The expansion of the recognition institutionalisation and accountability framework for economic and social

rights

Evidence from Inclusion London and

Disabled People Against Cuts

March 2019

1

Contents Abbreviationshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip41) Introductionhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip52) Summaryhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip53) Focus of the evidencehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip74) Contexthelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip7

A) What has made a difference in your country in promoting the implementation of a specific economic and social right8

5) Use of the law by civil societyhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip helliphelliphellip8 Successful legal challenges re welfare reformshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip8

o Introduction to legal caseshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip8 Examples of legal cases

o Personal Independence Payment (PIP)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip9o Transfer from Incapacity Benefit (IB) to Employment Support

Allowance (ESA) helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip9o Severe Disability PremiumUniversal Credit (UC)helliphelliphelliphelliphelliphelliphellip10o Social housing size criteriabedroom taxhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip11o Seven reviewshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip11

Legal challenges in other areaso Employment support cappedhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip12o Housinghelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip12

6) Civil societyrsquos reports to the UNhelliphelliphelliphelliphellip helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip137) Civil Societyrsquos researchhelliphelliphelliphelliphelliphelliphelliphelliphellip helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip13

o Barriers to workhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip13o Lack of support in educationhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip14o Lack of foodhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip15o Destitution ndash links to welfare benefit changeshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip15o Debthelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip16o Homelessnesshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip16

8) Freedom of Information requestshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip169) Action by activistshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip17

o Protest at deaths due to loss of benefitshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip17 o Save the ILF campaignhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip18

B) What domestic institutions have succeeded in implementing monitoring and advocating for economic and social rights18

10) Equality and Human Rights Commission (EHRC)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip18

2

EHRC legal actionhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip19 EHRC researchhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip19

o Progress on socio economic rights in Great Britainhelliphelliphelliphelliphelliphelliphelliphelliphellip19o Being disabled in Britain A journey less equalhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip20o The Cumulative Impact of Tax and Welfare reformhelliphelliphelliphelliphelliphelliphelliphelliphellip20o Housing and disabled people Britainrsquos hidden housing crisishelliphelliphelliphelliphellip20

11) Joint Committee on Human Rights (JCHR)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21 JCHRrsquos legislative scrutinyhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21

o Welfare Reform Bill (WRB)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21

12) National Audit Office (NAO) reportshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip2213) Ombudsmen for social care and housinghelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip22

o Ombudsment for social care and housinghelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip22o Ombudsmanrsquos annual report on social care complaintshelliphelliphelliphelliphelliphelliphelliphelliphelliphellip23o Report on housing repairs complaintshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip24

14) Social Security Advisory Committeehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip24o Mandatory Reconsideration and UC regulations reporthelliphelliphelliphelliphelliphelliphellip24

15) Parliamentary inquirieshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip2516) Research by universitieshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip25

o Foodbank usagehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip25o Universal Credit sanctionshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip26

C) What conditions or circumstances have made it difficult to recognise institutionalise and hold the government to account in relation to economic and social rights26

17) Legal position of economic and social rightshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip26 lsquoSoft lawrsquohelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip27

o Bracking and others v Secretary of State for Work and Pensionshelliphelliphelliphelliphelliphellip28o UN recommendations not implementedhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip28

18) Inaccurate welfare benefits assessmentshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3019) Mandatory Reconsideration (MR)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3120) Sanctionshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3121) Digital application systemshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3222) Inaccessible communicationshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3223) Governmentrsquos narrative to justify the austerity measureshelliphelliphelliphelliphelliphelliphelliphellip33 24) Courts reluctant to go against government policieshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip34 25) Changes to legal aidhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3526) Conclusionhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3627) Appendices

Appendices 1 Seven reviewshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip38

3

Appendices 2 Difficulties in obtaining information via a FOIhelliphelliphelliphelliphellip39Contactshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip42

AbbreviationsAtW Access to WorkCCG Clinical Commission GroupDDPOs Deaf and Disabled Peoplersquos OrganisationsDLA Disability Living AllowanceDWP Department of Work and PensionsCPAG Child Poverty Action GroupEHRC Equality Human Rights CommissionECHR European Convention on Human RightsESA Employment Support AllowanceFOI Freedom of Information IB Incapacity Benefit ICESCR International Covenant on Economic Social and Cultural RightsILF Independent Living FundJSA Job Seekers AllowanceJCHR Joint Committee on Human RightsLA Local AuthorityMR Mandatory ReconsiderationNHS National Health ServicePIP Personal Independence PaymentPSED Public Sector Equality DutySSAC Social Security Advisory CommitteeSDP Severe Disability PremiumSEND Special Educational Needs and DisabilitiesSoS Secretary of StateUC Universal CreditUN United NationsUNCRPD UN Convention on the Rights of Persons with Disabilities WampPC Work and Pensions CommitteeWRA Welfare Reform Act 2012WRB Welfare Reform BillWRWA Welfare Reform and Work Act 2016

4

1) Introduction11) Inclusion London and Disabled People Against Cuts submit this evidence on the expansion of the recognition institutionalisation and accountability framework for economic and social rights

Inclusion London12) Inclusion London is a London-wide user-led organisation which promotes equality for Londonrsquos Deaf and Disabled people and provides capacity-building support for over 70 Deaf and Disabled Peoplersquos Organisations (DDPOs) in London and through these organisations our reach extends to over 70000 Disabled Londoners

Disabled People Against Cuts (DPAC)13) DPAC is a grassroots campaign led by Disabled people Following the first mass protest against austerity cuts held on the 3 October 2010 in Birmingham it was set up by a group of Disabled people in response to the disproportionate impact of austerity on Disabled people That march had been led by Disabled people under the name of The Disabled Peoplesrsquo Protest Since then DPAC has continued to grow as the negative impacts of austerity have widened DPAC now has over 20000 members and supporters with a far wider outreach through its work with mainstream anti-cuts groups universities Disabled Peoplesrsquo Organisations and Trade Unions

14) The evidence is supported byPeople First (Self Advocacy)

20) SummaryBelow is a summary under each of the questions posed they UN Rapporteur on poverty

A) What has made a difference in your country in promoting the implementation of a specific economic and social rightLegal action linked to wider civil society campaigns has been particularly effective in raising awareness and understanding of rights amongst communities affected Parliamentarians the media and public more generally Successful legal action has been taken regarding

o Welfare benefits o Employmento Housing

Civil society has also promoted the implementation througho Submitting civil society reports to the UN for the periodic reviews of

ICESCR and UNCRDP and submitting evidence to an UNCRPD inquiry

5

o Conducting research in areas such as use of foodbanks destitution debt and homelessness ensuring voice of people affected is heard

o Submitting Freedom of Information requests regarding welfare benefits o Carrying out campaigns and lobbying

B) What domestic institutions have succeeded in implementing monitoring and advocating for economic and social rightsThe EHRC is a key institution which has successfully supported legal action by individuals to enforce rights in domestic law This has indirectly promoted the right to an adequate standard of living and social security The EHRC also has a monitoring role as the UK Independent Mechanism in internal treaty work Below are domestic institutions that have directly andor indirectly aided the monitoring and advocacy of economic and social rights Their impact is limited because there is no onus for government to implement their recommendations unless domestic law is breached

The Joint Committee on Human Rights has advocated for human rights Reports by the National Audit Office and parliamentary select committees can

highlight problems with government policies and systems including the welfare benefit system While their recommendations can suggest positive changes they do not bring about the systemic change needed so economic and social rights continue to be breached

The Ombudsmen for social care and housing implement rights to social care and housing under UK domestic law

Parliamentary select committees conduct inquiries on the impact of welfare reforms which can indirectly aids the monitoring of economic and social rights

Research conducted by universities on the impact of welfare reforms can indirectly aid the monitoring of social and economic rights

C) What conditions or circumstances have made it difficult to recognise institutionalise and hold the government to account in relation to economic and social rights

The right to an adequate standard of living is not placed in UK domestic law so the obligations under the ICESCR and the UNCRPD are difficult to enforce and therefore easier for the government to ignore

The government seems to consider the rights under international conventions as lsquosoft lawrsquo the government has neither responded to or implemented the UNrsquos recommendations arising from the ICESCR and the UNCRPD periodic reviews and a UNCRPD inquiry We believe this failure to respond and implement recommendations is actively undermining the status and authority of international law international institutions and human rights both in the UK and abroad

Deeply flawed poor quality and inaccurate assessments prevent access to welfare benefits

6

Welfare benefit sanctions can leave people without enough money for daily living costs including food and housing

Unfortunately the governmentrsquos narrative that huge cuts in public spending are necessary to reduce the national debt quickly combined with false accusations that Deaf and Disabled people as benefit scroungers and fraudsters undeserving lazy welfare recipients has been successfully used to justify huge punitive cuts to welfare state

The Courts are reluctant to go against the policy and budgetary decisions of an elected government even when this amount to discriminatory treatment

The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly narrowed the scope of legal aid excluding welfare benefit appeals which has had a disproportionate impact on disabled people As a result of LASPO ldquoour justice system has become unaffordable to mostrdquo1

3) Focus of the evidence30) The evidence provided in this submission focuses on Deaf and Disabled peoplersquos experiences regarding Article 92 the right to social security and Article 113 the right to an adequate standard of living under the ICESCR

4) Context 41) Since 2010 the UK government has embarked on a programme of significant cost cutting to the state commonly known as lsquoausterity measuresrsquo The cuts have impacted on many areas of Deaf and Disabled peoplersquos lives causing retrogression of Deaf and Disabled peoplersquos rights across all areas of life including cuts or loss of welfare benefits income protection cuts or loss of social care support poor quality and inaccessible housing and the reduction in education and employment support These cuts have primarily been the result of so called welfare reforms introduced through new legislation as well as massive cuts in central government funding to local authorities Cutting the costs of the welfare state in the UK has caused deeper and more persistent poverty hunger destitution and homelessness of Deaf and Disabled people whose rights to an adequate standard of living and the right to social security appear to all intent and purposes to have been disregarded

1 httpspublicationsparliamentukpajt201719jtselectjtrights669669pdf (Accessed 29 March 2019)2 Article 9 The States Parties to the present Covenant recognize the right of everyone to social security including social insurance httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 29 March 2019) 3 Article 11 1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including adequate food clothing and housing and to the continuous improvement of living conditions The States Parties will take appropriate steps to ensure the realization of this right recognizing to this effect the essential importance of international co-operation based on free consent httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 26 March 2019)

7

Contents Abbreviationshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip41) Introductionhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip52) Summaryhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip53) Focus of the evidencehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip74) Contexthelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip7

A) What has made a difference in your country in promoting the implementation of a specific economic and social right8

5) Use of the law by civil societyhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip helliphelliphellip8 Successful legal challenges re welfare reformshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip8

o Introduction to legal caseshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip8 Examples of legal cases

o Personal Independence Payment (PIP)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip9o Transfer from Incapacity Benefit (IB) to Employment Support

Allowance (ESA) helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip9o Severe Disability PremiumUniversal Credit (UC)helliphelliphelliphelliphelliphelliphellip10o Social housing size criteriabedroom taxhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip11o Seven reviewshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip11

Legal challenges in other areaso Employment support cappedhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip12o Housinghelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip12

6) Civil societyrsquos reports to the UNhelliphelliphelliphelliphellip helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip137) Civil Societyrsquos researchhelliphelliphelliphelliphelliphelliphelliphelliphellip helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip13

o Barriers to workhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip13o Lack of support in educationhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip14o Lack of foodhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip15o Destitution ndash links to welfare benefit changeshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip15o Debthelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip16o Homelessnesshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip16

8) Freedom of Information requestshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip169) Action by activistshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip17

o Protest at deaths due to loss of benefitshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip17 o Save the ILF campaignhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip18

B) What domestic institutions have succeeded in implementing monitoring and advocating for economic and social rights18

10) Equality and Human Rights Commission (EHRC)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip18

2

EHRC legal actionhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip19 EHRC researchhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip19

o Progress on socio economic rights in Great Britainhelliphelliphelliphelliphelliphelliphelliphelliphellip19o Being disabled in Britain A journey less equalhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip20o The Cumulative Impact of Tax and Welfare reformhelliphelliphelliphelliphelliphelliphelliphelliphellip20o Housing and disabled people Britainrsquos hidden housing crisishelliphelliphelliphelliphellip20

11) Joint Committee on Human Rights (JCHR)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21 JCHRrsquos legislative scrutinyhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21

o Welfare Reform Bill (WRB)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21

12) National Audit Office (NAO) reportshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip2213) Ombudsmen for social care and housinghelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip22

o Ombudsment for social care and housinghelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip22o Ombudsmanrsquos annual report on social care complaintshelliphelliphelliphelliphelliphelliphelliphelliphelliphellip23o Report on housing repairs complaintshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip24

14) Social Security Advisory Committeehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip24o Mandatory Reconsideration and UC regulations reporthelliphelliphelliphelliphelliphelliphellip24

15) Parliamentary inquirieshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip2516) Research by universitieshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip25

o Foodbank usagehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip25o Universal Credit sanctionshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip26

C) What conditions or circumstances have made it difficult to recognise institutionalise and hold the government to account in relation to economic and social rights26

17) Legal position of economic and social rightshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip26 lsquoSoft lawrsquohelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip27

o Bracking and others v Secretary of State for Work and Pensionshelliphelliphelliphelliphelliphellip28o UN recommendations not implementedhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip28

18) Inaccurate welfare benefits assessmentshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3019) Mandatory Reconsideration (MR)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3120) Sanctionshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3121) Digital application systemshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3222) Inaccessible communicationshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3223) Governmentrsquos narrative to justify the austerity measureshelliphelliphelliphelliphelliphelliphelliphellip33 24) Courts reluctant to go against government policieshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip34 25) Changes to legal aidhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3526) Conclusionhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3627) Appendices

Appendices 1 Seven reviewshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip38

3

Appendices 2 Difficulties in obtaining information via a FOIhelliphelliphelliphelliphellip39Contactshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip42

AbbreviationsAtW Access to WorkCCG Clinical Commission GroupDDPOs Deaf and Disabled Peoplersquos OrganisationsDLA Disability Living AllowanceDWP Department of Work and PensionsCPAG Child Poverty Action GroupEHRC Equality Human Rights CommissionECHR European Convention on Human RightsESA Employment Support AllowanceFOI Freedom of Information IB Incapacity Benefit ICESCR International Covenant on Economic Social and Cultural RightsILF Independent Living FundJSA Job Seekers AllowanceJCHR Joint Committee on Human RightsLA Local AuthorityMR Mandatory ReconsiderationNHS National Health ServicePIP Personal Independence PaymentPSED Public Sector Equality DutySSAC Social Security Advisory CommitteeSDP Severe Disability PremiumSEND Special Educational Needs and DisabilitiesSoS Secretary of StateUC Universal CreditUN United NationsUNCRPD UN Convention on the Rights of Persons with Disabilities WampPC Work and Pensions CommitteeWRA Welfare Reform Act 2012WRB Welfare Reform BillWRWA Welfare Reform and Work Act 2016

4

1) Introduction11) Inclusion London and Disabled People Against Cuts submit this evidence on the expansion of the recognition institutionalisation and accountability framework for economic and social rights

Inclusion London12) Inclusion London is a London-wide user-led organisation which promotes equality for Londonrsquos Deaf and Disabled people and provides capacity-building support for over 70 Deaf and Disabled Peoplersquos Organisations (DDPOs) in London and through these organisations our reach extends to over 70000 Disabled Londoners

Disabled People Against Cuts (DPAC)13) DPAC is a grassroots campaign led by Disabled people Following the first mass protest against austerity cuts held on the 3 October 2010 in Birmingham it was set up by a group of Disabled people in response to the disproportionate impact of austerity on Disabled people That march had been led by Disabled people under the name of The Disabled Peoplesrsquo Protest Since then DPAC has continued to grow as the negative impacts of austerity have widened DPAC now has over 20000 members and supporters with a far wider outreach through its work with mainstream anti-cuts groups universities Disabled Peoplesrsquo Organisations and Trade Unions

14) The evidence is supported byPeople First (Self Advocacy)

20) SummaryBelow is a summary under each of the questions posed they UN Rapporteur on poverty

A) What has made a difference in your country in promoting the implementation of a specific economic and social rightLegal action linked to wider civil society campaigns has been particularly effective in raising awareness and understanding of rights amongst communities affected Parliamentarians the media and public more generally Successful legal action has been taken regarding

o Welfare benefits o Employmento Housing

Civil society has also promoted the implementation througho Submitting civil society reports to the UN for the periodic reviews of

ICESCR and UNCRDP and submitting evidence to an UNCRPD inquiry

5

o Conducting research in areas such as use of foodbanks destitution debt and homelessness ensuring voice of people affected is heard

o Submitting Freedom of Information requests regarding welfare benefits o Carrying out campaigns and lobbying

B) What domestic institutions have succeeded in implementing monitoring and advocating for economic and social rightsThe EHRC is a key institution which has successfully supported legal action by individuals to enforce rights in domestic law This has indirectly promoted the right to an adequate standard of living and social security The EHRC also has a monitoring role as the UK Independent Mechanism in internal treaty work Below are domestic institutions that have directly andor indirectly aided the monitoring and advocacy of economic and social rights Their impact is limited because there is no onus for government to implement their recommendations unless domestic law is breached

The Joint Committee on Human Rights has advocated for human rights Reports by the National Audit Office and parliamentary select committees can

highlight problems with government policies and systems including the welfare benefit system While their recommendations can suggest positive changes they do not bring about the systemic change needed so economic and social rights continue to be breached

The Ombudsmen for social care and housing implement rights to social care and housing under UK domestic law

Parliamentary select committees conduct inquiries on the impact of welfare reforms which can indirectly aids the monitoring of economic and social rights

Research conducted by universities on the impact of welfare reforms can indirectly aid the monitoring of social and economic rights

C) What conditions or circumstances have made it difficult to recognise institutionalise and hold the government to account in relation to economic and social rights

The right to an adequate standard of living is not placed in UK domestic law so the obligations under the ICESCR and the UNCRPD are difficult to enforce and therefore easier for the government to ignore

The government seems to consider the rights under international conventions as lsquosoft lawrsquo the government has neither responded to or implemented the UNrsquos recommendations arising from the ICESCR and the UNCRPD periodic reviews and a UNCRPD inquiry We believe this failure to respond and implement recommendations is actively undermining the status and authority of international law international institutions and human rights both in the UK and abroad

Deeply flawed poor quality and inaccurate assessments prevent access to welfare benefits

6

Welfare benefit sanctions can leave people without enough money for daily living costs including food and housing

Unfortunately the governmentrsquos narrative that huge cuts in public spending are necessary to reduce the national debt quickly combined with false accusations that Deaf and Disabled people as benefit scroungers and fraudsters undeserving lazy welfare recipients has been successfully used to justify huge punitive cuts to welfare state

The Courts are reluctant to go against the policy and budgetary decisions of an elected government even when this amount to discriminatory treatment

The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly narrowed the scope of legal aid excluding welfare benefit appeals which has had a disproportionate impact on disabled people As a result of LASPO ldquoour justice system has become unaffordable to mostrdquo1

3) Focus of the evidence30) The evidence provided in this submission focuses on Deaf and Disabled peoplersquos experiences regarding Article 92 the right to social security and Article 113 the right to an adequate standard of living under the ICESCR

4) Context 41) Since 2010 the UK government has embarked on a programme of significant cost cutting to the state commonly known as lsquoausterity measuresrsquo The cuts have impacted on many areas of Deaf and Disabled peoplersquos lives causing retrogression of Deaf and Disabled peoplersquos rights across all areas of life including cuts or loss of welfare benefits income protection cuts or loss of social care support poor quality and inaccessible housing and the reduction in education and employment support These cuts have primarily been the result of so called welfare reforms introduced through new legislation as well as massive cuts in central government funding to local authorities Cutting the costs of the welfare state in the UK has caused deeper and more persistent poverty hunger destitution and homelessness of Deaf and Disabled people whose rights to an adequate standard of living and the right to social security appear to all intent and purposes to have been disregarded

1 httpspublicationsparliamentukpajt201719jtselectjtrights669669pdf (Accessed 29 March 2019)2 Article 9 The States Parties to the present Covenant recognize the right of everyone to social security including social insurance httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 29 March 2019) 3 Article 11 1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including adequate food clothing and housing and to the continuous improvement of living conditions The States Parties will take appropriate steps to ensure the realization of this right recognizing to this effect the essential importance of international co-operation based on free consent httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 26 March 2019)

7

EHRC legal actionhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip19 EHRC researchhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip19

o Progress on socio economic rights in Great Britainhelliphelliphelliphelliphelliphelliphelliphelliphellip19o Being disabled in Britain A journey less equalhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip20o The Cumulative Impact of Tax and Welfare reformhelliphelliphelliphelliphelliphelliphelliphelliphellip20o Housing and disabled people Britainrsquos hidden housing crisishelliphelliphelliphelliphellip20

11) Joint Committee on Human Rights (JCHR)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21 JCHRrsquos legislative scrutinyhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21

o Welfare Reform Bill (WRB)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip21

12) National Audit Office (NAO) reportshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip2213) Ombudsmen for social care and housinghelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip22

o Ombudsment for social care and housinghelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip22o Ombudsmanrsquos annual report on social care complaintshelliphelliphelliphelliphelliphelliphelliphelliphelliphellip23o Report on housing repairs complaintshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip24

14) Social Security Advisory Committeehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip24o Mandatory Reconsideration and UC regulations reporthelliphelliphelliphelliphelliphelliphellip24

15) Parliamentary inquirieshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip2516) Research by universitieshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip25

o Foodbank usagehelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip25o Universal Credit sanctionshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip26

C) What conditions or circumstances have made it difficult to recognise institutionalise and hold the government to account in relation to economic and social rights26

17) Legal position of economic and social rightshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip26 lsquoSoft lawrsquohelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip27

o Bracking and others v Secretary of State for Work and Pensionshelliphelliphelliphelliphelliphellip28o UN recommendations not implementedhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip28

18) Inaccurate welfare benefits assessmentshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3019) Mandatory Reconsideration (MR)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3120) Sanctionshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3121) Digital application systemshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3222) Inaccessible communicationshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3223) Governmentrsquos narrative to justify the austerity measureshelliphelliphelliphelliphelliphelliphelliphellip33 24) Courts reluctant to go against government policieshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip34 25) Changes to legal aidhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3526) Conclusionhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip3627) Appendices

Appendices 1 Seven reviewshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip38

3

Appendices 2 Difficulties in obtaining information via a FOIhelliphelliphelliphelliphellip39Contactshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip42

AbbreviationsAtW Access to WorkCCG Clinical Commission GroupDDPOs Deaf and Disabled Peoplersquos OrganisationsDLA Disability Living AllowanceDWP Department of Work and PensionsCPAG Child Poverty Action GroupEHRC Equality Human Rights CommissionECHR European Convention on Human RightsESA Employment Support AllowanceFOI Freedom of Information IB Incapacity Benefit ICESCR International Covenant on Economic Social and Cultural RightsILF Independent Living FundJSA Job Seekers AllowanceJCHR Joint Committee on Human RightsLA Local AuthorityMR Mandatory ReconsiderationNHS National Health ServicePIP Personal Independence PaymentPSED Public Sector Equality DutySSAC Social Security Advisory CommitteeSDP Severe Disability PremiumSEND Special Educational Needs and DisabilitiesSoS Secretary of StateUC Universal CreditUN United NationsUNCRPD UN Convention on the Rights of Persons with Disabilities WampPC Work and Pensions CommitteeWRA Welfare Reform Act 2012WRB Welfare Reform BillWRWA Welfare Reform and Work Act 2016

4

1) Introduction11) Inclusion London and Disabled People Against Cuts submit this evidence on the expansion of the recognition institutionalisation and accountability framework for economic and social rights

Inclusion London12) Inclusion London is a London-wide user-led organisation which promotes equality for Londonrsquos Deaf and Disabled people and provides capacity-building support for over 70 Deaf and Disabled Peoplersquos Organisations (DDPOs) in London and through these organisations our reach extends to over 70000 Disabled Londoners

Disabled People Against Cuts (DPAC)13) DPAC is a grassroots campaign led by Disabled people Following the first mass protest against austerity cuts held on the 3 October 2010 in Birmingham it was set up by a group of Disabled people in response to the disproportionate impact of austerity on Disabled people That march had been led by Disabled people under the name of The Disabled Peoplesrsquo Protest Since then DPAC has continued to grow as the negative impacts of austerity have widened DPAC now has over 20000 members and supporters with a far wider outreach through its work with mainstream anti-cuts groups universities Disabled Peoplesrsquo Organisations and Trade Unions

14) The evidence is supported byPeople First (Self Advocacy)

20) SummaryBelow is a summary under each of the questions posed they UN Rapporteur on poverty

A) What has made a difference in your country in promoting the implementation of a specific economic and social rightLegal action linked to wider civil society campaigns has been particularly effective in raising awareness and understanding of rights amongst communities affected Parliamentarians the media and public more generally Successful legal action has been taken regarding

o Welfare benefits o Employmento Housing

Civil society has also promoted the implementation througho Submitting civil society reports to the UN for the periodic reviews of

ICESCR and UNCRDP and submitting evidence to an UNCRPD inquiry

5

o Conducting research in areas such as use of foodbanks destitution debt and homelessness ensuring voice of people affected is heard

o Submitting Freedom of Information requests regarding welfare benefits o Carrying out campaigns and lobbying

B) What domestic institutions have succeeded in implementing monitoring and advocating for economic and social rightsThe EHRC is a key institution which has successfully supported legal action by individuals to enforce rights in domestic law This has indirectly promoted the right to an adequate standard of living and social security The EHRC also has a monitoring role as the UK Independent Mechanism in internal treaty work Below are domestic institutions that have directly andor indirectly aided the monitoring and advocacy of economic and social rights Their impact is limited because there is no onus for government to implement their recommendations unless domestic law is breached

The Joint Committee on Human Rights has advocated for human rights Reports by the National Audit Office and parliamentary select committees can

highlight problems with government policies and systems including the welfare benefit system While their recommendations can suggest positive changes they do not bring about the systemic change needed so economic and social rights continue to be breached

The Ombudsmen for social care and housing implement rights to social care and housing under UK domestic law

Parliamentary select committees conduct inquiries on the impact of welfare reforms which can indirectly aids the monitoring of economic and social rights

Research conducted by universities on the impact of welfare reforms can indirectly aid the monitoring of social and economic rights

C) What conditions or circumstances have made it difficult to recognise institutionalise and hold the government to account in relation to economic and social rights

The right to an adequate standard of living is not placed in UK domestic law so the obligations under the ICESCR and the UNCRPD are difficult to enforce and therefore easier for the government to ignore

The government seems to consider the rights under international conventions as lsquosoft lawrsquo the government has neither responded to or implemented the UNrsquos recommendations arising from the ICESCR and the UNCRPD periodic reviews and a UNCRPD inquiry We believe this failure to respond and implement recommendations is actively undermining the status and authority of international law international institutions and human rights both in the UK and abroad

Deeply flawed poor quality and inaccurate assessments prevent access to welfare benefits

6

Welfare benefit sanctions can leave people without enough money for daily living costs including food and housing

Unfortunately the governmentrsquos narrative that huge cuts in public spending are necessary to reduce the national debt quickly combined with false accusations that Deaf and Disabled people as benefit scroungers and fraudsters undeserving lazy welfare recipients has been successfully used to justify huge punitive cuts to welfare state

The Courts are reluctant to go against the policy and budgetary decisions of an elected government even when this amount to discriminatory treatment

The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly narrowed the scope of legal aid excluding welfare benefit appeals which has had a disproportionate impact on disabled people As a result of LASPO ldquoour justice system has become unaffordable to mostrdquo1

3) Focus of the evidence30) The evidence provided in this submission focuses on Deaf and Disabled peoplersquos experiences regarding Article 92 the right to social security and Article 113 the right to an adequate standard of living under the ICESCR

4) Context 41) Since 2010 the UK government has embarked on a programme of significant cost cutting to the state commonly known as lsquoausterity measuresrsquo The cuts have impacted on many areas of Deaf and Disabled peoplersquos lives causing retrogression of Deaf and Disabled peoplersquos rights across all areas of life including cuts or loss of welfare benefits income protection cuts or loss of social care support poor quality and inaccessible housing and the reduction in education and employment support These cuts have primarily been the result of so called welfare reforms introduced through new legislation as well as massive cuts in central government funding to local authorities Cutting the costs of the welfare state in the UK has caused deeper and more persistent poverty hunger destitution and homelessness of Deaf and Disabled people whose rights to an adequate standard of living and the right to social security appear to all intent and purposes to have been disregarded

1 httpspublicationsparliamentukpajt201719jtselectjtrights669669pdf (Accessed 29 March 2019)2 Article 9 The States Parties to the present Covenant recognize the right of everyone to social security including social insurance httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 29 March 2019) 3 Article 11 1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including adequate food clothing and housing and to the continuous improvement of living conditions The States Parties will take appropriate steps to ensure the realization of this right recognizing to this effect the essential importance of international co-operation based on free consent httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 26 March 2019)

7

Appendices 2 Difficulties in obtaining information via a FOIhelliphelliphelliphelliphellip39Contactshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip42

AbbreviationsAtW Access to WorkCCG Clinical Commission GroupDDPOs Deaf and Disabled Peoplersquos OrganisationsDLA Disability Living AllowanceDWP Department of Work and PensionsCPAG Child Poverty Action GroupEHRC Equality Human Rights CommissionECHR European Convention on Human RightsESA Employment Support AllowanceFOI Freedom of Information IB Incapacity Benefit ICESCR International Covenant on Economic Social and Cultural RightsILF Independent Living FundJSA Job Seekers AllowanceJCHR Joint Committee on Human RightsLA Local AuthorityMR Mandatory ReconsiderationNHS National Health ServicePIP Personal Independence PaymentPSED Public Sector Equality DutySSAC Social Security Advisory CommitteeSDP Severe Disability PremiumSEND Special Educational Needs and DisabilitiesSoS Secretary of StateUC Universal CreditUN United NationsUNCRPD UN Convention on the Rights of Persons with Disabilities WampPC Work and Pensions CommitteeWRA Welfare Reform Act 2012WRB Welfare Reform BillWRWA Welfare Reform and Work Act 2016

4

1) Introduction11) Inclusion London and Disabled People Against Cuts submit this evidence on the expansion of the recognition institutionalisation and accountability framework for economic and social rights

Inclusion London12) Inclusion London is a London-wide user-led organisation which promotes equality for Londonrsquos Deaf and Disabled people and provides capacity-building support for over 70 Deaf and Disabled Peoplersquos Organisations (DDPOs) in London and through these organisations our reach extends to over 70000 Disabled Londoners

Disabled People Against Cuts (DPAC)13) DPAC is a grassroots campaign led by Disabled people Following the first mass protest against austerity cuts held on the 3 October 2010 in Birmingham it was set up by a group of Disabled people in response to the disproportionate impact of austerity on Disabled people That march had been led by Disabled people under the name of The Disabled Peoplesrsquo Protest Since then DPAC has continued to grow as the negative impacts of austerity have widened DPAC now has over 20000 members and supporters with a far wider outreach through its work with mainstream anti-cuts groups universities Disabled Peoplesrsquo Organisations and Trade Unions

14) The evidence is supported byPeople First (Self Advocacy)

20) SummaryBelow is a summary under each of the questions posed they UN Rapporteur on poverty

A) What has made a difference in your country in promoting the implementation of a specific economic and social rightLegal action linked to wider civil society campaigns has been particularly effective in raising awareness and understanding of rights amongst communities affected Parliamentarians the media and public more generally Successful legal action has been taken regarding

o Welfare benefits o Employmento Housing

Civil society has also promoted the implementation througho Submitting civil society reports to the UN for the periodic reviews of

ICESCR and UNCRDP and submitting evidence to an UNCRPD inquiry

5

o Conducting research in areas such as use of foodbanks destitution debt and homelessness ensuring voice of people affected is heard

o Submitting Freedom of Information requests regarding welfare benefits o Carrying out campaigns and lobbying

B) What domestic institutions have succeeded in implementing monitoring and advocating for economic and social rightsThe EHRC is a key institution which has successfully supported legal action by individuals to enforce rights in domestic law This has indirectly promoted the right to an adequate standard of living and social security The EHRC also has a monitoring role as the UK Independent Mechanism in internal treaty work Below are domestic institutions that have directly andor indirectly aided the monitoring and advocacy of economic and social rights Their impact is limited because there is no onus for government to implement their recommendations unless domestic law is breached

The Joint Committee on Human Rights has advocated for human rights Reports by the National Audit Office and parliamentary select committees can

highlight problems with government policies and systems including the welfare benefit system While their recommendations can suggest positive changes they do not bring about the systemic change needed so economic and social rights continue to be breached

The Ombudsmen for social care and housing implement rights to social care and housing under UK domestic law

Parliamentary select committees conduct inquiries on the impact of welfare reforms which can indirectly aids the monitoring of economic and social rights

Research conducted by universities on the impact of welfare reforms can indirectly aid the monitoring of social and economic rights

C) What conditions or circumstances have made it difficult to recognise institutionalise and hold the government to account in relation to economic and social rights

The right to an adequate standard of living is not placed in UK domestic law so the obligations under the ICESCR and the UNCRPD are difficult to enforce and therefore easier for the government to ignore

The government seems to consider the rights under international conventions as lsquosoft lawrsquo the government has neither responded to or implemented the UNrsquos recommendations arising from the ICESCR and the UNCRPD periodic reviews and a UNCRPD inquiry We believe this failure to respond and implement recommendations is actively undermining the status and authority of international law international institutions and human rights both in the UK and abroad

Deeply flawed poor quality and inaccurate assessments prevent access to welfare benefits

6

Welfare benefit sanctions can leave people without enough money for daily living costs including food and housing

Unfortunately the governmentrsquos narrative that huge cuts in public spending are necessary to reduce the national debt quickly combined with false accusations that Deaf and Disabled people as benefit scroungers and fraudsters undeserving lazy welfare recipients has been successfully used to justify huge punitive cuts to welfare state

The Courts are reluctant to go against the policy and budgetary decisions of an elected government even when this amount to discriminatory treatment

The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly narrowed the scope of legal aid excluding welfare benefit appeals which has had a disproportionate impact on disabled people As a result of LASPO ldquoour justice system has become unaffordable to mostrdquo1

3) Focus of the evidence30) The evidence provided in this submission focuses on Deaf and Disabled peoplersquos experiences regarding Article 92 the right to social security and Article 113 the right to an adequate standard of living under the ICESCR

4) Context 41) Since 2010 the UK government has embarked on a programme of significant cost cutting to the state commonly known as lsquoausterity measuresrsquo The cuts have impacted on many areas of Deaf and Disabled peoplersquos lives causing retrogression of Deaf and Disabled peoplersquos rights across all areas of life including cuts or loss of welfare benefits income protection cuts or loss of social care support poor quality and inaccessible housing and the reduction in education and employment support These cuts have primarily been the result of so called welfare reforms introduced through new legislation as well as massive cuts in central government funding to local authorities Cutting the costs of the welfare state in the UK has caused deeper and more persistent poverty hunger destitution and homelessness of Deaf and Disabled people whose rights to an adequate standard of living and the right to social security appear to all intent and purposes to have been disregarded

1 httpspublicationsparliamentukpajt201719jtselectjtrights669669pdf (Accessed 29 March 2019)2 Article 9 The States Parties to the present Covenant recognize the right of everyone to social security including social insurance httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 29 March 2019) 3 Article 11 1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including adequate food clothing and housing and to the continuous improvement of living conditions The States Parties will take appropriate steps to ensure the realization of this right recognizing to this effect the essential importance of international co-operation based on free consent httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 26 March 2019)

7

1) Introduction11) Inclusion London and Disabled People Against Cuts submit this evidence on the expansion of the recognition institutionalisation and accountability framework for economic and social rights

Inclusion London12) Inclusion London is a London-wide user-led organisation which promotes equality for Londonrsquos Deaf and Disabled people and provides capacity-building support for over 70 Deaf and Disabled Peoplersquos Organisations (DDPOs) in London and through these organisations our reach extends to over 70000 Disabled Londoners

Disabled People Against Cuts (DPAC)13) DPAC is a grassroots campaign led by Disabled people Following the first mass protest against austerity cuts held on the 3 October 2010 in Birmingham it was set up by a group of Disabled people in response to the disproportionate impact of austerity on Disabled people That march had been led by Disabled people under the name of The Disabled Peoplesrsquo Protest Since then DPAC has continued to grow as the negative impacts of austerity have widened DPAC now has over 20000 members and supporters with a far wider outreach through its work with mainstream anti-cuts groups universities Disabled Peoplesrsquo Organisations and Trade Unions

14) The evidence is supported byPeople First (Self Advocacy)

20) SummaryBelow is a summary under each of the questions posed they UN Rapporteur on poverty

A) What has made a difference in your country in promoting the implementation of a specific economic and social rightLegal action linked to wider civil society campaigns has been particularly effective in raising awareness and understanding of rights amongst communities affected Parliamentarians the media and public more generally Successful legal action has been taken regarding

o Welfare benefits o Employmento Housing

Civil society has also promoted the implementation througho Submitting civil society reports to the UN for the periodic reviews of

ICESCR and UNCRDP and submitting evidence to an UNCRPD inquiry

5

o Conducting research in areas such as use of foodbanks destitution debt and homelessness ensuring voice of people affected is heard

o Submitting Freedom of Information requests regarding welfare benefits o Carrying out campaigns and lobbying

B) What domestic institutions have succeeded in implementing monitoring and advocating for economic and social rightsThe EHRC is a key institution which has successfully supported legal action by individuals to enforce rights in domestic law This has indirectly promoted the right to an adequate standard of living and social security The EHRC also has a monitoring role as the UK Independent Mechanism in internal treaty work Below are domestic institutions that have directly andor indirectly aided the monitoring and advocacy of economic and social rights Their impact is limited because there is no onus for government to implement their recommendations unless domestic law is breached

The Joint Committee on Human Rights has advocated for human rights Reports by the National Audit Office and parliamentary select committees can

highlight problems with government policies and systems including the welfare benefit system While their recommendations can suggest positive changes they do not bring about the systemic change needed so economic and social rights continue to be breached

The Ombudsmen for social care and housing implement rights to social care and housing under UK domestic law

Parliamentary select committees conduct inquiries on the impact of welfare reforms which can indirectly aids the monitoring of economic and social rights

Research conducted by universities on the impact of welfare reforms can indirectly aid the monitoring of social and economic rights

C) What conditions or circumstances have made it difficult to recognise institutionalise and hold the government to account in relation to economic and social rights

The right to an adequate standard of living is not placed in UK domestic law so the obligations under the ICESCR and the UNCRPD are difficult to enforce and therefore easier for the government to ignore

The government seems to consider the rights under international conventions as lsquosoft lawrsquo the government has neither responded to or implemented the UNrsquos recommendations arising from the ICESCR and the UNCRPD periodic reviews and a UNCRPD inquiry We believe this failure to respond and implement recommendations is actively undermining the status and authority of international law international institutions and human rights both in the UK and abroad

Deeply flawed poor quality and inaccurate assessments prevent access to welfare benefits

6

Welfare benefit sanctions can leave people without enough money for daily living costs including food and housing

Unfortunately the governmentrsquos narrative that huge cuts in public spending are necessary to reduce the national debt quickly combined with false accusations that Deaf and Disabled people as benefit scroungers and fraudsters undeserving lazy welfare recipients has been successfully used to justify huge punitive cuts to welfare state

The Courts are reluctant to go against the policy and budgetary decisions of an elected government even when this amount to discriminatory treatment

The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly narrowed the scope of legal aid excluding welfare benefit appeals which has had a disproportionate impact on disabled people As a result of LASPO ldquoour justice system has become unaffordable to mostrdquo1

3) Focus of the evidence30) The evidence provided in this submission focuses on Deaf and Disabled peoplersquos experiences regarding Article 92 the right to social security and Article 113 the right to an adequate standard of living under the ICESCR

4) Context 41) Since 2010 the UK government has embarked on a programme of significant cost cutting to the state commonly known as lsquoausterity measuresrsquo The cuts have impacted on many areas of Deaf and Disabled peoplersquos lives causing retrogression of Deaf and Disabled peoplersquos rights across all areas of life including cuts or loss of welfare benefits income protection cuts or loss of social care support poor quality and inaccessible housing and the reduction in education and employment support These cuts have primarily been the result of so called welfare reforms introduced through new legislation as well as massive cuts in central government funding to local authorities Cutting the costs of the welfare state in the UK has caused deeper and more persistent poverty hunger destitution and homelessness of Deaf and Disabled people whose rights to an adequate standard of living and the right to social security appear to all intent and purposes to have been disregarded

1 httpspublicationsparliamentukpajt201719jtselectjtrights669669pdf (Accessed 29 March 2019)2 Article 9 The States Parties to the present Covenant recognize the right of everyone to social security including social insurance httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 29 March 2019) 3 Article 11 1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including adequate food clothing and housing and to the continuous improvement of living conditions The States Parties will take appropriate steps to ensure the realization of this right recognizing to this effect the essential importance of international co-operation based on free consent httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 26 March 2019)

7

o Conducting research in areas such as use of foodbanks destitution debt and homelessness ensuring voice of people affected is heard

o Submitting Freedom of Information requests regarding welfare benefits o Carrying out campaigns and lobbying

B) What domestic institutions have succeeded in implementing monitoring and advocating for economic and social rightsThe EHRC is a key institution which has successfully supported legal action by individuals to enforce rights in domestic law This has indirectly promoted the right to an adequate standard of living and social security The EHRC also has a monitoring role as the UK Independent Mechanism in internal treaty work Below are domestic institutions that have directly andor indirectly aided the monitoring and advocacy of economic and social rights Their impact is limited because there is no onus for government to implement their recommendations unless domestic law is breached

The Joint Committee on Human Rights has advocated for human rights Reports by the National Audit Office and parliamentary select committees can

highlight problems with government policies and systems including the welfare benefit system While their recommendations can suggest positive changes they do not bring about the systemic change needed so economic and social rights continue to be breached

The Ombudsmen for social care and housing implement rights to social care and housing under UK domestic law

Parliamentary select committees conduct inquiries on the impact of welfare reforms which can indirectly aids the monitoring of economic and social rights

Research conducted by universities on the impact of welfare reforms can indirectly aid the monitoring of social and economic rights

C) What conditions or circumstances have made it difficult to recognise institutionalise and hold the government to account in relation to economic and social rights

The right to an adequate standard of living is not placed in UK domestic law so the obligations under the ICESCR and the UNCRPD are difficult to enforce and therefore easier for the government to ignore

The government seems to consider the rights under international conventions as lsquosoft lawrsquo the government has neither responded to or implemented the UNrsquos recommendations arising from the ICESCR and the UNCRPD periodic reviews and a UNCRPD inquiry We believe this failure to respond and implement recommendations is actively undermining the status and authority of international law international institutions and human rights both in the UK and abroad

Deeply flawed poor quality and inaccurate assessments prevent access to welfare benefits

6

Welfare benefit sanctions can leave people without enough money for daily living costs including food and housing

Unfortunately the governmentrsquos narrative that huge cuts in public spending are necessary to reduce the national debt quickly combined with false accusations that Deaf and Disabled people as benefit scroungers and fraudsters undeserving lazy welfare recipients has been successfully used to justify huge punitive cuts to welfare state

The Courts are reluctant to go against the policy and budgetary decisions of an elected government even when this amount to discriminatory treatment

The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly narrowed the scope of legal aid excluding welfare benefit appeals which has had a disproportionate impact on disabled people As a result of LASPO ldquoour justice system has become unaffordable to mostrdquo1

3) Focus of the evidence30) The evidence provided in this submission focuses on Deaf and Disabled peoplersquos experiences regarding Article 92 the right to social security and Article 113 the right to an adequate standard of living under the ICESCR

4) Context 41) Since 2010 the UK government has embarked on a programme of significant cost cutting to the state commonly known as lsquoausterity measuresrsquo The cuts have impacted on many areas of Deaf and Disabled peoplersquos lives causing retrogression of Deaf and Disabled peoplersquos rights across all areas of life including cuts or loss of welfare benefits income protection cuts or loss of social care support poor quality and inaccessible housing and the reduction in education and employment support These cuts have primarily been the result of so called welfare reforms introduced through new legislation as well as massive cuts in central government funding to local authorities Cutting the costs of the welfare state in the UK has caused deeper and more persistent poverty hunger destitution and homelessness of Deaf and Disabled people whose rights to an adequate standard of living and the right to social security appear to all intent and purposes to have been disregarded

1 httpspublicationsparliamentukpajt201719jtselectjtrights669669pdf (Accessed 29 March 2019)2 Article 9 The States Parties to the present Covenant recognize the right of everyone to social security including social insurance httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 29 March 2019) 3 Article 11 1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including adequate food clothing and housing and to the continuous improvement of living conditions The States Parties will take appropriate steps to ensure the realization of this right recognizing to this effect the essential importance of international co-operation based on free consent httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 26 March 2019)

7

Welfare benefit sanctions can leave people without enough money for daily living costs including food and housing

Unfortunately the governmentrsquos narrative that huge cuts in public spending are necessary to reduce the national debt quickly combined with false accusations that Deaf and Disabled people as benefit scroungers and fraudsters undeserving lazy welfare recipients has been successfully used to justify huge punitive cuts to welfare state

The Courts are reluctant to go against the policy and budgetary decisions of an elected government even when this amount to discriminatory treatment

The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly narrowed the scope of legal aid excluding welfare benefit appeals which has had a disproportionate impact on disabled people As a result of LASPO ldquoour justice system has become unaffordable to mostrdquo1

3) Focus of the evidence30) The evidence provided in this submission focuses on Deaf and Disabled peoplersquos experiences regarding Article 92 the right to social security and Article 113 the right to an adequate standard of living under the ICESCR

4) Context 41) Since 2010 the UK government has embarked on a programme of significant cost cutting to the state commonly known as lsquoausterity measuresrsquo The cuts have impacted on many areas of Deaf and Disabled peoplersquos lives causing retrogression of Deaf and Disabled peoplersquos rights across all areas of life including cuts or loss of welfare benefits income protection cuts or loss of social care support poor quality and inaccessible housing and the reduction in education and employment support These cuts have primarily been the result of so called welfare reforms introduced through new legislation as well as massive cuts in central government funding to local authorities Cutting the costs of the welfare state in the UK has caused deeper and more persistent poverty hunger destitution and homelessness of Deaf and Disabled people whose rights to an adequate standard of living and the right to social security appear to all intent and purposes to have been disregarded

1 httpspublicationsparliamentukpajt201719jtselectjtrights669669pdf (Accessed 29 March 2019)2 Article 9 The States Parties to the present Covenant recognize the right of everyone to social security including social insurance httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 29 March 2019) 3 Article 11 1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including adequate food clothing and housing and to the continuous improvement of living conditions The States Parties will take appropriate steps to ensure the realization of this right recognizing to this effect the essential importance of international co-operation based on free consent httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 26 March 2019)

7

A) What has made a difference in your country in promoting the implementation of a specific economic and social right

Our evidence under this question concentrates on action taken by civil society

5) Use of the law by civil society51) Legal action is one of the strongest tools civil society has to promote the implementation of economic and social rights Legal action has successfully challenged breaches of Deaf and Disabled peoplersquos rights including rights to welfare benefits

52) However the basis of successful challenges have typically been that the governmentrsquos policies were discriminatory or that there was a breach of the Public Sector Equality Duty (PSED4) and the Equality Act 20105 - not because any policies resulted in an inadequate standard of living which is not in UK domestic law 53) The legal challenges mentioned in this submission seek to illustrate the wide ranging impacts on the lives of Deaf and Disabled people Some legal action was successful while others illustrated the weaknesses in the UKrsquos domestic law regarding Deaf and Disabled peoplersquos economic and social rights

54) The legal challenges involve action taken by individual Deaf or Disabled people supported by campaigns of Deaf and Disabled Peoplersquos Organisations (DDPOs) and activists as well as other civil society organisations and the Equality and Human Rights Commission6 (EHRC) Deaf and Disabled Peoplersquos Organisations (DDPOs) have also provided evidence across a range of cases

Successful legal challenges re welfare reforms

Introduction to legal cases55 The governmentrsquos cost-cutting programme included the reform of the welfare benefits system through the Welfare Reform Act 2012 (WRA)7 and the Welfare Reform and Work Act 2016 (WRWA)8 As a result the eligibility criterion of Deaf and Disabled peoplersquos welfare benefits was narrowed or changed resulting in the complete loss or a cut in the amount received

56) The cumulative impact of cuts and changes to welfare benefits and taxes has resulted in large cuts to Deaf and Disabled peoplersquos income This resulted in increased poverty the use of foodbanks and increased rates of debt and homelessness Deaf and Disabled people have been left without an adequate standard of living breaching Article 11 as we will evidence later While the legal challenges have successfully over-turned

4 httpswwwgovukgovernmentpublicationspublic-sector-equality-duty (Accessed 28 March 2019)5 httpwwwlegislationgovukukpga201015contents (Accessed 26 March 2019)6 httpsequalityhumanrightscomen (Accessed 27 March 2019) 7 httpwwwlegislationgovukukpga20125contentsenacted (Accessed 28 March 2019)8 httpwwwlegislationgovukukpga20167contentsenacted (Accessed 27 March 2019)

8

or mitigated some changes to welfare benefits the welfare reforms largely remain in place 57) We give examples of successful legal challenges below which are relevant to Article 9 and Article 11 of the ICESCR9 We have provided several examples to indicate that legal action has been necessary across different welfare benefits

Personal Independence Payment (PIP) 58) One of the governmentrsquos reforms involved new regulations which prevented people with ldquooverwhelming psychological distressrdquo from being eligible for the mobility component of PIP which replaced DLA10 as part of the welfare reforms lsquoRFrsquo brought a successful challenge11 supported by MIND12 and the EHRC In December 2017 the judge found the introduction of the regulations was

ldquoblatantly discriminatory against those with mental health impairments and which cannot be objectively justified The wish to save nearly pound1 billion a year at the expense of those with mental health impairments is not a reasonable foundation for passing this measurerdquo13

59) As a result of the judgement the DWP ldquohellip will be reconsidering approximately 16 million claimsrdquo14 and ldquoThe Government estimates that up to 220000 people could benefit from the judgment as a total cost of around pound37 billionrdquo15 ldquoThe average payment made is approximately pound4500rdquo16

Transfer from Incapacity Benefit to Employment Support Allowance 510) It took two legal challenges to fully compensate at least 70000 disabled people who were underpaid when they were moved from Incapacity Benefit (IB) to Employment and Support Allowance (ESA) The underpayments arose from an error by DWP staff Following an Upper Tier Tribunal17 the DWP decided to limit backdating of the arrears to 201418 the date of the tribunal19

9 httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 28 March 2019) 10 The aim of both these benefits to contribute to the extra costs of being Disabled11 httpswwwbailiiorgewcasesEWHCAdmin20173375html ( Accessed 27 March 2019)12 httpswwwmindorguk (Accessed 28 March 2019) 13 httpswwwbailiiorgewcasesEWHCAdmin20173375html (Accessed 27 March 2019)14 httpswwwparliamentukbusinesspublicationswritten-questions-answers-statementswritten-questionCommons2018-01-23124308 (Accessed 28 March 2019) 15 httpsresearchbriefingsparliamentukResearchBriefingSummaryCBP-7911 (Accessed 26 March 2019)16 httpswwwparliamentukbusinesspublicationswritten-questions-answers-statementswritten-statementCommons2018-12-20HCWS1224 (Accessed 26 March2019)17 httpsassetspublishingservicegovukmedia595b65c4e5274a0a590000e9CP_0716_2015-00pdf (Accessed 29 March 2019)httpswwwgovukadministrative-appeals-tribunal-decisionslh-v-secretary-of-state-for-work-and-pensions-rp-2017-ukut-249-aac (Accessed 29 March 2019)18 httpswwwparliamentukbusinesspublicationswritten-questions-answers-statementswritten-statementCommons2017-12-14HCWS356 (Accessed 29 March 2019)19 httpcpagorgukcontentcpag-legal-action-leads-to-full-arrears-disabled-claimants (Accessed 29 March 2019)httpswwwparliamentukbusinesspublicationswritten-questions-answers-statementswritten-statementLords2018-07-18HLWS846 (Accessed 29 March 2019)

9

511) Initially it was estimated that ldquo70000 people have been underpaid benefit amounting to pound340 million with an average underpayment of around pound5000rdquo20

512) However CPAG undertook a second successful challenge which forced the DWP to pay arrears back to the date that Disabled people moved to ESA21 The DWP now expects to make ldquoaround 210000 arrears paymentsrdquo22 ldquoaverage underpayment is likely to be around pound5000rdquo23

Severe Disability PremiumUniversal credit 513) Supported by the EHRC two Disabled men undertook a legal challenge24 lsquoTPrsquo ldquohad been diagnosed with a terminal illness Non-Hodgkins Lymphoma and Castlemanrsquos disease in 2016rdquo25 and lsquoARrsquo who has ldquosevere mental health issuesrdquo26 The two men experienced lsquoldquoan immediate drop in their income of around pound178 a month when they were moved onto Universal Credit (UC)rdquo27 They had lost their Severe Disability Premium (SDP) because it has been abolished under UC and they were not eligible for lsquotransitional protectionsrsquo which protect claimants from a loss of income UC is a new benefit which is part of the welfare benefit reforms

514) The legal challenge was successful28 and a financial settlement with the DWP was agreed29 However other Disabled people in a similar situation are not going to be fully compensated for their financial losses Previously SDP provided around pound170 a month but the new UC regulations stipulate a monthly payment of just pound80 a month30 20 httpswwwnaoorgukwp-contentuploads201803Investigation-into-errors-in-Employment-and-Support- Allowance-Full-Reportpdf (Accessed 29 March 2019)21 httpcpagorgukcontentcpag-legal-action-leads-to-full-arrears-disabled-claimants (Accessed 29 March 2019)httpswwwparliamentukbusinesspublicationswritten-questions-answers-statementswritten-statementLords2018-07-18HLWS846 (Accessed 29 March 2019)22 httpswwwparliamentukbusinesspublicationswritten-questions-answers-statementswritten-statementCommons2019-02-21HCWS1348 (Accessed 26 March 2019)23 httpswwwnaoorgukpress-releaseinvestigation-into-errors-in-employment-and-support-allowance (Accessed 26 March 2019)24 httpswwwbailiiorgewcasesEWHCAdmin20181474html (Accessed 29 March 2019)25 httpswwwleighdaycoukNewsNews-2018July-2018Men-with-severe-disabilities-win-compensation-foll (Accessed 29 March 2019)26 httpswwwleighdaycoukNewsNews-2018July-2018Men-with-severe-disabilities-win-compensation-foll (Accessed 29 March 2019)27 httpswwwleighdaycoukNewsNews-2018July-2018Men-with-severe-disabilities-win-compensation-foll 28(Accessed 26 March 2019) httpswwwbailiiorgewcasesEWHCAdmin20181474html 29 Following a court hearing the DWP has agreed to payTP ldquoa lump sum of pound6517 which is made up of pound3277 for past financial losses and pound3240 for the non-pecuniary loss He will also receive pound17350p a month to cover the shortfall in his benefits pending transitional protection coming into forcerdquoAR ldquowill receive a lump sum of pound4788 which is made up of pound2108 for past financial losses and pound2680 under the claim relating to anxiety and distress He will receive a monthly payment of GBP176 to make up the shortfall in his benefitsrdquo httpswwwleighdaycoukNewsNews-2018July-2018Men-with-severe-disabilities-win-compensation-foll (Accessed 26 March 2019)30 The lawyers for the two Disabled people stated

10

Social housing size criteriabedroom tax515) The EHRC31 supported a case32 involving the social housing size criteria known as the bedroom tax Below is part of the EHRCrsquos description516) This case concerned the ldquodifferential impact on disabled people of rules (now partially repealed) preventing local housing allowance being paid in respect of a carers bedroomrdquo33 The EHRC ldquointervened on the application of the lsquoThlimmenosrsquo principlersquo the need for unlike cases to be treated differentlyhelliprdquo The case ldquoestablished that housing benefit must take into account the extra needs of disabled children and adultsrdquo34

Seven reviews517) As a result of multiple successful legal challenges regarding welfare benefits specifically for Deaf and Disabled people the government has announced seven reviews35 to go through similar claims and provide back payments for those eligible as well as changing the regulations covering the benefits

518) The promise of back payments and changes in regulations due to the legal victories are welcome but it is shocking that the government is forcing people with severe health conditions or impairments to fight through the courts for welfare benefits that are theirs by right Seven reviews is a large number which indicates the number of legal challenges that have been necessary to regain some of the welfare benefits that provide an adequate standard of living

519) Despite the legal challenges unfortunately the main body of welfare reforms still remain in place Some of the reforms only affect new claimants and several measures in the WRW Act did not come into force until April 2017 so it is likely that the negative

Following todays hearing they will now receive a payment of damages for the pain and distress caused a further payment reflecting the amount of money they lost as a result of being moved onto Universal Credit and an ongoing monthly sum of circa pound170 to reflect future loss which will be paid until further regulations come into force

We hope that the Secretary of State will now without delay compensate others in the same position and reconsider her decision to pursue an appeal against the original finding of discrimination

Our clients also call upon the Secretary of State to urgently reconsider the draft transitional protection regulations she has laid down before the Social Security Advisory Committee which as drafted only compensate those in our clientsrsquo position to a flat rate of pound80 a month

This plainly does not reflect the actual loss suffered by our clients and thousands like them and compounds the unlawful treatment to which they have been subjected httpswwwleighdaycoukNewsNews-2018July-2018Men-with-severe-disabilities-win-compensation-foll (Accessed 29 March 2019)31 Burnip v Birmingham City Council and Secretary of State for Work and Pensions httpswwwequalityhumanrightscomenlegal-caseworkhuman-rights-legal-cases (Accessed 26 March 2019)32 Burnip v Birmingham City Council and Secretary of State for Work and PensionshttpswwwbailiiorgewcasesEWCACiv2012629html (Accessed 26 March 2019)33 httpswwwequalityhumanrightscomenlegal-caseworkhuman-rights-legal-cases (Accessed 26 March 2019)34 Burnip v Birmingham City Council and Secretary of State for Work and Pensions httpswwwequalityhumanrightscomenlegal-caseworkhuman-rights-legal-cases (Accessed 26 March 2019)35 httpswwwdisabilitynewsservicecombungling-dwp-announces-seventh-review-of-disability-benefits-errors-in-a-year A list of the cases being reviewed is in the appendices (Accessed 29 March 2019)

11

impact of the reforms on Deaf and Disabled peoplersquos standard of living will increase as time goes on

Legal challenges in other areas520) Government cuts have impacted on Deaf and Disabled peoplersquos education employment and right to independent living Below are brief details of two cases in the areas of employment and education relevant to Article 636 and Article 1337 of the ICESCR respectively Under Question 3 we provide an example of a legal challenge which involves the right to independent living under Article 19 UNCRPD38

Employment support capped521) Access to Work (AtW) provides government funding to support Deaf and Disabled people in employment The DWP set an annual cap of pound42500 on AtW payments in 2015 but later increased it to pound57200 after a high court challenge was launched as part of a wider DDPO campaign to protect and improve AtW entitlements The challenge was supported by the EHRC

522) As a result of the challenge the judge ruled that the higher cap did not breach the governmentrsquos PSED and was not indirectly discriminatory The judge also said ldquoThe cap was introduced as an intended cost-neutral measure changing the distribution of available funding but not its overall levelrdquo39 So the cap has remained in place As a result the claimant who is Deaf says he will have to find support from charitable trusts or donors to pay for the British Sign Language Interpreters (BSLIs) he needs to do his job as AtW funding only provides him with the BSLIs for 4 days a week40 So the legal challenge was only partially successful

Housing523) There is an acute shortage in housing and an even greater shortage of genuinely affordable and accessible housing needed by Deaf and Disabled people Social housing used to provide for this need but there are long waiting lists as little additional social housing has been built or made available in recent years As a result Deaf and Disabled people can be forced to rent from housing associations or from the private sector where problems with lack of permission to make alterations to improve the accessibility of a property can occur as the court case below illustrates

36 lsquoArticle 6 1 The States Parties to the present Covenant recognize the right to work which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts and will take appropriate steps to safeguard this righthelliprsquo 37 lsquoArticle 13 1 The States Parties to the present Covenant recognize the right of everyone to educationhelliprsquo38 httpswwwunorgdevelopmentdesadisabilitiesconvention-on-the-rights-of-persons-with-disabilitiesarticle-19-living-independently-and-being-included-in-the-communityhtml (Accessed 29 March 2019)39 httpswwwmatrixlawcoukwp-contentuploads201808R-Buxton-v-Secretary-of-State-for-Work-and-Pensions-2018-EWHC-2196-Adminpdf (Accessed 26 March 2019) 40 httpswwwdisabilitynewsservicecomdeaf-boss-forced-to-appeal-for-charity-support-after-access-to-work-court-defeat (Accessed 29 March 2019)httpswwwmatrixlawcoukwp-contentuploads201808R-Buxton-v-Secretary-of-State-for-Work-and-Pensions-2018-EWHC-2196-Adminpdf (Accessed 29 March 2019)

12

524) Below is part of the EHRCrsquos description of the case which they funded and supported ldquoMrs Smailes has Ehlers-Danlos syndrome which restricts her mobility She needed to make adaptations to her home to accommodate her needs such as moving the kitchen and the bedroom 525) Mrs Smailes and her husband own the leasehold for their flat but a term in the lease prohibited alterations When they asked the landlord Clewer Court Residents Limited to allow them to do this given their circumstances they were refused The Smailesrsquo had to move out of their home and brought a disability discrimination case against the landlord The EHRC funded and supported this case in the County Court526) The court ruled41 that the landlord should have agreed to let the Smailes carry out the alteration works which were reasonable in light of her disability The court also found that Mrs Smailes was harassed by the landlord at a meeting held to consider the proposed alterationsrdquo42

6) Civil societyrsquos reports to UN 61) Civil society has provided many reports to the UN highlighting that the governmentrsquos policies are leading to the retrogression of UK citizens economic and social rights for instance Just Fairrsquos report on the implementation of ICESCR in the UKSubmission to CESCR CommitteeSisters of FridaUK ROFArsquo report regarding UNCRPD and a follow up submission to the UN inquiry report both of which involve Article 28 Adequate standard of living 7) Civil Societyrsquos research71) Civil society has provided abundant evidence which has indirectly aided the monitoring of Article 1143 the right to an adequate standard of living Often the recommendations in the research reports would improve the implementation of these rights Examples of civil societyrsquos research are below

Barriers to employment72) Barriers to Work A survey of Deaf and Disabled peoplersquos experiences of the Access to Work programme in 20152016 ldquoThe research found that almost half of respondents to a survey carried out by StopChanges2AtW had experienced changes to their Access to Work package with ldquocutsrdquo or ldquocost cuttingrdquo as the most frequently given reasonrdquo44 The report also found

41 Judgment Smailes v Clewer Court Residents Ltd (Word document download) (Accessed 29 March 2019)42 Press release Disabled woman wins court case to make necessary adaptations to her home (Accessed 29 March 2019) httpswwwequalityhumanrightscomenour-worknewsdisabled-woman-wins-court-case-make-necessary- adaptations-her-home (Accessed 29 March 2019)43 Article 11 1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including adequate food clothing and housing and to the continuous improvement of living conditions The States Parties will take appropriate steps to ensure the realization of this right recognizing to this effect the essential importance of international co-operation based on free consent 44 httpswwwinclusionlondonorgukcampaigns-and-policyact-nowbarriers-work-deaf-disabled-employees-losing-due-changes-governments-access-work-programme (Accessed 28 March 2019)

13

evidence of ldquorationing strategies being deployed at various levels including more frequent re-assessment often leading to a reduced award tighter eligibility criteria and increased restrictions on the use and portability of support especially for the self-employedrdquo45

Lack of support in education73) Cuts in funding for education have resulted in the loss of many school staff including support staff according to the National Education Union (NEU)

ldquoSchool Cuts research drawn solely from Government figures shows that staff numbers in secondary schools have fallen by 15000 between 201415 and 201617 despite having 4500 more pupils to teach This equates to an average loss of 55 staff members in each school since 2015 in practical terms this means 24 fewer classroom teachers 16 fewer teaching assistants and 15 fewer support staffrdquo46

74) Results of the March 2018 survey of just over 900 NEU members includedldquo72 of primary and 73 of secondary respondents said that they have seen cuts in classroom-related support staff posts ndash up from 59 and 72 last yearhellipCuts in other support staff posts were reported by 49 of primary and 75 of secondary respondents up from 36 and 61 last yearrdquo 47

75) Children with Special Education Needs and Disability (SEND) are amongst those impacted by the cuts especially cuts to support staff

76) As well as the cuts to staff the government seems to have an agenda of moving SEND pupils out of mainstream education as the Alliance for Inclusive Educationrsquos (ALLFIE)48 submission49 to a National Audit Office study50 highlights

ldquoWhilst austerity has played a role in the school funding and the crisis in SEND support services it is not the only issue at hand Currently the Department for Education is funding a massive expansion of the segregated education sector including the establishment of new free special schools51 Alternative Provision

45 httpswwwinclusionlondonorgukcampaigns-and-policyact-nowbarriers-work-deaf-disabled-employees-losing-due-changes-governments-access-work-programme (Accessed 27 March 2019)46 httpsneuorgukschools-forced-cut-teachers-and-teaching-assistants-posts-make-ends-meet (Accessed 26 March 2019)47 NEU MEMBER SURVEY ON SCHOOL FUNDING March 2018docx (Accessed 27 March 2019)48 httpswwwallfieorguk (Accessed 27 March 2019)49 ALLFIErsquos submission has not been published on line50 National Audit Officersquos Value for Money Study Support for Pupils with Special Educational Needs and Disabilities Stakeholdersrsquo Engagement 51 httpswwwgovukgovernmentnewsthousands-of-places-created-in-new-special-free-schools (Accessed 27 March 2019)httpswwwgovukgovernmentnewsnew-free-schools-to-benefit-children-with-additional-needs (Accessed 27 March 2019) (Accessed 29 March 2019)

14

and pupil referral units (PRU)52 with the aim of increasing the number of Disabled pupils moving out of mainstream and into such provisionrdquo

77) The government is eroding the ability of SEND pupils to remain in mainstream schools ALLFIErsquos submission went on to say that they are

ldquobeing told by parents that Local authorities and schools are denying or underplaying the needs of Disabled children to avoid arranging SEND support under the Children and Families Act 2014 or even make reasonable adjustments under the Equality Act 2010 In other words local authorities and schools are denying Disabled pupils the support they need to participate in education This is clearly a violation of Disabled pupilsrsquo human and civil rights and is completely unacceptablerdquo53

Lack of food 78) Below are some of the findings of research funded by the Trussell Trust

ldquoThe Trussell Trust Foodbank Network a national network that has been tracking their membership and usage They have grown from only 30 food banks operating in 2009 to over 420 food banks in 2017 consisting of over 1350 distribution centres The number of instances of people receiving emergency food parcels through their Network has grown from about 61500 in 201011 to over 118 million in 201617 (The Trussell Trust 2017)rdquo54 ldquohellipdata collected through the Trussell Trust referral system highlights that the most frequently given reasons for which people are referred to food banks are benefit delays and benefit changesrdquo55

79) ldquoAbout 64 of respondents had a health condition and 17 also had a family member with a health condition Another 5 of respondents did not have a have condition themselves but someone in their household did Mental health conditions were most common affecting about 1 in 3 households in the samplerdquo56

Destitution ndash links to welfare benefit changes710) A Joseph Rowntree Foundation (JRF) survey with 2905 respondents published in 2018 revealed that ldquoserious physical health and mental health problems were reported 52 Department for Education (2018) New funding to support children with special educational needs Retrieved from httpswwwgovukgovernmentnewsnew-funding-to-support-children-with-special-educational-needs (Accessed 29 March 2019)53 Department for Education (2018) New funding to support children with special educational needs Retrieved from httpswwwgovukgovernmentnewsnew-funding-to-support-children-with-special-educational-needs (Accessed 29 March 2019)54 httpswwwtrusselltrustorgwp-contentuploadssites2201707OU_Report_final_01_08_online2pdf (Accessed 27 March 2019)55 httpswwwtrusselltrustorgwp-contentuploadssites2201707OU_Report_final_01_08_online2pdf (Accessed 27 March 2019) 56 httpswwwtrusselltrustorgwp-contentuploadssites2201707OU_Report_final_01_08_online2pdf (Accessed 29 March 2019)

15

by almost half of all destitute respondentsrdquo57 while one-quarter of all interviewees reported destitution due ldquoto loss of disability or sickness-related benefitsrdquo58 Most had been migrated from ESA to JSA or UC after being assessed as fit for work This usually meant a lower rate of benefit a much higher degree of conditionality and an increased risk of being sanctionedrdquo59

711) Research carried out by ComRes published in April 2018 surveyed 1609 Disabled adults in the UK aged 18-65 Findings included ldquoAlmost a quarter said they missed a meal (23 per cent) because they couldnrsquot afford

itrdquo ldquoA fifth said they were not able to keep their home warm (20 per cent)rdquo

Debt712) StepChange Debt charity said ldquoAmong our vulnerable clients the overwhelmingly most common reason was mental health difficulty (43) followed by physical disability (47) cancer (46) and poor health (41)rdquo60

Homelessness713) Analysis by St Mungorsquos charity shows that homelessness is rising and many people living on the streets have mental health support needs

Since 2010 the number of people sleeping rough in England has risen by 16961

Over 40 of people St Mungorsquos charity work with have a lsquomental health issuersquo62

8 in 10 of those who died on the streets in 2017 were recorded as having a lsquomental health problemrsquo compared with 3 in 10 in 201063

ldquo70 of street outreach services in 2017 said access to mental health services for people sleeping rough had got harder compared to five years ago in 2017rdquo64

According to figures obtained by the Guardian newspaper ldquoThe number of rough sleepers recorded as dying has risen year on year from 31 in 2013 to 70 in 2017rdquo65

8) Freedom of Information requests

57fileCUsersHenriettaDoyleAppDataLocalPackagesMicrosoftMicrosoftEdge_8wekyb3d8bbwe TempStateDownloadsdestitution2018_020(1)pdf (Accessed 28 March 2019)58fileCUsersHenriettaDoyleAppDataLocalPackagesMicrosoftMicrosoftEdge_8wekyb3d8bbwe TempStateDownloadsdestitution2018_020(1)pdf (Accessed 28 March 2019) 59 httpswwwjrforgukreportdestitution-uk-2018 Accessed 27 March 2019)60 httpswwwstepchangeorgmedia-centrepress-releasesvulnerable-and-in-debtaspx (Accessed 29 March 2019)61 httpswwwmungosorgwp-contentuploads201806Dying-on-the-Streets-Reportpdf (Accessed 29 March 2019)62httpswwwmungosorghomelessnesswhy-do-people-become-homeless (Accessed 29 March 2019)63 httpswwwmungosorgpress_releaseurgent-action-is-required-to-prevent-more-people-dying-on-the-streets (Accessed 29 March 2019)64 httpswwwmungosorgnewsurgent-action-is-required-to-prevent-more-people-dying-on-the-streets (Accessed 29 March 2019)65 httpswwwtheguardiancomsociety2018apr11deaths-of-uk-homeless-people-more-than-double-in-five-years (Accessed 29 March 2019)

16

81) The Freedom of Information Act 2000 (FOIA) creates a public right of access to information held by public authorities Over the years it has been instrumental in forcing the disclosure of information that the government of the day would have preferred to keep undisclosed It has been particularly true of social security data

82) The data released by DWP has been insufficient to assess the impacts of the government programme of welfare reforms but through the FOIA it has been possible to obtain revealing information

83) For instance one FOI request revealed that that 1 in 5 of people who died and were the subject of a peer review by DWP had been sanctioned66 Another FOI revealed that from October 2008 to June 2013 people with Mental and Behavioural Disorders received more than three times the number of sanctions than any other impairment67

84) Sometimes the DWP resists providing the information requested we have given an example of this in Appendices 2 9) Action by activistsDDPOs protest at deaths due to loss of benefits 91) DDPOs have organised an ongoing campaign to obtain a DWP inquiry regarding the deaths of benefit claimants Disabled people have committed suicide after undergoing or missing a WCA or after they have been deemed not to be eligible for ESA68 The DWP has resisted requests by the Disability News Service for key information from reviews into the deaths of 9 benefit claimants ndash following the release of 49 earlier reviews The DWP only released the information in September 2016 ldquoafter pressure from the Information Commissionerrsquos Officerdquo and as Disabled People Against Cuts (DPAC) protested about the loss of Disabled peoplersquos lives blocking Westminster Bridge directly outside the Houses of Parliament (HoP)69 The protest was covered by

66httpswwwwhatdotheyknowcomrequest252562response650114attachhtml2 VTR50120Bellowspdfhtml (Accessed 29 March 2019)67 lsquoMental and Behavioural Disorders 27680 Diseases of the Musculoskeletal system and Connective Tissue 7120 Injury Poisoning and certain other consequences of external causes 5930 Diseases of the Circulatory or Respiratory System 2540 Diseases of the Nervous System 1800rsquo httpswwwwhatdotheyknowcomrequest192084response494453attach3FOI202014207920response20finalpdf (Accessed 29 March 2019)68 httpswwwdisabilitynewsservicecomshocking-nhs-stats-show-nearly-half-esa-claimants-have-attempted-suicide (Accessed 29 March 2019)httpswwwdisabilitynewsservicecomsix-families-back-petition-to-mps-calling-for-inquiry-into-dwp-benefit-deaths (Accessed 29 March 2019)httpswwwdisabilitynewsservicecomjodey-whiting-dwp-ignored-five-safeguarding-chances-before-wca-suicide (Accessed 29 March 2019)httpswwwdisabilitynewsservicecommother-of-esa-suicide-mum-of-nine-praises-activist-for-confronting-mcvey (Accessed 29 March 2019)httpswwwdisabilitynewsservicecomstaggering-esa-suicide-figures-prompt-calls-for-inquiry-and-prosecution-of-ministers (Accessed 29 March 2019)69 httpswwwdisabilitynewsservicecombenefit-claimants-die-as-dwp-staff-keep-failing-to-follow-suicide-guidelines (Accessed 29 March 2019)

17

the media which also raised the profile of the issue Disabled peoplersquos deaths due to loss of benefits

Save the ILF campaign92) In June 2015 as part of a long campaign to stop the closure of the Independent Living Fund (ILF) (including a legal challenge referenced later in this submission) Deaf and Disabled people stormed the House of Commons with the intention of entering the chamber during PMrsquos questions to deliver a letter about the closure to the speaker John Bercow This direct action and linked legal action secured a large amount of publicity through the media Although unfortunately the government went ahead with the closure of the ILF following a successful legal appeal the pressure of the campaign secured pound7 billion of transitional funding for ex-ILF users over the 4 years to 202070

B) What domestic institutions have succeeded in implementing monitoring and advocating for economic and social rights

Organisations that are directly or indirectly involved in implementing andor monitoring and advocating social and economic rights include

The EHRC The Joint Committee on Human Rights The National Audit Office (NAO) The Ombudsmen for social care and housing Parliamentary select committees Research conducted by universities

The evidence below is relevant to Article 971 and Article 1172 of the ICESCR 10) The Equality and Human Rights Commission (EHRC)101) The EHRC is an independent statutory non-departmental public body established by the Equality Act 2006 Parliament has given the EHRC a mandate to challenge discrimination and to protect and promote human rights73 which is does through

Legal action74

Advice and guidance75

70 httpswwwdisabilitynewsservicecomilf-closure-dpac-brings-fight-to-save-fund-to-the-heart-of-westminster(Accessed 29 March 2019)httpswwwdisabilitynewsservicecomgovernment-agrees-four-more-years-of-ilf-transition-cash-for-councils (Accessed 29 March 2019)71 Article 9 The States Parties to the present Covenant recognize the right of everyone to social security including social insurance 72 Article 11 1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including adequate food clothing and housing and to the continuous improvement of living conditions The States Parties will take appropriate steps to ensure the realization of this right recognizing to this effect the essential importance of international co-operation based on free consent 73 httpsequalityhumanrightscomenabout-us (Accessed 27 March 2019)74 httpsequalityhumanrightscomenour-legal-action (Accessed 27 March 2019)75 httpsequalityhumanrightscomenadvice-and-guidance Accessed 27 March 2019)

18

Research76

102) The EHRC is also the UK Independent Mechanism (UKIM) for monitoring the implementation of the UNCRPD

EHRC legal action103) The EHRC has increased its role over the last 4 years in carrying out research and supporting strategic legal action which is probably the most effective means to enforce the implementation of economic and social rights We give examples of the legal action supported by the EHRC under both question 1 and 3

104) The threat of legal action by the EHRC can also be effective for instance the EHRC wrote a letter before action to 13 CCGs77 about NHS Continuing Healthcare (NHS CHC) policies because they lsquoplaced arbitrary caps on funding and failed to consider the specific needs of individual patients such as living location and family lifehelliprsquo78 The action was successful as the relevant guidance was revised79

EHRC research105) The EHRC has carried out key pieces of research which aids the monitoring of economic and social rights these includeldquoProgress on socio economic rights in Great Britainrdquo One of the key findings of this report was that

ldquoThe reforms of the social security system since 2010 may present the most significant threat to the implementation of socio-economic rights in Great Britain In many cases the levels of social security entitlements are not sufficient to cover the basic cost of livingrdquo80

106) The report highlighted that reforms have had a particularly negative impact on ldquodisabled people families with more than two children lone parents and ethnic minority householdsrdquo

The EHRC recommendations to the government included o Make ldquosocio-economic rights a reality in our domestic legislation as

the UK leaves the European Unionrdquoo ldquoCommit to undertaking cumulative impact assessments of all tax

and social security policies going forward in line with UN CESCRrsquos 2016 recommendationrdquo81

76 httpsequalityhumanrightscomenour-workour-research (Accessed 27 March 2019)77 Clinical Commission Groups httpswwwnhsccorgccgs (Accessed 29 March 2019)78 httpswwwequalityhumanrightscomenour-worknewsnhs-facing-court-action-over-unlawful-policies (Accessed 27 March 2019)79httpsassetspublishingservicegovukgovernmentuploadssystemuploadsattachment_datafile690426

National_Framework_for_CHC_and_FNC_-_October_2018_Revisedpdf (Accessed 27 March 2019)80 httpsequalityhumanrightscomenpublication-downloadprogress-socio-economic-rights-great-britain (Accessed 27 March 2019) 81 Published in March 2018 httpswwwequalityhumanrightscomenpublication-downloadprogress-socio-economic-rights-great-britain (Accessed 28 March 2019)

19

ldquo Being disabled in Britain A journey less equalrdquo 107) Key findings in this report include

ldquoSocial security reforms have had a particularly disproportionate cumulative impact on the rights to independent living and an adequate standard of living for disabled peoplerdquo82

ldquoThe Cumulative Impact of Tax and Welfare Reforms rdquo report 108) The reportrsquos analysis revealed that those on low incomes experienced the largest impact and people in protected groups including Disabled people certain ethnic groups and women experience a ldquodisproportionately negative impactrdquo83

109) It is a vital piece of research because the government has refused repeated calls to carry out a similar assessment saying it was not possible to do84 Findings from the research include

ldquoSingle parents with six or more functional disabilitiesrsquo lose over pound11000 on average from the changes which is slightly more than 30 of their incomerdquo

ldquoParents who are disabled with at least one disabled child loose lose lsquoalmost three out of every 10 pounds of their net income In cash terms their average loses are almost pound10000 per yearrdquo

ldquoHouseholds with at least one disabled adult but no children lose slightly under pound500 on average from the reformsrdquo

Housing and disabled people Britainrsquos hidden crisis 1010) The report reveals that there is

ldquoa significant shortage of accessible homes across all tenuresrdquo ldquohellipevidence of people eating sleeping and bathing in one roomrdquorsquo due to the lack

access to parts of their accommodation ldquoDisabled people can experience serious deterioration in their mental wellbeing

due to living in unsuitable accommodationrdquoThe report highlighted that more accessible and adaptable houses need to be built

1011) The inquiry reports are important because they shine a spotlight on the lack of progress in implementing economic and social rights in UK The evidence in the reports clearly shows the negative impacts of the governmentrsquos policies However there is no requirement for the government to implement the recommendations in the inquiry reports the reports can be ignored by government unless the rights are being breached are in UK domestic law

11) Joint Committee on Human Rights (JCHR)

82 httpswwwequalityhumanrightscomenpublication-downloadbeing-disabled-britain-journey-less-equal(Accessed 28 March 2019)83 httpswwwequalityhumanrightscomsitesdefaultfilescumulative-impact-assessment-reportpdf (Accessed 29 March 2019)84 One Treasury spokesperson said ldquoWe canrsquot do a cumulative technical assessment because we donrsquot have the modelling capability to do sordquo httpswwwdisabilitynewsservicecomosborne-refuses-to-assess-impact-of-cuts-on-disabled-people-then-slashes-their-benefits (Accessed 29 March 2019)

20

111) The JCHR has been successful in monitoring and promoting economic and social rights but less successful in aiding the implementation of these rights

112) The JCHR ldquoconsists of twelve members appointed from both the HoC and the House of Lords (HoL) to examine matters relating to human rights within the United Kingdonhellip The Committees work includes scrutiny of every government bill for its compatibility with human rights including

The rights under the European Convention on Human Rights (ECHR) protected in UK law by the Human Rights Act 1998

Common law fundamental rights and liberties The human rights contained in other international obligations of the UKrdquo85

The Committees formal remit can be found under HC Standing Order No 152B

JCHRrsquos legislative scrutiny113) Welfare Reform Bill (WRB)The JCHR scrutinised the WRB which became the Welfare Reform Act 2012 The JCHR scrutiny report on the WRB gave clear warnings regarding the WRW for instance the JCHR raised

The need for a cumulative impact assessment86 The concern that the cumulative impact will result in retrogression87 (in rights) The risk of incompatibility with Convention rights88 ldquoThe lack of detailed analysis by the government of the compatibility of the Bill

with the UKs obligations under the UNCRC the ICESCR and the UNCRDPrdquo Significant human rights concerns in several areas which included destitution

and discrimination

114) Unfortunately despite the JCHR recommendations the WRA 2012 still has had a huge negative impact on Deaf and Disabled people

115) The JCHR began an inquiry on the WRW Act 2016 as part of its legislative scrutiny but it was closed due to the general election when all select committees are dissolved

12) National Audit Office reports

85 httpswwwparliamentukbusinesscommitteescommittees-a-zjoint-selecthuman-rights-committeerole(Accessed 28 March 2019)86 The JCHR report stated ldquo115 We call on the Government to improve its capacity to conduct equality impact assessments in particular to go beyond piecemeal analysis of each measure by assessing the proposed provisions as a whole including their cumulative impact on individuals and groups from an equality perspective ldquo87 The JCHR report stated ldquo182 We are concerned that the cumulative impact of the Bills provisions may lead to retrogression which is not justified by the factors set out in the General Comments of the UN Committeesrdquo88 The JCHR report stated ldquo117 For the reasons we set out below we have concerns that the proposals may be implemented in a way which could lead to a risk of incompatibility with Convention rightshellip ldquo

21

121) The National Audit Office (NAO) scrutinises public spending for Parliament Their ldquopublic audit perspective helps Parliament hold government to account and improve public servicesrdquo89

122) Reports by the NAO highlight problems with government policies and systems including the welfare benefit system For instance their report on UC highlighted governmentrsquos dismissal of claimantrsquos experience of hardship due to UC The report stated that the government

ldquodoes not accept that Universal Credit has caused hardship among claimants because it makes advances availablehellip This has led it to often dismiss evidence of claimantsrsquo difficulties and hardship instead of working with these bodies to establish an evidence base for what is actually happeninghelliprdquo90

123) Another report on Contracted out Health and Disability Assessments published in 2016 found that only 13 of ESA and PIP assessments met contractual standard targets ie 87 were failing to reach required standard This is relevant to the experience of Deaf and Disabled who find these assessments are largely inaccurate as we will evidence later

124) While the NAOrsquos reports have highlighted some failings of the welfare benefit system largely the punitive welfare system that is so damaging to Deaf and Disabled people still remains in place

13) Ombudsmen for social care and housing131) The Ombudsmen for social care and housing implement the rights to social care and housing under UK domestic law

132) lsquoThe Ombudsmenrsquos service is ldquofree independent and impartialrdquo91 The Local Government and Social Care Ombudsman is the final stage for

complaints about councils and some other organisations including adult social providers and education admissions appeal panelsrdquo92

The Housing Ombudsman Service is set up by law to look at complaints about the housing organisations that are registered with them ldquoThe service resolves disputes involving the tenants and leaseholders of social landlords (housing associations and local authorities) and voluntary members (some private landlords and letting agents)rdquo93

89 httpswwwnaoorgukabout-us (Accessed 29 March 2019)90 httpswwwnaoorgukreportrolling-out-universal-credit (Accessed 27 March 2019)91 httpswwwhousing-ombudsmanorgukabout-uswhat-we-do (Accessed 27 March 2019)httpswwwgovukgovernmentorganisationslocal-government-ombudsman (Accessed 27 March 2019)92 httpswwwlgoorguk (Accessed 27 March 2019) 93 httpshousing-ombudsmanorgukabout-uswhat-we-do (Accessed 27 March 2019) httpswwwhousing-ombudsmanorgukuseful-toolsfact-sheetsour-jurisdiction (Accessed 27 March 2019)

22

133) The ombudsmen provide vital impartial decision making regarding individuals social care and housing disputes The ombudsmenrsquos recommendations are usually complied with

Ombudsmanrsquos annual report on social care complaints 134) The social care ombudsmanrsquos annual report highlights that there are systemic problems with social care provision as the ombudsman says

ldquoItrsquos no longer just one-off mistakes wersquore seeing problems with systems policies and the way procedures are being appliedhellip94

ldquoOver the past year the Ombudsman has become increasingly concerned about the way some authorities are handling the need to balance the pressures they are under with the way they assess and charge for carerdquo95

135) Local authorities (LAs) have experienced cuts in funding from central government and as a result social care budgets have been cut In 2017 the ADASS96

ldquoADASS Budget Surveys have shown that successive years of cuts took pound46bn (31) out of council social care budgets between 2010 and 2015 whilst need grew significantly Further savings of pound941m are being made a cumulative total of pound55bn from budgets by the end of this financial yearrdquo97

136) This is the main lsquopressurersquo that LAs are under Due to the cuts in funding Disabled peoplersquos care packages have been cut to a basic clean and feed model of care Therefore it is not surprising that the Ombudsmen has experienced an increase in complaints

ldquo9 increase in complaints about charging with 67 upheldrdquo ldquoThe average uphold rate for adult social care is 62rdquo

137) Due to the cuts in care and support Disabled peoplersquos rights to inclusion in the community under UNCRPD are being ignored People with learning difficulties continue to be trapped in institutions such as hospital units due to the lack of support and housing in the community Therefore the UNCRPD Committeersquos recommendation to close all institutions and develop provision in the community is not being implemented98

94 Michael King Local Government and Social Care Ombudsman httpswwwlgoorgukinformation-centrenews2018novsocial-care-pressures-reflected-in-ombudsman-s-annual-review-of-complaints (Accessed 28 March 2019)95 httpswwwlgoorgukinformation-centrenews2018novsocial-care-pressures-reflected-in-ombudsman-s-annual-review-of-complaints (Accessed 28 March 2019)96 The Association of Directors of Adults Social Services (ADASS)97 httpswwwadassorgukbudget-2017-representation-by-the-association-of-directors-of-adult-social-services (Accessed 28 March 2019)98 The UNCRPD Committee recommended that the UK government

lsquo(d) Set up a comprehensive plan developed in close collaboration with organizations of persons with disabilities aimed at the deinstitutionalization of persons with disabilities and develop community-based independent living schemes through a holistic and cross-cutting approach including education childcare transport housing employment and social securityrsquo

23

Report on housing repairs complaints 138) Over one third of all complaints dealt with each year by the ombudsmen are about repairs The Housing Ombudsman Service closed about 8500 complaints andover 3000 concerned repairs of these formal decisions were made on more than 780 cases Their Room for improvement Spotlight on repairs report says ldquoLiving in a home in a poor state of repair can have a significant impact on residents this can cause stress and frustration and damage the ongoing relationship with their landlord as residents are faced with the issue every dayrdquo99

14) Social Security Advisory Committee (SSAC ) 141) The SSAC is an independent statutory body100 funded by DWP that ldquoprovides impartial advice on social security and related mattersrdquo It ldquoscrutinises most of the complex secondary legislation that underpins the social security systemrdquo101 The Secretary of State (SoS) for Work and Pensions must publish the SSACrsquos formal advice and respond to their recommendations 142) The SSAC is not obliged to consider the human rights aspect of the regulations they scrutinise So without a full review of the relevant reports the SSAC has produced and analysis of the governmentrsquos response to their recommendations it is difficult to give an accurate analysis of the effectiveness of the SSAC from the perspective of economic and social rights However below we comment on two relevant reports

143) Mandatory Reconsideration (MR) and UC regulations reportsWhile the SSACrsquos recommendations in their report Mandatory Reconsideration (MR) tried to mitigate some aspects of the governmentrsquos regulations the SSAC also gave MR their tacit support102 This is concerning as MR acts as a barrier to justice as it delays access to welfare tribunals where 72 of ESA and PIP decisions are overturned103 Although the government accepted the majority of the SSACrsquos recommendations in their recent report Draft UC (Managed Migration) regulations 2018 we do not have confidence that the recommendations will improve UC sufficiently enough for it to

httpstbinternetohchrorg_layoutstreatybodyexternalDownloadaspxsymbolno=CRPD2fC2fGBR2fCO2f1ampLang=en (Accessed 29 March 2019)99 httpswwwhousing-ombudsmanorguk20190328new-report-puts-the-spotlight-on-complaints-about-repairs 100 SSAC was established under the Social Security Act 1980101 httpswwwgovukgovernmentorganisationssocial-security-advisory-committeeabout (Accessed 27 March 2019)102 lsquoProperly conducted Mandatory Reconsideration could be an efficient process that provides opportunity for timely review the admission or reinterpretation of evidence and the avoidance of costly tribunalsrsquo httpsassetspublishingservicegovukgovernmentuploadssystemuploadsattachment_datafile538836decision-making-and-mandatory-reconsideration-ssac-op18pdf (Accessed 29 March 2019)103 Between March 2015 and January 2018 only 17 MRs overturned the original decision httpsassetspublishingservicegovukgovernmentuploadssystemuploadsattachment_datafile764125esa-wca-summary-december-2018pdf (Accessed 29 March 2019)The percentage of overturned decisions at tribunal re PIP and ESA is 72 and DLA is 65httpsassetspublishingservicegovukgovernmentuploadssystemuploadsattachment_datafile766114Tribunal_and_GRC_statistics_Q2_201819_revised2pdf (Accessed 29 March 2019)

24

become an accessible and effective welfare benefit system for Deaf and Disabled people 15 Parliamentary inquiries 151) There have been numerous inquiries by parliamentary select committees regarding the welfare reforms often by the Commons Select Committee for Work and Pensions (WampPC) These inquiries succeed in highlighting the poverty and distress caused by the current welfare benefit system so can aid with the monitoring of the right to adequate standard of living and social security but their impact can be limited because there is no requirement for the government to act on the recommendations made For example one of the WampPC recommendations was that the

ldquoDWP must urgently evaluate the effectiveness of the reforms to welfare conditionality and sanctions since 2012 including their impact on peoples financial and personal well-beingrdquo104

However the government only agreed to evaluate the effectiveness of sanctions in getting people into work the impact of sanctions on claimantsrsquo financial and personal wellbeing is not being considered Additionally the government rejected the recommendation that Disabled people found to have a lsquolimited capability for workrsquo should be exempt from sanctions which would have made a difference to the lives of many Deaf and Disabled people Other recommendations were also rejected105

16) Research by universities161) Universities and academics have carried on research relevant to Article 11 as they highlight the negative impact of the governmentrsquos policies on the standard of living

Foodbank usage162) Oxford University produced a research report in partnership with the Trussell Trust ldquoFinancial insecurity food insecurity and disability The profile of people receiving emergency food assistance from the Trussell Trust Foodbank Network in Britainrdquo Key findings on the circumstances of people referred to foodbanks included ldquoThree-quarters of households using food banks contained someone with a health

condition andor disability About one-third of households included someone with a mental health conditionhellip

ldquoOver 50 indicated they were unable to afford to heat their home for over more than four days in a month andor being unable to afford essential toiletries Homelessness was also very prevalent about 3 of respondents were currently sleeping rough and another 20 indicated they had done so in the past 12 monthsrdquo106

104 httpswwwparliamentukbusinesscommitteescommittees-a-zcommons-selectwork-and-pensions-committeenews-parliament-2017benefit-sanctions-report-published-17-19 (Accessed 27 March 2019)105 httpswwwparliamentukbusinesscommitteescommittees-a-zcommons-selectwork-and-pensions-committeenews-parliament-2017benefit-sanctions-government-response-report-publication-17-19httpspublicationsparliamentukpacm201719cmselectcmworpen19491949pdf (Accessed 29 March 2019)106 httpswwwtrusselltrustorgwp-contentuploadssites2201707OU_Report_final_01_08_online2pdf Over October to December 2016 a total of 413 people across 18 food banks in The Trussell Trust Foodbank Network

25

Universal Credit sanctions163) A briefing on welfare benefit sanctions by Dr Webster107 drew on sanctions statistics published by DWP containing data to end-October 2017 The briefing highlighted that sanction rates under UC were very high saying ldquoThe current UC rate is higher than for any benefit under the previous Labour governmentrdquo108 There were very low numbers of people were appealing the sanctions decisions (only 1086 out 417000) yet 802 of decisions were over turned at tribunal109 The briefing also highlighted that a FOI has shown ldquothat over the period 2010-14 the sanctioning rate for disabled people on JSA was 25-50 higher than for non-disabled people on JSArdquo110 Dr Webster told the WampPC in an oral evidence session that ldquoresearch was clear that sanctioning sick and Disabled people was ldquocounter-productiverdquo111

C) What conditions or circumstances have made it difficult to recognise institutionalise and hold the government to account in relation to economic and social rights

17) Legal position of economic and social rights 171) The right to an adequate standard of living is enshrined in Article 11 of the International Covenant on Economic Social and Cultural Rights112 Article 28 of the UN Convention on the Right of Persons with Disabilities113 Article 25 of the Universal Declaration of Human Rights114

172) Unfortunately these rights are not contained in the UKrsquos Human Rights Act 1998115 or any other UK legislation As a result international rights are difficult to enforce and relatively easy for the government to ignore even although the UK has ratified the international treaties

completed the survey questionnaire (Accessed 28 March 2019)107 Honorary Research Fellow Urban Studies University of Glasgow108 lsquoAfter peaking at over 8 in 2013 the JSA sanction rate before challenges fell steadily and now appears to have stabilised at around 17 of claimants per month Sanction rates on ESA WRAG and lone parent IS claimants are much lower currently both around 03 per month before challenges while on other IS claimants they are very low at around 001 20 March 2018109 20 March 2018110 FOI by Ben Baumberg Geiger httpwwwbenbgeigercoukfiles201720JPSJ20conditionality20web20appendicespdf (Accessed 29 March 2019)111 httpswwwdisabilitynewsservicecomesa-sanctions-are-counter-productive-and-dangerous-mps-are-told (Accessed 29 March 2019)112 httpswwwohchrorgenprofessionalinterestpagescescraspx (Accessed 29 March 2019)113 httpswwwohchrorgENHRBodiesCRPDPagesConventionRightsPersonsWithDisabilitiesaspx28 (Accessed 29 March 2019)114 httpwwwunorgenuniversal-declaration-human-rightsindexhtml (Accessed 29 March 2019)115 httpwwwlegislationgovukukpga199842schedule1 (Accessed 29 March 2019)

26

173) The public sector duty regarding socio-economic inequalities (Section 1 of the Equality Act 2010)116 which places a duty to ensure public bodies lsquoreduce the inequalities of outcome which result from socio-economic disadvantagersquo has not come into force

lsquoSoft lawrsquo174) The JCHR raised concerns regarding the governmentrsquos attitude towards the UNCRPD as lsquosoft lawrsquo

ldquoWe are concerned that characterising the obligations assumed by the Government under the Disabilities Convention as ldquosoft lawrdquohellip The UNCRPD is hard law not soft lawrdquo117

175) Following on with this the JCHR went on to raise concerns about Disabled peoplersquos

ldquohelliplevels of participation in economic and social life and the impact this has on their economic and social well-beingrdquo118

176) The Committed also expressed ldquohellipregret that the Convention has not been incorporated into UK law and no underpinning legislation exists specifically to protect and promote the right to independent livinghelliprdquo119

177) Unfortunately neither the UNCRPD nor the right to independent living has been incorporated in domestic law In the case below Article 19 is considered by a UK court of justice but only in relation to the Public Sector Equality Duty (PSED) under the Equality Act 2010120

Bracking and others v Secretary of State for Work and Pensions[5][5]178) The EHRC successfully intervened121 in a Judicial Review brought by a group of ILF users and a wider campaign run by Disabled people on abolition of the Independent Living Fund (ILF) a discretionary fund supporting care packages to help Disabled people live independent lives 116 Public sector duty regarding socio-economic inequalities(1)An authority to which this section applies must when making decisions of a strategic nature about how to exercise its functions have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantagehttpswwwlegislationgovukukpga201015section1 (Accessed 29 March 2019)117 httpspublicationsparliamentukpajt201213jtselectjtrights2323pdf (Accessed 28 March 2019)118 The JCHR report stated ldquoWe note the significant disadvantage to disabled people which persists in relation to choice and control and levels of participation in economic and social life and the impact this has on their economic and social well-beingrdquo httpspublicationsparliamentukpajt201213jtselectjtrights2323pdf (Accessed 28 March 2019)119 httpspublicationsparliamentukpajt201213jtselectjtrights2323pdf (Access 28 March 2019)120 httpswwwequalityhumanrightscomenadvice-and-guidancepublic-sector-equality-duty (Accessed 29 March 2019)[5][5] httpswwwbailiiorgcgi-binmarkupcgidoc=ewcasesEWCACiv20131345htmlampquery=bracking+and+22public+sector+equality+duty22ampmethod=boolean (Accessed 29 March 2019)121 httpswwwequalityhumanrightscomenlegal-caseworkhuman-rights-legal-cases (Accessed 27 March 2019)

27

179) ldquoThe court found that the decision to close the ILF had been taken without complying with the public sector equality duty (PSED) After the judgment the SoS for Work and Pensions retook the decision to terminate the ILF fundinghelliprdquo122 although the EHRC ldquoagain intervened to challenge the fresh decision the application for judicial review was dismissedrdquo123

1710) One of the judges highlighted that the SoS had failed to consider the obligations under Article 19 of the UNCRPD However it was only in relation to the PSED under domestic law the judge stated that Article 19 ldquoought to inform the scope of the PSED with respect to the disabledrdquo[7][7] This failure contributed to the judgesrsquo initial finding to quash the SoSrsquos decision to close the ILF However ultimately the obligation of the government to implement Article 19 as a signatory of the UNCRPD did not have sufficient legal standing in itself to keep the ILF open

UN recommendations not implemented1711) Possibly because the government sees the UNCRPD as soft law the governmentrsquos has not acted on vital recommendations in the Committeersquos concluding observations such as

Carrying out a cumulative impact assessment ldquoof the recent and forthcoming reforms of the social protection system for persons with disabilitiesrdquo

Ensuring ldquothat that eligibility criteria and assessments to accessrdquo PIP ESA and UC ldquoare in line with the human rights model of disabilityrdquo

adopting ldquorights-based policies regulations and guidelines to ensure implementation of the right to independent livingrdquo124

1712) According to the Disability News Service the government only responded to 25 of 80 plus recommendations125 of the UN Committee CRPDrsquos Concluding Observations and an earlier inquiry report from 2016

1713) In the inquiry report the Committee found grave or systemic violations of the convention under Article 28 Adequate Standard of living126 However the Government did not accept this conclusion127 Additionally the governmentrsquos statement when the UNCRPD concluding observations were 122 httpswwwequalityhumanrightscomenlegal-caseworkhuman-rights-legal-cases (Accessed 27 March 2019) 123 httpswwwequalityhumanrightscomenlegal-caseworkhuman-rights-legal-cases (Accessed 27 March 2019)[7][7] httpswwwbailiiorgcgi-binmarkupcgidoc=ewcasesEWCACiv20131345htmlampquery=bracking+and+22public+sector+equality+duty22ampmethod=boolean (Accessed 29 March 2019)124httpstbinternetohchrorg_layoutstreatybodyexternalDownloadaspxsymbolno=CRPD2fC2fGBR2fCO 2f1ampLang=en (Accessed 29 March 2019)125 httpswwwdisabilitynewsservicecomuns-conclusion-that-uk-violated-disability-rights-is-vindication-for-activists (Accessed 29 March 2019)126 Regarding Article 28 Adequate Standard of Living the report stated lsquohellipthe Committee considers that there is reliable evidence that the threshold of grave or systematic violations of the rights of persons with disabilities has been crossed 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 consolidation of fiscal and budgetary policyrsquohttpsdigitallibraryunorgrecord1311200filesCRPD_C_15_4-ENpdf (Accessed 27 March 2019)

28

published gave no acknowledgement of the validity of the reportrsquos findings which to all intent and purposes appeared to be dismissed out of hand128

1714) We are concerned that other international treaties such as the ICESCR may also be considered by the government as lsquosoft lawrsquo as 2 years after the UN Committee on Economic Social and Cultural Rights set out its recommendations on how to improve social and economic rights for people across the UK there was still a lack of progress in achieving those rights129 The government was also dismissive of the preliminary findings of the UN special rapporteur on housing130 The Conservative party pledged in their 2015 manifesto to abolish the Human Rights Act 1998 and replace it with a British bill of rights this is concerning as the aim of the HRA was to place the ECHR in domestic law 1715) It seems the post war consensus on the importance and status of human rights is being eroded in the UK

1716) Therefore it is vital that the UNCRPD and the UNCESC rights are enshrined in UK law The Committee on ICESCR urged the UK government to place the Covenant in domestic law and also to bring the public sector duty regarding socio-economic inequalities into force131 Likewise the concluding observations of the UNCRPD recommended the Convention is placed in UK legislation132 The government has so far

127 ldquohellipthe Government does not accept the Reportrsquos conclusion that there is evidence of grave and systematic violation of the rights of disabled peoplerdquo httpstbinternetohchrorg_layoutstreatybodyexternalDownloadaspxsymbolno=CRPD2fC2f172fR3ampLang=en (Accessed 27 March 2019)128 A Government spokeswoman said ldquoWersquore disappointed that this report does not accurately reflect the evidence we gave to the UN and fails to recognise all the progress wersquove made to empower disabled people in all aspects of their livesrdquo httpswwwmirrorcouknewspoliticsunited-nations-says-treatment-disabled-11089365 (Accessed 29 March 2019)129 httpsequalityhumanrightscomenour-workblogsprogress-socio-economic-rights-why-are-we-waiting (Accessed 29 March 2019)httpsequalityhumanrightscomenpublication-downloadprogress-socio-economic-rights-great-britain (Accessed 29 March 2019)130 A Department for Work and Pensions spokesman said It is surprising to see these conclusions being drawn from anecdotal evidence and conversations after a handful of meetings ndash instead of actual hard research and data Britain has a very strong housing safety net and even after our necessary reforms we continue to pay over 80 of most claimants rent if they are affected by the ending of the spare room subsidy httpswwwtheguardiancomsociety2013sep11bedroom-tax-should-be-axed-says-un-investigator (Accessed 29 March 2019)131 Concluding Observations 2016 paragraphs 6 and 23lsquoThe Committee [hellip] urges the State party to fully incorporate the Covenant rights into its domestic legal order and ensure that victims of violations of economic social and cultural rights have full access to effective legal remediesrsquo lsquoThe Committee recommends that the State party bring into force the relevant provisions of the Equality Act that refer to the public authoritiesrsquo duty on socio-economic disadvantage as well as to the prohibition of intersectional discrimination in order to enhance and guarantee full and effective protection against discrimination in the enjoyment of economic social and cultural rightsrsquo httpsequalityhumanrightscomenpublication-downloadprogress-socio-economic-rights-great-britain (Accessed 29 March 2019)132 7 The Committee recommends that the State party

29

ignored these recommendations However the Labour party manifesto for the 2017 election pledges to place the UNCRPD into domestic law133 and the Liberal Democrats 2017 conference voted to bring it into domestic law134 so there are glimmers of light

18) Inaccurate welfare benefits assessments181) Many incorrect decisions regarding ESA and PIP are made due to inaccurate assessments so Deaf and Disabled people are denied the benefits they are entitled to - tribunal hearings overturn 72 of PIP and ESA decisions and 65 of DLA decisions135 Without the financial support of welfare benefits Deaf and Disabled people have to use foodbanks and are at risk of eviction

182) In December 2017 Britainrsquos most senior tribunal judge said that most of the benefits cases that reach court are based on bad decisions where the DWP has no case at all and that the quality of evidence provided by the DWP is so poor it would be ldquowholly inadmissiblerdquo in any other court136

183) The WampP Select Committee inquiry on ESA and PIP assessments heard of lsquothousands of accounts of ldquoshoddy error-ridden reportsrdquo produced by private contractors for DWP137 Nearly 4000 individual submissions were submitted to the WampPC inquiry on PIP and ESA assessments138 indicating the level of concern about the inaccuracy of the assessments

184) Not all claimants have the stamina and emotional resilience to go through the stressful process of going to Mandatory reconsideration and then onto a tribunal so drop

(a) Incorporate the Convention into its legislation recognizing access to domestic remedies for breaches of the Convention and adopt an appropriate and comprehensive response to the obligations enshrined in the Convention in its policies and programmes across the State party including all devolved governments

httpstbinternetohchrorg_layoutstreatybodyexternalDownloadaspxsymbolno=CRPD2fC2fGBR2fCO2f1ampLang=en (Accessed 27 March 2019)133 httpslabourorgukmanifesto (Accessed 29 March 2019)134 httpswwwdisabilitynewsservicecomlib-dem-conference-party-votes-to-bring-un-disability-convention-into-uk-law (Accessed 29 March 2019)135httpsassetspublishingservicegovukgovernmentuploadssystemuploadsattachment_datafile766114 Tribunal_and_GRC_statistics_Q2_201819_revised2pdf (Accessed 29 March 2019)

136 The senior tribunal judge said that 60 of cases were ldquono-brainersrdquo where there was nothing in the law or facts that would make the DWP win He said ldquoIts an inappropriate use of judicial resources its an inappropriate experience for the users and the cost is simply not right httpswwwbuzzfeedcomemilyduganmost-dwp-benefits-cases-which-reach-court-are-based-on-badutm_term=tq9pQEJMPqf7bZLk1R (Accessed 29 March 2019)137 httpswwwparliamentukbusinesscommitteescommittees-a-zcommons-selectwork-and-pensions-committeenews-parliament-2017slavery-victims-welfare-systems-17-19 (Accessed 29 March 2019)httpswwwparliamentukbusinesscommitteescommittees-a-zcommons-selectwork-and-pensions-committeenews-parliament-2017pip-esa-full-report-17-19 (Accessed 29 March 2019) httpspublicationsparliamentukpacm201719cmselectcm w orpen829829pdf (Accessed 29 March 2019)138 httpswwwparliamentukbusinesscommitteescommittees-a-zcommons-selectwork-and-pensions-committeenews-parliament-2017pip-esa-claimant-experiences-report-17-19 (Accessed 29 March 2019)

30

out of the system The government does not keep a record of the impact on Deaf and Disabled people when they are denied a welfare benefit

19) Mandatory Reconsideration191) People challenging an assessment decision have to go through a lsquoMandatory Reconsiderationrsquo (MR) process before their appeal can go to a tribunal MR is experienced by Deaf and Disabled people as yet another barrier to welfare benefits with good reason as according to government statistics between March 2015 and January 2018 only 17 MRs overturned the original decision ie 83 remain unchanged ldquoThe proportion of MR decisions not revised in the year to October 2018 has generally fallen from 87 to 78rdquo139 ndash this is still a very high percentage of unchanged decisions

20) Sanctions201) According to the latest government statistics the average sanction lasts for 31 days140 The loss of benefits for this amount of time can leave people without food in debt and at risk of eviction if housing benefit is also not paid141

202) The Chair of the WampPC said on publication their report on sanctionsldquoWe have heard stories of terrible and unnecessary hardship from people whorsquove been sanctioned They were left bewildered and driven to despair at becoming often with their children the victims of a sanctions regime that is at times so counter-productive it just seems pointlessly cruelrdquo142

203) Research by Demos published in 2018143 revealed that ldquoOver a million benefit sanctions have been applied to disabled people since 2010 helliprdquo144 There is also ample research showing that sanctions are damaging to Disabled peoplersquos health and counterproductive as far as seeking work145

21) Digital application systems

139httpsassetspublishingservicegovukgovernmentuploadssystemuploadsattachment_datafile764125 esa-wca-summary-december-2018pdf (Accessed 27 March 2019)140httpsassetspublishingservicegovukgovernmentuploadssystemuploadsattachment_datafile779502 benefit-sanctions-statistics-to-october-2018pdf (Accessed 27 March 2019)141 httpswwwinclusionlondonorgukcampaigns-and-policyfacts-and-informationwelfare-reforminclusion-londons-evidence-to-the-2018-work-and-pensions-committees-inquiry-into-benefit-sanctions 142 httpswwwparliamentukbusinesscommitteescommittees-a-zcommons-selectwork-and-pensions-committeenews-parliament-2017benefit-sanctions-report-published-17-19 (Accessed 29 March 2019)143 httpsdemosukwpenginecomwp-contentuploads2018022018_A_Better_WCA_is_possible_FULL-4pdf (Accessed 28 March 2019) (Accessed 29 March 2019)144 httpsdemosukwpenginecomwp-contentuploads2018022018_A_Better_WCA_is_possible_FULL-4pdf (Accessed 27 March 2019) (Accessed 29 March 2019)145 httpswwwinclusionlondonorgukcampaigns-and-policyfacts-and-informationemploymentnew-research-shows-benefit-sanctions-and-conditions-are-pushing-disabled-people-further-from-employment (Accessed 29 March 2019)httpsdemosukwpenginecomwp-contentuploads2018022018_A_Better_WCA_is_possible_FULL-4pdfhttpwwwwelfareconditionalityacukpublicationsfinal-findings-welcond-project (Accessed 29 March 2019)

31

211) Digital application systems present another barrier to welfare benefits For instance Universal Credit (UC) presents huge difficulties for many Deaf and Disabled people who will not only face further reduced levels of benefit entitlements but face an inaccessible application process for UC that has never been equality impact assessed 20 of Disabled people have never used the internet146 and research by the Government Digital Service (GDS)147 showed that 30 of UC claimants cannot set up the online account that UC uses148 Many libraries where the public could access computers have been closed149

Applications to tribunals are also becoming digital150 unless sufficient support is provided another avenue to access justice and welfare benefits will close

22) Inaccessible communications221) The lack of accessible communication by the DWP is an ongoing obstruction to receiving welfare benefits for Deaf and Disabled people For instance blind people receive letters in print and Deaf and Disabled people receive letters that are not in plain English so they do not understand what has happened and what they can do about it

222) Deaf and Disable people are having to take legal challenges to force the DWP to communicate in an accessible way For instance the DWP had to pay a visually impaired person pound1700 damages to settle his claim against the department for refusing to communicate with him by email over his PIP claim151

223) In another legal challenge also regarding the failure to communicate by email the judge said that Disabled people who had difficulty communicating by post

ldquowere in many instances unable to secure a satisfactory means of communication with the DWP This in turn meant that some went without benefits that were essential to themrdquo152

224) The DWPrsquos lack of accessible communications presents yet another barrier to Deaf and Disabled people receiving their vital welfare benefits

146ONS (2018) Statistical Bulletin Internet users UK 2018 [online] Available at httpswwwonsgovukbusinessindustryandtradeitandinternetindustrybulletinsinternetusers2018147Accessed 27 March 2019 GDS themselves set up the online account system called ldquoVerifyrdquo148 Glick B (2018) Thousands of Universal Credit claimants unable to use Govuk Verify to apply for benefits [online] Computer Weekly Available at httpswwwcomputerweeklycomnews252434188Thousands-of-Universal-Credit-claimants-unable-to-use-Govuk-Verify-to-apply-for-benefits (Accessed 17 Sep 2019)149 httpswwwbbccouknewsuk-england-35707956 (Accessed 29 March 2019)150 httpswwwgovukgovernmentconsultationstransforming-our-courts-and-tribunals (Accessed 29 March 2019)151 httpswwwdisabilitynewsservicecomfresh-evidence-that-dwp-bars-email-communication-from-disabled-claimants httpswwwdisabilitynewsservicecom14489-2 (Accessed 29 March 2019)152ldquoThose with disabilities that meant that they had difficulty communicating by post were in many instances unable to secure a satisfactory means of communication with the DWP This in turn meant that some went without benefits that were essential to themrdquo httpswwwbailiiorgewcasesEWHCAdmin2019395html (Accessed 27 March 2019)

32

23) Governmentrsquos narrative to justify the austerity measures 231) We agree with the UN rapporteur on povertyrsquos report that in the UK ldquopoverty is a political choicerdquo and we agree that ldquoausterity could easily have spared the poor if the political will had existed to do sordquo153 232) The governmentrsquos narrative to justify the huge cuts in public spending has been successful in that the public media and the establishment unfortunately appear to have accepted their explanation There are two key messages to their narrative

1 Austerity was necessary to reduce the huge national debt quickly The Chancellor George Osborne in an emergency budget speech said ldquoThe coalition Government have inherited from their predecessors the largest budget deficit of any economy in Europehelliprdquo and ldquoOur policy is to raise from the ruins of an economy built on debthelliprdquo 154

According to a parliamentary briefing pound23 billion was used to rescue the banks due to the 2007-09 financial crisis and addition pound1 trillion in financial guarantees155 causing a huge national debt However there was little or no mention of this by the Chancellor According to the Chancellor spending on welfare benefits was ldquoone of the reasons why there is no money leftrdquo156 So he intended to cut spending on welfare by ldquohellippound11 billion by 2014-15rdquo There has also been cuts to adult social care budgets157 The coalition government also said national debt had to be cut quickly for instance in June 2010 the Chancellor said ldquohellip we need to go much further if we are to meet our fiscal mandate and see debt falling by the end of this Parliament Today we are setting out the overall path of public spending that will achieve thatrdquo 158 Yet it took the UK till 2015 for the World War One debt to be paid off159

153 httpswwwohchrorgDocumentsIssuesPovertyEOM_GB_16Nov2018pdf (Accessed 27 March 2019)154 22 Jun 2010 Column 166 and 167 httpspublicationsparliamentukpacm201011cmhansrdcm100622debtext100622-0005htm (Accessed 27 March 2019)155 A parliamentary research briefing states lsquoGovernment made a number of interventions to support the banking sector generally and several banks specifically lsquoThe Office for Budget Responsibility (OBR) estimates that as at the end of January 2018 the interventions cost the public pound23 billion overallrsquo lsquoIn addition to cash support the Treasury also provided financial guarantees to help restore confidence in the banksrsquo lsquoThe National Audit Office (NAO) estimates that total guarantees added up to over pound1 trillion at peak support Outstanding guarantees stood at pound14 billion as at 31 March 2018rsquo httpsresearchbriefingsparliamentukResearchBriefingSummarySN05748 (Accessed 29 March 2019)156 22 Jun 2010 Column 172 The Chancellor said ldquoTotal welfare spending has increased from pound132 billion 10 years ago to pound192 billion today That represents a real-terms increase of a staggering 45 and it is one of the reasons why there is no money leftrdquo httpspublicationsparliamentukpacm201011cmhansrdcm100622debtext100622-0005htm (Accessed 28 March 2010) 157 httpswwwadassorgukbudget-2017-representation-by-the-association-of-directors-of-adult-social-services 158 22 Jun 2010 Column 169 httpspublicationsparliamentukpacm201011cmhansrdcm100622debtext100622-0005htm (Accessed 28 March 2010)159 httpswwwbbccouknewsbusiness-30306579 (Accessed 29 March 2019)

33

2 The second key narrative was the governmentrsquos hostile rhetoric which amplified by the press falsely portrayed Deaf and Disabled people as benefit fraudsters160 This narrative paved the way for the Welfare Reform Act 2012 and then the Welfare Reform and Work Act 2016Another related message was that those in most need most deserving would be supported by the reformed welfare benefits system This together with the benefit fraudster rhetoric created an environment of those that are deservingundeserving of the support of welfare benefitsThe government also framed the changes as improving the benefits system (eg UC made the system easier by rolling 6 benefits into one) while being open about the financial savings that would also be made ie they were reducing the national debt

24) Courts reluctant to go against government policies 241) The courts are reluctant to go against the policies and budgetary decisions of an elected government For instance in a legal challenge regarding a cut in night time care the judge considered that the council is entitled to take account of their ldquoresourcesrdquo A relevant statement from one of the judges is below

ldquohellip Assuming as in the present case that the need falls into one of the four bandswhich having regard to their resources the local authority have indicated that they will meet then meet it they must although in deciding how to do so they are once again entitled to take account of their resourcesrdquo161

160 Bounty hunters to cut benefit fraud by pound1bn hellip The Prime Minister will say today that the level of fraud is ldquoabsolutely outrageousrdquo and an ldquouncompromisingrdquo strategy is needed (August 2010 Daily Telegraph) httpswwwtelegraphcouknewspolitics7935823Bounty-hunters-to-cut-benefit-fraud-by-1bnhtml (Accessed 29 March 2019) Iain Duncan Smith Irsquom not scared to light the fuse on disability reformrsquolsquohelliphellipMr Duncan Smith says the system is riddled with abuse and fraud From next year more than two million claimants will be reassessedrsquo (Daily Telegraph 2012) httpwwwtelegraphcouknewspolitics9263502Iain-Duncan-Smith-Im-not-scared-to-light-the-fuse-on-disability-reformhtml (Accessed 29 March 2019)Osborne begins crackdown on incapacity benefit cheats with plans to treble assessmentsGeorge Osborne put incapacity benefit in the firing line last night after launching plans to treble the rate at which claimants are assessed to see if they are too sick to work The Chancellor hopes to weed out those who are cheating the taxpayer by pushing up the number of fitness tests to 30000 a weekhellipOf course we have to look across the piece at the welfare billhellip (Daily Mail June 2010) httpwwwdailymailcouknewsarticle-1290165George-Osborne-begins-crackdown-incapacity-benefit-cheatshtml (Accessed 29 March 2019)161 httpswwwbailiiorgukcasesUKSC201133html (Accessed 28 March 2019)

34

242) The European Court backed this opinion mentioning the need to allocate ldquoscarce resourcesrdquo162 although they did award damages because the cut in care was initially made without an assessment163

243) As a result of these judgements the Disabled person lost their support to go to the toilet during the night and was forced to wear incontinent pads when she was not incontinent

25) Changes to legal aid251) The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced changes to legal aid significantly narrowing the scope of legal aid so areas such as welfare benefit appeals were removed The changes introduced by LASPO have had a very detrimental impact on Deaf and Disabled peoplersquos access to justice In July 2018 the JCHR published a report on lsquoEnforcing human rightsrsquo which said that LASPO had a discriminatory effect on particular groups which included lsquodisabled people women children and migrantshelliprsquo The report noted that large areas of the country are ldquolegal aid desertsrdquo as practitioners withdraw from providing legal aid services since they can no longer afford to do this work The report also quoted the then Lord Chief Justice who wrote that ldquoour justice system has become unaffordable to mostrdquo164

252) In September 2018 the EHRC published a report on the Impact of LASPO on routes to justice The reportrsquos conclusion was that the qualitative study

ldquohellipshows how changes to legal aid have negatively affected peoplersquos access to justice and their ability to reach a satisfactory resolution to their legal problemsrdquo165

253) The EHRCrsquos report highlighted that a high demand for advice for disability benefits means that the scope changes have had a disproportionate impact on Disabled people

162 The European Court said ldquoThe Court by no means wishes to underestimate the difficulties encountered by the applicant and it appreciates the very distressing situation she is facing Nevertheless the Court is of the opinion that in reducing her care-package it cannot be said that the competent authorities of the respondent State exceeded the margin of appreciation afforded to them notably in relation to the allocation of scarce resources It follows that in respect of this period the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 sectsect 3 and 4 of the Conventionrdquo httpshudocechrcoeintengi=001-144115itemid[001-144115] (Accessed 28 March 2019)163 httpswwwdisabilitynewsservicecomovernight-care-ruling-is-attack-on-rights-say-outraged-campaigners (Accessed 29 March 2019)164 httpspublicationsparliamentukpajt201719jtselectjtrights669669pdf (Accessed 29 March 2019)165 httpswwwequalityhumanrightscomsitesdefaultfilesthe-impact-of-laspo-on-routes-to-justice-september-2018pdf (Accessed 27 March 2019)

35

or those with a long-term health condition who relied upon legal aid to support appeals166167

26) Conclusion 261) Unfortunately the governmentrsquos narrative that public spending cuts were needed to reduce the national debt quickly has been successful ndash generally the public has accepted severe cuts to the welfare state But the cuts have caused increases in poverty hunger and destitution of people on low incomes Deaf and Disabled people and other groups The economic rights of UK citizens have been breached particularly the right to social security Article 9168 and the right to an adequate standard of living Article 11169 under the ICESCR

262) The government seems willing to largely ignore these breaches of the ICESR and other international treaties unless the rights are in domestic law probably because there are no penalties For the UK government the only impact of breaching these rights is the possible further erosion of the UKrsquos international reputation as a lsquoworld leaderrsquo in human rights but there is no financial penalty or any other punitive measure imposed

263) Through our evidence we have illustrated that legal challenges under UK domestic law can be an effective means to protect human rights and challenge government policy and that evidence and action from civil society andor domestic institutions can sometimes result in positive changes to government policies However to a large extent the harmful policies which result in hunger and destitution (breaching both Article 9 and Article 11 of the ICESR) are developed and implemented unhindered by enforceable domestic legal duties and redress

166 The EHRCrsquos consultation response to the government post implementation review of LASPO also highlighted that ldquoThe number of cases receiving funding for legal help which provides initial legal advice and assistance has fallen by 75 per cent and continues to decline The number of grants for legal aid for representation at court or at the upper-level tribunal has fallen by 30 per cent The Bach Commission has reported that the Government has saved pound500 million more than it estimated when LASPO was first introducedrdquo httpswwwequalityhumanrightscomenpublication-downloadimpact-laspo-routes-justice read our recommendations and response to the governments post-implementation review of LASPO (Word) (Accessed 28 March 2019)167 The Ministry of Justice MoJ) published the first part of the governmentrsquos review in February 2019 The report gave figures for the drop in publically funded cases

lsquoWith the availability of legal aid limited in various areas of law the volumes of publicly funded cases dropped and expenditure has fallen In 2017-18 the scope changes saw legal aid spending fall by approximately pound90m in civil cases and pound160m in family cases compared to pound105m and pound130m estimated in the impact assessments (IA) that accompanied the Actrsquo

168 Article 9 The States Parties to the present Covenant recognize the right of everyone to social security including social insurance 169 Article 11 1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including adequate food clothing and housing and to the continuous improvement of living conditions The States Parties will take appropriate steps to ensure the realization of this right recognizing to this effect the essential importance of international co-operation based on free consent

36

264) Action urgently needs to be taken to reduce the poverty of Deaf and Disabled people for instance

The assessments for ESA and PIP need to be redesigned based on the social model of disability and co-produced with DDPOs

The UC system is not working and needs to be scrapped and redesigned taking into account of Deaf and Disabled peoplersquos taking access needs

All Deaf and Disabled people should be exempt from sanctions Reasonable adjustments under the Equality Act 2010 need to be implemented

throughout the welfare benefit system The changes to legal aid introduced by LASPO need to be reversed

265) The key to achieving the implementation of economic and social rights as well as the rights contained in other international treaties such the UNCRPD is to place them in domestic law as soon as possible and ensure the rights are enforced

27) Appendices

37

Appendices 1 Seven benefit reviews

According to Disability News Service 1 A review was announced on the last day before parliamentrsquos Christmas recess following an upper tribunal ruling in the case of a claimant (known as OM) moving from disability living allowance (DLA) to personal independence payment (PIP) who had his DLA stopped because he had failed to attend an Atos face-to-face assessment

The DWP expects about 4600 claimants to benefit from a review of such cases It has taken the DWP more than a year to implement the tribunalrsquos ruling which was handed down on 23 November 2017

2 A review was announced in June 2018 following a tribunal ruling delivered in March 2017 ndash concerning a PIP claimant referred to as RJ ndash on how the DWP assesses whether Disabled people can carry out activities safely and need supervision to do so This was likely to affect people with conditions such as epilepsy

An estimated 10000 PIP are claimants set to benefit by pound70 to pound90 per week by 2022-23

3 A review of an estimated 16 million PIP claims to find claimants who experience mental distress when making or planning a journey This followed a court ruling in December 2017 ndash in the case of a claimant referred to as MH ndash which found that new rules introduced that year by DWP were unlawful ldquoblatantly discriminatoryrdquo and breached the UN disability convention

4 A review related to the way DWP had been assessing an estimated 420 PIP claimants with haemophilia who have the associated condition haemarthropathy (a severe type of arthritis caused by bleeding into the joints)

5 A review regarding PIP claimants who need support to take medication and monitor their health conditions following two tribunal findings in the cases of AN and JM ndash that found that DWP should have been scoring such claimants in the same way as people needing support to manage treatment therapies such as dialysis

6 A sixth review followed a high court ruling in June 2018 that DWP had unlawfully discriminated against two disabled men who each lost disability premiums worth pound178 per month when they moved to a new local authority area and were forced to transfer onto the new Universal Credit

7 The seventh review followed under payment of claimants that migrated from Incapacity benefit to ESA 70000 former claimants or more are likely to receive back payments

38

Around 600000 ESA cases are being reviewed overall170 The department estimates it will pay pound920 million in past underpayments over the financial years 2017 to 2018 to 2019 to 2020171

Appendices 2 Example of delays and difficulties regarding FOIrsquos requests

Introduction to the request for information under the FOIAThe contracts between the Secretary of State for Work and Pensions and Atos IT Services UK Limited (ldquoAtosrdquo) (2 lots) and Capita Business Services Ltd (1 lot) (ldquoCapitardquo) for PIP assessments contain clauses related to the provision of management information These require Atos and Capita to supply the DWP with regular management information about their contract performance This information is used by the DWP to determine compliance with the contract and claim monetary service credits where specific targets have been missed

Request for InformationA statement by John SlaterlsquoHaving read the contracts I thought it would be in the public interest to see if the actual performance of Atos and Capita matched with that being advertised by the DWP

The table below shows how difficult and obstructive the DWP is when information is requested that it does not want to disclose

Date Action Explanation071216 RFI submitted I submitted my requested for information (ldquoRFIrdquo) to

the DWP citing the relevant parts of the contracts

030117 DWP Reply DWP refused my RFI claiming that it did not hold all the information for the duration my RFI covered

030117 1st Internal Review Request (ldquoIRRrdquo) to DWP

Challenged DWP decision explaining that it had breached the FOIA

300117 DWP Reply DWP upheld original response Then claimed S43(2) FOIA (Commercial Interests) was engaged for the information that it did hold

300117 2nd IRR to DWP Challenged DWP engagement of S43(2)

170 httpswwwdisabilitynewsservicecombungling-dwp-announces-seventh-review-of-disability-benefits-errors-in-a-year 171 httpswwwgovukgovernmentpublicationsesa-underpayments-forecast-numbers-affected-forecast-expenditure-and-progress-on-checkingesa-underpayments-forecast-numbers-affected-forecast-expenditure-and-progress-on-checking

39

230217 DWP Reply DWP upheld S43(2)

End of process with DWP ndash next step is to complain to the Information Commissioner (ldquoICOrdquo)

Key Point ndash Blocking amp delaying tacticsThe DWP should have told me in its response of 3rd January 2017 that it held some of the information I requested (eg January 2016 to November 2016) and then cited the exemption to refuse disclosure Instead it responded

ldquoIn response I can confirm that the information for the time period that you have requested is not held by the Department You may wish to re-submit your request at the end of January 2017rdquo

This was a breach of its obligations under the FOIA and a classic example or blocking delaying tactics regularly used by the DWP If the requester was not familiar with the FOIA they would have probably just accepted the DWP response and resubmitted their request at the end of January 2017 This would have introduced an immediate delay of 2 months before the DWP had to deal with the request

Next stage ndash ICOHaving exhausted the complaints process with the DWP the next stage was to complain to the ICO The table below shows just how long this takes and how much knowledge of the FOIA is required to get information disclosed

Date Action Explanation22021

7Complaint submitted My complaint was submitted to the ICO This

consisted of 20 documents ICO complaint form Grounds of complaint (12 pages) 18 other pieces of evidence

080617

Case assigned ICO confirmed that my case had been assigned to a case officer Nothing had happened for over 3 months

241017

Reply from ICO Notified that after a further delay of 4frac12 months a decision notice (ldquoDNrdquo) had been produced

191217

DN issued After a further 2 months the ICO finally issued a DN in my favour (httpsicoorgukmediaaction-weve-takendecision-notices20172173036

40

fs50669301pdfrdquo

24118 DWP discloses information

Over a year after the original RFI the DWP finally disclosed some information

290118

Email to ICO Notified ICO that the disclosure by the DWP was incomplete Not all of the management information specified in the contract documents had been released

290118 to

070618

Various emails Ongoing discussion with the ICO about why information was missing what it was and why the DWP should have released it

070618

Email from ICO Case officer asked if the DWP has now released the missing information The DWP had disclosed more information

290618

Email from ICO Case officer notified that the DWP claimed certain information was no longer collected from Atos and Capita which is why it wasnrsquot disclosed

290618

Email to ICO Further explanation that despite the email of 290618 there is still information listed in the contract documents that has not been disclosed or any explanation given why it cannot be

290618

Letter from ICO Letter contained a response from the DWP finally explaining that remaining information was no longer collected by the DWP Therefore it hadnrsquot been disclosed

Key pointsThe whole process took over 18 months to complete In addition to the deterrent this represents obtaining the requested information required

Knowledge of commercial contracts Knowledge to the FOIA and Knowledge and experience of dealing with the ICO

The vast majority of people do not have the time knowledge or experience required to obtain this vital information about how the DWP contractors are treating disabled peoplersquo

41

Contacts

For more information contact

Inclusion London336 Brixton RoadLondon SW9 7AAHenriettaDoyleinclusionlondonorguk

Telephone 020 7237 3181SMS 0771 839 4687wwwinclusionlondonorguk

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