlinson, minister for family support, housing and child maintenance, says:
"There is some confusion around whether or not homeless people can claim Universal Credit.
"I would like to reassure people that support is available, and it's incredibly important that people who are homeless – whether they're rough sleeping, sofa surfing or living in temporary accommodation – should, and are able to, receive this support.
1. People can receive Universal Credit without an address
Usually when a person makes a claim for Universal Credit, they are asked to provide an address to register their claim to.
If a person doesn't have a fixed address they can register their hostel or temporary accommodation as their address, and if they're rough sleeping they can use the job centre address.
2. People don't need ID to receive Universal Credit
Undoubtedly, having ID makes the process of applying for Universal Credit simpler and quicker but in cases where a person doesn't have ID, work coaches can use other methods to identify a person and help them make a claim.
This isn't just for people who are homeless, but could be used in other situations as well, such as for people who have lost belongings in a fire or flood, or if they're fleeing domestic violence.
3. You don't need a bank account to receive Universal Credit
Having a bank account is important, and it makes it easier for people to make payments, manage money and get into work.
But we understand that a homeless person may not necessarily have a bank account. There are measures in place to make payments through other methods, including post office accounts or the Payment Exception Service, and a work coach can help people through the process of setting up a bank account when appropriate.
4. Finding a home is prioritised over finding work
You can ask Job centre staff to apply an 'easement' of up to one month, which means a person is not asked to look for work during this period and can focus on finding suitable accommodation.
Work coaches have the discretion to extend the easement period further, depending on a person's circumstances."
If you are told that you can't claim Universal Credit because you are homeless or have "no fixed abode", tell the job centre advisor that:
Justin Tomlinson, minister for family support, housing and child maintenance, has said you CAN.
Liam and Michelle, if you are reading this, wishing you the very best, and good luck with your new job, Liam. Hoping that it will help you secure somewhere to live quickly. x
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