DLA Conference 2019: "Disability and Society - the Law and the Lived Experience" - Friday 4th October - conference report

History of the social model and its relationship with (industrial) capitalism

Roddy Slorach opened the conference by challenging the concept of the social model of disability which, although  widely  adopted,  was  in  his  view  ‘empty  of meaning’. He argued that the Industrial Revolution had segregated people into those who were fit to work in the developing machine-driven era and those who were not. As the labour power  of  disabled  people was more expensive  to  purchase,  the  development  of industrial capitalism led to the very concept of ‘disability’, the marginalisation of disabled people in society and the rise of workhouses or asylums to house them.

In the modern era, capitalism is still concerned  about the social and economic cost of disability and employers continue to avoid the additional cost of employing or providing services for disabled people. There are scientific, technological and medical developments  which  could  assist  disabled  people’s inclusion, yet capitalism undercuts this enormous potential.

Recent UK governments’ policy has been to reduce dependency and pass on these costs to individual disabled people; rights and services which disabled people fought for have been dismantled – one example given was the change from Disability Living Allowance to Personal Independence Payments which has reduced access to benefits for thousands of disabled people. Roddy criticised the confusing definition of disability in the Equality Act 2010 (EA) which focuses on the individual. Many disabled people, he said, have little faith in the laws designed to equalise their access to services and protect their rights.

Capitalism promotes independence and individualism, but it hides our interdependence and denies our individuality, he argued. He concluded by demanding that we defend existing laws, but fight for better laws and services and put an end to our disabling society.

Changing the lived world together

Neil Crowther outlined the journey of disability rights from the 1970s when disabled activists criticised the development of welfare benefits for disabled people as  nothing  more  than  ‘a  programme  to  obtain  and maintain in perpetuity the historical dependence of physically impaired people on charity’.

He traced the tension between the demand for full civil rights which is rooted in the social welfare/gift model  and  which  ‘supports  anti-discrimination  policy and civil rights reforms’ and the ‘human rights model of disability [which] is more comprehensive in that it encompasses … civil and political as well as economic, social and cultural rights’. The focus on civil rights, he argued, has meant that social  security  policy, social care, continuing healthcare, mental  capacity law, mental health law and practice have remained peripheral and largely unchallenged; and in education, ‘special educational needs’, not equality, has remained the dominant paradigm.

Often developing on a parallel track with equality law and sometimes arousing hostility between protagonists, the human rights approach to disability rights was finally given its rightful place with the UK’s  ratification  of  the  UN  Convention  on  the Rights of Persons with Disabilities (UNCRPD) in 2009. The UNCRPD is a reaffirmation of disabled people’s existing rights and a programme of action for their full implementation. Far broader in scope and ambition than claims for ‘civil rights’, it blends civil and political rights with economic, social and cultural rights such as independent living or freedom from violence, exploitation and abuse. The UNCRPD aims for societal change and demands non-legal action such as investment in research to promote inclusive design, or the development of rights-based practice in health and social care, among others.

Although the UNCRPD brought the schism between human rights and the anti-discrimination/ civil rights approaches to an end, he questioned the Convention’s impact to date in the UK. It has been  certainly not risk free! Although in one of his cases used for interpretive effect in key cases and provides the baseline for national disability action plans in Scotland, Wales and Northern Ireland; but is not incorporated into UK law and the impact on policy of  the  UNCRPD  committee’s  position  papers  and its 2015 UK inquiry into the impact of austerity on independent living was doubtful.

What is needed is implementation of the s1 EA socio- economic duty, stronger rights to independent living, reform of mental capacity law and full implementation of  the  Equality  and  Human  Rights  Commission’s (EHRC) general duty under s3 Equality Act 2006 to ‘change the world’.

Neill concluded by reminding  the  audience  that  the law is not in charge; ‘for legal intervention to be successful it must concentrate on improved communication and engagement’ with the market, the workplace and the administration. As well as government and non- government action, we need strategic communications painting a hopeful vision of the world we want to see and the solutions required. We need to build movements and pan-political engagement with new alliances around shared values rather than identity, and we need to harness consumer power to demand change.

The lived experience, an ongoing multidirectional battle

Doug Paulley outlined some of the campaigning issues of Disabled People Against Cuts (DPAC) such as challenging the work capability assessments which have led to suicides, or the closure of the Independent Living Fund which has forced disabled people back into residential care. Its campaigning mechanisms include legal action, research and non-violent direct action.

High on the DPAC agenda are the concerns highlighted  by  the  UNCRPD’s  2017  report;  these included Brexit, the decimation of the UK disabled people’s   organisations,   austerity’s   disproportionate effect on disabled people and barriers to access to justice such as Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) or the lack of personal assistance or interpreters in court.

Stating   ‘the   EA   doesn’t   work   for   me’,   Doug acknowledged that legal action is just one tool to (attempt  to)  push  equality  issues  up   the   agenda of organisations, to redefine issues as illegal discrimination rather than customer service ones and to force change, publicise concerns and obtain some form of redress. However it is not the only tool, and Doug successfully sued FirstGroup plc (Firstgroup Plc v Paulley [2017] UKSC 4; Briefing 818) for a failure to make reasonable adjustments  in  relation to accommodating wheelchair users on its buses, he objects to his experience being used as evidence that the EA is enforceable by any disabled person. The SC case didn’t work he said; he lost money taking it, experienced considerable hate reaction as a result, and it hasn’t changed practice on the ground.

Although Doug has initiated more than 50 cases against a wide range of defendants since 2000, the barriers to accessing justice are almost insurmountable for many disabled people. These include the impenetrable complexity of the court process and the courts’ physical inaccessibility, the lack of legal aid and available lawyers, the financial, mental and emotional health risks, insufficient social care for disabled people and a general lack of familiarity with the EA and relevant case law.

But legal challenges aren’t an answer in themselves, he argued; as a form of  campaigning, they need  to  be run alongside other forms of awareness-raising, lobbying, protests and direct action. ‘We need the 99% to stand up and say “We will not let this happen”.’

Doug concluded by highlighting the importance of peer support for disabled activists (available from the DPAC, Transport for All and Reasonable Access), the need for allies including legal allies, and the Disability Conciliation Service.

Discrimination law and cases update

Robin Allen QC delivered a joint paper written by Catherine Casserley and himself which  analysed key employment and disability cases and outlined challenges for advisers contesting disability discrimination.

The disability employment gap has not changed for more than a decade, despite 25 years elapsing since the implementation of the Disability Discrimination Act 1995. Research in May 2019 found that half of businesses surveyed said it is easier to recruit a non- disabled person than a disabled one, and a over a quarter of businesses claimed that they never had a disabled candidate for a job interview, despite there being 7.7 million disabled people of working age in the UK.

Robin argued we need to be proactive and plan to meet the needs of disabled people, whether in accessing employment, services or physical spaces, in order to avoid problems arising in the first place. Despite the legal requirement for anticipatory reasonable adjustments when planning services and buildings, the needs of disabled people still tend to be an afterthought. A failure to make disabled people aware of their rights in a manner which is clear and adapted to their needs only exacerbates the problems they experience.

Robin urged the audience to be creative and thoughtful in ensuring that the protections of the law are made accessible to a wider group of people.

The problem with access to justice: panel discussion

Chris Fry (Fry Law) opened the panel discussion by reminding the audience  of  the  devastating  impact  of LASPO which has taken away rights and reduced access to justice.

John Horan (Cloisters Chambers) spoke powerfully of his experience as a disabled barrister – the only disabled qualified barrister advising on disability rights in the UK. For him being disabled was ‘all about prizes or disciplinary proceedings’. He explained that as a disabled barrister he experiences a completely different world compared to his non-disabled colleagues. John provides pro bono support for 100s of disabled clients who,  because  of  the  last  three  UK  government’s policies which have stripped away advisers, legal aid and advice centres, have run out of options.

He argued that Brexit will further undermine disabled people’s rights as it threatens the UNCRPD which was implemented under the European Communities Act 1972 which will be repealed once the UK has left the EU.

Esther Leighton who set up Reasonable Access to provide practical support to disabled people to  assert and enforce their access rights spoke about the numerous legal challenges she has undertaken. Many of her access cases concern steps into shops and other premises – one of the most blatant and on-going failures to make reasonable adjustments. Highlighting costs’ risks she described ‘the law as an imperfect tool’. She is exploring ‘associative disability’ actions in order to expand the number of people affected by disability discrimination and able to challenge it.

Joanna Owen (EHRC) advised that the Commission is following up its formal inquiry into legal aid to see if access to justice for victims of discrimination can be improved. It has recommended to the Ministry of Justice that there need to be changes to the regulations governing   the   merits   of   the   case.   The   EHRC’s transport project is offering advice and assistance on challenges to transport systems on grounds of age and disability.

Members of the audience raised concerns about the ‘man made’ costs regime, deliberate government policy to block access to justice by imposing costs and eliminating legal aid, the absence of solicitors experienced in discrimination law in the county courts, and the need for the Disability Rights Commission’s successful goods and services conciliation scheme to be revived.

Geraldine Scullion

Editor, Briefings

We are extremely grateful to everyone who found time to attend the Conference and help make it such a success and in particular, of course, to all our wonderful speakers.  And very special thanks to our very generous hosts, Allen & Overy, for making it all possible.