The Department for Work and Pensions (DWP) just won a court case over a controversial cap on a benefit. A solicitor in the case has gone so far as to say the law is now ‘allowing’ the DWP to discriminate against people. What’s more, the DWP even admits that the benefit in question ends up making money for the taxpayer.
The DWP: capping again
As The Canary previously reported, the case centred around the Access to Work (AtW) policy. It is a scheme where the DWP gives a grant to an employee for changes or support they need to carry out their job. This is on top of any reasonable adjustments an employer should make under the Equality Act 2010.
AtW was introduced in 1994 with no limit on the funding available. But in 2015, the Conservative government capped the amount of money claimants could get at £42,100. It was going to increase this amount in April 2018 to £43,100. But on 22 March, the government said it would up it to £57,000. It is the cap itself which was central to the court case.
The legal case
The claimant, David Buxton, argued that the cap breached the government’s obligations under the Equality Act. This is because it doesn’t provide enough support to cover his needs. As the Disability News Service (DNS) reported, Buxton, the chief executive of the charity Action on Disability, brought the case against the DWP because it would only give him British Sign Language (BSL) interpreters three days a week for his full-time job.
Buxton and his legal team from Deighton Pierce Glynn argued that the cap discriminates against him. This is because it leaves him with no communication support for two days a week.
Work and pensions secretary Esther McVey claims that the cap was put in place:
in order to encourage better use of public funds and to enable Access to Work to support more people – particularly traditionally under-represented groups…
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She also said that the cap would free up £2m a year, to “support growing numbers” of people claiming AtW. Effectively, the government’s argument is to take money away from people at the top of the AtW spend and give it to those at the bottom.
The judge in the case sided with the DWP. Mr Justice Kerr said that the cap was not discriminatory nor a breach of the Equality Act 2010. This is because he believed the DWP’s arguments that the cap was intended to:
bring more disabled people into the workplace, improve compliance by employers with their duties to provide adjustments and distribute the Scheme’s funds in a manner that is judged fair as between different categories of recipients.
But Kerr, somewhat paradoxically, noted that the cap meant:
The sacrifice demanded of high cost award holders, mostly deaf persons such as Mr Buxton, is pitched at a level that still leaves them enough money to pay for most or all of a BSL interpreters services for 230 days each year at NUBSLI rates.
So he effectively admitted that the AtW cap would leave people without some of the support they needed.
You can read the full judgement below:
“Allowed” to discriminate
Buxton’s solicitor Louise Whitfield said in a Facebook statement:
This is one of the very few cases in which the courts have been asked to look at the rights of Deaf people using BSL as their first or preferred language and the impact on them of a system which fails to properly protect their fundamental rights in this respect. Despite the very real gains of the massively increased cap, it is extremely disappointing that the Government failed to recognise the significant adverse impact on Deaf people of preventing them from working in roles that need high levels of support. We will never see equality for Deaf and disabled people if this remains the Government’s position. We believe more judicial review cases in future will influence Parliament to review the Equality Act if all these cases are lost in favour of those who can be ‘allowed’ by law to discriminate against Deaf and disabled people.
Buxton said in a statement on Facebook:
It was very clear that the Government had to increase the cap by 35% to £57,200 a few weeks before the judicial review hearing… Without this increase, I almost certainly would have won the judicial review case…
But speaking to The Canary, Buxton elaborated on his concerns.
A benefit that makes money
Central to his case is the fact that the AtW scheme actually makes the government money. A report by Liz Sayce for the government in 2011 found that:
there is a net return to the Treasury of £1.48 for every £1.00 spent on the [AtW] programme. More recent analysis by the Department has backed this up by showing there is an even higher social return on investment for every £1.00 invested in the programme (the social return on investment includes savings such as healthcare costs…)
But a work and pensions select committee report noted that the DWP disputes the £1.48 Treasury return figure. As the committee’s minutes note, a DWP minister said:
the £1.48 figure was not supported by official research; DWP had ‘not been able to establish the workings for that figure’. He indicated that he had asked DWP officials to ‘undertake some analytical work’ on the cost-effectiveness of AtW because, ‘if we are going to have a discussion with Treasury colleagues about funding, we want some good evidence’.
Buxton told The Canary:
When asked why government decided to introduce a cap, [the DWP’s] answer was to save £2m and use the released funds to get more disabled people on the AtW scheme. The fact is that the government gets money back when more disabled people get jobs. They have still not to date published accurate figures on returns to the Treasury. But they continue to dispute the findings of the Sayce Report despite the fact they were part of the working group for it.
All this left him having to make significant changes at work. He told The Canary he made Monday and Friday administrative days. This meant Buxton could have all his meetings which needed a BSL interpreter on other days. But as he noted:
Staff still need to see me for 5, 10, 20 or 30 minutes every day for a variety of reasons… Each day depends on what people expect me to respond and function well as a responsible CEO. This cap has caused me a lot of stress and isolation. Some days, I don’t have any funds to pay for interpreters… I had to organise my AtW support nearly every day; planning ahead, making sure that I have enough cover. This is overbearing and unnecessarily creates hours of extra work.
The DWP says…
The Canary asked the DWP for comment but it failed to respond.
Buxton pertinently concluded:
The fact is that the AtW scheme ran for over 20 years until they suddenly decided to introduce the new cap. We made positive progress in our careers; slowly climbing up to various roles, obtaining more skills and experience. It is not about ‘meeting minimum needs’.
Would this [the cap] be appropriate for a deaf, BSL-using government minister? Would the DWP decide to tell a deaf, BSL-using minister: ‘Sorry, you have a funding cap. You’ll have to re-organise your job’…
This is why the cap is directly discriminatory towards deaf and disabled people who are ‘too expensive’. It’s not our fault we’re deaf. Many of us want work. We have amazing skills that will benefit so many people. Why not scrap the cap, set up an independent panel to assess and decide what is fair for each person to get the right support?
Hypocrisy in the extreme
Ultimately, the government’s austerity agenda has partly led to the cap. It claims it’s not about saving money, but redistributing it. So why does it not, instead, make more money available – especially as AtW actually makes the government money? This would mean every deaf and disabled person can have the support they need. The answer lies in the ‘live within our means’ rhetoric. Even though AtW costs less than 0.1% of the DWP’s welfare bill.
If you buy into the idea of social mobility, then AtW is a perfect example of this. Because it supports deaf and disabled people into higher paid, senior employment. This is a mantra the government believes in. Yet by capping AtW, it is effectively stopping the same people it proclaims to want to help from rising up the employment ladder.
Not only is it hypocritical in the extreme, but it shows the hollowness of the government’s words on disability. In the end, this is just another example in a long line of cases where the DWP and the government treat deaf and disabled people as second class citizens. And they continue to get away with it.
– Sign the petition to stop Access to Work changes.
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