“Consequently, the Committee considers that there is reliable evidence that the threshold of grave or systematic violations of the rights of persons with disabilities has been met in the State party.”

Published Monday 7th November 2016 1600 hrs GMT +1

 

United Nations CRPD/C/15/R.2/Rev.1
Convention on the Rights of Persons with Disabilities REPORT

VII. Summary of the findings

A. General findings

82. The facts submitted by the source were disputed by the State party. The Committee engaged in a verification exercise in which the facts that appeared to be controversial were cross-checked with data collected from a variety of sources, including parliamentary inquiries, reports of the independent monitoring body of the Convention, official statistics, reports and data originating from other government departments or units, entity governments, research institutes, service providers, academic centres, independent experts, former government officers, grass-roots non-governmental organizations, organizations of persons with disabilities and individuals. In some cases, some State party’s statements were not supported by evidence collected by the investigation. In others, the State party indicated that no data were available. The findings below are based on a comprehensive analysis of data provided by various sources.

 

 

83. The State party launched, a considerable time ago, a major policy reform to the welfare system, aimed at reducing the fiscal deficit and achieving in 2020 a surplus in its balance of payments. Various policy documents and statements by high-level ranking officers have stated that this is the most fundamental policy change to the social protection system in recent decades. The stated goals of the policy are to transform British society from a low-wage, low-employment and high-welfare society to a high-wage, high-employment and low-welfare one. The policy makes the assumption that individuals are better off in work, dependency on benefits is in itself counterproductive and perpetuates poverty and beneficiaries of welfare benefits need to move into work both through improvement of incentives to employment and through a system of conditionality and sanctions. The policy intends that sectors of society who have been dependant on benefits move into work. It has also been stated that the policy aims at protecting those people who require more support or who are “most vulnerable”.

 

 

84. Changes to the welfare system include the overhauling of a wide range of entitlements in several areas, including social and private housing sector, contributory and non-contributory benefits, tax credits and out-of-work and in-work benefits and have affected all segments of the population, including children, women, single parents, older persons and persons with disabilities. With regard to persons with disabilities, the reform resulted in the overhauling of major disability benefits, including means-tested benefits, income-maintenance benefits and benefits related to the specific and extra costs associated with disability. In the period covered by the inquiry, a large number of persons with disabilities have been requested to undergo capability assessments, with pre-implementation assumptions that a significant percentage would no longer rely on social allowances.

 

 

85. The roll out of those policies included the issuing of statements by high-ranking officers that the reform was aimed at making the welfare system fairer to taxpayers and more balanced and transparent and reducing benefit fraud. Persons with disabilities have been regularly portrayed negatively as being dependent or making a living out of benefits, committing fraud as benefit claimants, being lazy and putting a burden on taxpayers, who are paying “money for nothing”. Although the State party produced evidence of formal efforts and public awareness campaigns to improve the image of persons with disabilities, the inquiry collected evidence that persons with disabilities continue to experience increasing hostility, aggressive behaviour and sometimes attacks to their personal integrity. The inquiry also found no substantiation of the alleged benefit fraud by persons with disabilities.

 

 

86. Public sector equality duty obliges State authorities to carry out impact assessments when they plan to introduce measures, including legislative measures, to ensure that groups with protected characteristics, among them persons with disabilities, are properly consulted and any adverse impact on them is properly justified. The State party submitted evidence that it has complied with domestic legal duties for all the intended changes to the welfare system. The inquiry collected evidence that a major piece of legislation of the welfare reform, the Welfare Reform Act 2012, was not thoroughly compliant with those requirements. Similarly, a court of law found that the decision to close the Independent Living Fund was not in compliance with domestic equality duty, which compelled the authorities of the State party to carry out another equality assessment. The inquiry also collected evidence that the views of persons with disabilities and their representative organizations who had participated in consultations launched by the State party, were not meaningfully taken into account in the decision-making and had little or no influence on policy decisions.

 

 

87. Although the State party asserted that a cumulative impact assessment of the various policy measures affecting persons with disabilities was not technically feasible or practicable, the evidence collected by the inquiry indicates that a cumulative impact assessment could have been conducted with the data and information available in the State party.

 

 

88. The Committee observes that various pieces of legislation related to recent welfare policies do not fully enforce the international human rights framework related to social protection and independent living. In connection thereto, it was observed that in the field of social protection, persons with disabilities have not been properly considered as right-holders and entitled to benefits with regard to their right to social protection. Similarly, while the Care Act 2014 reflects the principles of well-being of persons with disabilities and underlines the objective of personalization of support packages, it fails to properly acknowledge the elements of autonomy and control and choice, which are intrinsic to the right to independent living as referred to in article 19 of the Convention.

 

 

89. The Committee observes the prevalence of the medical approach in assessment procedures for determining the eligibility of persons with disabilities to entitlements. The main assessment procedure for determining eligibility for out-of-work benefits resulted in persons with disabilities being classified as either unable to perform work-related activity, having limited capability to work or fit to work. The above-mentioned assessment failed to take in account the support persons with disabilities need to perform a job or the complex nature of some impairments and conditions, or reflect the human rights-based approach to disability.

 

 

90. The Committee observes that persons with disabilities who have undergone functional assessments aimed at determining their eligibility for social benefits felt that they were merely processed rather than being listened to or understood. The inquiry was informed that several measures have been adopted to make adjustments to procedures to improve service delivery, including the time frame for the assessment procedures, and ensure a better understanding of the diversity of persons with disability by assessors. The evidence collected from various sources indicates that the needs, views and personal history of persons with disabilities, and particularly those requiring high levels of support such as persons with intellectual and/or psychosocial disabilities, were not properly taken into account or given appropriate weight in the decisions affecting them.

 

 

91. The inquiry collected evidence indicating that information, advice and counselling provided to persons with disabilities about different steps in the assessment processes and decisions about their entitlements was limited, non-existent or not provided in accessible formats and languages. That was coupled with uncertainty about the outcomes of those processes triggering anxiety, psychological strain and financial hardship. The Committee also collected evidence about persons with disabilities whose mental health condition had severely deteriorated as a result of the aforementioned factors.

 

 

92. Evidence indicates that legal aid to challenge administrative decisions ending or curtailing their benefits before first-tier tribunals has been restricted. Legal aid for cases before those tribunals has also been curtailed. Similarly, access to review by an independent and impartial tribunal has been restricted by the introduction of mandatory reconsideration procedures before the same administrative entity that has ruled on benefits.

 

 

93. Evidence indicates that State party authorities carried out surveys and regularly published statistics about welfare reform. States party authorities also cooperated with parliamentary inquiries and provided answers to the recommendations issued by that oversight body. However, there is no evidence of periodic monitoring and evaluation activities involving persons with disabilities and their representative organizations about the impact of the implementation of measures.

 

 

94. Evidence was produced about mitigating measures put in place by central authorities to support persons with disabilities in coping with the curtailing of their social security benefits. Evidence was also produced indicating that those mitigating measures were of a temporary nature for individuals concerned by the measures, not regularly offered or known by claimants affected by decisions and not sustainable enough to outweigh the financial impact of the reduction or suppression of income-maintenance benefits. The Committee also observes that the devolved administrations in Scotland and Wales had put in place mitigation measures and takes note of the mitigation plan agreed upon in Northern Ireland.

 

 

B. Living independently and being included in the community (art. 19)

 

 

95. The Committee observed throughout the inquiry process that the interaction of various reforms on welfare schemes, in particular changes in housing benefits, the establishment of a cap on household benefits, changes in eligibility criteria for the “moving around” component under the new Personal Independence Payment, tightening of criteria to access social care and the closure of the Independent Living Fund in the State party, have disproportionately affected persons with disabilities and hindered various aspects of their right to live independently and be included in the community.

 

 

96. The Committee is concerned that the set of reforms has limited the right of persons with disabilities to choose their residence on an equal basis with others, resulting in persons experiencing increasing reliance on family and/or kinship carers, reduction in their social interaction, increased isolation and, in certain cases, institutionalization. The deinstitutionalization process in the State party has been adversely affected.

 

 

97. The Committee is of the view that changes in housing benefits, specifically the implementation of the social housing size criteria through the reduction in social housing welfare payments referred to as “the spare room subsidy”, the establishment of a cap on household benefits and changes in local housing allowances for private-sector tenants have curtailed the right of persons with disabilities to choose a place of residence in accordance with article 19 of the Convention. The Committee notes that, in multiple cases, social housing size criteria failed to recognize the specific living arrangements that persons with disabilities require in connection with their impairment and respect of their autonomy, will and preferences. The Committee observes that measures have caused financial hardship to persons with disabilities resulting in, inter alia, arrears, debts, evictions and cuts to essentials such as housing and food. The Committee, while noting that Discretionary Housing Payments have been established as a form of mitigation, observes that the concerns and views of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context (see A/HRC/25/54/Add.2) persist.

 

 

98. Evidence indicates that persons with disabilities affected by cuts in their housing benefits have undergone high levels of stress, anxiety and depression as a consequence of the shortfalls in their budget and the costs to recover financial stability. In many cases, the implementation of welfare measures has reinforced the dependency of persons with disabilities on informal and/or family care and has hindered deinstitutionalization plans.

 

 

99. The Independent Living Fund in the State party has been closed to new claimants since 2010 and was definitively closed in June 2015. The funds transferred from the central administration to local authorities under the scheme of localization were not ring-fenced in England, affecting the majority of former Fund users. It was observed that social care packages have been reduced in the context of further budgetary constraints at the local level. The Committee finds that former Fund claimants have seen the support they received from local authorities substantially reduced, to the extent that their essential needs in areas such as daily personal care are not sufficiently covered. The Committee takes note of the decision made by the devolved administrations in Scotland and Northern Ireland for the maintenance of schemes equivalent to the former Independent Living Fund, as well as in Wales. However, it remains concerned about the lack of acceptance of new applicants to the fund in Northern Ireland.

 

 

100. According to the Care Act 2014, social care provisions and schemes realize the principle of well-being. However, the information brought to the attention of the Committee demonstrated increasing financial hardship for persons with disabilities at the local level and the reduction in time and quality of social care services for those persons who are considered “not having substantial or critical levels of need”. Prioritization and tightening of eligibility criteria for adult social care has been implemented on a regular basis, adversely affecting persons with disabilities who are not being supported to the extent that they need. The Committee gathered evidence indicating that the level of care has diminished, affecting older persons with disabilities, and received testimonies about the reduction in time for visits by social carers, who in certain cases are limited to 15-minute visits to assist persons with disabilities with basic needs such as meals and personal hygiene. It was observed that the reduction in the provision of support services at the local level has curtailed the ability of persons with disabilities to take part in community life.

 

 

101. The State party provided information about measures to transfer more responsibilities to local authorities and the personalization of budgets for personal care. The Committee, however, received evidence that personal care packages have been reduced and that the availability of support is established on the basis of what is considered to be an affordable service in the market, rather than on the specific needs of the person concerned. The Committee received evidence that personal budgets do not necessarily allow persons with disabilities to have access and control over social care services and restrict the level of personal assistance they receive.

 

 

C. Work and employment (art. 27)

 

 

102. Evidence indicates several flaws in the processes related to the Employment and Support Allowance. In particular, the Committee notes that, despite several adjustments made to the Work Capability Assessment, the assessment has continued to be focused on a functional evaluation of skills and capabilities, and puts aside personal circumstances and needs, and barriers faced by persons with disabilities to return to employment, particularly those of persons with intellectual and/or psychosocial disabilities. In the initial period covered by the present report, evidence indicates a significant percentage of assessments were overturned by tribunals.

 

 

103. Despite the training delivered to assessors and decision makers, evidence indicates a persisting lack of awareness and limited knowledge of disability rights and the specific needs of persons with disabilities, particularly of persons with intellectual and/or psychosocial disabilities. The Committee also collected evidence of lack of reasonable accommodation and inaccessible information about the assessment process.

 

 

104. While the Committee notes the effort of the authorities to shorten the length of mandatory reconsideration procedures, evidence indicates that claimants requesting reconsideration have frequently experienced long waiting periods. The Committee also observes that, during the mandatory reconsideration procedure, Employment and Support Allowance benefits are suspended.

 

 

105. Evidence collected points to significant hardship, including financial, material and psychological, experienced by persons with disabilities undergoing assessments. Persons who have been compelled to undergo a new assessment shortly after a first assessment have been particularly affected.

 

 

106. The number of sanctions of claimants in the Employment and Support Allowance work-related activity group has increased significantly between 2012 and 2014, and evidence indicates that they have been applied in a disproportionate manner. Opportunities to apply for hardship payments exist, but few people appear to have been informed thereof; the payments are also modest, discretionary, subject to strict access rules and of a temporary nature. Evidence indicates that claimants who have been sanctioned have faced financial hardship, including through becoming indebted, relying on the support of relatives or on food banks or having reduced essential services.

 

 

107. Various programmes have been designed to encourage persons with disabilities to move into paid employment. The two main programmes, the Work Programme and Job Centre Plus, where persons with disabilities were mostly referred, had no visible impact in decreasing unemployment among them. Persons with disabilities who have had access to other programmes that have been more successful have experienced reductions in the support provided to them, in some cases resulting in loss of employment. Evidence indicates that the Work Programme helped persons with disabilities back to work to a very limited extent and that persons with substantial support needs were left aside.

 

 

108. The situation of persons with disabilities deemed “fit to work” is not monitored as such. Those who have re-entered the system by claiming the Job Seeker’s Allowance to support them until they find work face stringent levels of conditions and sanctions, which do not take into account the specific barriers they face. The Committee was informed that, in some cases, sanctions had led to financial hardship for persons with disabilities, and particularly persons with intellectual and/or psychosocial disabilities.

 

 

 

109. The State party initially stated that it did not monitor deaths that occurred after assessments. Evidence gathered during the inquiry indicated that, in 2012 and 2015, such information was released by the Department of Work and Pension following freedom of information requests. Additionally, information originated from official sources indicated that 33 deaths of claimants who died after being assessed were being examined. The State party claims that there is no causal link. The Committee is not aware of any attempts at objective, thorough, open and impartial investigation regarding those deaths by an independent body.

 

 

D. Adequate standard of living and social protection (art. 28)

 

 

110. The Committee had access to official statistics indicating that, overall, households with one or more persons with disabilities are more likely to have a relatively low income than households without persons with disabilities. The Committee was presented with evidence that changes operated in the welfare system had had a more negative impact on households with persons with disabilities, especially on those living on low income.

 

 

111. The Committee observes that equality impact assessments carried out by authorities for various welfare benefits did foresee that a large number of persons with disabilities would be affected by policy changes. The Committee also received evidence that the cumulative impact in the reduction of welfare benefits has led persons with disabilities to struggle to maintain minimum level of income, driving many into increased dependency on relatives and increased levels of indebtedness and resulting in an inability to manage the bare essentials and recourse to food banks.

 

 

112. The authorities foresaw that the transition from Disability Living Allowance to Personal Independence Payment would result in 620,000 fewer people receiving Personal Independence Payments and would represent a 20 per cent saving in expenditure. The eligibility criteria and the threshold for qualifying for Personal Independence Payments have been tightened, with the result that many claimants with moderate or lower levels of support have been excluded from the benefit. Similarly, the tightening of the eligibility criteria for the mobility component has resulted in Personal Independence Payments beneficiaries losing their entitlements to that component. Persons were reassessed based on functional criteria and evidence indicates that, despite assurances that the assessment period would be shortened, there were claimants experiencing long waiting periods. Information also indicates that the authorities intend to further reduce the support available to access assistive devices.

 

 

E. Systematic violations of the Convention

 

 

113. Consequently, the Committee considers that there is reliable evidence that the threshold of grave or systematic violations of the rights of persons with disabilities has been met in the State party.

 

 

That conclusion is based on the following findings:

 

 

(a) The State party has implemented a policy aimed at reforming its welfare system and the reforms have been justified in the context of austerity measures to achieve fiscal and budgetary policy consolidation;

 
(b) The assumptions made under the policy include that: taxpayers need to be treated with fairness; large numbers of persons with disabilities have been relying and dependent on social benefits; persons are better off in work than on benefits; the dependency of persons with disabilities on benefits is in itself a disincentive to move them into employment; the number of persons with disabilities relying on social benefits were to be decreased; and tightening sanctions and conditionality of social benefits is a legitimate tool for incentivizing their moving into employment;

 

 

(c) The impact assessments conducted by the State party prior to the implementation of several measures of its welfare reform expressly foresaw an adverse impact on persons with disabilities;

 

 

(d) Several measures have disproportionally and adversely affected the rights of persons with disabilities;

 

 

(e) Measures resulting in reduction of support provided to meet the extra cost of disability, denial of reasonable accommodation in assessment procedures and realization of the right to employment have had a discriminatory effect on persons with disabilities;

 

 

(f) The core elements of the rights to independent living and being included in the community, an adequate standard of living and social protection and their right to employment have been affected: persons with disabilities affected by policy changes have had their freedom of choice and control over their daily activities restricted, the extra cost of disability has been set aside and income protection has been curtailed as a result of benefit cuts, while the expected policy goal of achieving decent and stable employment is far from being attained;

 

 

(g) There is evidence that a large number of persons with disabilities have been affected (e.g. 13,900 persons with disabilities have lost their Motability schemes and therefore their adapted cars, upon implementation of Personal Independence Payment up to February 2016; 492,180 had been placed in the Employment and Support Allowance work-related activity group by end of 2015; 41,792 Employment and Support Allowance work-related activity group sanctions were handed out up to March 2014);

 

 

(h) Evidence gathered nationally by the Parliament, the independent monitoring framework, universities and research institutes and centres and independent experts, has documented adverse and disproportionate effects of measures on persons with disabilities;

 

 

(i) The State party has not conducted a comprehensive human rights-based cumulative impact assessment even though reliable sources have indicated it is feasible;

 

 

(j) The State party continues its policy of reducing social benefits of persons with disabilities as reflected in the Welfare Reform and Work Act 2016.

COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES

1. Report of the Inquiry Concerning the United Kingdom of Great Britain and Northern Ireland carried out by the Committee under article 6 of the Optional Protocol to the Convention

2. Observations of the Government of the United Kingdom of Great Britain and Northern Ireland on the report of the Inquiry carried out by the Committee under article 6 of the Optional Protocol to the Convention

VIII. Recommendations

114. The Committee recommends that the State party:

(a) Conduct a cumulative impact assessment of the measures adopted since 2010, referred to in the present report, on the rights to independent living and to be included in the community, social protection and employment of persons with disabilities. The State party should ensure that such assessment is rights-based and meaningfully involves persons with disabilities and their representative organizations;
(b) Ensure that any intended measure of the welfare reform is rights-based, upholds the human rights model of disability and does not disproportionately and/or adversely affect the rights of persons with disabilities to independent living, an adequate standard of living and employment. To prevent adverse consequences, the States party should carry out human rights-based cumulative impact assessments of the whole range of intended measures that would have an impact on the rights of persons with disabilities;
(c) Ensure that: any intended legislation and/or policy measure respects the core elements of the rights analysed in the present report; persons with disabilities retain their autonomy, choice and control over their place of residence and with whom they live; they receive appropriate and individualized support, including through personal assistance, and have access to community-based services on an equal basis with others; they have access to security social schemes that ensure income protection, including in relation to the extra cost of disability, that is compatible with an adequate standard of living and ensure their full inclusion and participation in society; and they have access and are supported in gaining employment in the open labour market on an equal basis with others;
(d) Ensure that public budgets take into account the rights of persons with disabilities, that sufficient budget allocations are made available to cover extra costs associated with living with a disability and that appropriate mitigation measures, with appropriate budget allocations, are in place for persons with disabilities affected by austerity measures;
(e) Introduce all adjustments necessary to make all information, communications, administrative and legal procedures in relation to social security entitlements, independent living schemes and employment/unemployment-related support services fully accessible to all persons with disabilities;
(f) Ensure access to justice, by providing appropriate legal advice and support, including through reasonable and procedural accommodation for persons with disabilities seeking redress and reparation for the alleged violation of their rights, as covered in the present report;
(g) Actively consult and engage with persons with disabilities through their representative organizations and give due consideration to their views in the design, implementation, monitoring and evaluation of any legislation, policy or programme action related to the rights addressed in the present report;
(h) Take appropriate measures to combat any negative and discriminatory stereotypes or prejudice against persons with disabilities in public and the media, including that dependency on benefits is in itself a disincentive of employment; implement broad mass media campaigns, in consultation with organizations 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;
(i) Ensure that, in the implementation of legislation, policies and programmes, special attention is paid to persons with disabilities living with a low income or in poverty and persons with disabilities at higher risk of exclusion, such as persons with intellectual, psychosocial or multiple disabilities and women, children and older persons with disabilities. Those measures should be put in place within contributive and non-contributive regimes;
(j) Set up a mechanism and a system of human rights-based indicators to permanently monitor the impact of the different policies and programmes relating to the access and enjoyment by persons with disabilities of the right to social protection and an adequate standard of living, the right to live independently and be included in the community and the right to work, in close consultation with persons with disabilities and their representative organizations in all regions and countries that constitute the State party;

 
(k) Respond to the present report within the time limit prescribed under the Optional Protocol, widely disseminate the Committee’s findings and recommendations and provide appropriate follow-up to the recommendations of the present report, including during the consideration of the State party’s initial report before the Committee.

 

FULL REPORT

Original: English
English, French and Spanish only
Committee on the Rights of Persons with Disabilities
Inquiry concerning the United Kingdom of Great Britain and Northern Ireland carried out by the Committee under article 6 of the Optional Protocol to the Convention
Report of the Committee
Contents
Page
I. Establishment of the inquiry 3
II. International human rights standards 3
A. Living independently and being included in the community (art. 19) 3
B. Work and employment (art. 27) 4
C. Adequate standard of living and social protection (art. 28) 5
D. States parties’ obligations in the realization of the rights covered in the
present report 7
III. Cooperation of the State party 8
IV. Country visit 8
V. Sources of information and confidentiality of the proceedings 8
VI. Contextual background to the inquiry 9
A. Convention on the Rights of Persons with Disabilities, decentralization
and national monitoring bodies of the Convention 9
B. Main legislation and reforms on welfare and social care and persons with
disabilities 10
C. Welfare and social care reforms 12
VII. Summary of the findings 14
A. General findings 14
B. Living independently and being included in the community (art. 19) 17
C. Work and employment (art. 27) 18
D. Adequate standard of living and social protection (art. 28) 19
E. Systematic violations of the Convention 20
VIII. Recommendations 21
I. Establishment of the inquiry
1. The present inquiry examines the cumulative impact of legislation, policies and measures adopted by the State party on social security schemes and on work and employment, from 2010 to the date of adoption of the report, directed to or affecting the enjoyment by persons with disabilities of their rights to live independently and to be included in the community (art. 19 of the Convention on the Rights of Persons with Disabilities), to an adequate standard of living and social protection (art. 28) and to work and employment (art. 27).
2. Early in 2012, the Committee on the Rights of Persons with Disabilities began receiving information about the alleged adverse impact on persons with disabilities of the implementation of a process of reforms of legislation and policies in the State party. The information indicated that the implementation of the welfare reform had introduced significant cuts to social benefits that were affecting several of the rights of persons with disabilities enshrined in the Convention. The Committee has continued to receive information from various sources since then.
3. In April 2013, the Committee received a formal request from a number of organizations of persons with disabilities alleging that serious and systematic violations of the provisions of the Convention were occurring against persons with disabilities. They requested that the Committee initiate an investigation into the matters raised in the request.
4. During its ninth session, held in April 2013, the Committee decided to register the request and, pursuant to rule 83, paragraph 2, of its rules of procedure, to request the State party to submit comments. The State party submitted comments on 20 August 2013 and 28 March 2014.
5. During its eleventh session, held in April 2014, the Committee assessed all the information before it and determined, pursuant to article 6 of the Convention and rule 84 of its rules of procedure, that there was reliable information indicating grave or systematic violations of the rights set forth in the Convention. The Committee established an inquiry and appointed two of its members as rapporteurs, which decision was communicated to the State party on 29 May 2014.
6. Pursuant to rule 84, paragraph 4, of its rules of procedure, and after consultation with the State party, the Committee decided to defer the consideration of the initial report of the State party submitted pursuant to article 35 of the Convention until after the finalization of the inquiry proceedings.
II. International human rights standards
7. The present chapter analyses the scope of the provisions of articles 19, 27 and 28 of the Convention, the interrelated character of these rights and the obligations of States parties vis-à-vis each of the rights recognized therein.
A. Living independently and being included in the community (art. 19)
8. Article 19 recognizes the right of all persons with disabilities to live independently and be included in the community.
9. States parties shall respect the autonomy of persons with disabilities and their freedom of choice and control over their place of residence and with whom they live, on an equal basis with others, which entails the possibility to choose from the same range of options as others members of society or to reject those options. States parties shall ensure that persons with disabilities exercise their freedom of choice and control and adopt measures to prevent their isolation, segregation or institutionalization.
10. Persons with disabilities are entitled to exercise control over day-to-day decisions, the activities of their routine, the services they require and the living arrangements they need, including those specifically related to impairments, and to relate to and communicate with others in the community.
11. Freedom of choice and control over living arrangements and daily activities are indispensable to ensure the full inclusion and participation of persons with disabilities in the community and to prevent their isolation and segregation. If autonomy, choice and control are not guaranteed and protected through accessible and appropriate support, persons with disabilities risk being separated from their families, friends and communities and excluded from meaningful participation in the society.
12. States parties are required to ensure that persons with disabilities have access to a range of in-home, residential and community support services, including personal assistance necessary to support living and inclusion in the community. Persons with disabilities should not be perceived as mere recipients of support, but as rights holders, who have equal access and equal choice of and control over support services. Services delivered to persons with disabilities should respect their dignity and autonomy and promote their full inclusion and participation in society. Eligibility to access support services needs to be defined in a non-discriminatory way and assessments should move away from the medical approach to disability, comply with the human rights approach and take into account the specific needs of persons with disabilities rather than focusing on impairments.
13. Support services should be provided in the community and need to take into account the individualized situation of each person. Persons with disabilities are entitled to receive information and counselling, in accessible formats, about the range of support and assistance available in the community, including housing and income assistance. That requires effective awareness-raising efforts and coordination among health-care and social-service providers and officials in the housing sector.
14. States parties should allocate adequate resources for support services that enable persons with disabilities to live in their communities. They should ensure that community services for persons with disabilities are available, accessible, affordable and of quality. When persons with disabilities share the costs of the services provided, States parties should ensure that those persons are not disproportionately affected by the charges.
15. Persons with disabilities must be allowed access to mainstream community services and facilities, on an equal basis with others.
16. Reductions in social and health-care budgets, a lack of alternative resources for some persons with disabilities, the unavailability of community-based services, the conditionality of support upon certain living arrangements, cuts in independent living support, stringent criteria for accessing support services and the delivery of more standardized services, inter alia, can infringe upon the right of persons with disabilities to live independently and be included in the community.
B. Work and employment (art. 27)
17. States parties should recognize the right of persons with disabilities to work, on an equal basis with others, which includes the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible. Article 27 sets out a non-exhaustive list of appropriate steps for States parties to take measures to safeguard and promote the realization of the right to work.
18. States parties should take all appropriate measures to modify or abolish laws, regulations, customs and practices that constitute discrimination against persons with disabilities in the areas of work and employment.
19. States parties shall ensure that persons with disabilities enjoy equality of opportunity and treatment with respect to access to, retention of and advancement in employment in the open labour market, which, wherever possible, corresponds to their own choice. They also have a duty to raise awareness among employers and the general public on the right of persons with disabilities to work. Persons with disabilities are entitled to assistance and support in finding, obtaining, maintaining and returning to employment.
20. States parties have an obligation to prohibit discrimination on the basis of disability and must ensure that persons with disabilities are protected from discrimination, including with regard to all matters concerning employment, inter alia the denial of reasonable accommodation.
21. Legislation must stipulate that both public- and private-sector employers are responsible for providing reasonable accommodation to individual employees with disabilities. States parties should develop policies that promote and regulate flexible and alternative work arrangements that reasonably accommodate the individual needs of employees with disabilities.
22. States parties also have an obligation to take affirmative action measures, including providing incentives, to increase employment of persons with disabilities in the private sector.
23. States parties shall protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, as well as safe and healthy working conditions, including protection from harassment and redress for grievances.
24. Persons with disabilities are entitled to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training. States parties have the duty to promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.
25. The Convention requires States parties to ensure that persons with disabilities are protected, on an equal basis with others, from forced or compulsory labour.
C. Adequate standard of living and social protection (art. 28)
26. The Convention recognizes the right of persons with disabilities to enjoy social protection without discrimination on the basis of disability. States parties are required to take appropriate steps to safeguard and promote the realization of that right, including through measures to ensure access by persons with disabilities, in particular women, girls and older persons with disabilities, to social protection programmes and poverty reduction programmes.
27. Social protection includes a variety of interventions designed to guarantee basic income security and access to essential social services, with the ultimate goal of achieving social inclusion and participation in the community.
28. Article 28 obliges States parties to take appropriate measures to ensure that persons with disabilities receive equal access to mainstream social protection programmes and services, including basic services, poverty reduction programmes, housing programmes and retirement benefits and programmes, as well as access to specific programmes and services for disability-related needs and expenses, through contributory and non-contributory schemes.
29. As persons with disabilities are disproportionally affected by poverty and overrepresented among the poorest in the world, States parties should ensure that persons with disabilities have access to, and are meaningfully included in, poverty reduction strategies.
30. Social protection systems should address the cost associated with disability and protect persons with disabilities from falling into a lower standard of living or poverty at all stages of their life cycle.
31. States parties should include the right of persons with disabilities to social protection in their domestic legal frameworks and ensure that government agencies involved in the implementation of social security programmes act in coordination.
32. The eligibility criteria for social programmes should take into account the human rights model to disability, addressing the multiple barriers that limit the participation of persons with disabilities in society, and not rely on narrowly defined medical criteria or medical assessments.
33. States must ensure the access of persons with disabilities to quality, adequate, acceptable and adaptable social protection programmes. Social security programmes should be adapted to the needs of persons with disabilities and provide benefits of an adequate amount and duration to enable beneficiaries to enjoy an adequate standard of living.
34. When conditions are placed on participation in social security schemes and programmes, they should be implemented in a manner that does not undermine the right of persons with disabilities to an adequate standard of social protection.
35. Information, materials and communications pertaining to social protection programmes should be made accessible for all persons with disabilities.
36. States have obligations of immediate effect in relation to the right of persons with disabilities to social protection: persons with disabilities should not be discriminated against in the exercise of their right; access to social protection schemes should be secured; and a minimum essential level of benefits for all persons with disabilities and their families should be ensured.
37. According to the Committee on Economic, Social and Cultural Rights, the right to social security encompasses the right to access benefits without discrimination to secure protection from, inter alia, a lack of a work-related income owing to sickness, disability, maternity, employment injury, unemployment, old age or death of a family member, unaffordable access to health care or insufficient family support. States must provide social protection to all individuals, guaranteeing universal coverage, reasonable, proportionate and transparent eligibility criteria, affordability and physical accessibility by beneficiaries and participation in and information about the provision of benefits.
38. Persons with disabilities shall have the opportunity to participate, through their representative organizations, in the planning, design, implementation and monitoring of social protection systems. Consultation processes should not be merely symbolic.
39. The rights recognized in the Convention are interdependent and interrelated. That is particularly relevant in relation to the rights covered in the present report.
40. The realization of the right to live independently and be included in the community requires an adequate level of income protection, which can be secured both through mainstream and disability-specific social protection programmes, as well as through employment.
41. Given the barriers that still prevent the full participation of persons with disabilities in the labour market and mean higher unemployment rates for them, income-maintenance social security schemes are particularly important for persons with disabilities. Such schemes allow them to maintain their autonomy and freedom of control and choice of their living arrangements and day-to-day activities. Without an adequate level of social protection, persons with disabilities run the risk of being isolated, segregated from the community and/or institutionalized.
42. States parties should find an adequate balance between providing an adequate level of income security for persons with disabilities through social security schemes and supporting their labour inclusion. The two sets of measures should be seen as complementary rather than contradictory. Measures aimed at facilitating the inclusion in the labour market of beneficiaries of social security should include transitional arrangements to ensure income protection while they reach a certain threshold and sustainability in their wages. They should become eligible again without delay if they lose their jobs.
D. States parties’ obligations in the realization of the rights covered in the present report
43. States parties are required to adopt all appropriate measures to implement the rights set out in the Convention, including legislation, strategies, administrative measures, policies and programmes (art. 4 (1) (b)).
44. States parties shall take measures, to the maximum of their available resources, with the aim of achieving progressively the full realization of the economic, social and cultural rights set out in article 4 (2). States parties should move as expeditiously and effectively as possible to that goal, including by establishing strategies and programmes, with clear targets, benchmarks and time frames.
45. States parties shall promote the full realization of human rights and fundamental freedoms for all persons with disabilities without discrimination on the basis of disability (art. 4 (1)). The obligation to take measures to overcome discrimination and to achieve de facto equality of persons with disabilities has immediate effect and is not subjected to progressive realization. The duty to provide reasonable accommodation established in article 5 (3) is also not subjected to progressive realization.
46. The duty of progressive realization entails a presumption against retrogressive measures in the enjoyment of economic, social and cultural rights. When retrogressive measures are adopted, States parties should demonstrate that they have been introduced after careful consideration of all alternatives and they are duly justified by reference to the totality of the rights provided for in the Convention, in the context of the use of the maximum available resources of the State party. Under the criteria adopted by the Committee on Economic, Social and Cultural Rights about the prohibition of retrogression in the realization of economic, social and cultural rights, States parties should demonstrate that:
(a) There was reasonable justification for the action;
(b) Alternatives were comprehensively examined;
(c) There was genuine participation of affected groups in examining proposed measures and alternatives;
(d) The measures were not directly or indirectly discriminatory;
(e) The measures will not have a direct impact on the realization of the rights set out in the Convention; or an unreasonable impact on acquired rights or whether an individual or group will be deprived of access to the minimum level of social security;
(f) Whether there was an independent review of the measures at the national level.
III. Cooperation of the State party
47. Pursuant to article 6 of the Optional Protocol and rule 85 of its rules of procedure, the Committee sought the cooperation of the State party. The State party appointed the Office for Disability Issues in the Department of Work and Pension as a focal point. The Committee appreciates the support provided by the focal point throughout the proceedings.
48. The Committee appreciates that its request to visit the country was granted by the State party.
IV. Country visit
49. A country visit took place from 12 to 23 October 2015. The Committee’s rapporteurs visited London and Manchester (England), Glasgow and Edinburgh (Scotland), Belfast (Northern Ireland) and Cardiff (Wales).
50. The Committee’s rapporteurs had the opportunity to interview more than 200 individuals, among them government officers of the central and country governments, members of the House of Lords and the House of Commons, members of devolved legislatures, representatives of the independent monitoring mechanism, representatives of trade unions, representatives of organizations of persons with disabilities and other civil society organizations, researchers, academics and lawyers. The Committee commends the efforts undertaken by all interlocutors to provide valuable and updated information.
51. The Committee regrets that local authorities and councils did not cooperate with it during the visit, despite several invitations addressed to them to participate. The Committee would have appreciated it if the first meeting agreed with the central government had been held on the first day of the visit. That meeting was instead postponed to the last day.
V. Sources of information and confidentiality of the proceedings
52. Pursuant to rule 83 of its rules of procedure, the Committee requested additional information from various sources.
53. The Committee collected voluminous documentary evidence (more than 3,000 pages). Many were already in the public domain, such as parliamentary inquiries, reports of the Equality and Human Rights Commission and research reports. Other documents were forwarded to the Committee confidentially.
54. Most of the statistics referred to the Committee originated from official sources, in particular reports of different departments and units of the government available online, as well as reports of oversight mechanisms. Some documents rely on surveys conducted by research institutes and academic sources. The Committee is impressed by the amount of data collected by stakeholders who contributed to the inquiry.
55. According to article 6 (5) of the Optional Protocol, inquiry proceedings shall be conducted confidentially. All persons who were contacted and invited to participate in the hearings during the country visit signed the solemn declaration provided for in rule 87, paragraph 3, of the Committee’s rules of procedure.
VI. Contextual background to the inquiry
A. Convention on the Rights of Persons with Disabilities, decentralization and national monitoring bodies of the Convention
56. The State party’s Government considers the Convention as being part of the main framework for the protection of persons with disabilities together with the Equality Act 2010, which addresses situations of discrimination and establishes the public sector equality duty (part 11, chap. 1, No. 149). It also acknowledges the Convention as a key piece of legislation that sets out what governments should do to promote and protect the rights of persons with disabilities. Its Parliament has highlighted that the Convention and other human rights international instruments are binding obligations in international law and therefore the State party should give them adequate consideration in decision-making processes. However, the Convention has not been incorporated into domestic law and is still not directly justiciable.
57. The State party is a constitutional monarchy based on the principles of parliamentary supremacy and the rule of law. It is made up of four constituencies: England, Northern Ireland, Scotland and Wales. It has a decentralized administration system of devolution of powers, which operates through the transfer of the decision-making power on certain matters to the legislatures and administrations in Northern Ireland, Scotland and Wales. In the framework of devolution, the Government of the United Kingdom is also the Government for Scotland, Wales and Northern Ireland. In the State party, social security, including welfare, constitutes a non-devolved matter, as does employment, except in Northern Ireland where social security is devolved. However, under the principle of parity, the social security policy in Northern Ireland operates under the same principles as those in the rest of the United Kingdom.
58. Decentralization also confers power to local authorities to provide discretionary welfare assistance, local council tax support and discretionary housing payments. Local authorities deliver various social and health-care services, establish the level of support available for social care users and set up eligibility criteria applicable for delivering assistance packages, except in Northern Ireland.
59. The Office for Disability Issues of the Department for Work and Pensions is the State party’s focal point for disability-related issues. The Office is the body responsible for the implementation of “Fulfilling Potential — Making it Happen” strategy adopted by the State party in 2013. The Government asserts that the strategy is intended to give effect to the Convention and its implementation is based on the necessary involvement of persons with disabilities in issues that affect their lives. The strategy covers some aspects of the Convention under the topics: education, employment, income, health and well-being, choice and control, and inclusive communities.
60. The Equality and Human Rights Commission together with the Equality Commission for Northern Ireland, the Northern Ireland Human Rights Commission and the Scottish Human Rights Commission have been designated as the independent mechanisms for the monitoring the Convention.
61. While promoting equality and non-discrimination, the Equality and Human Rights Commission requires public authorities to produce equality schemes that set out how they plan to comply with the equality duty, including identifying policies for equality impact assessment. The Commission has launched various reports and has intervened in cases before courts regarding non-discrimination against persons with disabilities.
62. In their capacity as human rights national independent institutions, the Equality and Human Rights Commission and the Human Rights Commissions in Northern Ireland and in Scotland have competence to provide evidence during parliamentary processes, including inquiries launched by parliamentary committees, as well as by the Northern Ireland Assembly and the Scottish Parliament.
63. The Parliament of the State party, as well as the three devolved legislatures, exercises control of government policies, taking into consideration the duties of the State under the framework of the Convention. Various parliamentary committees have undertaken inquiries to evaluate government policies relating to social security, welfare, social care and the rights of persons with disabilities. The Joint Committee on Human Rights, the Equality Act 2010 and Disability Committee (House of Lords) and the Work and Pensions Committee (House of Commons) have undertaken inquiries and requested evidence on issues like the right to independent living, access to justice and persons with disabilities and the employment and support allowance for persons with disabilities. In Northern Ireland, the ad hoc committee established by the Assembly in 2012 through the Welfare Reform Bill scrutinized the effects of the welfare reform. In Scotland, the Welfare Reform Committee of the Scottish Parliament monitors the implementation of the Welfare Reform Act 2012. In Wales, the Communities, Equality and Local Government Committee scrutinizes legislation and holds the Welsh Government accountable for matters, including equality of opportunity for all.
B. Main legislation and reforms on welfare and social care and persons with disabilities
64. The Welfare Reform Act 2012 and the Care Act 2014 define the State party’s duties with regard to social protection. Overall, at the national level, it appears that the welfare system, together with a social and health-care system, provides a solid base for the protection of the rights of persons with disabilities and that the system has allowed them to achieve an acceptable level of autonomy. The Committee notes that the State party has taken measures to reinforce personal control over care and support known as the “personalization agenda” and to strengthen the responsibility of local authorities regarding funding for social care and support, referred to as “localization”.
65. The Welfare Reform Act 2012 is the main legislative instrument on welfare that applies in England, Scotland and Wales, and the Welfare Reform Act (Northern Ireland) 2007 and the Welfare Reform Act (Northern Ireland) 2010 regulate the situation in Northern Ireland. Under the Fresh Start agreement, the State party’s Government, the Government of Ireland and the largest Northern Ireland parties agreed on a legislative consent motion to allow the Government of the State party to legislate for welfare reform in Northern Ireland, as well as on the Welfare Reform Bill 2015-16 [Bill 99] introduced under a fast-track procedure, to enable Orders in Council to give effect in Northern Ireland to existing and prospective welfare changes in the State party.
66. The Welfare Reform Act 2012 represents a major reform of the welfare system and replaces various provisions of the Social Security Contributions and Benefits Act 1992, which had constituted the basis of social protection through contributory and non-contributory entitlements allocated for persons with disabilities. The Welfare Reform Act repealed the provisions about the non-contributory entitlement the Disability Living Allowance, introduced Personal Independence Payments (unified regulations concerning the Employment and Support Allowance that had already abolished the former Incapacity Benefit), set up a one-year limit for receiving contributory Employment and Support Allowance for claimants in the work-related activity group, introduced a “benefit cap” that limits the amount of benefit that people aged 16 to 64 can get, established Universal Credit as a benefit for working-age claimants (which replaces six existing working-age benefits) and introduced limits on housing benefits, including limiting access to over-occupied housing for social tenants (spare room tax, commonly known as “the bedroom tax”), and changes to appeals procedures, the tax credits system and council tax benefit.
67. The Care Act 2014, which came into effect in April 2015, sets forth the provisions relating care and support for adults and provisions relating to support for carers. The Act shifts the duty of local authorities from providing services to meeting needs, including legislation and guidance about preventing and delaying the development of needs in those who are not eligible for support, but who may benefit from the provision of information.
68. Most recently, the Welfare Reform and Work Act 2016 makes provision for various aspects, including reducing the benefit cap, freezing certain social security benefits and taxing credit amounts for four tax years, limiting Child Tax Credit, changing the child element of Universal Credit, amending the Child Poverty Act 2010, removing the work-related activity component from Employment and Support Allowance and regulating the limited capability for work element of Universal Credit and work-related requirements of Universal Credit.
69. The reform to the legal aid system set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and other reforms in the justice system have also been identified as part of the relevant framework that affects claimants of the welfare system, including persons with disabilities, owing to its provisions about civil law justice. The Act narrowed the scope of civil legal aid in England and Wales by excluding the use of legal aid in housing and debt cases (except where there is a risk of eviction) and welfare benefit cases, apart from appeals to the Upper Tribunal on points of law.
C. Welfare and social care reforms
70. The welfare system has faced a progressive change both in the conception from the “welfare” of individuals to the economic well-being of the country, as well as about the type and amount of entitlements and the portion of the population covered by the system. The former (2010-2015) and the present Government carried out a comprehensive social security reform based on two main reasons: the financial sustainability of the system and the need to make it more efficient.
71. The measures are intended to adjust the growth of the welfare budget with the aim of reducing the structural economic deficit following the 2008 global financial crisis. In that regard, fiscal consolidation has been the dominant influence since 2010 and the welfare reform, as well as social care, is anchored in a general policy of public spending cuts that will reduce public spending to its smallest level in decades. Official reports indicate that between 2009/10 and 2012/13, total gross expenditure on adult social care decreased by 5.5 per cent in England. That compares with falls of 2.1 per cent in Wales and 3.4 per cent in Scotland.
72. In addition, the State party is seeking to make the system more efficient through a better and more targeted distribution of resources: the new threshold is the protection of persons in critical condition or those who need it most. Furthermore, the State party aims to reduce fraud and error, simplify the benefits system and streamline the administration of the welfare system. In that area, the promotion of employment is the main driver of the policies and it is understood that employment of current “beneficiaries” will reduce the number of persons relying on the welfare system. Thereby, the reform provides increased incentives for work and work is reaffirmed as a condition for retaining and claiming certain entitlements under the social protection system: for instance the “entitlement to work”, which operates as a condition of entitlement for claimants of contributory Employment and Support Allowance.
73. The centrality of work was highlighted by the State party in different scenarios throughout the parliamentary discussions of the Welfare Act 2012, as well as in the Welfare Reform and Work Act 2016. With regard to persons with disabilities, the State party’s Government pointed out that promotion of employment of persons with disabilities was at the centre of the new policies and that persons with disabilities should also gain as a result of improved work incentives and smoother transitions into work. The State party noted that reforms would promote fairness throughout the system and reduce a life of welfare dependency for persons with disabilities.
74. Overall, various actors have recognized that the amendments to welfare and social care represent a major reform of the social policy system and that austerity measures are the underlying reason for transforming it. There is also a general agreement expressed by various instances, such as the Parliament of the State party and independent bodies like the Equality and Human Rights Commission and the Human Rights Commission of Northern Ireland, on the importance of the goal set by the Government of supporting people to move into and progress in work and promoting their independence, in the manner stated as the purpose of the Care Act 2014.
75. However, various public authorities, including the Parliament of the State party, local authorities and the independent national human rights institutions have expressed concerns about the potential discriminatory effects of the welfare measures on persons with disabilities and called the Government to fulfil its duties under the Equality Act 2010. Earlier in the discussion and upon approval of the reforms, public bodies had pointed out the lack of, and the need for, a cumulative impact assessment to consider the impacts on groups with similar characteristics, such as persons with disabilities and the population at the local level, as well as to monitor the post-legislative impact of the measures in the welfare reform.
76. In particular, throughout the discussions that preceded the approval of the Welfare Act 2012, the Joint Human Rights Committee of the Parliament warned about the potential retrogressive impact of the reform on the rights of persons with disabilities, which could be inconsistent with the State party’s obligation under the Convention. It referred to the negative impact of the introduction of Personal Independence Payments on the right of persons with disabilities to live independently, without reasonable justification; it also expressed concerns about the disparate impact in terms of extensive disruption regarding adaptations and caring/support networks for persons with disabilities who do not get Disability Living Allowance or Personal Independence Payment as a consequence of the tightened eligibility criteria. Moreover, it warned of the risk of discrimination regarding proposals on employment support allowance and housing benefit and the risk of “destitution” in connection with the new conditionality and sanctions regime.
77. The concerns expressed at the national level in terms of discrimination coincide with the findings of the devolved governments of Northern Ireland, Scotland and Wales, which launched impact assessment processes related to the social policy reforms and identified impacts in groups with protected characteristics, such as persons with disabilities. The common criteria of such assessments were to ascertain the cumulative impact of the tax credit cuts and the welfare in each region, including the number of people potentially affected by the policy changes, the expected impact on household incomes, the impact on poverty and the effects on work incentives — considerable barriers facing persons with disabilities in access to work, despite the aims of the reforms encouraging people to work, as well as its wider economic and social impacts.
78. Research and a number of independent studies conducted by academia and research centres, including various organizations of persons with disabilities, highlighted concerns about the actual impact of the austerity measures and reforms on the situation of persons with disabilities. As a result of analysing the reforms by region, families and individuals and groups, it seems there will be an impact on areas such as financial income, provision of social care, inclusion in society, independence, quality of life, well-being, housing, work, mobility and mental health. The specific impact on women with disabilities, children with disabilities, young persons with disabilities, persons with “learning disabilities” and persons with psychosocial disabilities was also identified.
79. Some of the issues pointed out in the above-mentioned research include: (a) financial loss for persons with disabilities, lower income for households claiming benefits under the welfare system and persons with disabilities being the biggest single group affected by the reforms (in 2013, independent sources estimated that about 26,000 people would no longer be entitled to disability allowances); (b) significantly greater impact in the poorest areas; (c) more persons with disabilities living in poverty; (d) no account being taken of those people no longer eligible for entitlements and services; (e) more inequality and growing restrictions on social care services owing to the decreasing budget allocations earmarked for social care; (f) reduction in services available for home care and on services for older people; (g) risk of social isolation and more reliance on informal and family care; (h) loss of eligibility for or reduction in entitlement under the assessment for the Personal Independence Payment; (i) the negative impacts of the reduction on housing benefits; (j) the closure of the Independent Living Fund in the State party; (k) the transition from the Disability Living Allowance into Personal Independence Payment; (l) the changes in the Employment and Support Allowance; (m) impact on public transport services available for persons with disabilities; and (n) negative stereotyping of persons with disabilities.
80. The reform regarding social care through the Care Act 2014 was aimed at reducing reliance on formal care in order to promote peoples’ independence and well-being and give people more control of their own care and support.
81. Reliable information indicates that, from the start of the inquiry until 2015, public funding of adult social care was reduced by £4.6 billion, representing 31 per cent of the real-term net budget. As a consequence, local authorities reduced their spending on social care and cut community services that had been of importance to persons with disabilities.
VII. Summary of the findings
A. General findings
82. The facts submitted by the source were disputed by the State party. The Committee engaged in a verification exercise in which the facts that appeared to be controversial were cross-checked with data collected from a variety of sources, including parliamentary inquiries, reports of the independent monitoring body of the Convention, official statistics, reports and data originating from other government departments or units, entity governments, research institutes, service providers, academic centres, independent experts, former government officers, grass-roots non-governmental organizations, organizations of persons with disabilities and individuals. In some cases, some State party’s statements were not supported by evidence collected by the investigation. In others, the State party indicated that no data were available. The findings below are based on a comprehensive analysis of data provided by various sources.
83. The State party launched, a considerable time ago, a major policy reform to the welfare system, aimed at reducing the fiscal deficit and achieving in 2020 a surplus in its balance of payments. Various policy documents and statements by high-level ranking officers have stated that this is the most fundamental policy change to the social protection system in recent decades. The stated goals of the policy are to transform British society from a low-wage, low-employment and high-welfare society to a high-wage, high-employment and low-welfare one. The policy makes the assumption that individuals are better off in work, dependency on benefits is in itself counterproductive and perpetuates poverty and beneficiaries of welfare benefits need to move into work both through improvement of incentives to employment and through a system of conditionality and sanctions. The policy intends that sectors of society who have been dependant on benefits move into work. It has also been stated that the policy aims at protecting those people who require more support or who are “most vulnerable”.
84. Changes to the welfare system include the overhauling of a wide range of entitlements in several areas, including social and private housing sector, contributory and non-contributory benefits, tax credits and out-of-work and in-work benefits and have affected all segments of the population, including children, women, single parents, older persons and persons with disabilities. With regard to persons with disabilities, the reform resulted in the overhauling of major disability benefits, including means-tested benefits, income-maintenance benefits and benefits related to the specific and extra costs associated with disability. In the period covered by the inquiry, a large number of persons with disabilities have been requested to undergo capability assessments, with pre-implementation assumptions that a significant percentage would no longer rely on social allowances.
85. The roll out of those policies included the issuing of statements by high-ranking officers that the reform was aimed at making the welfare system fairer to taxpayers and more balanced and transparent and reducing benefit fraud. Persons with disabilities have been regularly portrayed negatively as being dependent or making a living out of benefits, committing fraud as benefit claimants, being lazy and putting a burden on taxpayers, who are paying “money for nothing”. Although the State party produced evidence of formal efforts and public awareness campaigns to improve the image of persons with disabilities, the inquiry collected evidence that persons with disabilities continue to experience increasing hostility, aggressive behaviour and sometimes attacks to their personal integrity. The inquiry also found no substantiation of the alleged benefit fraud by persons with disabilities.
86. Public sector equality duty obliges State authorities to carry out impact assessments when they plan to introduce measures, including legislative measures, to ensure that groups with protected characteristics, among them persons with disabilities, are properly consulted and any adverse impact on them is properly justified. The State party submitted evidence that it has complied with domestic legal duties for all the intended changes to the welfare system. The inquiry collected evidence that a major piece of legislation of the welfare reform, the Welfare Reform Act 2012, was not thoroughly compliant with those requirements. Similarly, a court of law found that the decision to close the Independent Living Fund was not in compliance with domestic equality duty, which compelled the authorities of the State party to carry out another equality assessment. The inquiry also collected evidence that the views of persons with disabilities and their representative organizations who had participated in consultations launched by the State party, were not meaningfully taken into account in the decision-making and had little or no influence on policy decisions.
87. Although the State party asserted that a cumulative impact assessment of the various policy measures affecting persons with disabilities was not technically feasible or practicable, the evidence collected by the inquiry indicates that a cumulative impact assessment could have been conducted with the data and information available in the State party.
88. The Committee observes that various pieces of legislation related to recent welfare policies do not fully enforce the international human rights framework related to social protection and independent living. In connection thereto, it was observed that in the field of social protection, persons with disabilities have not been properly considered as right-holders and entitled to benefits with regard to their right to social protection. Similarly, while the Care Act 2014 reflects the principles of well-being of persons with disabilities and underlines the objective of personalization of support packages, it fails to properly acknowledge the elements of autonomy and control and choice, which are intrinsic to the right to independent living as referred to in article 19 of the Convention.
89. The Committee observes the prevalence of the medical approach in assessment procedures for determining the eligibility of persons with disabilities to entitlements. The main assessment procedure for determining eligibility for out-of-work benefits resulted in persons with disabilities being classified as either unable to perform work-related activity, having limited capability to work or fit to work. The above-mentioned assessment failed to take in account the support persons with disabilities need to perform a job or the complex nature of some impairments and conditions, or reflect the human rights-based approach to disability.
90. The Committee observes that persons with disabilities who have undergone functional assessments aimed at determining their eligibility for social benefits felt that they were merely processed rather than being listened to or understood. The inquiry was informed that several measures have been adopted to make adjustments to procedures to improve service delivery, including the time frame for the assessment procedures, and ensure a better understanding of the diversity of persons with disability by assessors. The evidence collected from various sources indicates that the needs, views and personal history of persons with disabilities, and particularly those requiring high levels of support such as persons with intellectual and/or psychosocial disabilities, were not properly taken into account or given appropriate weight in the decisions affecting them.
91. The inquiry collected evidence indicating that information, advice and counselling provided to persons with disabilities about different steps in the assessment processes and decisions about their entitlements was limited, non-existent or not provided in accessible formats and languages. That was coupled with uncertainty about the outcomes of those processes triggering anxiety, psychological strain and financial hardship. The Committee also collected evidence about persons with disabilities whose mental health condition had severely deteriorated as a result of the aforementioned factors.
92. Evidence indicates that legal aid to challenge administrative decisions ending or curtailing their benefits before first-tier tribunals has been restricted. Legal aid for cases before those tribunals has also been curtailed. Similarly, access to review by an independent and impartial tribunal has been restricted by the introduction of mandatory reconsideration procedures before the same administrative entity that has ruled on benefits.
93. Evidence indicates that State party authorities carried out surveys and regularly published statistics about welfare reform. States party authorities also cooperated with parliamentary inquiries and provided answers to the recommendations issued by that oversight body. However, there is no evidence of periodic monitoring and evaluation activities involving persons with disabilities and their representative organizations about the impact of the implementation of measures.
94. Evidence was produced about mitigating measures put in place by central authorities to support persons with disabilities in coping with the curtailing of their social security benefits. Evidence was also produced indicating that those mitigating measures were of a temporary nature for individuals concerned by the measures, not regularly offered or known by claimants affected by decisions and not sustainable enough to outweigh the financial impact of the reduction or suppression of income-maintenance benefits. The Committee also observes that the devolved administrations in Scotland and Wales had put in place mitigation measures and takes note of the mitigation plan agreed upon in Northern Ireland.
B. Living independently and being included in the community (art. 19)
95. The Committee observed throughout the inquiry process that the interaction of various reforms on welfare schemes, in particular changes in housing benefits, the establishment of a cap on household benefits, changes in eligibility criteria for the “moving around” component under the new Personal Independence Payment, tightening of criteria to access social care and the closure of the Independent Living Fund in the State party, have disproportionately affected persons with disabilities and hindered various aspects of their right to live independently and be included in the community.
96. The Committee is concerned that the set of reforms has limited the right of persons with disabilities to choose their residence on an equal basis with others, resulting in persons experiencing increasing reliance on family and/or kinship carers, reduction in their social interaction, increased isolation and, in certain cases, institutionalization. The deinstitutionalization process in the State party has been adversely affected.
97. The Committee is of the view that changes in housing benefits, specifically the implementation of the social housing size criteria through the reduction in social housing welfare payments referred to as “the spare room subsidy”, the establishment of a cap on household benefits and changes in local housing allowances for private-sector tenants have curtailed the right of persons with disabilities to choose a place of residence in accordance with article 19 of the Convention. The Committee notes that, in multiple cases, social housing size criteria failed to recognize the specific living arrangements that persons with disabilities require in connection with their impairment and respect of their autonomy, will and preferences. The Committee observes that measures have caused financial hardship to persons with disabilities resulting in, inter alia, arrears, debts, evictions and cuts to essentials such as housing and food. The Committee, while noting that Discretionary Housing Payments have been established as a form of mitigation, observes that the concerns and views of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context (see A/HRC/25/54/Add.2) persist.
98. Evidence indicates that persons with disabilities affected by cuts in their housing benefits have undergone high levels of stress, anxiety and depression as a consequence of the shortfalls in their budget and the costs to recover financial stability. In many cases, the implementation of welfare measures has reinforced the dependency of persons with disabilities on informal and/or family care and has hindered deinstitutionalization plans.
99. The Independent Living Fund in the State party has been closed to new claimants since 2010 and was definitively closed in June 2015. The funds transferred from the central administration to local authorities under the scheme of localization were not ring-fenced in England, affecting the majority of former Fund users. It was observed that social care packages have been reduced in the context of further budgetary constraints at the local level. The Committee finds that former Fund claimants have seen the support they received from local authorities substantially reduced, to the extent that their essential needs in areas such as daily personal care are not sufficiently covered. The Committee takes note of the decision made by the devolved administrations in Scotland and Northern Ireland for the maintenance of schemes equivalent to the former Independent Living Fund, as well as in Wales. However, it remains concerned about the lack of acceptance of new applicants to the fund in Northern Ireland.
100. According to the Care Act 2014, social care provisions and schemes realize the principle of well-being. However, the information brought to the attention of the Committee demonstrated increasing financial hardship for persons with disabilities at the local level and the reduction in time and quality of social care services for those persons who are considered “not having substantial or critical levels of need”. Prioritization and tightening of eligibility criteria for adult social care has been implemented on a regular basis, adversely affecting persons with disabilities who are not being supported to the extent that they need. The Committee gathered evidence indicating that the level of care has diminished, affecting older persons with disabilities, and received testimonies about the reduction in time for visits by social carers, who in certain cases are limited to 15-minute visits to assist persons with disabilities with basic needs such as meals and personal hygiene. It was observed that the reduction in the provision of support services at the local level has curtailed the ability of persons with disabilities to take part in community life.
101. The State party provided information about measures to transfer more responsibilities to local authorities and the personalization of budgets for personal care. The Committee, however, received evidence that personal care packages have been reduced and that the availability of support is established on the basis of what is considered to be an affordable service in the market, rather than on the specific needs of the person concerned. The Committee received evidence that personal budgets do not necessarily allow persons with disabilities to have access and control over social care services and restrict the level of personal assistance they receive.
C. Work and employment (art. 27)
102. Evidence indicates several flaws in the processes related to the Employment and Support Allowance. In particular, the Committee notes that, despite several adjustments made to the Work Capability Assessment, the assessment has continued to be focused on a functional evaluation of skills and capabilities, and puts aside personal circumstances and needs, and barriers faced by persons with disabilities to return to employment, particularly those of persons with intellectual and/or psychosocial disabilities. In the initial period covered by the present report, evidence indicates a significant percentage of assessments were overturned by tribunals.
103. Despite the training delivered to assessors and decision makers, evidence indicates a persisting lack of awareness and limited knowledge of disability rights and the specific needs of persons with disabilities, particularly of persons with intellectual and/or psychosocial disabilities. The Committee also collected evidence of lack of reasonable accommodation and inaccessible information about the assessment process.
104. While the Committee notes the effort of the authorities to shorten the length of mandatory reconsideration procedures, evidence indicates that claimants requesting reconsideration have frequently experienced long waiting periods. The Committee also observes that, during the mandatory reconsideration procedure, Employment and Support Allowance benefits are suspended.
105. Evidence collected points to significant hardship, including financial, material and psychological, experienced by persons with disabilities undergoing assessments. Persons who have been compelled to undergo a new assessment shortly after a first assessment have been particularly affected.
106. The number of sanctions of claimants in the Employment and Support Allowance work-related activity group has increased significantly between 2012 and 2014, and evidence indicates that they have been applied in a disproportionate manner. Opportunities to apply for hardship payments exist, but few people appear to have been informed thereof; the payments are also modest, discretionary, subject to strict access rules and of a temporary nature. Evidence indicates that claimants who have been sanctioned have faced financial hardship, including through becoming indebted, relying on the support of relatives or on food banks or having reduced essential services.
107. Various programmes have been designed to encourage persons with disabilities to move into paid employment. The two main programmes, the Work Programme and Job Centre Plus, where persons with disabilities were mostly referred, had no visible impact in decreasing unemployment among them. Persons with disabilities who have had access to other programmes that have been more successful have experienced reductions in the support provided to them, in some cases resulting in loss of employment. Evidence indicates that the Work Programme helped persons with disabilities back to work to a very limited extent and that persons with substantial support needs were left aside.
108. The situation of persons with disabilities deemed “fit to work” is not monitored as such. Those who have re-entered the system by claiming the Job Seeker’s Allowance to support them until they find work face stringent levels of conditions and sanctions, which do not take into account the specific barriers they face. The Committee was informed that, in some cases, sanctions had led to financial hardship for persons with disabilities, and particularly persons with intellectual and/or psychosocial disabilities.
109. The State party initially stated that it did not monitor deaths that occurred after assessments. Evidence gathered during the inquiry indicated that, in 2012 and 2015, such information was released by the Department of Work and Pension following freedom of information requests. Additionally, information originated from official sources indicated that 33 deaths of claimants who died after being assessed were being examined. The State party claims that there is no causal link. The Committee is not aware of any attempts at objective, thorough, open and impartial investigation regarding those deaths by an independent body.
D. Adequate standard of living and social protection (art. 28)
110. The Committee had access to official statistics indicating that, overall, households with one or more persons with disabilities are more likely to have a relatively low income than households without persons with disabilities. The Committee was presented with evidence that changes operated in the welfare system had had a more negative impact on households with persons with disabilities, especially on those living on low income.
111. The Committee observes that equality impact assessments carried out by authorities for various welfare benefits did foresee that a large number of persons with disabilities would be affected by policy changes. The Committee also received evidence that the cumulative impact in the reduction of welfare benefits has led persons with disabilities to struggle to maintain minimum level of income, driving many into increased dependency on relatives and increased levels of indebtedness and resulting in an inability to manage the bare essentials and recourse to food banks.
112. The authorities foresaw that the transition from Disability Living Allowance to Personal Independence Payment would result in 620,000 fewer people receiving Personal Independence Payments and would represent a 20 per cent saving in expenditure. The eligibility criteria and the threshold for qualifying for Personal Independence Payments have been tightened, with the result that many claimants with moderate or lower levels of support have been excluded from the benefit. Similarly, the tightening of the eligibility criteria for the mobility component has resulted in Personal Independence Payments beneficiaries losing their entitlements to that component. Persons were reassessed based on functional criteria and evidence indicates that, despite assurances that the assessment period would be shortened, there were claimants experiencing long waiting periods. Information also indicates that the authorities intend to further reduce the support available to access assistive devices.
E. Systematic violations of the Convention
113. Consequently, the Committee considers that there is reliable evidence that the threshold of grave or systematic violations of the rights of persons with disabilities has been met in the State party. That conclusion is based on the following findings:
(a) The State party has implemented a policy aimed at reforming its welfare system and the reforms have been justified in the context of austerity measures to achieve fiscal and budgetary policy consolidation;
(b) The assumptions made under the policy include that: taxpayers need to be treated with fairness; large numbers of persons with disabilities have been relying and dependent on social benefits; persons are better off in work than on benefits; the dependency of persons with disabilities on benefits is in itself a disincentive to move them into employment; the number of persons with disabilities relying on social benefits were to be decreased; and tightening sanctions and conditionality of social benefits is a legitimate tool for incentivizing their moving into employment;
(c) The impact assessments conducted by the State party prior to the implementation of several measures of its welfare reform expressly foresaw an adverse impact on persons with disabilities;
(d) Several measures have disproportionally and adversely affected the rights of persons with disabilities;
(e) Measures resulting in reduction of support provided to meet the extra cost of disability, denial of reasonable accommodation in assessment procedures and realization of the right to employment have had a discriminatory effect on persons with disabilities;
(f) The core elements of the rights to independent living and being included in the community, an adequate standard of living and social protection and their right to employment have been affected: persons with disabilities affected by policy changes have had their freedom of choice and control over their daily activities restricted, the extra cost of disability has been set aside and income protection has been curtailed as a result of benefit cuts, while the expected policy goal of achieving decent and stable employment is far from being attained;
(g) There is evidence that a large number of persons with disabilities have been affected (e.g. 13,900 persons with disabilities have lost their Motability schemes and therefore their adapted cars, upon implementation of Personal Independence Payment up to February 2016; 492,180 had been placed in the Employment and Support Allowance work-related activity group by end of 2015; 41,792 Employment and Support Allowance work-related activity group sanctions were handed out up to March 2014);
(h) Evidence gathered nationally by the Parliament, the independent monitoring framework, universities and research institutes and centres and independent experts, has documented adverse and disproportionate effects of measures on persons with disabilities;
(i) The State party has not conducted a comprehensive human rights-based cumulative impact assessment even though reliable sources have indicated it is feasible;
(j) The State party continues its policy of reducing social benefits of persons with disabilities as reflected in the Welfare Reform and Work Act 2016.
VIII. Recommendations
114. The Committee recommends that the State party:
(a) Conduct a cumulative impact assessment of the measures adopted since 2010, referred to in the present report, on the rights to independent living and to be included in the community, social protection and employment of persons with disabilities. The State party should ensure that such assessment is rights-based and meaningfully involves persons with disabilities and their representative organizations;
(b) Ensure that any intended measure of the welfare reform is rights-based, upholds the human rights model of disability and does not disproportionately and/or adversely affect the rights of persons with disabilities to independent living, an adequate standard of living and employment. To prevent adverse consequences, the States party should carry out human rights-based cumulative impact assessments of the whole range of intended measures that would have an impact on the rights of persons with disabilities;
(c) Ensure that: any intended legislation and/or policy measure respects the core elements of the rights analysed in the present report; persons with disabilities retain their autonomy, choice and control over their place of residence and with whom they live; they receive appropriate and individualized support, including through personal assistance, and have access to community-based services on an equal basis with others; they have access to security social schemes that ensure income protection, including in relation to the extra cost of disability, that is compatible with an adequate standard of living and ensure their full inclusion and participation in society; and they have access and are supported in gaining employment in the open labour market on an equal basis with others;
(d) Ensure that public budgets take into account the rights of persons with disabilities, that sufficient budget allocations are made available to cover extra costs associated with living with a disability and that appropriate mitigation measures, with appropriate budget allocations, are in place for persons with disabilities affected by austerity measures;
(e) Introduce all adjustments necessary to make all information, communications, administrative and legal procedures in relation to social security entitlements, independent living schemes and employment/unemployment-related support services fully accessible to all persons with disabilities;
(f) Ensure access to justice, by providing appropriate legal advice and support, including through reasonable and procedural accommodation for persons with disabilities seeking redress and reparation for the alleged violation of their rights, as covered in the present report;
(g) Actively consult and engage with persons with disabilities through their representative organizations and give due consideration to their views in the design, implementation, monitoring and evaluation of any legislation, policy or programme action related to the rights addressed in the present report;
(h) Take appropriate measures to combat any negative and discriminatory stereotypes or prejudice against persons with disabilities in public and the media, including that dependency on benefits is in itself a disincentive of employment; implement broad mass media campaigns, in consultation with organizations 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;
(i) Ensure that, in the implementation of legislation, policies and programmes, special attention is paid to persons with disabilities living with a low income or in poverty and persons with disabilities at higher risk of exclusion, such as persons with intellectual, psychosocial or multiple disabilities and women, children and older persons with disabilities. Those measures should be put in place within contributive and non-contributive regimes;
(j) Set up a mechanism and a system of human rights-based indicators to permanently monitor the impact of the different policies and programmes relating to the access and enjoyment by persons with disabilities of the right to social protection and an adequate standard of living, the right to live independently and be included in the community and the right to work, in close consultation with persons with disabilities and their representative organizations in all regions and countries that constitute the State party;
(k) Respond to the present report within the time limit prescribed under the Optional Protocol, widely disseminate the Committee’s findings and recommendations and provide appropriate follow-up to the recommendations of the present report, including during the consideration of the State party’s initial report before the Committee.