Briefing Paper: UN Convention on the Rights of Persons with Disabilities Inquiry

Briefing Paper: Inquiry concerning the United Kingdom of Great Britain and Northern Ireland carried out by the Committee under article 6 of the Optional Protocol to the Convention on the Rights of Persons with Disabilities

 

The UN Committee on the Rights of Persons with Disabilities has investigated the UK Government and made findings of grave and systemic violations. We set out below the background, legal framework, the inquiry findings and the significance of those findings.

Download this briefing: Inclusion London – UN Convention on the Rights of Persons with Disabilities Inquiry Briefing

 

Convention on the Rights of Persons with Disabilities (CRPD)

The Convention on the Rights of Persons with Disabilities is an international human rights treaty of the United Nations intended to protect the rights and dignity of Disabled people. Parties to the Convention are required to promote, protect, and ensure the full enjoyment of human rights by Disabled people and ensure that they enjoy full equality.

• The text was adopted by the United Nations General Assembly on 13 December 2006 and came into force on 3 May 2008.
• As of December 2016, it has 160 signatories and 172 parties.
• The United Kingdom signed the Convention on 30 March 2007; it was ratified on 8 June 2009.

The Convention is monitored by the Committee on the Rights of Persons with Disabilities.

 

States parties’ obligations to the realisation of rights

State parties are required to adopt all appropriate measures to implement the rights set out in the Convention including legislation, strategies, administrative measures, policies and programmes. States Obligations have immedeate effect in relation to civil and political rights, as well as the obligations to take measures to overcome discrimination in the enjoyment of economic, social and cultural rights and obligation to take deliberate, concrete and targeted steps to the maximum of their available resources, with the aim of progressively realising those rights. This duty of progressive realization entails a presumption against retrogressive measures. Criteria about the prohibition of retrogression in the realisation of economic, social and cultural rights have been adopted.

Optional Protocol

The Optional Protocol to the CRPD is a side-agreement to the Convention which allows its parties to recognise the competence of the Committee to consider complaints from individuals. Article 6 of the Optional Protocol provides that an investigation will be carried out once the Committee receives “reliable information indicating grave and systematic violation” of the human rights of Disabled people.

 

Investigation of the UK

For the first time in its history, the Committee on the Rights of Persons with Disabilities opened an investigation into a signatory state for breaching their convention obligations in 2015. That state was the UK.

The inquiry established by the Committee was extensive:

• 3000 pages of documentary evidence were considered. Much of this was in the public domain including reports from Parliamentary inquiries, reports from the Equality and Human Rights Commission, academic research and statistics from official sources including government departments.
• During a country visit from 12 – 23 October 2015, interviews were conducted with more than 200 individuals, among them government officials, members of the House of Lords and House of Commons, representatives of disability organisations, academics and lawyers. The Committee’s rapporteurs visited London, Manchester, Glasgow, Edinburgh, Belfast and Cardiff.

The Committee expressed appreciation that its request to visit the country was granted by the UK Government. They were disappointed that local authorities and councils failed to respond to invitations to participate. The UN investigation findings were published on the United Nations Human Rights website on 7 November 2016. A response from the UK Government to the inquiry Report was also published alongside this.

 

Scope of the investigation

The inquiry focused on the impact of policy and legislation since 2010 on interrelated areas covered by three specific Articles of the Convention:

• Article 19: Right to live independently and be included in the community
• Article 27: Right to work and employment
• Article 28: Right to an adequate standard of living and social protection.

 

Investigation findings

The facts submitted to the inquiry were disputed by the UK Government. The Committee engaged in a verification exercise to cross-check data and reported that, in some cases, some the UK Government’s statements were not supported by evidence, and in others, the UK Government had indicated that no data were available. The findings of the inquiry were based on a comprehensive analysis of the data provided.

The inquiry findings were:

• Social security reform and social care changes were aimed at reducing the structural economic deficit.
• Disabled people were the single biggest group affected by these reforms.
• Concerns about potential discriminatory effects were well-documented by public authorities and the devolved administrations.
• A cumulative impact assessment was not undertaken despite evidence that this is a feasible exercise.
• The roll out of policies included statements by high-ranking officers that reforms were aimed at making the welfare system fairer and reducing benefit fraud. The inquiry found no substantiation of the alleged benefit fraud by Disabled people but found that Disabled people have been regularly portrayed as choosing a life of dependency on benefits.
• There were issues of non-compliance with the Public Sector Equality Duty.
• There was no evidence of periodic monitoring and evaluation of the impact of policy and legislative changes involving Disabled people and our organisations.
• The medical approach taken by assessments has a negative impact, with the needs, views and history of Disabled people not properly taken into account in decisions affecting them.
• In many cases, the implementation of welfare reform measures has increased the dependency of Disabled people.
• There has been a lack of attempt at objective, thorough, open and impartial investigation of deaths of claimants linked to benefit changes.

 

Systematic violations of the Convention

The Committee concluded that there is reliable evidence that the threshold of grave or systematic violations of the rights of Disabled people has been met. This is based on factors including the following:

• That the UK Government expressly foresaw an adverse impact on Disabled people.
• The disproportionate adverse and discriminatory effects of welfare and social care legislation and policies on the rights of Disabled people.
• Evidence that large numbers of Disabled people have been affected.
• That the Government continues its policies of reducing social benefits as reflected in the Welfare Reform Act 2016.

 

Recommendations

The inquiry Report makes eleven recommendations including that:

• A cumulative impact assessment should be undertaken of the measures adopted since 2010.
• Policy and legislation should respect the core elements of Disabled people’s rights.
• Public budgets should take into account the extra costs of disability.
• There should be active consultation and engagement with Disabled people.
• Measures should be taken to combat negative portrayals including that dependency on benefits is a disincentive to employment.
• In the implementation of policy and legislation, special attention must be paid to Disabled people with low incomes or in poverty and to Disabled people at higher risk of exclusion.
• The Committee’s findings and recommendations be widely disseminated.

 

UK Government Response

The UK Government has rejected the UN inquiry findings and the Reports conclusion that there is evidence of grave and systematic violation of the rights of Disabled people. The Government’s Response claims that the Report focuses on too narrow a scope and in so doing neglects other areas where they allege improvements have been made. Damian Green, Secretary of State for Work and Pensions, has said that the Report has at its heart “an outdated view of disability which is patronising and offensive”.

The Response follows a similar rejection by the Government of all 60 recommendations of the UN Committee on Economic, Social and Cultural Rights published in June 2016. Among other measures, the ICESCR report recommends that the UK Government adopts effective measures to address poverty, homelessness and over-dependence on food banks.

 

Equality and Human Rights Commission’s Response

The Equality and Human Rights Commission has been highly critical of the Government’s Response to the Committee on Rights of Persons with Disabilities’ Report.   It has emphasised five key concerns:

• that the Government has not provided sufficient evidence to demonstrate that it consistently gives due regard to the need to promote the equality of disabled people or their broader human rights, when developing new law and policy;
• that cumulative impact assessments, as recommended by the Committee but not undertaken by the Government, are both feasible and practicable;
• that the Government has not justified the retrogressive measures in its reforms since 2010 with reference to the criteria established by the UN Committee on Economic, Social and Cultural Rights;
• that it shares the Committee’s concerns about the closure of the Independent Living Fund, which could force some Disabled people into residential care (in particular noting that the monetary transfer to local authorities was not ring-fenced and that there is no mechanism to monitor how local authorities in England are supporting independent living); and
• that it is concerned (as was the Committee) about the Government’s response in relation to access to justice, noting that it does not acknowledge the adverse impacts on Disabled people, and referring to evidence which the EHRC has identified of the impact of a range of changes on Disabled people’s rights to access justice.

 

Civil Society response

Disabled People’s Organisations are seriously disappointed by the Government Response and its failure to adequately take on board any of the UN inquiry recommendations. The Response brings into question the Government’s commitment to the progressive realisation of Disabled people’s rights.

Since the Committee’s investigation in October 2015 was carried out, further measures have been introduced which have or will further adversely impact on Disabled people including the cut to Employment and Support Allowance for those in the Work Related Activity Group due to come into force in April 2017 and further cuts to Local Authority social care budgets.

The Government Response cites “Improving Lives: the Work, Health and Disability Green Paper” as demonstrating the Government approach. Disabled People’s Organisations have grave concerns about a number of aspects of the Green Paper, which is currently out for consultation.

These concerns include:

• The suggestion of extending conditionality to Disabled people in the Support group for Employment and Support Allowance.
• The underpinning idea that everyone can work and is better off in work without acknowledgement of the adverse impacts on well-being of unsuitable employment.
• The lack of innovative solutions for tackling disability discrimination in the workplace.
• The ethical questions posed by the adoption of employment as a clinical outcome and integration of therapeutic interventions with employment support.
• Minimal mention of Access to Work. This programme provides effective employment support while making a return to the Treasury for every pound invested in it.

 

Legal Opinion

Inclusion London has obtained a legal advice from a leading public law barrister. Jenni Richards QC has advised that although the Committee’s findings are not legally binding, this does not mean they are mere recommendations. She also advises:

By signing and ratifying the Optional Protocol to the UNCRPD, the UK recognised the competence of the Committee to determine violations, and has at this stage provided an unconvincing response to the Committee’s determinations.

The Government’s Response displays little engagement with, or understanding of, either the general principles that are contained within, and underpin, the UNCRPD, or the specific principles summarised in paragraphs 43-46 of the Committee’s Report.

Whilst the Government’s Response sets out various initiatives which it says are relevant to the fulfilment of Articles 19, 27 and 28, it fails in significant respects adequately to grapple – save by way of denial – with the specific nature of many of the criticisms advanced in the Committee’s Report. In particular, it does not adequately address the Committee’s findings as to the adverse and disproportionate impact of measures on Disabled people.

Rather than accepting the Committee’s recommendations, the Government’s Response does little more than set out a number of existing measures, notwithstanding the Committee’s criticism of the inadequacy of a number of those existing measures.

In Ms Richards QC’s view there are real prospects of establishing ongoing Convention breaches by the UK.

 

Next Steps

With the Reclaiming Our Futures Alliance, Inclusion London  has submitted evidence to the CRPD Committee for its examination of the UK’s report on the progress with the implementation of CRPD.