Restrictions on disabled people’s rights must not become the new normal
25 Sep 2020 11:43 AM
Temporary Coronavirus Act provisions due to be debated in the House of Commons on Weds 30 September could substantially restrict or curtail important, hard-won rights that disabled people rely on for their quality of life, says a new report by the Women and Equalities Committee.
The Committee insists that they must not become new norms, setting back disabled people’s rights by many years.
The Committee’s scrutiny has focused on three areas:
Care Act easement provisions
Under the Care Act 2014, local authorities have duties to assess and meet care and support needs that meet certain criteria. Where local authorities’ resources are severely affected by the pandemic, the Coronavirus Act can essentially replace these with a duty to do this only where failure to do so would be a breach of an individual’s human rights. In some cases this is a would be a greatly reduced level of support.
Temporary Mental Health Act provisions
The Coronavirus Act allows applications for temporary detention under the Mental Health Act (sectioning) to be made by a single doctor, and extends some time limits, for example the time someone can be detained awaiting medical assessment from 72 hrs to 120, and removing the 12 week time limit on remand to hospital.
Education, Health and Care Plan duties to young people with SEND
Parents of children, and young people aged 16-25, with special educational needs or disabilities, have a right to request their local authority carry out an assessment of their child’s (or their own, if aged 16-25) education, health and care needs (Children and Families Act 2014). Where these met the threshold, local authorities have a duty to secure a package of integrated support known as the Education Health and Care Plan within 20 weeks. The Coronavirus Act gives the Government the power to modify this absolute duty to one of “reasonable endeavours”. Regulations also temporarily suspended the time limits.
The report also looks at the statutory arrangements for the six month reviews of the Coronavirus Act, arguing that the “take all or leave all” approach to continuing the provisions is unsatisfactory.
This is an interim report of the Committee’s inquiry into the impact of coronavirus on disabled people’s access to services [link]. The full report will be published [check] later in the autumn.
Chair's comments
Committee Chair Caroline Nokes said:
“Restricting disabled people’s hard-won rights must not become the new normal. This pandemic is an unprecedented challenge for Government but we must ensure that does not become a reason to turn the clock back on equality. The “take all or leave all” binary vote will present MPs with no real choice over provisions which have clear and obvious equality impacts for their disabled constituents, and which they may believe are no longer justified – either now or over the 2 year lifetime of the Act. The Government must demonstrate its commitment to equality by ensuring that any proposals which potentially restrict disabled people’s hard won rights are properly considered, and separately from the statutory vote.”
Care Act Easement Provisions
If the pandemic had been more clearly under control, the Committee would have recommended repeal of these. But given the precarious stage of the pandemic, and the fragility of the social care sector it accepts that they might need to remain over the winter. The report recommends that these should be kept under constant review, and if the pandemic stabilises or improves they should be repealed at the second six monthly review in spring 2021 – or sooner.
Detailed information about the number and groups of disabled people affected, and the impact on services, proved impossible to find. Together with a lack of published data, this left the Committee unable to scrutinise the impacts properly. The report calls on the Government to demonstrate that it is keeping local authorities’ use of Care Act easements under thorough review and allow for proper scrutiny of data, and to publish Think Local Act Personal’s report [need a link here] and accompanying data on the effects of the pandemic on social care provision to inform the debate in the House of Commons on Weds 30 September.
Finally, it recommends that Government guidance to local authorities must make it clear that any pre-emptive triggering of easements would be a misuse of the provisions and could leave local authorities open to legal challenge.
The report also notes that the pandemic has brought a range of pre-existing systemic problems in the social care sector into sharper focus. There is an urgent need for a more sustainable funding solution; resolution of workforce issues including high staff turnover and low pay, and closer integration with health services, as well as a need to value this sector more highly. These issues will be covered in the main report.
Mental Health Act
The temporary provisions have not been needed in England so far, and evidence suggests that future need is unlikely. These also go against the grain of long awaited MHA reforms intended to address inequalities in the system. The Committee recommends that the Government should either repeal these, or suspend them – leaving the option of reinstating them if they become needed; if the pandemic stabilises or improves they should be repealed at the second six monthly review in spring 2021 – or sooner.
Local authorities: Education Health and Care Plan duties to children and young people with SEND
Was it really necessary to leave many children and young people with SEND with little or no support for three months? The Committee accepts that local authorities needed some flexibility with these duties at the peak of the pandemic, but calls on the Department of Education to review its processes with a view to making faster decisions to return to full duties. It also calls for: clearer Government guidance on fulfilling the ‘reasonable endeavours’ duty, including minimum standards and a range of examples of good practice; a clear national strategy for managing the backlog of assessments; and for any future relaxation of duties to be local, in direct response to local effects of the pandemic, rather than national.
The Committee heard evidence that the pandemic had exacerbated pre-existing and widely acknowledged systemic issues in the wider SEND system including: funding, inconsistencies in provision, poor integration of services and a lack of accountability in the system. These will be considered in detail in the main report later in the autumn.
There’s more to come
While the temporary measures discussed here are an important part of many disabled people’s concerns about the unequal impact of the pandemic, this interim report does not provided a full picture of their lived experience. The Committee has heard a much wider range of evidence and will publish a main report later in the autumn. This will scrutinise the clarity and accessibility of the Government’s consultation and communications, and disabled people’s wider experience of accessing health and social care.
Further information