The Spartacus Report

Wherever you stand on the political spectrum, I urge you to read the report, Responsible Reform, on changes to welfare system currently going through parliament – and in particular changes to Disability Living Allowance (DLA). It was launched today by an independent coalition of sick and disabled people, who self-organised through social media, including well known campaigners like Sue Marsh, Kaliya Franklin and others from The Broken of Britain. The report was written independently of any disability organisations or charities, but it has been backed by the Disability Alliance, Mind, The Papworth Trust, Scope, Bert Massie CBE & Ekklesia. Their research made a splash over the weekend when it emerged that even Boris Johnson had expressed concerns about these reforms, managing to achieve the impossible – getting the Telegraph and the Daily Mail to take notice of the risks and incoherence of these proposals. 

The report targets in particular the proposed ‘PIP’ (Personal Independence Payment) benefit, that will replace DLA, although it also makes mention of other problematic welfare reforms. It’s hard to get animated about something so technical sounding, but these reforms look set to have a very real impact on the lives of disabled people. The government is proposing reforms that will reduce the overall expenditure on DLA by 20%. Bear in mind that the fraud rate in DLA is extremely low, at 0.5%, so we are looking at a cut to a benefit that appears to be largely premised on reducing expenditure, rather than ‘efficiency’. Many people rely on DLA to pay for the costs incurred by living with a disability; many rely on it to enable them to overcome barriers to work, meaning that counterintuitively cuts to DLA could result in an increase in uptake of unemployment benefits. 

The authors used the Freedom of Information Act 2000 (FOIA) to examine the responses to the government’s DLA consultation, whose report painted a misleadingly positive overview of the public reception to the proposed reforms. The authors found that overall:

• 74% of respondents were against the proposals for PIP; 
• 19% had mixed views; and 
• Only 7% supported it fully. 

Opposition to individual aspects of the proposals was even greater, including 98% opposing extending the qualifying period for DLA from 3 to 6 months; 90% opposed the introduction of new assessments; 92% opposed the proposed changes to the review system; 94% opposed making DLA conditional on accepting advice and support.  The authors argue that the government's own consultation report does not reflect the groundswell of opposition to their proposals.  In fact, this is a pattern I have noticed in all the consultations I have requested the responses to under the FOIA, and I increasingly wonder if a requirement of public consultations should be to make available online all responses not marked confidential.  Furthermore, if multiple choice options are run on consultation responses, the government should publish the results broken down by the category of respondent.

The authors also point out that the consultation method itself was flawed, being announced at short notice, conducted over the holiday period, and being shorter than a normal consultation period. Many would-be disabled respondents had difficulty accessing the consultation materials in an accessible format, and the consultation period ended after the welfare reform bill had already launched its passage through parliament. The consultation also relied on flawed statistics, claiming DLA had seen an increase in uptake of 30% over 8 years, when in fact the figure is closer to 13% - as DWP themselves admitted in August this year. 

The report cites concerns expressed by the Joint Committee on Human Rights about the quality of the human rights impact assessment: 

The quality of the impact assessments conducted within Government becomes increasingly important for the purposes of analysing potential discriminatory impacts when little wider detail is available. Concern has been expressed about the thoroughness and coverage of the impact assessments carried out by the Government. 

The response of the Equality and Human Rights Commission expressed concern: 

...about the impact this could have on individuals’ standard of living, and could be counter-productive to Government policies and initiatives to overcome barriers to work... the Commission has a number of concerns about the proposed reform of DLA, including a concern that if the proposals were to be implemented in their current form, they might potentially be in breach of equality and / or human rights legislation. 

The report’s authors argue that the impact assessment fails to give an adequate indication of the negative effect of the proposed reforms on the human rights and equality of disabled people and carers. 

I am not overly familiar with this area of public law, but I do really wonder if this consultation was lawful. We have already seen civil society groups challenging the lawfulness of the cuts on the basis of equality laws and public law on consultations, with varying degrees of success. The Fawcett Society’s legal challenge to the first austerity budget was unsuccessful, in part because they had delayed too long and the intervention of the courts would be academic. However, the judge did highlight that the arguments merited further scrutiny, and the case drew a good deal of attention to the impact of the cuts on women. In this case the argument is not only that the welfare reforms will have a disadvantageous impact on disabled people, including disabled children and their carers, but that the consultation process was fundamentally flawed. I am reminded that in recent cases like R (W) v Birmingham City Council [2011] EWHC 1147 (Admin), a judicial review of Birmingham’s decision to raise its eligibility criteria for community care was successful because Birmingham had failed to follow a lawful consultation procedure. In particular, the consultation was deemed unlawful because of: 

• A lack of clarity over the effect of the changes on disabled people’s lives 
• The consultation process was inaccessible to disabled people 
• There was little consideration of other available options 

Reading the report, it may very well be that similar criticisms could stand against the DLA consultation, although if they do intend to seek a judicial review of the consultation process they will certainly have to move fast. There is evidence that elements of the proposed reforms are already being implemented, despite its not yet being passed in parliament, in echoes of the current NHS reform process. I wonder if civil society groups, or perhaps even the EHRC, might feel moved to support them in such an action given how widespread the impact is likely to be. 

But even if you are not moved by the human rights or welfare arguments in this report, you might feel concerned to read that the proposed changes will involve rebranding and the creation of a new computer system that is estimated to cost £675m. And we all know how successful this has been in tax credits, identity cards, the NHS ‘Spine’ project... 

If, like me, you haven’t been able to give as much attention to these issues around welfare reform as you’d like – perhaps you’ve been busy combating cuts to legal aid, higher education, schools, Sure Start, the NHS, libraries or saving the forests – here’s what you can do. Firstly, read the report, acquaint yourself with the widespread concerns that the government hasn’t been clear about in their own consultation. The report’s authors aren’t opposed to reform of disability benefits on principle, but they are concerned about the motivations for these particular reforms, the non-transparent way these reforms are being pushed through parliament and the lack of government responsiveness to the concerns of disabled people and disabled people’s organisations. Secondly, if you are concerned by the contents of the report, then consider emailing a copy to your MP (find out their details here). This isn’t clicktivism; your MP has a duty to consider the concerns of his or her constituents. Bearing in mind the report’s authors don’t have a big PR office behind them, I’m sure they’d also appreciate any blog or twitter support you can give them; the hashtag for tweeting your support is #spartacusreport.