Today’s judgment in the Access to Work case, dismissing the legal challenge against the cap brought by David Buxton, highlights the limitations of our equalities legislation. Mr Justice Kerr found that sufficient “due regard” had been paid by the Secretary of State as to the impact on Deaf BSL users of introducing the cap and ruled that the Access to Work cap is a “proportionate means of achieving a legitimate aim” and said it succeeds in striking a balance “between potential new low cost award recipients, for whom money will be freed up, and existing high cost award recipients, who must perforce forego some of the available funds to provide the money to spend on achieving the government’s aims”; he points out that there is nothing in equalities legislation that prevents the Secretary of State from “giv[ing] with one hand and tak[ing] with the other”. The judgment highlights the fragility of our rights protections whereby government can decide to implement measures that discriminate and curtail the equalities of Deaf and Disabled people so long as they prove they have considered the impacts and cite funding constraints. It also fails to give any weight to our concerns about the impact of the glass ceiling that the cap sets for Deaf BSL users and wider social impacts on inequality. Frustratingly Stopchanges2AtW is all too aware of the barriers and problems experienced by Deaf and Disabled people in the “low cost award” category which were outside the scope of the case: the real picture is not one where there exists a group of people with lower cost support needs who have benefited or will benefit by restricting the employment opportunities for Deaf BSL users in the straightforward manner presented by the DWP. Access to Work customers on those “low awards” frequently tell us that a cap exists for them too which makes it difficult to stay in work after their six month limited awards end or there is enforced tapering of their support.
Other disappointing aspects of the judgment include the lack of any suggestion that the government has a responsibility to carry out research into the financial benefits of investing in Access to Work. One of the DWP’s main lines of defence is that the Access to Work is finite and therefore they need to find ways of making savings in order to make the budget go further. In court they disputed the figures used in the 2011 Sayce review which found that there is a net return to the Treasury of £1.48 for every pound invested in Access to Work yet failed to explain why the government has still to date produced no up-to-date figures despite telling the Work and Pensions Committee that this work was underway in 2015. We would also have liked to see some questioning of how the DWP have calculated the cap which we have always viewed as an arbitrary figure. During the court case the claimant’s barrister stressed that problems with using calculating the cap based on a day rate for BSL interpretation of £250 per day. The judgment is content with this, citing how it “closely corresponds to the figure of £260 for a full day of BSL interpretation, according to the suggested rates published by the National Union of British Sign Language Interpreters (NUBSLI), for London and the south east”. However, the NUBSLI rates are guidance on “minimum” fees and point out that more specialist work, evening or weekend work will be at a higher rate. Within the hearing it was established that market conditions for BSLi with demand far out-stripping supply mean that interpreting costs can exceed these minimum fees. The judge also rejected the claimants arguments that the DWP could have carried out a more thorough evaluation of the likely impact of the cap through assessing information it has holds about the Access to Work customers affected. StopChanges2AtW continues to maintain the relevance of what sector we work in with employers in the voluntary or public sector less likely to be able to make contributions to support costs. The greater the burden on the Deaf or Disabled employee to argue for reasonable adjustments from their employer, the more unbearable it can become to stay in work and we hear many stories of workers who have left employment or taken demotions because they can no longer manage the strain with work becoming entirely focused on how to meet their support needs rather than doing their jobs.
There is no question that the legal challenge which was issued in December 2017 was what prompted the increase in the cap from £43,100 to £57,200 and mitigating measures for Disabled people with multiple needs, announced in March 2018. David Buxton is to be congratulated on taking bold action that will benefit hundreds of Deaf and Disabled workers while preventing the obliteration of Deaf BSL users in senior roles. However, as today’s judgment confirms, there is far more to do in the fight for the rights of Deaf and Disabled people to work on an equal basis with others in line with Article 27 of the United Nations Convention on the Rights of Persons with Disabilities. The announcement last week by the Secretary of State for Work and Pensions of a new fund within Access to Work for “supported businesses” raises suspicion about the government’s willingness to dispense with equality and inclusion in order to get as many Deaf and Disabled people as possible off out of work benefits. This is therefore a time when it is more important than ever that Deaf and Disabled people stay united and continue to push for greater equality and employment rights.
If there is one report you need to read this month or even this year – this is the one: A Dossier of disgrace
Geraldine O’Halloran, Co-founder of StopChanges2AtW gives us her view on the recently published “Dossier of disgrace” by the National Union of British Sign Language Interpreters (NUBSLI).
If there is one report you need to read this month or even this year – this is the one. More importantly, if, like me, you are a Deaf BSL user and a regular user of English/Interpreting support – then even more so.
For me, my main reaction after reading it was one of shock, what was shocking to me, was how little I knew about what was happening in the background to the communication support that I rely on every day. For work, to access to health/medical appointments, attending meetings, and for those social occasions like, talks at museums and art galleries and the like.
This report highlights several areas which Deaf/BSL users need to be concerned about. In short, the National Framework Agreement (NFA) is a business model for the interpreting agencies being awarded contracts. What the findings in this report highlight is it is unsustainable for BSL/English interpreters and Deaf customers that they have repeatedly been let down and have lost any choice and control over the support they need and the interpreters they wish to use. This means in future Deaf/BSL users like you and me, will have no control over who we want to book. Even more worrying is that there is evidence that untrained or under qualified communication support are going on bookings where their level of skill is not matched to the job. For example, court interpreting that requires a high level of skill and there is evidence that inexperienced interpreters and unqualified communication support are being sent to do this work. The same is for Child and Adult safeguarding work. People like you and me weren’t consulted about this – we weren’t invited to the consultation. The government never asked us what we thought of this NFA or even if we wanted these changes.
The worrying thing is skilled and experienced interpreters are leaving the profession for a whole range of reasons – they are experiencing pay cuts, demanded to work with unskilled communication support – putting their professional integrity on the line, the list goes on.
The report highlights what the National Union of British Sign Language Interpreters (NUBSLI) have been trying to do the ensure that the standards of communication support we need remain high and meets our needs. We need to make sure we are in control of our communication support and back what NUBSLI are doing here.
There is a BSL version that provides clear information about the key areas of the report. If you value the BSL/English interpreting support, you receive every day – then read this report.
Royal Courts of Justice: 9.30am Tuesday 26 June 2018
Join us at the high court on 26 June to show support and solidarity to the claimant taking the legal case against the government’s decision to cap Access to Work. Although the cap largely affects Deaf BSL users, Disabled people from all impairment groups have suffered through changes to the Access to Work disability employment support scheme that have made it harder and harder to get into and stay in work. The government announcement earlier this year raising the cap does not address the issue that any form of cap discriminates against Deaf and Disabled people with high support needs and while the measures announced promise to improve certain issues with the scheme, many other issues remain a problem.
We are calling on all those affected by and worried about the cap and about Access to Work in general to join us at the high court for a vigil outside from 9.30 – 10am and then in the court room for the hearing itself. There will be BSL interpretation for the proceedings.
For more information on the legal challenge:
Friday 8 June 2018; 6 – 8pm;
WeAre336 Brixton Road, SW9 7AA
While the measures announced by the government concerning the increase in the Access to Work cap are welcome, there remain a number of serious issues with Access to Work that have not been addressed and which continue to jeopardise Deaf and Disabled people’s employment.
This meeting will be a chance to share current experiences with Access to Work, plan the next steps in our campaign to improve the scheme and agree the key recommendations for us to focus on following the publication of our research and recommendations in Parliament in October last year.
If you would like to attend the meeting please email Ellen.email@example.com with information about any access and communication support needs.
We have checked the governments Equality Analysis and it shows that 79 people will still be affected by the Access to Work cap. It also shows us that this will be a minimal saving of 1% whilst destroying people’s careers.
We have been very clear that we want to see the cap scrapped and that no other option is acceptable.
Discrimination cannot be allowed: any cap should be rejected outright.
We are now trying to find the 79 people who will be affected by the cap. If you are one of these, or know someone that is, please put them in touch with us.
Email us: StopChanges2AtW@gmail.com
Since 2013 we have been campaigning for a cessation to the changes being made to the Access to Work (AtW) scheme. Although the scheme was never perfect, working better for some impairment groups than others, when it worked, it worked really well, supporting Deaf and Disabled people to not only get into work but to progress in their careers on a more equal playing field with non-Disabled colleagues. It’s success was in large part due to a social model approach, seeking to remove barriers to employment created by the costs of support, equipment and adaptations required to enable Deaf and Disabled people to meaningfully participate in employment.
Since the publication of the Sayce report in 2011, the government have attempted to reduce individual awards and restrict support. Publicly they have claimed they are looking to reduce what they describe as “high value awards” in order to reach a larger number of people. However, research commissioned by @StopChanges2AtW and Inclusion London found that the majority of respondents reporting cuts were actually those with “low value awards” (under 5 hours a week). Reduction of awards across the service is also just one element within much wider problems to Access to Work that have adversely impacted on the employment opportunities of Deaf and Disabled people, placing jobs at risk, leaving Deaf and Disabled people and they interpreters and PAs they employ in debt and creating additional strain on people trying their best to stay in employment.
The impact of these changes undermines the government’s own target of getting an extra million Disabled people into employment. Measures to limit spending on Access to Work such as the cap also fail to make financial sense given that Access to Work brings more money into the Treasury than it costs, in addition to savings to the NHS and social care budgets. The Sayce review – a government commissioned report – found that for every £1 invested in AtW, £1.48 is returned to the Treasury. Although the Government now dispute this figure, they accepted it at the time, using the Sayce review as the basis for justifying the closure of the Remploy factories.
Since setting up, StopChanges2AtW has met frequently with Government ministers as well as the strategic and operational heads of Access to Work, secured two Work and Pensions inquiries into AtW (the most recent in December examining the cap), initiated two legal challenges against the Department for Work and pensions (the first secured publication of the Access to Work guidance on the DWP website, the second against the cap has been accepted for judicial review due to be heard in the high court on 26 and 27 June), organised a march through London to hand in a petition to Downing Street signed by over 15,000 people, co-ordinated a parliamentary launch for our report into current problems with Access to Work (Barriers to Work) and recommendations for improving the scheme (Improving Access to Work) widely signed up to by Deaf and Disabled People’s Organisations and trade unions and worked with politicians from across different parties to raise our issues in Parliament.
During this time we have seen the 30 Hour rule scrapped, the idea of additionality (e.g where Deaf people who work in Deaf organisations were told that they couldn’t get Access to Work support because if the organisation employed a non-disabled person they would still need an interpreter to work with their Deaf clients) scrapped and now in this latest last minute change, the cap (which was previously set at £42,100) raised to £57,200. Each of these U-turns are an admission by government that their changes to the scheme are simply unworkable. They highlight the discriminatory approach that has been taken and the priorities of a government who still fundamentally do not understand the needs of Deaf and disabled people.
Whilst we appreciate that the raising of the cap will help some, it does not acknowledge that government cannot be allowed to discriminate is such an arbitrary way.
We do not feel that raising the amount of the cap goes far enough and want it scrapped altogether. Government have been asked on numerous occasions to provide a full cost analysis of the scheme as well as looking at other options to change the way the scheme is funded (e.g the AME/DEL switch). They have ignored every request to undertake this piece of work.
AtW brings in a return to treasury. There is no justification for any changes to be made to the scheme. We will continue to fight for a fair system that provides access for all, regardless of need.
Thank you to Marsha De Cordova, Shadow Minister for Work and Pensions, for raising problems with Access to Work in the recent House of Commons debate on an disabled people and economic growth – including the impact that the cap is already having:
“The Access to Work programme, when it works well, provides invaluable support, but too often I hear about problems in relation to the administration and timeliness of payments, the cap on individual awards and the assessments. Ms French is a visually impaired person. Her experience of seeking employment is that when the subject of Access to Work came up, recruiters said that the employer was in too much of a hurry and would not be able to wait for an Access to Work assessment to be completed. As we all know, Access to Work is probably the best kept secret—it helps far too few people—and it will need significantly more resources if the Government are to get anywhere near the aim of getting 1 million more disabled people into work by 2027.
In the case of a deaf person, Mr Will, he was offered a job by a Disability Confident employer. However, once the employer realised that the Access to Work support would be capped and that they would have to meet the rest of the costs, the job offer was withdrawn. Will the Minister set out what substantive action the Government are taking to support people in work? What work have they done with disabled people to ensure that this support is flexible and responsive to need? More importantly, what additional funding will the Government make available, especially for Access to Work?”
The High Court has ruled that a legal challenge of the Access to Work cap can go ahead. The restrictions were introduced by the Department for Work and Pensions to limit the amount of support that individuals can be awarded by the once flagship disability employment scheme. (1) The launch of the challenge comes just a few months after the government published its disability employment strategy with the ambitious target of getting one million more Disabled people into work (2). It also follows publication in October 2017 of research commissioned by Inclusion London which found evidence of systemic problems with Access to Work (3).
The cap which will fully come into force in April 2018 (4) disproportionately impacts on Deaf BSL users and Disabled people with high support needs, effectively removing employment support from those with the most complex needs and placing them at a disadvantage when trying to get into, stay in and get on in paid work. The case is being brought under the Equality Act 2010 with funding from the Equality and Human Rights Commission.
Claimant David Buxton said: “I am extremely pleased to learn that my case has been granted a hearing on the basis that I have an arguable case that the Government has acted unlawfully.
The two key issues being heard relate to the public sector equality duty and indirect discrimination. As a Chief Executive, it cannot be right that my career is impacted by limiting my language and communication needs because I am Deaf and use British Sign Language. There is some way to go yet but the support from the Equality and Human Rights Commission and my legal team are signs that this is a case which could challenge and change existing practices, decisions and future provision.”
Solicitor Anne-Marie Jolly from law firm Deighton Pierce Glynn who are taking the case said: “As a result of this case, the government’s decision to cap Access to Work funding will finally be exposed to the scrutiny of the High Court. Government decision-making around Access to Work has historically been lacking in clarity and transparency. In keeping with that history, the decision to cap the scheme was made with no formal consultation or adequate evidence base, despite its profound impact on those affected. Mr Buxton’s claim makes the case that the Access to Work cap discriminates against Deaf and disabled people and fails to take account of the impact on them of such a regressive move. The cap perversely impacts on those with the most demanding jobs and highest support needs, the overwhelming majority of whom are Deaf BSL users, preventing them and their employers or businesses from reaching their fullest potential.”
Campaigns and policy manager Ellen Clifford from Inclusion London, whose Disability Justice Project is supporting the legal challenge, said: “The cap is already having a serious negative impact on Deaf and Disabled people’s employment. On the one hand the Government says they want to reduce the disability employment gap and get another million disabled people into work, yet here is a disability employment scheme with a track record of success where cuts to individual awards, delays, changes and continual administrative errors are combining to the point where it is no longer a viable form of support. Deaf and Disabled people are frustrated and anxious at the risk of unemployment and benefit dependency, which will come at a much higher cost to the State than the support package they need to remain in work.”
Geraldine O’Halloran, co-founder of #StopChanges2AtW (6) said: “The idea put forward by the government that employers will pay for the support that Deaf and Disabled people need in order to do their jobs on an equal basis with non-disabled people is nonsense. However much an employer values you, the majority of employers don’t have the spare money to effectively pay to take on Deaf or Disabled staff. Yet in the bigger picture it benefits the government to invest in disability employment support with research showing that the Treasury makes a surplus on investment for every pound invested in Access to Work and that’s before the wider benefits of savings to the NHS and social care are taken into consideration.”
For information contact: firstname.lastname@example.org
Notes to Editors:
1) 1) The cap is set from April 2018 at £43,100 which is 1.5x the average national salary.
The research which was carried out before the cap took effect found that almost half of respondents to a survey carried out by #StopChanges2AtW had experienced changes to their Access to Work package with “cuts” or “cost cutting” as the most frequently given reason. The report also found evidence of rationing 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-employed. More than half of respondents said they found Access to Work difficult to use, with one in four reporting severe difficulty. Many respondents said they effectively lost support because the processes for claiming Access to Work has become so complex and protracted with a dramatic rise in administrative problems so that the scheme was no longer a viable form of employment support. Nearly all of those experiencing changes said they had impacted negatively on their work, reducing their standard of work or their productivity. In the worst cases people had lost their job, turned down work or reduced their income as a result of the changes. Many respondents reported a personal, as well as professional, impact from the changes: through stress, poorer health, and loss of self-esteem or confidence due to feeling “like a burden”.
4) 4) Mark Harper, then Minister for Disabled people announced the introduction of the cap in March 2015:http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2015-03-12/HCWS372/
5) 5) The Sayce Report which was backed by the Government gave a figure of £1.48 back to theTtreasury for every £1 invested in Access to Work.https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/49779/sayce-report.pdf
6) 6) StopChanges2AtW is a campaign led by Deaf and Disabled professionals and British Sign Language interpreters to oppose the increasingly adverse impacts of changes and cuts to the Access to Work scheme brought in since 2014.https://stopchanges2atw.com/
StopChanges2AtW response to the governments “Improving Lives: The Future of Work, Health and Disability” green paper on Access to Work
We have now seen the governments green paper “Improving Lives” which lays out the planned improvements to Access to Work. The paper states that the scheme will be significantly enhanced over the next year. The improvements being proposed are:
• a trial of managed personal budgets will offer even greater personalisation;
• we will create a new expectation that equipment will be portable and move with the individual when they change jobs and allow people to apply earlier so that support is in place for job starts;
• we will work with schools and colleges to ensure that young disabled people are aware of the help they can get from Access to Work and can use supported internships and other first steps into work, including work experience where this may lead to a job;
• we will significantly increase the capacity of the Mental Health Support Service to meet the rising demand18;
• for those with the greatest needs, such as some British Sign Language (BSL) users, we will offer a personalised service. They will be able to access support of up to £43,100 per year from April 2018, and will be offered new managed personal budgets as well as workplace assessments involving their employers, to help them meet their needs within their award levels. Deaf customers will be supported by a dedicated team of specialist advisers;
• we will also work with disabled people, their families and relevant organisations (including social enterprise employers) to develop new targeted support for learning disabled social service users and secondary mental health support service users.
Whilst some of these may seem to be sensible suggestions at first glance, we are concerned about the unintended consequences which, as previously with the 30 hour rule, have not properly been considered.
We have seen several ombudsman complaints (which were all upheld) that demonstrated the amount of stress being placed on the recipients by the scheme. One of the main issues with budgets have been the prescriptive way that these have been administered, however we are not confident that advisors will have been trained sufficiently to support further personalisation. There is a fundamental lack of understanding over different groups needs and we have not seen enough to show that this has been properly acknowledged. We do not wish to see additional pressure being placed on individuals. It is also worth noting that until the claims procedure is overhauled it remains inaccessible. We would want to see how personalised budgets will work and ensure that there is no risk to the individual. For example, BSL users are responsible for contracting interpreters rather than AtW and if a mistake is made then they will legally be liable.
Whilst we are pleased to see the needs of BSL users being considered, AtW have previously had a specialist Deaf team: they weren’t adequately trained and misunderstood the role of an interpreter and the needs of deaf users.
The cap will affect BSL users disproportionately and “working with employers” sounds very much like the “job redesign” that was previously attempted by AtW and heavily criticised. Deaf people were having their jobs changed to accommodate the budget available for support – this goes against the original aims of the scheme and is disempowering deaf employees and their right to a fulfilling career where they are able to progress.
We note that the improvements state that AtW will work with families and organisations along with the disabled person. Again, our concern is that this could disempower the individual if this is not done well.
Unfortunately many of these improvements will not solve the issues created by recent government changes to the scheme which, prior to 2010, was considered the governments “best kept secret”.
The cap and working with employees, strikes very much as a second attempt to bring in the ’30 hour rule’ and ‘job redesign’ by another name. We are very concerned about the future of employment support for Deaf and disabled people and urge the government to consider the recommendations made alongside our recent ‘Barriers to Work’ report.
I would like to send my apologies for being unable to join you this evening due to the change in timeslot which now clashes with another engagement. I know that you will be covering some very important issues and I look forward to receiving feedback from your discussions.
It is hugely important that we break down all barriers preventing people from succeeding in their careers. That is why Access to Work is so important and I was delighted that Labour, in our manifesto this year, committed to commissioning a report into expanding the Access to Work programme. We must do everything we can to support disabled people start and stay in work and must not allow them to lose out due to the cap.
This includes those who are deaf or hard of hearing, who I have been long campaigning for and deserve equal rights and treatment. Deaf people are already discriminated against through all areas of their lives including school, and integrating everyone in the workplace is good for the economy, good for social inclusion and good for individuals’ mental health and wellbeing.
I am passionate in my belief that equality is equality, you cannot pick and choose. In my new role as Shadow Minister for Women and Equalities I will be fighting hard for the rights of everyone, no matter their background, disability or other characteristic and I look forward to continuing working with colleagues and others I support of this vital aim. I hope you have a good evening.
Dawn Butler MP.