25 May 2012
For the full stories, please click on the links:
- A GP whose patient tried to kill himself after a “fitness for work” test is urging the government to introduce a way to allow doctors to report such cases to the Department for Work and Pensions.
- GPs have piled new pressure on the government after unanimously calling for it to scrap its controversial “fitness for work” tests.
- Campaigners are to ask a judge to declare that the government’s controversial “fitness for work” test is unlawful because it discriminates against people with mental health conditions.
- The coalition appears to have ordered a lengthy delay to the publication of its cross-government disability strategy.
- A judge has sparked concern after refusing to treat a three-year campaign of cruelty in which a disabled man was repeatedly beaten by relatives as a disability hate crime.
- The sports body that represents Britain’s Paralympians has suggested that it is planning to take a more active stance around disability rights issues.
- Organisers of the London 2012 Paralympics have put on sale a further one million tickets, as they marked 100 days until the games begin, and announced that the British band Coldplay would perform at its closing ceremony.
- The lack of severely-impaired swimmers in the British team at this summer’s Paralympics could mean a missed chance to highlight sporting opportunities for other people with similar conditions, according to a leading athlete and activist.
- Nine leading disabled activists have backed a new “contract for the future”, which lays out the 15 changes that need to be made to improve the lives of people with learning difficulties.
- A group of thalidomide survivors from across Europe are hoping to share the knowledge they have gained from half a century of living with their impairments through a new online community.
- Disabled activists are planning a high-profile protest that will highlight the inaccessibility of the public transport system, and demonstrate the problems that will be caused by the government’s cuts to disability living allowance.
- A new disabled-led theatre company is setting out to hear the voices of some of the artists most often excluded and sidelined by the arts world.
Commission publishes formal assessment of government’s 2010 spending review
The Commission’s report considers the extent to which the decision-making by ministers and Treasury officials met legal obligations to consider the impact on equality when completing the Review. It is the first time an assessment of this kind and scale has been undertaken.
The Commission’s analysis covers the detailed decision making process from start to finish in the Spending Review. It has been informed by unprecedented access to confidential documents from HM Treasury and other government departments and oral evidence sessions with ministers, including the chief secretary to the Treasury, and senior civil servants from the Treasury, Department of Work and Pensions, and Ministry of Justice.
Public bodies, such as HM Treasury, were legally obliged at the time of the Spending Review to demonstrate that they had fully considered the potential effects of their decisions on women, ethnic minorities and disabled people, and that any decisions with an effect on these groups could be justified.
Learning the lessons from such cases as Burnip v. Birmingham City Council, Trengrove v. Walsall Metropolitan Council, Gorry v. Wiltshire Council  EWCA Civ 629
In the same week that the Secretary of State for Work and Pensions, Iain Duncan-Smith, announced his intention to implement sweeping reforms of the current system of disability benefits, the Court of Appeal has ruled that housing benefit rules were discriminatory against disabled people, in breach of Article 14 read with Article 1 Protocol 1 of the European Convention.
Mr Duncan-Smith has already faced opposition to his reform proposals but has made it clear that he is willing to tackle this controversial issue. However, this week’s ruling is a timely reminder that social security law is extremely complex and that the Government will have to tread very carefully to avoid unwittingly causing further instances of unlawful discrimination.
There were three claimants in this case. Mr Burnip and Ms Trengrove (who sadly died in December and whose claim was continued by her estate) both had severe disabilities which meant that they needed the presence of carers throughout the night in the rented flats in which they lived. This meant that they needed two-bedroom flats. Mr Gorry and his wife had three children. Two of their daughters were disabled and therefore could not share a bedroom in the way that two non-disabled children of the same age could. The family therefore needed to live in a four-bedroom house.
All three claimants were entitled to receive housing benefit (HB). The problem was that in each case the amount of HB they received was calculated by reference to a one-bedroom flat or three-bedroom house, without taking into account the need for an additional bedroom because of disability. A detailed account of what this meant financially for each claimant is set out at paragraphs 23-55 of the judgment, but in short the effect was that there was a greater shortfall between the amount of Housing Benefit received and the actual amount of rent they had to pay each week than there would have been for an equivalent non-disabled person. The claimants argued that this was unlawful discrimination under the European Convention on Human Rights.
The claimants were all housed in private rented accommodation. In such cases Housing Benefit is paid by way of a rent allowance, and the level of the allowance is calculated by reference to (amongst other factors) the number of bedrooms which the recipient and his/her family are deemed to need. The relevant regulations, the Housing Benefit Regulations 2006 provide that there is to be one bedroom for each ‘occupier’ (i.e. person who occupies the relevant property as their home) and ‘occupier’ is defined as a couple, an adult, two children of the same sex, two children under 10 or a child.
Mr Burnip and Ms Trengove’s overnight carers did not qualify as ‘occupiers’ since the accommodation was not their home. The two Gorry daughters were considered to be a single ‘occupier’.
The claimants did not pursue their claim under the domestic disability discrimination legislation applicable at the relevant time (the Disability Discrimination Act) but instead under Article 14 of the ECHR. The judgment does not explain why this is, but the likely reason is that the House of Lords decision in Malcolm restricted the scope of indirect discrimination under the then DDA so much that no claim could have been made under it. The effect of Malcolm has now been removed by the enactment of the Equality Act 2010.
Although disability is not expressly mentioned in Article 14, it falls within the phrase “or other status” (AM (Somalia)  EWCA Civ 634). Housing Benefit is a form of ‘possession’ for the purposes of Article 1 Protocol 1 (RJM  1 AC 311). The claimants put forward two arguments for why the Housing Benefit provisions were discriminatory under the European Convention on Human Rights:
Whilst the statutory criteria provided for a non-disabled person to be given Housing Benefit which would be an adequate contribution towards his accommodation needs, they failed to make equivalent provision in relation to more costly needs of the severely disabled. Although neither the non-disabled nor the disabled person was provided with a complete rent subsidy, the shortfall in relation to a disabled person was significantly greater because their Housing Benefit was geared to one room fewer than their objective needs.
Article 14 does not just prohibit States from treating differently persons in similar situations, but also requires States to treat persons differently whose situations are significantly different (Thlimennos v. Greece  31 EHRR 15).
Disabled people have greater needs than non-disabled people. The State’s failure to recognise this difference by making adequate additional provision is a breach of its positive obligation under Article 14.
The reasoning of the Court of Appeal’s unanimous decision is split between Maurice Kay LJ (who deals with the question of whether there was discrimination) and Henderson J (who deals with the question of whether the discrimination was justified).
Maurice Kay LJ held that on either of the arguments put forward by the claimants the Housing Benefit provisions were discriminatory. He held that the restrictive approach to discrimination used in Malcolm did not apply to Article 14, commenting that “one of the attractions of Article 14 is that its relatively non-technical drafting avoids some of the legalism that has affected domestic discrimination law”, and found simply that:
Where, as in the present case, a group recognised as being in need of protection against discrimination, the severely disabled person or persons, is significantly disadvantaged by the application of a truly neutral criteria, discrimination is established, subject to justification.
He took note of the Secretary of State’s argument that the Thlimennos positive obligation had not yet been applied by the courts so as to require a State to allocated a greater share of public resources to a particular group, but went on to find that:
I accept that it is incumbent upon a court to approach such an issue with caution and to consider with care any explanation which is proffered by the public authority for the discrimination. However, this arises more at the stage of justification than at the earlier stage of considering whether discrimination has been established. I can see no warrant for imposing a prior limitation on the Thlimmenos principle.
Henderson J did not accept the claimants’ argument that an ‘enhanced’ proportionality test applied to the question of whether the discrimination was justified. Although he noted the Strasbourg case-law that “very weighty reasons” are need to justify active discrimination on grounds of disability, he found that:
Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue.
Nevertheless, even on the normal standard of proportionality test, he held that the Secretary of State had not established an objective and reasonable justification of the discriminatory effect of the Housing Benefit criteria. He considered in detail the other benefits received by each claimant, and in particular the fact that they could receive additional ‘discretionary housing payments’ to cover some or all of the shortfall between their Housing Beneit allowance and the actual rent. However, he found that because these payments were discretionary and there was no guarantee of them being provided they could not, by themselves, justify the discrimination.
The Secretary of State emphasised the wide margin of appreciation accorded to the State in European Convention on Human Rights jurisprudence in relation to general measures of economic and social strategy, and relied heavily on the decision in AM (Somalia) – a disability case where the Court of Appeal had found that discrimination was justified. However, Henderson J held that the present case was distinguishable – it did not involve immigration (as AM did), the exception from the normal Housing Benefit criteria was sought only for a very limited category of claimants who had severe disabilities (unlike all disabled people, as in AM), and Parliament had already seen fit to legislate to deal with the issue.
It should be noted that this issue only arose because the claimants were housed in the (more expensive) private rental sector. Had the local authority been their landlord they would have been allocated accommodation based on their assessed housing needs, which would have included any needs arising from their disability. The difficulty is that social housing did not seem to be available for these claimants. At a time when a cap on housing benefit has led to accusations of ‘social cleansing’, rents are increasing and a lack of affordable housing is a major issue, this is another factor to consider in the debate over the best way to address the housing crisis.
Second, there has already been a legislative amendment to fix the problem in Mr Burnip and Ms Trengove’s cases. In April 2011 the regulations were changed to provide for “one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care.” The problem faced by Mr Gorry is still live, however.
Third, Maurice Kay LJ made some interesting comments about the effect of the UN Convention of the Rights of Persons with Disabilities. He reached his conclusions on discrimination without reference to the CRDP, so his remarks are obiter, but he noted that, contrary to the comments of Sales J in the recent case of NM v. Islington  EWHC 414, the European Court of Human Rights has “shown an increased willingness to deploy other international instruments as aids to the construction of the ECHR.” He summarised the correct use of the CRDP as follows:
If the correct legal analysis of the meaning of Article 14 discrimination in the circumstances of these appeals had been elusive or uncertain (and I have held that it is not), I would have resorted to the UN Convention of the Rights of Persons with Disabilities,(CRDP) and it would have resolved the uncertainty in favour of the appellants. It seems to me that it has the potential to illuminate our approach to both discrimination and justification.
Those bringing, or thinking of bringing, disability discrimination claims in the future would therefore be well-advised to look at the CRDP if the domestic law or ECHR jurisprudence is not clear.
Social value Act 2012 key part of public service contracts
Law will require government departments and local bodies to consider social benefits of services offered by contractors.
The Public Services (Social Value Act) was passed at the end of February 2012.
Under the Public Services (Social Value) Act, for the first time, all public bodies in England and Wales are required to consider how the services they commission and procure might improve the economic, social and environmental well-being of the area. We hope it will transform the way public bodies choose to buy services.
What do we mean by social value?
“Social value” is a way of thinking about how scarce resources are allocated and used. It involves looking beyond the price of each individual contract and looking at what the collective benefit to a community is when a public body chooses to award a contract. Social value asks the question: ‘If £1 is spent on the delivery of services, can that same £1 be used, to also produce a wider benefit to the community?’
What does that mean in practice?
It could mean that a mental health service is delivered by an organisation that actively employs people with a history of mental health problems to help deliver the service. The social value of commissioning these services comes through the person with mental health problems having a job where they may otherwise have been unemployed, their becoming more socially included, and having a say in how mental health services are run. It also means a local job for a local person.
For a Brief Guide click
EasyJet guilty of disability discriminationBudget carrier easyJet has been found guilty by a court in France of discriminating against disabled passengers. The airline has been told to pay 70,000 euros (£58,000) for refusing to allow three wheelchair-users passengers onto its aircraft at Charles de Gaulle Airport in Paris in 2008 and 2009.
EasyJet said that it will now consider launching an appeal against the ruling. The court heard how each of the passengers behind the case had been told by staff that they would not be permitted to check-in as there was no one accompanying them to help them in the case of an emergency on board the aircraft.
Karine Viera, one of the customers, said that she had even ticked a box which was up on the carrier’s booking website which asked whether she would be arriving at the airport in her wheelchair, according to APF, a disability rights group in France.
Each of the passengers will now receive a settlement of 2,000 euros from easyJet, which said it was not happy about the decision. According to the airline, it carries around 1,000 passengers everyday who have reduced-mobility. The company is due to face similar charges in Paris in March 2012.
Absence management mental health
By Claire Churchard
Mental health – Dame Carol Black highlights the need for a huge shift in attitude to tackle the taboo of discussing mental ill health at work.
There needs to be a major cultural shift in the way we respond to mental illness at work, Dame Carol Black, national director for health and work, has told PM.
Stress and mental ill health are now the main causes of long-term sick leave, according to the CIPD’s 2011 Absence Management survey, yet further research from the institute in December showed that most people (60 per cent) were still afraid to tell employers that they have problems such as stress or anxiety. Fears about speaking openly appear to be justified, as a 2011 poll of workers for mental health charity Mind found that one in five who had disclosed mental illness had been sacked or forced out of their jobs, despite this being illegal under disability legislation.
Black said employers need to think about how they can normalise their response to it to reduce the stigma and manage the causes better.
“If you return to work today having had your knee replaced, we’d all be very comfortable in welcoming you back,” she said. “But what we have not been so good about is welcoming people back to work after they’ve been away for a while with a mental health problem.
“It’s only when we can start to talk about this issue openly that we can start to accept we will all have mental stress at some time in our lives and some of us will need more time off than others. This is part of health, just as physical health is, and is a huge cultural change we have to go through.”
Tackling the stigma surrounding mental health was part of radical proposals outlined by Black in November 2011, which could help to open a dialogue between staff and employers. Her independent review into sickness absence included the plan to introduce an independent assessment service (IAS) to decide whether an employee was fit for work, which could force everyone to think about mental ill health in a new way.
Assessors will advise on how staff can be supported to return to work, including those off with stress and anxiety. Both staff and managers would be included in discussions about the illness’s effect on the employee’s job.
Ben Willmott, CIPD head of public policy, said he hoped the IAS would encourage people to be more open and honest about mental health issues and start to break down the taboo surrounding it. He said it was difficult to know how the service would finally work in practice, particularly since the causes of mental ill health can be difficult to pin down and be a combination of problems at work and elsewhere. Any discussions would require an employee’s consent, he added.
“We need to make sure the IAS has the capability to address the causes,” said Willmott. “One situation it doesn’t seem to address is absence owing to some form of employment problem, for example a clash with management, an employee being disciplined or feeling bullied. This is an important part of the jigsaw if you’re looking at reducing absence.”
Willmott suggested that enabling the IAS to refer people to Acas for mediation support might be an answer. “Another possibility is that an independent HR consultant could play that role,” he said, but added that building employee engagement and trust were fundamental to tackling issues around health and well-being at work.
A sign that attitudes to mental ill health at work may be changing has come in the form of the high-profile case of Lloyds Bank Group chief executive António Horta-Osório. His board of directors have agreed his return to work this month, after he went on sick leave in November with stress-related illness and fatigue. After “rigorous” assessments, Horta-Osório is now deemed fit to work, and the bank has streamlined his role to reduce the burden on him – showing how an understanding approach and a willingness to make adjustments can pay off.
But the business case for improving our response to mental health is not just about absence. While it is estimated that mental health-related absence costs UK employers £8.4 billion a year, the cost of presenteeism could be as much as £15.1 billion in lost productivity, the Centre for Mental Health has estimated.
“We think presenteeism may be a bigger problem than absenteeism, and we certainly have it in mind when we are thinking about mental health,” Dame Carol Black said.
Law Society disability chief sacked only staff member with disability
The Law Society has been found guilty of discrimination after its executive in charge of promoting disabled workers’ welfare sacked the
only full-time member of staff to have a serious disability. Click here
Inequality within ethnic groups
Inequality, heterogeneity and Intersectionality
Research around the above which was done in May 2011 by Lucinda Platt for Joseph Rowntree Foundation programme paper. The Joseph Rowntree Foundation has supported this project as part of its programme of research and innovative development projects, which it hopes will be of value to policy-makers, practitioners and service users.
Fullreport PDF 26 pages 0.1 MB
The Legal Aid Bill, if approved, would exclude at least 6,000 children from receiving legal support, according to The Children’s Society.
The bill, which is being discussed in Parliament Monday the 5th September 2011, would see cuts made to areas of law including education, housing, immigration and clinical negligence, the charity has warned.
The government has said that for some excluded cases there will be a safety net in the form of an exceptional funding scheme, but The Children’s Society said more than 4,000 children would not be eligible for this scheme.
Many children, including unaccompanied migrant children and victims of trafficking, would be left to navigate a complex legal system with no support. They would have to go to court without a lawyer or risk being exploited in order to raise funds for legal support, the charity said.
“These changes will also affect the poorest and most marginalised families in our society and many more children will suffer as a knock-on effect. It is imperative that access to justice is maintained.”
Hidden in plain sight – the inquiry final report
‘Hidden in plain sight’ is the final report of our inquiry into disability-related harassment. The report uncovers that harassment is a commonplace experience for disabled people, but a culture of disbelief and systemic institutional failures are preventing it from being tackled effectively. As well as reporting on the extent of harassment the report also includes case studies and makes recommendations to public authorities to help them deal with the problems uncovered.
To download click on the following and follow the instructions.
Worker who made no holiday requests during long-term sick leave still entitled to statutory holiday pay
NHS Leeds v Larner EAT/0088/11
The Employment Appeal Tribunal (EAT) has held that a worker absent for the whole pay year, but who does not submit a request for the annual leave before the pay year ends, does not forfeit his or her entitlement to paid annual leave. Since 2000, Mrs Larner had been employed to work at NHS Leeds for 20 hours per week. In 2005, she was given her statement of written terms and conditions, which stated that she would accrue annual leave not exceeding 20 working day in one year during paid sick leave. The statement and further guidelines issued later said that annual leave could be carried over only in exceptional circumstances and only when a written request has been submitted and approved.
NHS Leeds’s holiday period ran from 1 April to 31 March. Mrs Larner went off sick on 5 January 2009. When Mrs Larner began her period of sick leave, she had not booked any holiday and she did not make any requests to take holiday while she was on sick leave. On 6 April 2010, NHS Leeds made the decision to dismiss Mrs Larner and informed her in writing that “a payment in lieu of notice and any outstanding leave will be made to you”.
When Mrs Larner brought an employment tribunal claim for unpaid holiday pay under the Working Time Regulations 1998 (SI 1998/1833), the employer argued that, since no holiday requests were made, the entitlement to annual leave was lost at the end of the pay year.
The tribunal found that Mrs Larner was entitled to be paid for the annual leave which she had no opportunity to take in the employer’s 2009/10 holiday year, even though she had never actually requested any specific holiday.
The EAT considered the European Court of Justice (ECJ) decisions in:
where the ECJ ruled that workers on long-term sick leave accrue statutory annual leave and must be paid for it at their normal rate of remuneration, even if their sickness lasts for the whole of the relevant leave year; and Pereda v Madrid Movilidad SA  IRLR 959 ECJ, where the ECJ said that the worker must be able to take the leave at a later time even if this means he or she takes it outside the leave year in which the leave was accrued.
The EAT concluded that, as with the circumstances in these cases, Mrs Larner was presumed not to have been well enough to exercise what the ECJ described as her “right to enjoy a period of relaxation and leisure”. She did not have the opportunity at any time during 2009/10 to take her annual leave. Instead, she had the right to have her statutory leave entitlement under reg.13 of the Working Time Regulations 1998 carried over to the following year without having to have made a formal request for the leave to be carried over. The right to be paid for that annual leave crystallised on the termination of her employment.
The EAT did note that the position might be different in the case of a fit worker who fails to make any request for leave during the whole of a pay year. A fit worker might lose the right to take annual leave, and would certainly do so if the contract of employment provides for this, because that worker, unlike Mrs Larner, has, in the words of the ECJ, “the opportunity” to exercise the right to leave.
Implications for employers
This decision rules out any possibility that an employer might be able to avoid paying holiday pay to a worker on long-term sick leave on the termination of his or her employment simply because he or she does not book any holiday during the sick leave (which must be a common scenario).
The point is made in this judgment that a fit worker who simply fails to book his or her annual leave entitlement may lose the annual leave at the end of the leave year if not taken, because he or she has “had the opportunity” to exercise the right to leave.
the need to take it into account. But there were substantial defects in the EINA.