Judgment in the Access to Work Case, Friday 17th August 2018.
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.