“The Judge did not see any breach of the public sector duty in the balancing of value for money and service provision for disabled people.
‘Value for money’ continues to be used to justify the removal of lifelines for the most vulnerable in society.”
GMLC volunteer Josie Hicklin analyses a recent case, highlighting how legislation and its interpretation impacts the lives and needs of disabled people.
Having recently finished the LPC Josie Hickin is a volunteer in the law centre’s housing department. She is also a yoga teacher exploring how to make yoga accessible to vulnerable and marginalised groups.
In 1994 the government set up the Access to Work Scheme. With legislative roots in the Employment and Training Act 1973 [1], the Scheme was designed to increase employment opportunities for, amongst others, disabled people. It provides for funding contributions to employers, helping people with disability-related expenses at work.
When first set up there was no limit to the payments a person could receive; people simply got the level of support suitable to their individual needs. Then, in 2010 the government commissioned an independent review of specialist disability employment support. The resulting report [2] introduced concept of providing “value for money” in disability programmes [3], paving the way for this case.
The facts
Mr Buxton is deaf. The Scheme funded a British Sign Language (BSL) interpreter to support him at work on a full-time basis. However, in 2013, on the back of the aforementioned report, the government introduced the ‘30-hour rule’: if a support worker was required for more that 30 hours a week, they should be paid an on annual salary basis rather than a freelance hourly basis.
As predicted [5] this did not work well for deaf users of the Scheme. BSL interpreters are in high demand, therefore only work on an hourly basis. In 2015, the government replaced the 30-hour rule with an annual cap on Scheme funding of £40,800 per person.
Campaigners say the cap disproportionally places deaf users of the scheme at a disadvantage in the workplace, restricting the opportunity for those with disability to “smash the glass ceiling” [6], something the government denies. Their response was summarised as “you cannot make an omelette without breaking eggs” [7] – the Scheme was not intended to eliminate all difficulties experienced by people with every type of disability, rather the Scheme budget has to be shared and balanced in the most cost-effective way possible.
On the back of campaigning, the cap was increased marginally to around £57,000 per year. In March 2018 Mr Buxton requested £67,200 of funding support for the year. The DWP only awarded him the £57,000. In May 2018. Mr. Buxton applied to challenge the decision to award him £10,000 less that he had applied for.
The decision
Mr Buxton’s first ground was the public sector equality duty: did the Secretary of State have due regard to the legislative goals set out in section 149 of the Equality Act to:
- eliminate discrimination,
- advance equality of opportunity between those with relevant protected characteristics and those without, and
- to foster good relationship between those with and those without?
This first ground failed to even be arguable. The Judge did not see any breach of the public sector duty in the balancing of value for money and service provision for disabled people.
The second ground for challenge was that the cap was unlawful because it is indirectly discriminatory, contrary to section 19 of the Equality Act 2010. This challenge was arguable; however, it was unsuccessful. The Judge found the aims of the Scheme were legitimately in line with social and employment policy, and that the cap was a proportionate means of achieving these aims.
Access to justice
This judgement in this case will be a huge blow to disability right campaigners. From legal aid cuts to bedroom tax, ‘value for money’ continues to be used to justify the removal of what are quite literally lifelines for the most vulnerable in society.
References
[1] Employment and Training Act, section 2(2).
[2] Sayce L. Getting in, staying in and getting on: Disability employment support fit for the future. Department for Work and Pensions. 2011.
[3] page 142.
[4] Employment support for disabled people: Access to Work. Commons Select Committee. 19 December 2014.
[5] Inclusion London. (2017). Barriers to Work – Deaf and Disabled employees are losing out due to changes in government’s Access to Work programme.Available: https://www.inclusionlondon.org.uk/campaigns-and-policy/act-now/barriers-work-deaf-disabled-employees-losing-due-changes-governments-access-work-programme/. Last accessed 15 September 2018.
[6] S Clare. 2017. Disabled ‘losing out on jobs’ over Access to Work cap. [ONLINE] Available at: https://www.bbc.co.uk/news/uk-41722225. [Accessed 16 September 2018].
[8] R (Buxton) v Secretary of State for Work and Pensions [2018] EWHC 2196 , 18
Photo credit: Jeremy Segrott, Flickr, 2016
