5. Memorandum submitted by Public
Interest Research Unit
1. INTRODUCTION
AND SUMMARY
— The Public Interest Research Unit
(PIRU) welcomes the opportunity to submit evidence to the Work
and Pensions Committee's inquiry into "The Equality Bill:
What steps should DWP take to achieve greater equality?".
PIRU is a small UK charity which promotes democratic practice,
civil rights, and social inclusion.
— In October 2008, PIRU and Rethink
began a 12 month study of unlawful disability discrimination (on
the part of DWP and others) against benefit claimants with mental
health disabilities. The initial, unpublished, findings appear
to be relevant to the Committee's Inquiry, including, in particular,
in relation to—how would DWP "have to change to achieve
greater equality in employment?"; "The Public Sector
Equality Duty"; and "How does the Department fare in
promoting equality and tackling discrimination?".
— Our initial research findings (based,
in particular, upon interviews with claimants and advisors, and
document analysis) indicate that a substantial number of claimants
with mental health disabilities are likely to have been subject
to unlawful disability discrimination on the part of DWP; Jobcentre
Plus (JCP); DWP/JCP assessment, employability, and training contractors;
and employers that DWP/JCP and their contractors have sent claimants
to.
— It appears likely that discrimination
against claimants will have occurred contrary to the following
sections of the Disability Discrimination Act (DDA) 1995: 4 (Employers:
discrimination and harassment) and 4A (Employers: duty to make
adjustments); 14C (Practical work experience: discrimination and
harassment), 14D (Practical work experience: duty to make adjustments);19
(Discrimination in relation to goods, facilities and services)
read with Section 21A (Employment services); and 21B (Discrimination
by public authorities).
— We only identified as likely to be
unlawful those discriminatory acts which appeared (on account
of not having been done in the necessary performance of an express
statutory obligation) to not be exempted under section 59 DDA
("Statutory authority and national security etc"); and
which still appeared to be unlawful in the light of the decision
in Malcolm (1) (not withstanding that the decision, we
would argue, did not closely reflect what Parliament intended).
— Identified types (2) of action, which
may have constituted unlawful discrimination, included, for example,
a claimant's Jobseeker's Allowance being suspended on the grounds
that he/she had left his/her job without "just cause",
when, it seems, that he/she had resigned as the result of unlawful
harassment (involving, for example, ongoing derogatory remarks
about his/her mental health disability); and, for example, a DWP
medical contractor failing, in the case of some Incapacity Benefit
claimants, to make reasonable adjustments to medical examinations.
— We suspect that the great majority
of DWP/JCP staff are individually committed to not discriminating.
However, the following legislative, political, and organisational
factors may have contributed to the occurrence of unlawful discrimination:
(a) DWP/JCP do not appear to have fully complied,
in relation to welfare benefits, with the section 49A DDA disability
equality General Duty (the General Duty). Political pressure to
promote proposals (rather than always subject them to rigorous
and objective assessment) may have contributed to this problem.
(b) There appears to have been limited realisation,
among DWP/JCP contractors, that they are subject to the General
Duty in relation to their "functions of a public nature";
and a failure on the part of DWP/JCP to take adequate measures
to ensure that their contracted out functions meet the requirements
of the General Duty.
(c) Some social security provisions, and
some DWP/JCP policies and practices, are likely to have encouraged
unlawful acts (without it necessarily being realised that the
acts were unlawful).
— Levels of unlawful disability discrimination
may be set to increase as Employment and Support Allowance is
introduced; with Flexible New Deal; if the proposals in recent
green papers (involving, for example, a "stronger sanctions
regime") (3) are adopted without substantial changes; and
if the government continues to move towards a US Style workfare
regime.
— Our main recommendation for action
is that distinct specific equality duties be imposed on DWP/JCP;
and that these duties should include the requirement that DWP/JCP
conduct an assessment of each claimant to determine what reasonable
adjustments he/she is likely to require in relation to how DWP,
JCP, and their contractors, carry out their functions.
2. UNLAWFUL DISCRIMINATION
AGAINST BENEFIT
CLAIMANTS WITH
MENTAL HEALTH
DISABILITIES
2.1 Liability for unlawful acts
Liability as primary actors
2.1.1 Our initial research indicates that
a substantial number of benefit claimants with mental health disabilities
are likely to have been subject to unlawful disability discrimination
on the part of: DWP and JCP; DWP/JCP contractors (including, in
particular, those providing assessment, and "employability"
and training, services); subcontractors; employers that claimants
have been sent to (including, in particular, for job interviews,
Work Trials or work experience); and employees of all of the aforementioned.
Liability for the acts of others
2.1.2 It also seems probable that DWP/JCP,
and its contractors and subcontractors, will have been liable
(under the DDA) for some discriminatory acts on the part of others.
This might, in particular, have involved:
— an unlawful act being done by a person
acting as their agent and with their authority (see section 58(2)
DDA). For example, DWP/JCP may well have been liable for failures
on the part of its medical contractors; and
— being vicariously liable for the
discriminatory acts of their employees (see section 58 (1) DDA).
2.2 Examples of types of action which may
constitute unlawful discrimination against claimants (2)
Unlawful discrimination against Jobseeker's Allowance
(JSA) claimants
2.2.1 This may have involved, for example,
the following circumstances:
(a) JSA payments being suspended on the grounds
that the claimant had left his/her job without "just cause",
when, in fact, the claimant had resigned on account of ongoing
name calling which referred in a derogatory manner to his/her
disability (and which appeared to constitute unlawful harassment
within the meaning of section 3B DDA).
(b) JSA payments being suspended (or there
were threats to suspend them) on the grounds that the claimant
had not done enough to get a job, when the reasons for "not
having done enough" related to his/her mental health disability.
For example, an episode of depression left a claimant unable to
carry out some of the activities specified in his/her "Jobseeker's
Agreement", and JCP failed to make the reasonable adjustment
of not requiring these activities to be carried out until the
claimant's health had improved.
(c) JSA payments being suspended (or there
were threats to suspend them) on the grounds that the claimant
had not taken up, had left, or was dismissed from, training schemes,
when the reason for one or more of these things having happened
related to the claimant's mental health disability. For example,
a claimant was dismissed from a training scheme because he/she
was late on a number of mornings, and he/she was late as a result
of OCD washing rituals.
Unlawful discrimination against Incapacity Benefit
claimants
2.2.2 This may have involved, for example,
the following circumstances:
(a) JCP failing to make reasonable adjustments
in relation to some initial benefit applications. For example,
JCP rejected the request for a face to face appointment from a
claimant who JCP knew (or could reasonably be expected to have
known) was unable to make a telephone application on account of
a mental health disability.
(b) DWP medical contractors failing to make
reasonable adjustments to medical examinations for some claimants.
For example, the contractor refused a home examination for a claimant
who, on account of health related phobias, felt unable to attend
the medical examination centre.
(c) Discrimination in relation to Pathways
To Work. For example, a claimant's benefit might be cut for not
"participating" in a mandatory Work Focused Interview,
when the "failure" to participate resulted from a mental
health disability (involving, for example, an excessive fear of
disclosing personal information).
3. SOME FACTORS
CONTRIBUTING TO
UNLAWFUL DISCRIMINATION
We suspect that the great majority of DWP/JCP
staff are individually committed to not discriminating. However,
a number of legislative, political, and organisational factors
(some of which are suggested below) may have contributed to the
occurrence of unlawful discrimination.
3.1 Weaknesses in relation to the DDA Disability
Equality Duties
Failures on the part of DWP/JCP
3.1.1 Our initial research suggests that
DWP/JCP has not, in relation to welfare benefits, complied fully
with its section 49A Disability Equality General Duty (for what
the equality duties require, see, in particular, the judgments
in Elias and Bapio) (5). In particular, DWP/JCP
does not appear to have assessed whether each of its policies
was relevant to disability equality, nor to have conducted disability
equality impact assessments (DEIAs) on all those which appear
to have been of substantial relevance; and the DEIAs we have seen
appear to have been inadequate. For example, the "screening"
assessment of "Provider-led Pathways to Work" appears
to conclude that there is no requirement for a full impact assessment,
despite what appears to be the enormous potential for adverse
impact, on claimants with disabilities, of a UK-wide scheme which
enables private contractors to, in the words of the "screening"
assessment, "manage and monitor compliance with the mandatory
regime and assist Jobcentre Plus with the sanctions process".
3.1.2 A particular problem, with DWP/JCP's
approach to the equality duties, may have been political pressure
to promote proposals (rather than always subject them to a rigorous
and objective assessment). In relation to this, it is worth noting
the words of Lord Justice Moses in Kaur and Shah (at paragraph
24)—"What is important is that a racial equality impact
assessment should be an integral part of the formation of a proposed
policy, not justification for its adoption" (6).
Failures on the part of DWP/JCP contractors and subcontractors
3.1.3 The narrow majority decision in YL
(7) in the House of Lords—that a private care home's local
authority funded provision of care and accommodation, to an 84
year old woman with Alzheimer's disease, did not constitute a
"function of a public nature"—upsets what appears
to have been the purpose of section 6(3) of the Human Rights Act
1998 (and, therefore, also the purpose of the comparable section
49B DDA), and, we would argue, demands a legislative solution
in the forthcoming Equality Act. Without such a solution, and
with more and more public functions contracted-out (including
those relating to welfare benefits), the danger appears to be
that the equality duties (and then the single equality duty) will
be of ever diminishing practical significance.
3.1.4 However, even the majority decision
in YL would appear to leave little doubt that DWP/JCP assessment,
employability and training contractors will, in relation to some
of their functions, be public authorities within the meaning of
section 49B DDA. For example, section 16 of the Welfare Reform
Act (WRA) 2007 refers to "functions of the Secretary of State"
being "exercised" by contractors (rather than, for example,
to contractors providing services to the Secretary of State).
We would also argue that one of the most compelling factors, in
determining the matter, should be the degree of compulsion (including
on account of the opportunities it provides for oppression and
abuse of power), and that, therefore, functions assumed under
section 16 WRA, which concern "imposing" various requirements
(with threats of cuts to benefits), are (and need to be taken
to be) "functions of a public nature".
3.1.5 It is unfortunate, therefore, that
there appears to be limited realisation, among DWP/JCP contractors,
that they are subject to the Disability Equality Duty. In addition,
it appears that DWP/JCP may have failed to take adequate measures
(in relation to awarding and managing contracts) to ensure that
its contracted out functions meet the requirements of the Duty.
The Momenta equality accreditation, for example, appears to set
inappropriately low equality standards and to allow contractors
to largely determine whether these are being met.
3.2 Discriminatory impact of some legislation
3.2.1 It seems probable that the provisions
of some social security legislation will have tended to encourage
discriminatory acts.
The role of section 59 DDA and European Community
law
3.2.2 In some cases, the discriminatory
acts will have been done in the exercise of a power or discretion
(conferred under social security legislation), rather than in
the necessary performance of an express obligation; and, therefore,
section 59 DDA would not apply so as to exempt such acts from
being unlawful (in line with the House of Lords judgment in Hampson)
(8). Failure to fully appreciate the import of Hampson
may well have encouraged some DWP/JCP officials to assume that
discriminatory acts (such as in relation to cutting benefits)
are lawful so long as they are done in the exercise of a statutory
power (or simply in accordance with DWP/JCP rules and procedures).
3.2.3 In other cases, the discriminatory
acts will have been done in the necessary performance of an express
obligation, and, therefore, section 59 would appear to apply.
However, we suspect that some social security provisions, entailing
express obligations, are incompatible with directly effective
EC Treaty provisions; and would, therefore, need to be disapplied
in any legal proceedings (including those under the DDA).
Unlawful discrimination may be set to increase
3.2.4 Levels of unlawful disability discrimination
could increase as Employment and Support Allowance (ESA) is introduced;
with Flexible New Deal; if the proposals in recent green papers
are adopted without substantial changes; and if the government
continues to move towards a US Style workfare regime. In relation
to Employment and Support Allowance, this is because, among other
reasons:
— it will push large numbers of disabled
claimants from Incapacity Benefit on to Jobseeker's Allowance,
under which claimants will be at far greater risk of discrimination
(including, for example, because the "actively looking for
work" rules will often be difficult or impossible for those
with mental health disabilities to meet);
— those remaining on ESA will be at
far greater risk of discrimination than claimants had been on
Incapacity Benefit, including, in particular, because of the strong
element of compulsion; and
— if implemented through regulation,
section 13 ("Work-related activity") of the Welfare
Reform Act would arguably be a giant leap towards US style workfare.
Experience from the US indicates that those on workfare suffer
noxious work conditions, with "workfare discrimination"
(discrimination on the job due to their welfare status) combining
with other forms of discrimination (including, for example, female
claimants being sexually assaulted by their supervisors) (9).
4. SOME RECOMMENDATIONS
FOR CHANGE
It is envisaged that, once our research on unlawful
discrimination is complete, we will put forward a wide range of
recommendations. In the meantime, however, we would like to focus
on just two.
4.1 A different specific duty on DWP/JCP
4.1.1 DWP/JCP, with life changing powers
over several million benefit claimants, is subject to the same
specific duties as the John Soane's Museum, which (although well
worth a visit) had just three other visitors on a recent visit.
We would argue, therefore, that the forthcoming Equality Act must
give the Secretary of State the power (as currently exists under
section 49D DDA) to impose different specific duties on different
public authorities; and that specific duties should be imposed
on DWP/JCP which reflects their unique circumstances.
4.1.2 We would also argue that—since
our initial research indicates that the greatest potential for
unlawful discrimination lies in failures to make reasonable adjustments—these
specific duties should include the requirement that DWP/JCP conduct
an assessment of each claimant to determine what reasonable adjustments
he/she is likely to require in relation to how DWP, JCP, and their
contractors, carry out their functions; that the claimant be fully
involved in the assessment and its use; and that the assessment
be regularly reviewed.
4.2 Contractors and the equality duties
The definition of public authority
4.2.1 Including for the reasons set-out
at paragraphs 3.1.3-3.1.5 above, the definition of public authority
should leave no doubt that DWP/JCP assessment, and "employability"
and training contractors are subject (in relation to their "functions
of a public nature") to the general equality duties (including,
of course, any single equality duty). Further, there appears to
be considerable merit in the definition provided at paragraph
151 of the Joint Committee on Human Rights' report on The Meaning
of Public Authority under the Human Rights Act (10). However,
we would note the considerable extent to which DWP/JCP "prime"
contractors sub-contract training and "employability"
services, and would argue that these subcontractors (in relation
to relevant functions) also need to be subject to the duties.
Contractors and the Freedom of Information Act
4.2.2 A public authority duty will, of course,
be much weaker if it is hard or impossible for members of the
public to determine whether or not it's being met. Unfortunately,
this would appear to be the current situation with DWP/JCP contractors,
who are (presumably for commercial reasons) reluctant to provide
information on their policies. We would argue, therefore, that
government contractors (with functions of a public nature) should,
through a single description (applicable to them all) in Schedule
1 to the Freedom of Information Act (FIA), be designated as public
authorities for the purposes of the FIA (in relation to information
of a specified description).
REFERENCES
1. Mayor and Burgesses of the London Borough
of Lewisham v Malcolm (2008) UKHL 43.
2. While based upon interviews (with all identifying
details removed), and/or scenarios which appear to be likely consequences
of known policies and practices, the examples provided should
be regarded as hypothetical.
3. DWP (2008). No one written off: reforming
welfare to reward responsibility—Public consultation
(para. 2.12). Cm 7363.
5. R (Elias) v Secretary of State for Defence
(2005) EWHC 1435 (Admin); Secretary of State for Defence v
Mrs Diana Elias (2006) EWCA Civ 1293; and R (BAPIO Action
Limited (1) and Dr Imran Yousaf (2)) v Secretary of State for
the Home Department (1) and Secretary of State for Health (2)
(2007) EWHC 199 QB.
6. R (Kaur and Shah) v London Borough of
Ealing (2008) EWHC 2062 (Admin).
7. YL (by her litigation friend the Official
Solicitor) v Birmingham City Council and others (2007) UKHL
27.
8. Hampson v Department of Education and
Science (1990) IRLR 302. This concerned section 41(1) Race
Relations Act, which is in materially the same terms as section
59 DDA.
9. See, for example, www.womensrightsny.com.
10. Joint Committee on Human Rights (2007). The
Meaning of Public Authority under the Human Rights Act, Ninth
Report of Session 2006-07. HL Paper 77, HC 410.
November 2008
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