Frontline 88

FRONTLINE Law Centre (NI) social welfare law quarterly

88 SUMMER 2013

Capacity legislation Welfare reform Rights in Progress Advice matters

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CONTENTS

FRONTLINE 88

editorial

practitioner

Employment law reform

4

news Why advice matters

5

Human rights guide

6

Migrants and benefits

7

Social security update

21

Equal pay

24

Ombudsman

25

reviews Books and reports

26

Cases that changed the world 8 Refugee week; transfer to ESA 9 Credit unions

10

16

features

FRONTLINE 88 Editor Catherine Couvert Design & Layout Michael W Beggs Cover image: Mental capacity legislation word cloud. © Law Centre (NI) 2013 All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or transmitted in any form by any means, including photocopying/recording, without prior written permission of Law Centre (NI).

Welfare reform

11

FOCUS: Capacity legislation

14

Bamford’s vision

14

Carers’ hopes

16

Disability Action

17

Alzheimer’s Society

18

Occupational therapists

19

Children’s Law Centre

20

Editorial Panel

Editorial/Advertising

Seana McAuley NICVA

124 Donegall Street, Belfast, BT1 2GY Tel: 028 9024 4401 Fax: 028 9023 6340 Textphone: 028 9023 9938

Kevin Higgins Advice NI Sharon Geary Housing Rights Service

Email: admin.belfast@lawcentreni.org

Gráinne McKeever University of Ulster

Website: www.lawcentreni.org

Twitter: @LawCentreNI

Ursula O'Hare, Patricia Carty and Jennifer Greenfield Law Centre (NI)

ISSN 0962 - 8800

Sian Fisher Citizens Advice

Frontline is published four times per year by Law Centre (NI). It aims to provide a forum for information, analysis and opinion on matters relating to welfare law and allied social policy issues. Views expressed in the magazine should not be taken to be those of Law Centre (NI).

Law Centre®

Frontline is available in large print on request from our publications unit.

Phone: 028 9024 4401 or email: admin.belfast@lawcentreni.org Frontline | Summer 2013 | 3

EDITORIAL

Dispute resolution DEL puts progressive stamp on employment law At the time of writing a consultation paper on the way forward for employment law is before the Northern Ireland Executive for agreement prior to wider circulation. The paper follows DEL’s earlier discussion paper.

The Minister and the Department have shown a refreshing willingness to move beyond legislative and policy reform that entails scoring out GB and writing in NI instead. Stephen Farry has not bought the line that deregulation of the labour market is the answer to the creation of jobs. Deregulation of the labour market is, of course, code for reducing workers rights. As a result, the increase in the qualification period for claiming unfair dismissal to two years has not been implemented in Northern Ireland. Instead, there will be further discussion and research on the qualification period and the consultation paper will indicate the direction of travel. In addition, the swap of shares for loss of employment rights will not be introduced and a number of the reforms to tribunal procedure including increased costs, caps and deposits when taking a claim will not be applied.

4 | Frontline | Summer 2013

Elsewhere, the Department is examining the ways that Alternative Dispute Resolution (ADR) can be applied to ensure more cases are resolved prior to tribunal. This is not before time. In 2011/2012, 66 per cent of employees and 37 per cent of employers attended industrial tribunals without representation. The figures for fair employment tribunals are 75 per cent and 37 per cent respectively.

The Labour Relations Agency’s ADR scheme has been given an expanded role to go beyond claims for dismissal and the Agency has sent model proposals to the Department on resolving claims at an earlier stage.

The Department has also commissioned the Rules Committee and the Labour Relations Agency to look at Early Neutral Evaluation (ENE) covering both ADR and tribunal procedures. The Law Centre produced a manifesto for dispute resolution in 2009, covering procedures for conciliation, mediation and ENE. At the time it generated little interest but it has recently developed momentum, with both employers and trade unions recognising that adjudication on rights in the workplace needs a more economically effective approach. The model, now revised and updated, was recently described by a senior official as one whose ‘time may have come’. The Early Neutral Evaluation approach is particularly interesting as it is home grown, with no equivalent initiative being pursued in Britain.

A more multi faceted approach will still recognise that certain types of cases are likely to proceed to tribunal and could even be fast tracked

‘In 2011/2012, 66 per cent of employees and 37 per cent of employers attended industrial tribunals without representation. (for example, equal pay for equal value claims covering large numbers of workers). It could also free up resources to allow for an upper tribunal to act as an interim between the industrial tribunal and the Court of Appeal. At present, some important public interest cases fall as applications need to reply on qualifying for legal aid throughout the lengthy period taken to get to the Court of Appeal.

The completion of the move of all tribunals to independence from their own Departments, which should include employment tribunals, is another part of the employment law reform agenda. The reform agenda also needs to embrace a Single Equality Act where, in UK discrimination law, Northern Ireland has gone from once leading the field to being in danger of being overlapped.

The consultation paper is one part of the reform mosaic. It is important that the current momentum is sustained in order to ensure that the best possible way of resolving employment disputes is devised.

For details of the Law Centre’s model for dispute resolution contact Liz Griffith at the Law Centre: elizabeth.griffith@lawcentreni.org Les Allamby

NEWS

Why advice matters Advice critical to help people cope with welfare changes A report launched at Stormont on 2 July by the Northern Ireland Advice Services Consortium (Advice NI, Citizens Advice and Law Centre (NI)) highlights the likely impact of welfare reform on people across Northern Ireland and how advice providers will be called upon to help those struggling to cope with the changes.

Launching the report, Bob Stronge, Chief Executive of Advice NI, speaking on behalf of the Consortium, commented: ‘The proposals contained within the Welfare Reform Bill will have far-reaching repercussions and the report highlights a clear consensus that many people will turn to independent advice services for help to cope with the changes. Advisers can help people understand what is happening; try to resolve problems at an early stage; and ultimately help people to dispute decisions where appropriate. However, we need to act now to ensure that in-

dependent advice services are fully supported to meet the additional demand that will be created by welfare reform.’

The report, Why Advice Matters, highlights some stark facts including: ww The reform of Disability Living

Allowance between 2013 and 2015 could mean that over half of claimants could see their benefit reduced or completely removed;

ww The introduction of Universal

Credit will impact on 287,000 households across Northern Ireland;

ww The demand for independent ad-

vice has grown steadily with over two million enquiries dealt with over the past four years;

ww Representation by advisers can

double the chances of success at benefit tribunals.

MLAs help launch Why Advice Matters at Stormont: L. to R: Mark H. Durkan (SDLP), Fra McCann (Sinn Fein), Pam Brown (DUP), Mickey Brady (Sinn Fein), Michael Copeland (UUP) . Photo: Belfast Exposed

Frontline | Summer 2013 | 5

NEWS

All aboard to launch human rights guide On 14 June, Law Centre (NI) launched the fourth edition of Rights in Progress: A guide to the European Convention on Human Rights and the Human Rights Act, on Belfast Barge, with Professor Michael O’Flaherty, Chief Commissioner of the Northern Ireland Human Rights Commission.

Rights in Progress is a comprehensive and accessible introduction to using the Human Rights Act, which demonstrates how human rights laws relate in practice to the daily work of advisers.

This edition, written by Les Allamby, Law Centre (NI) director, and Jonathan Simpson solicitor, details recent cases in the courts in Northern Ireland and Britain and at the European Convention on Human Rights in Strasbourg.

Professor Michael O’Flaherty, Chief Commissioner of the Northern Ireland Human Rights Commission which funded the project, said: ‘For human rights law to actually make a difference for our lives, it is imperative that we are aware of its provisions and understand how it applies for us. That is the purpose of this publication.

You need no special training or legal skills to use this manual and it is hoped that it will be put to good use by individuals, community groups, government officials and

Professor Michael O’Flaherty, NIHRC Director Virginia McVea, Les Allamby and Jonathan Simpson launching Rights in Progress 4th edition. Photo: Michael Beggs

any other person or group that is concerned with the promotion and protection of human rights.

Use it confidently in demanding that your rights be respected and that our society be a fair and decent one that values each of its members as free and equal.’

Les Allamby added: ‘The Convention provides important rights and protections, including an

absolute right to freedom from torture, inhuman and degrading treatment, the right to privacy and family life, freedom of expression, freedom of association and assembly and freedom of conscience. These are important rights and protections.

The guide shows in practice how the European Court of Human Rights and domestic courts examine the legalities of restrictions on Convention rights by considering their necessity and proportionality across a range of areas of public life.

It is important to separate the myths from the realities of how the Human Rights Act works. This guide aims to do that.’

Rights in Progress was distributed free to Law Centre membership and otherwise retails at £10.00.

Photo: Michael Beggs

6 | Frontline | Summer 2013

Copies can be obtained from our Publications Unit: catherine. couvert@lawcentreni.org or ring 9024 4401.

NEWS

Migrants and benefits Advisers guide launched at BIPP celebration

Patricia Carty, social security adviser at Law Centre (NI), announced the publication of a new guide on migrants and benefits at a celebration of the achievements of Belfast Integration and Participation Project during Refugee Week. She explains the Law Centre’s role in this successful project.

The Law Centre has been working with migrant communities on social security, immigration and employment rights since the 1980s.

Working with GEMS, the South Belfast Partnership and Belfast City Council on the BIPP Project has been a great opportunity to join forces with other organisations offering different services and targeting different needs.

Migrants and benefits ‘Migrants and Benefits- an Adviser’s Guide’ will be going live on the Law Centre’s website in August and

Patricia Carty speaking at BIPP celebration.

Photo: Arev Vardanyan

will be free to access and easily downloadable.

Over the last year the Law Centre has organised training sessions for people who give information and advice to migrant communities in Belfast.

Around 100 people have attended, including advisers, migrant representatives, social workers, solicitors and political representatives.

Migrants and Benefits deals with issues which these advisers told us they often struggle to find answers to, such as right to reside and habitual residence tests, and the rights of non EEA family members to benefits.

The guide also covers the rights of Croatian nationals, from the end of June when Croatia joined the EU.

Information and advice can make a difference

Migrants and benefits an advisers guide

Patricia Carty, Law Centre (NI) for Belfast Integration and Participation Project

Access to information and advice can make a real difference to people’s lives.

It can be difficult for migrants and their advisers to work out what benefits can be claimed and what to do if there are delays in payment or if a claim is refused. This can have very serious consequences for families.

Refugees are entitled to social security benefits and it is very important that their claims are processed quickly.

Feedback from advisers attending the training and practitioner groups has been that the information shared in the project has made a huge difference to the experience of refugees claiming benefits in Belfast.

Advisers have been able to use their training and have seen delays of payment in Child Tax Credit of up to six months reducing to one month.

This is still too long and we will continue working with networks built through BIPP to address ongoing problems.

Supporting advisers There is an enormous amount of talent, good will and enthusiasm in Belfast among those working with migrant communities. Many migrants work at offering high quality information and advice within their own communities and beyond.

We would like to encourage advisers, support groups and individuals to download and make full use of the guide and to tell people about it. We also welcome your feedback.

The guide will be published in August and, along with other publications on rights of migrants, will be found on: www.lawcentreni.org/publications/ migrant-workers.html.

Frontline | Summer 2013 | 7

NEWS

Refugee law: cases that changed the world Law Centre (NI) policy officer Liz Griffith reports on an inspiring refugee week event.

As part of celebrations for Refugee Week 2013, the Law Centre hosted an evening, ‘Refugee law: cases that changed the world’ on 20 June.

It was a vibrant and entertaining evening – perhaps not words usually associated with legal discussions.

Four speakers from the legal profession and academia each had ten minutes to select and present the most groundbreaking case in the history of refugee law. In pure audacious X Factor fashion, it was then up to the audience to pick the best case. The speakers, Buster Cox (Law Centre (NI)), Professor Colin Harvey (QUB), Steven McQuitty (Bar Library) and Virginia McVea (NIHRC), rose to the challenge and went head to head valiantly – all under the masterful watch of the chair, the Honourable Mr Justice Weir.

The cases were indeed worthy headline acts and are summarised here: ww Shah & Islam was determined by

the House of Lords in 1999 and involved two Pakistani women fleeing domestic violence. The judges held that these women were entitled to rely on protection under the Refugee Convention.

This was a huge step forward for providing refuge from genderbased persecution. In addition, the case embedded the seemingly mathematical principle: Persecution = serious harm + failure of state protection. ww Chalal v UK made it all the way

to the European Court of Human Rights back in 1996. This case enshrined the concept that the prohibition against torture, as outlined at Article 3 of the European Convention on Human Rights, is absolute. The prohibition applies regardless of the individual’s conduct.

ww HJ(Iran) and HR(Cameroon) was

heard by the Supreme Court in 2010 and involved two gay men from Iran and Cameroon. Both feared prosecution upon return because of their sexual orientation. The question was: ‘is it reasonable to expect a refugee to conceal their sexual identity to avoid suffering severe harm?’ The Supreme Court’s answer was a resounding no: sexuality and race are similarly unchangeable characteristics and must be treated in the same way. Given the Lords’ clear position of absolute equality, this case has broad ramifications for those fighting discrimination on other fronts.

ww Limbuela and Others of 2005 is

the key case for anyone working in social welfare rights. The case involved refused asylum seekers who were prohibited from working and barred from accessing benefits and were thus destitute.

The House of Lords determined that refusing to provide support in such instances could put the government in breach of Article 3 ECHR.

ww A fifth case, Sufi & Elmi v UK, was

proposed by Helena Wilson from the floor. This important lead case held that indiscriminate violence in failed states can amount to a violation of Article 3 ECHR.

The audience vote proved that all speakers had made an excellent case.

After a nail-biting vote count, Buster Cox (Shah & Islam) stole a slim victory.

Professor Colin Harvey took the opportunity to suggest an alternative vote. He proposed that the audience stand together to defend legality and principle against political expediency. He urged everyone to try and embody human rights values and to stand united for the rights of refugees. The motion was put to the floor, to a unanimous vote.

A big thank you to all who participated.

Ready for the challenge: Steven McQuitty, Bar Council, Buster Cox, Law Centre (NI), Virginia McVea, Northern Ireland Human Rights Commission and Professor Colin Harvey, QUB. Photo: Catherine Couvert

8 | Frontline | Summer 2013

NEWS

Celebrating refugee week 2013

News in brief

This year, the Law Centre celebrated Refugee Week (17-23 June) with a debate on asylum caselaw (see page 8) and joined into a packed programme of events organised by Northern Ireland Community of Refugees and Asylum Seekers and many other groups. Below are snapshots of the week.

Transfer to ESA: the story so far

Left: Justin Kouame of NICRAS launches Refugee Week. Right: in the audience at the Stop Deportations workshop.

Photos:Arev Vardanyan

Statistics recently released by the Social Security Agency reveal that, at 28 February 2013: -50,789 Incapacity Benefit claimants had started the reassessment process; - of these, 43,943 had been assessed by a healthcare professional; - 30,317 of them are now entitled to Employment and Support Allowance as a result of reassessment (14,892 in the Work Related Activity Group and 15,425 in the Support Group); - 12,977 have been disallowed, with 648 other outcomes; - 9,134 have appealed against the decision to disallow benefit and 285 have appealed against being placed in the work related activity group; - 2,442 appeals have been heard with 907 being allowed (37.14%).

Mencap welcomes DHSSPS funding BIPP celebration. Left: Jennifer Greenfield talks to Stephanie Mitchell of South Belfast Roundtable. Right: the Lord Mayor’s speech. Photos:Arev Vardanyan

On 8 July, Health Minister Edwin Poots announced £2.5 million funding towards the development of a Mencap centre offering support services to children and young people with learning disabilities and their families.

Court of Appeal upholds adoption decision

Refugee cases that changed the world. Buster Cox presents his case, with Colin Harvey, Justice Weir and an attentive audience. Photos: Catherine Couvert

New look website for Housing Rights Housing Rights Service has redesigned and reorganised its website into an easy to use resource for advisers and other housing rights professionals.

With information on: News and views Training and events Helping you advise clients Housing law in practice Getting involved www.housingrights,org.uk

On 27 June, the Northern Ireland Court of Appeal dismissed a DHSSPS appeal against an earlier High Court decision that the Department’s blanket ban on unmarried couples adopting jointly and on civil partners adopting was discriminatory and a breach of human rights.

Human slavery law passed in Republic On 5 July, the Criminal Law (Human Trafficking) Amendment Bill 2013 was passed unanimously in the Houses of the Oireachtas. The Bill incorporates a full definition of forced labour (including trafficking for the purposes of forced begging and criminal activities) into Irish law.

Frontline | Summer 2013 | 9

NEWS

Reaching out: credit unions and low income households Nicola McCrudden, policy and communications manager with Housing Rights Service, discusses ‘Towards Financial Inclusion, the expansion of credit union financial services for low income households’.

A Housing Rights Service report into how credit unions are serving lowincome communities was launched in 1 May at an event attended by First Minister Peter Robinson.

‘Towards Financial Inclusion, the expansion of credit union financial services for low-income households’ was commissioned out of concern about increasing use of high-cost lending among low-income households and the crippling impact on families.

Debt and homelessness Housing Rights Service has witnessed unprecedented demand in advice from people falling behind with mortgage and rent payments.

With poor or no credit ratings, many clients find it difficult to access credit from mainstream financial providers.

With fewer available options, more people are resorting to higher interest products from alternative credit sources, including pay day loans, doorstep lenders and loan sharks.

Repeated use of these forms of credit can lead to vicious cycles of overindebtedness resulting in people defaulting on housing payments and leaving many vulnerable to homelessness.

The wide reach of credit unions The study found that most Northern Ireland credit unions are embedded within low-income communities and have significant experience in providing financial services to people excluded from mainstream financial providers.

Over 50 per cent of credit union participants in the study regarded high cost, sub-prime credit providers

10 | Frontline | Summer 2013

as their main competitors. Thirteen per cent said these were illegal lenders and loan sharks.

Credit unions serve around 34 per cent of the Northern Ireland population, as opposed to just two per cent in Britain.

However, the study found evidence to suggest that certain sections of Northern Ireland society are not being reached. For example, only four per cent of Housing Executive tenants are credit union members.

Author Dr Paul Jones said: ‘Credit unions in Northern Ireland have a long history of serving lowincome communities. The tenants and residents of social housing estates that we spoke to said that they found them to be approachable, friendly and responsive to the needs of ordinary working people.

However, they also identified a number of barriers that prevented some people from accessing their services. These included practical issues concerning the membership application process and often having to save before borrowing.’

Scope for expansion Yet the study revealed a commitment on the part of many Northern Ireland credit unions to expand their range of products and services to serve the needs of people on low incomes or facing financial exclusion.

The report details these products and services and explores some of the economic and operational challenges credit unions face in reaching out further into the low-income market.

Dr Jones believes that, with their sound base in the community and commitment to social justice, credit unions are in a strong position to expand.

Around 50 per cent of the tenants and residents he spoke to would like credit unions to offer current accounts for wages, benefits and bills payment, and budgeting accounts to help with money management, in addition to the traditional loans and

Towards Financial Inclusion The expansion of credit union financial services for lowincome households in Northern Ireland

Kindly supported by

Paul A Jones Research Unit for Financial Inclusion Liverpool John Moores University May 2013

savings products.

The study explored ways in which credit unions can work more closely with the Northern Ireland Executive and others to ensure their services reach all those who need them.

Working together to promote affordable services These findings are critically important in stimulating debate about the future of affordable financial services locally.

There is scope for credit unions, working alongside other stakeholders, to play an enhanced role in serving low-income and financially excluded groups within these communities.

We hope the research will inform debate around promoting affordable credit options, showing how government and stakeholders can work together to begin to tackle over-reliance on high cost credit and support the financial stability of low-income households.

The full report and summary are available from www.housingrights. org.uk

FEATURE | Welfare reform

WELFARE REFORM

Storm clouds gathering

As Stormont braces itself for Welfare Reform Bill discussions in the autumn, Law Centre (NI) director Les Allamby explains developments and problems in the phasing in of changes in Britain.

With welfare reform there is a sense of the ‘calm before the storm’, with the Department’s hopes of getting the welfare reform bill through the Assembly before the summer recess having been dashed. With the Bill likely to reach the floor of the Assembly in the autumn, now is a good time to reflect on what is happening in Britain, covering both the timetable for change and legal challenges.

Universal Credit The Universal Credit pathfinder pilot began in Ashton Upon Lyme in the North West of England from 29 April 2013 and will be rolled out in Wigan, Warrington and Oldham from the end of July. The focus of the pilot will be narrow, covering individuals who are single, completely new claimants and not on other means tested benefits, aged eighteen to 60 years and six months and not on DLA. The Pathfinder is expected to cover up to 7,000 claimants. In effect, it is the

most straightforward claims which are being trialled. Claims are to be made online and if you have nothing better to do you can try it yourself.

The information that is inputted cannot be saved for a later date so making a claim without having all the relevant information at your fingertips will be problematic.

The further roll out from October 2013 will apply to unemployed claimants first, but beyond this the extent of the commencement is currently unclear. In practice, the planned introduction of Universal Credit in Northern Ireland in April 2014 may not be that far behind Britain.

Timetable for key welfare reform provisions in Britain 1 1 April 2013

The local housing allowance size criteria introduced in public sector housing

15 April 2013

Benefit cap piloted in parts of London

29 April 2013

Universal Credit Pathfinder, and mandatory revision before appeal introduced in public sector housing

8 June 2013

Personal Independence Payment introduced

15 July 2013

Second phase of Benefit Cap to be introduced

12 August 2013

Third phase of Benefit Cap to be introduced

October 2013

Universal Credit to be introduced for new claimants nationally Transfer of DLA claims to Personal Independence Payment to begin with those on fixed term awards or with changes of circumstances

April 2014

Existing claimants on means-tested benefits and tax credits to start moving on to Universal Credit

October 2015

The transfer of existing claimants on DLA not already transferred to PIP will begin

Late 2016

Completion of transfer of all DLA claims to PIP

October 2017

Completion of all claims for existing means-tested benefits and tax credits to Universal Credit.

Frontline | Summer 2013 | 11

FEATURE | Welfare reform

Photo: Catherine Couvert

Benefit cap

Personal Independence Payment

The ‘benefit cap’ is now being introduced in three phases. The first phase covered four London boroughs (Bromley, Croydon, Enfield and Haringey) in April 2013. The second phase will cover local authorities with fewer than 275 households likely to be affected from 15 July 2013 and the final phase will cover local authorities with more than 275 likely to be affected from 12 August 2013. The DWP has emphasized that the third phase will need to retain flexibility, with the impact of Phase 2 possibly leading to changes in the timetable for Phase 3.

From April, Personal Independence Payment was introduced on a pilot basis with new claims made across Britain being taken from 8 June 2013.

The transfer of existing claims from DLA to PIP will begin in October 2013 on a phased basis. As in Northern Ireland, the timetable for the roll out has been slowed considerably from initial plans.

Spare room tax The spare room tax has been in place since 1 April 2013, with reports of increases in demand for discretionary housing payments in Scotland, Wales and parts of England. The Scottish Parliament has set up a committee of MSPs to examine the powers that local authorities, social landlords and the Parliament have to mitigate the impact of the tax. Capability Scotland published a survey in June 2013 which found a quarter of disabled people survey will see their Housing Benefit cut due to the changes.1

12 | Frontline | Summer 2013

Mandatory revision The mandatory revision of a decision before appeal has started for Universal Credit and PIP and will be extended to other benefits except Housing Benefit from 28 October 2013.

Careful phasing The more careful phasing in of a number of the welfare reform provisions reflects the continuing uncertainty around delivering fully, on time, the IT provisions and caution around the pace and extent of change being implemented over such a short period. This level of risk was reflected in the Major Project Authority raising doubts about the Universal Credit programme, PIP implementation and benefit cap in its assessment of

There is a need to watch closely what is happening in Britain as we prepare for the full debate on the Northern Ireland Bill in the autumn. progress report in May 2013. It means that we may not know as much about the actual impact of some of the changes in advance of our own Bill being considered in the Assembly.

Legal challenges There are a number of significant legal challenges to key parts of welfare reform before the courts in England and Wales.

‘Over occupancy’ Leave has been granted in ten judicial review challenges to the requirement to share a room or lose Housing Benefit for ‘over-occupying’ accom-

FEATURE | Welfare reform modation. The challenges include couples and children who cannot share a room due to disability, individuals with physical and mental health problems that mean being forced to move would be harmful, a woman facing domestic violence from a former partner and separated parents with shared caring responsibilities for a disabled child.2 In at least one case already, the Law Centre has been contacted about concerns where the Housing Executive has allocated accommodation with an additional bedroom to meet the specific needs of a disabled and non-disabled child while accepting that Housing Benefit may be reduced accordingly if the spare room tax is introduced.

The judicial review cases were heard in May 2013. The Equality and Human Rights Commission intervened as an independent third party, arguing that the regulations breach the European Convention on Human Rights, in particular Article 14 (the freedom from discrimination) when read with Article 8 (the right to respect for family life and home). To date no judgement has been given.

In a separate case, a judicial review has also been lodged on behalf of a woman who has been the victim of rape, assault, harassment and stalking who has a specially adapted additional bedroom as a reinforced safe space in her home and will lose Housing Benefit as a result.

Benefit cap

ity) component who are arguing that the DWP’s decision to introduce the more stringent rules on walking than contained in the original consultation was unlawful.5

Watch this space The ongoing development in Britain suggests there is a need to watch closely what is happening as we prepare for the full debate on the Northern Ireland Bill in the autumn.

Footnotes 1 Squeezed out - counting the real cost of the bedroom tax – Capability Scotland www.capability-scotland.org.uk 2 R (MA and others and Daly and Drage and JD and Carmichael and Rourke) v Secretary of State for Work and Pensions 3 A v Secretary of State for Work and Pensions 4 see www.hmbsolicitors.co.uk for further details 5 see www.leighday.co.uk (press release 8 April 2013)

MLAs get empty purses in benefit cuts protest

T

rade unions held an ‘Empty Purse’ protest against benefit cuts at Parliament Buildings on 25 June. Campaigners handed out empty purses to MLAs as they were entering the building.

One of the main concerns of the Empty Purse Campaign is that, in Britain, in the case of married or cohabiting couples, Universal Credit will be paid to just one person. Campaigners fear that vulnerable women could lose what little financial independence they have at present and are asking Stormont politicians to ensure that this will not apply in Northern Ireland.

Lynn Carvill of Women’s Resource and Development Agency, who attended

the protest, said: ‘It is crucial that we get our message across to our politicians but also to the general public.

The new benefit Universal Credit will be paid to the nominated person in the household. Our societal default position is that it will be to the male ‘head of household’. Women across Northern Ireland are furious about this regressive move and rightly so. We are asking that Universal Credit should be paid to the second earner or main carer. If this is unpalatable, then it should be split. Women in the main are responsible for household budgeting and expenditure. They should have direct access to resources.’

A judicial review has also been issued against the benefit cap in the High Court. The challenge is based on the grounds that the cap is discriminatory and unreasonable. The case was heard on 5 June 2013 and a decision is awaited.4

PIP mobility Finally, the Department has announced a further consultation from late June on the mobility element of PIP. This is in response to concerns about the development of criteria requiring individuals to be able to walk no more than 20 metres to quality for PIP, considerably more restricted criteria than contained in DLA. This decision may be related to a further legal challenge by three claimants on the higher rate (mobil-

Photo: courtesy of WRDA

Frontline | Summer 2013 | 13

FOCUS | Capacity legislation

hopes and fears

For a capacity law balancing autonomy and support Voluntary and statutory organisations have been working hard with law makers to realise Bamford’s vision for capacity based legislation, which is due out for consultation next year.

In the next pages, representatives from stakeholder organisations present their hopes and concerns. The debate will be kept alive in the next issues of Frontline with contributions from other service users and practitioners.

BAMFORD’S VISION A comprehensive legal framework Roy McClelland, Chair of Bamford Review of Mental Health and Learning Disability, sets out the issues.

Now that proposals for a Mental Capacity Bill for the citizens of Northern Ireland are at an advanced stage, it is perhaps helpful to revisit the founding stimulus for legislative reform - the Bamford Review’s ‘Comprehensive Legislative Framework’.

The vision and rigour underpinning the Bamford proposals for reform of mental health legislation formed the bedrock of ground breaking proposals. The vision was the vision of the Bamford Review – ‘a valuing of all those with mental health needs or a learning disability, including their rights to full citizenship, equality of opportunity and self-determination’.

Important drivers were: ww the voices of users and carers; ww changes in society and profes-

sional practice;

ww human rights obligations;

14 | Frontline | Summer 2013

ww changes in mental health law in

other jurisdictions;

ww the introduction of capacity legis-

lation in other jurisdictions.

The emerging proposals were grounded on wide-ranging discussion over several years, consultations with Experts by Experience, carers, local stakeholders and external experts. Thoughtful attention was given to developments in other Western jurisdictions. The Review’s work happily coincided with preparatory work of the then Office of Law Reform to introduce new capacity legislation in Northern Ireland. This provided a unique opportunity to consider afresh the overall purpose of legislation and the guiding principles underpinning legislative reform and to develop a single comprehensive approach. There has been widespread

support for the approach taken and the framework proposals.

Rights based legislation The key proposal for statutory reform is that there should be a single, comprehensive legislative framework embracing reform of current mental health legislation and the introduction of capacity legislation.

This should centre on a single set of provisions: ww for all people who require substi-

tute decision making;

ww for all aspects of need including

mental health, physical health, welfare and finance.

Legislation should be based on principles and these should be explicitly stated. A rights-based approach was seen as the guiding principle - respect

FOCUS | Capacity legislation

Photo:Istock

‘A rights-based approach was seen as the guiding principle - respect for the decisions of all who are assumed to have capacity to make their own decisions.’ for the decisions of all who are assumed to have capacity to make their own decisions. Grounds for interfering with a person’s autonomy should be based primarily on impaired decision-making capacity arising from the effects of disorder of brain or mind.

New legislative proposals must contain measures that help protect both the individual and members of

the public where a person’s decisionmaking capacity is impaired. That said people who have decision-making capacity must take responsibility for the decisions they have made. Mental capacity based legislation cannot impose compulsion or restrictions on people who have decision-making capacity. Necessary provisions and protections must be provided under criminal justice legislation. The review recognised the need for a well-functioning interface with criminal justice legislation and supported the development of inter-agency risk management arrangements.

Ground breaking The proposals agreed by the Executive for a new Mental Capacity Bill are ground-breaking and innovative.

Bamford recognised that central to the success of developing new legislation is an inter-departmental approach. I believe the DHSSPS drafting team has maintained a high degree of fidelity with Bamford. Fidelity in how

they have gone about their work, in particular their inclusivity and openness. Also fidelity in what they presented for our consideration. The Department of Justice team have been deeply involved in mapping proposals developed for civil society unto the various situations within criminal justice.

Code of Practice If legislative change is to translate into meaningful improvements in the lives of those it is there to support, a strategy for information, education and training will be essential, including the introduction of a Code of Practice. Bamford also identified progress in the reforms and modernisation of mental health services as essential for the successful introduction of ground-breaking legislation.

Frontline | Summer 2013 | 15

FOCUS | Capacity legislation

CAUSE New terrain for carers Marie Gratton of Cause looks at the progress of mental capacity legislation from a carer’s point of view.

The planned Mental Capacity Bill enshrine the Bamford principles of autonomy and best interests at its core. Reflecting the core principles of the Bill, in essence carers supporting a loved one strive to help them secure the best quality of life coupled with independence whilst managing recovery from mental illness. CAUSE in its daily work supports families, partners and friends to navigate the challenges of supporting a loved one who has experienced serious mental illness.

Decision making and life relationships From a carer’s perspective, we would attach great importance to the relationship and plans made by service users and their family/carers addressing future scenarios as to how to act in their best interests when their decision-making capacity is assessed as lacking on issues of healthcare, welfare or finance. This very simply is the stuff of life which impacts, beyond the individual, across their families, partners and friends as fundamental life relationships.

Carers’ views are undervalued In CAUSE’s vision, we state that we want a society which recognises,

Photo: Taliesi

16 | Frontline | Summer 2013

‘There needs to be a significant cultural shift to give more weight to the knowledge which carers can contribute.’ respects, values and actively supports the central role of families, partners and friends who care for loved ones who have experienced serious mental illness. One of the key issues for many carers we work with is that currently, their knowledge and role is viewed as peripheral and undervalued by other parties in the planning of health and social care supports for their loved one. This can relate to the most basic aspects of care plans. This lack of carer engagement or acknowledgement that they could play a useful role in supporting a decision-making processes now, raises concerns about how ready the system will be to really recognise carers when decisions are taken on capacity and serious interventions under the new Bill.

Cultural shift needed There still needs to be a significant cultural shift to give more weight and recognise the knowledge which carers can contribute working with others in the best interest of their loved ones. Our aim at CAUSE through advocacy and support is to empower carers to have the appropriate information and involvement in planning care. A very important development from the Bill will be how we promote the use of advance planning and directives, for both carers and service users, as a constructive way of preparing for future scenarios where there is lack of capacity.

Informing the public There has to be effective communication to the wider community on how the pivotal aspects of the Bill will work and the potential impact on decision-making where the capacity is insufficient and, for carers, how other people could be involved in a very personal and emotional situation. The concepts and structures the new legislation will bring - supported decision-making, lasting power of attorney, access to and the role of advocacy and the implementation of safeguards, protection from liability in making a serious intervention need to be explained as to how these will work for people in everyday life.

CAUSE

www.cause.org.uk Helpline: 0845 6030291

FOCUS | Capacity legislation

disability action Protecting people with multiple disabilities Jennifer-Ruth Mcanlis, Human Rights Advocate at the Centre on Human Rights for People with Disabilities, explains why she would like the Bill to be in place as soon as possible, and to include children.

As a pan-disability organisation, Disability Action works with a large number of clients who would benefit from new legislation focusing on capacity.

The vision of a single Bill addressing mental capacity issues has the potential not only to unify existing codes of practice but to increase responsibility toward joined up working by legislating consultative approaches to decision making where an individual has been deemed not to have capacity. We aim to continue working with partner organisations and the Mental Health and Learning Disability Alliance to see this potential realised to its best possible outcome.

in fact have the capacity to make a decision themselves. This will have a significant impact on many of our clients who have had their capacity challenged at various times, or who have fluctuating capacity. Ensuring advocacy entitlement is not only tied to the most serious interventions can prevent an escalation of issues and lengthy and costly processes which are stress inducing for the client and could have been avoided by the timely intervention of an independent advocate.The upcoming consultation period is an important time to get these messages across.

Advocacy

‘Transforming Your Care’ is set to radically overhaul aspects of care provision in Northern Ireland and we are already seeing this through moves to close statutory nursing and residential care homes. Disability Action has noted a rapid increase in the number of clients who are having decisions made, ostensibly, in their best interests, about where they will live, or who is providing their daily care. While we do not anticipate more people coming under mental capacity legislation than previously, we do anticipate that the next period of time will see many interventions being made regarding centering care of individuals back into the community and changing the care provision on the ground.

We would like the Bill in place as quickly as possible to provide protec-

One of the main thrusts of our work is advocacy for individuals. This has been an ad hoc and underdeveloped sector in Northern Ireland as a whole and we are very happy to see a right to advocacy being considered in the new legislation. We would like to see this right to include guaranteed direct access to an advocate to ensure understanding of the role and benefits advocacy could offer before deciding if they want an advocate. This would prevent those misusing power in relation to a vulnerable adult from isolating them.

Self-determination By supporting people in making decisions they can be prevented from coming under the Bill when they

Impact of Transforming Your Care

‘Ensuring advocacy entitlement is not only tied to the most serious interventions can prevent an escalation of issues.’ tion for those under its remit whose care is being transformed.

Children and young people With regard to children and young people with disabilities, we believe it is vital that at least all of the safeguards provided to adults must be provided to those who come under the Bill.

For further information on the Centre on Human Rights at Disability Action, visit www.disabilityhumanrights.org

Centre on Human Rights for People with Disabilities

www.disabilityaction.org/centre-onhuman-rights Phone: 9029 7880 Textphone: 9029 7882 Fax: 9029 7881 Email: humanrights@disabilityaction.org

Frontline | Summer 2013 | 17

FOCUS | Capacity legislation

ALZHEIMER’S SOCIETY Empowering people with dementia Elizabeth Byrne McCullough, Policy and Public Affairs, Alzheimer’s Society in Northern Ireland, explains how legal change could help people with dementia to exercise their rights at every stage of their illness.

Dementia and capacity Dementia is a serious and complex medical condition which presents people who have a diagnosis with a gradual and profound impairment in memory, thinking and communication skills, as well as skills needed to do everyday tasks. It is not a normal part of ageing and symptoms may be very slight in the early stages but will become more pronounced as the condition progresses. A person may live for many years with dementia and be in the late stages for a protracted time. Fluctuating mental capacity is a feature of dementia; a person may recover decision making capacity after a period of loss but towards the end of life, total loss of capacity is likely. To get a positive outcome people need to be given information relevant to the decision they are making; the time and the location need to be right; and

‘It sometimes seemed that the minute my back was turned, something else would be done without any consultation and always with the comment that it was for my own good.’

Supporting people with dementia using the MCA Alzheimer’s Society 2009

18 | Frontline | Summer 2013

those who can support the person need to be involved.

A framework for best practice In creating a framework which promotes best practice in decision making, the Bill will not only protect the rights of a person with dementia whose decision making capacity is impaired, but will also provide legal protection for a decision maker who meets legislative safeguards. The value of mental capacity legislation is in supporting a person with dementia to participate in decision-making and empowering them to exercise their rights at every stage of their illness.

Planning one’s future Getting a diagnosis of dementia is the gateway to early intervention that can keep a person well and independent and can help extend the period when a person has capacity to participate fully in decisions and to plan for a time when they lack capacity. Potential provisions of a Mental Capacity Bill, like lasting power of attorney, advance statements and advance decisions, would allow a person with dementia to plan for a time in the future when they lack capacity to make decisions. It would ensure their wishes and preferences are known to those making decisions on their behalf.

Independent advocates Independent advocates working with people with dementia can be

‘They don’t understand that Alzheimer’s sufferers have to work things out in their head for the answer and that takes time and they don’t have the time, they don’t give you that time.’

Listening Well: People with dementia informing development of health and social care policy.

Alzheimer’s Society 2009

instrumental in averting crises and supporting the involvement of the person with dementia. Therefore, the Bill should place a duty on trusts to provide an independent advocate and compel decision makers to include the independent advocate in determining a person’s best interests in any serious intervention around health, welfare and finance.

Alzheimer’s Society

www.alzheimers.org.uk Northern Ireland helpline: 9066 4100 9am to 5pm

FOCUS | Capacity legislation

OCCUPATIONAL THERAPISTS Promoting autonomy and flexibility Carolyn Maxwell, Chair of the Northern Ireland Board of the College of Occupational Therapists, would welcome the opportunity to strengthen staff’s professional role and protect the rights of vulnerable people.

The College of Occupational Therapists welcomes plans for a Mental Capacity Bill, based on principles of autonomy and best interests and ensuring that everyone who lacks capacity will be treated equally. It should guarantee the rights of people for whom decisions are being made and ensure that necessary interventions can be authorised within a structured framework. It should provide robust safeguards for vulnerable people who are not given the opportunity or are unable to advocate for themselves.

Clear framework The legislation will hopefully provide a defence for staff in any criminal or civil action, thereby allowing staff to actively participate in a person centred approach, and allow a degree of risk taking to promote positive outcomes for our service users.

Occupational therapists work with a wide range of people in many settings and much of their role is around promoting autonomy and independence. We hope new legislation will give a clear framework to work within, promote people’s decision making and offer clear supports when needed. The decision specific application of a capacity test would be welcomed. We are hopeful that this would give staff a clear framework to work within in relation to capacity and decision making.

Least restrictive practices Occupational therapists are the key prescribers and providers of specialist equipment. We would like to see legislation that enforces the use of least restrictive practices and that equipment for restrictive purposes is used as a last resort interim measure only. We are keen to be involved in Trust panels and to participate in the approval of treatment and interventions.

Compulsory community interventions should have safeguards to ensure they support the individual and are only used as a least restrictive option. We would envisage the use of these powers as an opportunity to facilitate and strengthen recovery based approaches and effective treatment in the community. We hope the implementation of any new legislation will promote high quality person centred services along a bio-psychosocial model which we believe will truly be adhering to the reciprocity obligation.

A more responsive service Role extension was part of the Bamford vision for improved mental health services. We would like to see the extension of professional roles included in the legislation. This could enhance multi disciplinary team working, redistribute responsibilities in line with expertise and strengthen the opportunity to create a more flexible, safe and responsive service.

Occupational therapists are regularly

‘The application of new legislation would necessitate staff training and awareness.’ involved in holistic assessments, including functional assessments and those around cognitive ability and capacity for individual decision making. We would welcome capacitybased legislation and the framework it offers to recognize that occupational therapists are key professionals in the assessment of capacity, particularly in relation to ability to participate in activities of daily living, employment and leisure and in the use of assistive devices.

As with other professional groups, the application of new legislation would necessitate staff training and awareness.

Consultation We appreciate the volume and complexity of the work that the project team is undertaking and value the opportunity to participate in the consultation process.

College of Occupational Therapists

www.cot.co.uk/regional-localgroups/northern-ireland

Frontline | Summer 2013 | 19

FOCUS | Capacity legislation

children’s law centre

Serious concerns on lack of protection for children’s rights Eamonn McNally, solicitor at the Children’s Law Centre, explains why there are concerns within the sector that excluding under 16s from the Bill would have serious children’s rights implications.

‘It is a serious concern that this in effect creates a perverse incentive where it becomes beneficial for young people under 16 to be detained in order to access the protections the Bill would provide.’

Bamford must not be ignored The Bamford Review recognised that children reach decision making capacity at different stages in their development. It recommended that consideration should be given to a rebuttable presumption of capacity in under 16s within the new legislation.

It did not recommend the exclusion of under 16s.

Proposals However, DHSSPS and DoJ are proposing that under 16s will be excluded from the provisions of the Bill unless they are subject to a formal detention for assessment or treatment of their mental health. In effect, this would mean that the 99.5 per cent of young people under sixteen who are currently voluntary inpatients in mental health hospitals would be denied any right to access the safeguards and protections that the Bill would afford to others.

The statutory safeguards proposed for the Bill include;

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ww a right to an advocate, ww protection from ill treatment or

neglect,

ww statutory recognition of the views

of carers,

ww deprivation of liberty safeguards,

and

ww restrictions on the use of restraint.

Concerns It is of serious concern that under 16s would have to be formally detained to access these safeguards as this in effect, creates a perverse incentive where it becomes beneficial for young people under 16 to be detained in order to access the protections the Bill provides. For under 16s there will be no requirement to establish a lack of capacity before applying the test for detention and therefore it will be easier for under 16s to be formally detained.

In addition to the obvious implications of being formally detained, this is worrying given the obligation to declare any periods of compulsory detention for treatment to employers, the DVLNI, insurance companies and when applying for US visas. Further, those who provide care and treatment for under 16s would be unable to rely on a new legal protection for persons who provide care or treatment for anyone who lacks capacity.

It is proposed that the issue of the capacity of under 16s will continue to be determined by the common law

laid down in the case of Gillick v West Norfolk and Wisbech Area Health Authority1[1] whereby anyone under sixteen is deemed not to be competent to consent to treatment unless they fit the criteria laid down by the court.

We believe that the continued application of the Gillick competence test to under 16s is inadequate. It is outdated case law which could be overturned, as it predates the Human Rights Act 1998 and the Children (Northern Ireland) Order 1995.

Furthermore, it is potentially incompatible with the United Nations Convention on the Rights of Children and the UN Convention on the Rights of Persons with Disabilities.

Include under 16s The only way to ensure that the Mental Capacity (Health, Welfare and Finance) Bill is compliant with both domestic and international standards is for it to include people of all ages who lack capacity regardless of whether they are formally detained or not.

Note 1 [1986] AC 112, [1985] UKHL 7, [1986]

1 FLR229

Children’s Law Centre

www.childrenslawcentre.org Main Line: 028 90 245704 Freephone advice: 0808 808 5678 123-137 York Street, Belfast BT15 1AB

practitioner | Social security

social security update Child Benefit and right to reside AS v Her Majesty’s Revenue and Customs (CB) NICom 15 (21 February 2013) - file number C1/10-11 (CB) Patricia Carty, Law Centre (NI) social security adviser, reviews a Commissioner’s decision which challenges the Department’s use of right to reside as a criterion for Child Benefit decisions.

In a case taken by the Law Centre on behalf of an EU8 national, Commissioner Mullan found that our client should be entitled to Child Benefit and that applying the right to reside rule in her case was unlawful direct discrimination under Article 3 of EC Regulation 1408/71.

A first in the UK, this is a very significant decision on right to reside requirements for benefit entitlement.

Regulation 1408/71 and the right to reside test The Commissioner held that an EU8 national subject to registration requirements should be entitled to Child Benefit where s/he falls within the scope of EC Regulation 1408/71. EU8 nationals are nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia or Slovenia.

Our client had worked and paid tax and national insurance in the UK for over twelve months. Although her employer had not registered this employment under the Worker Registration Scheme, it brought her within Regulation 1408/71, which prohibits direct discrimination on grounds of nationality.

Regulation 1408/71 (as well as Reg 883/2004 which has since replaced it) concerns the co-ordination of social security systems. It applies to all EU member state nationals who are or have been covered by the social security system of one of the member states, as well as members of their family and their survivors.

The Commissioner distinguished his decision from the Supreme Court Decision inPartmalniece v Secretary of State for Work and Pensions 2011,

which considers the habitual residence test.

Child Benefit entitlement is based on an ordinary residence and right to reside test (rather that a habitual residence and right to reside test).

Commissioner Mullan held that, unlike the habitual residence test which UK nationals can also fail, the ordinary residence provision is rarely failed by UK nationals, so that, in effect, the only residence test for entitlement to Child Benefit is the right to reside test. As all UK nationals satisfy the right to reside test, in the context of Child Benefit it is directly discriminatory to non UK nationals.

Wider implications As well as EU8 nationals, this decision may be of assistance to Roma-

nian and Bulgarian nationals who could raise similar arguments. It would also help Croatian and Serbian nationals when their countries join the EU. Economically inactive EU nationals, such as those not working due to caring responsibilities, may also be able to rely on this decision if they come within the Regulation.

Child Tax Credit, Working Tax Credit, ESA in youth – among other benefits – also have an ordinary residence and right to reside rule, so the decision may have relevance to similar disputes for entitlement to those benefits.

HMRC is appealing this decision to the Court of Appeal in Northern Ireland.

Photo:Martin Finlay

21 Frontline | Frontline | Summer | Summer 20132013 | 21

practitioner | Social security

social security update ESA and the ability to use a wheelchair Summary of Commissioner’s Decision C1/12-13(ESA) Jacqui Loughrey, social security legal adviser at Law Centre (NI), examines a recent commissioner’s decision which challenges decision makers’ interpretation of the mobility descriptor in Employment and Support Allowance and could be applied to other descriptors and to Personal Independent Payment decisions.

The Law Centre recently represented in an appeal to the Social Security Commissioner concerning the application of activity 1 to Schedule 2 of the ESA (General) Regs. (NI) 2008

Activity 1 So far as is relevant to the issues which arose in this case, activity 1 states: ‘Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.’

When determining if a person attracts points under this head and if so, how many should be assigned, the test to be considered is whether s/he: ‘cannot either mobilize more than 50 metres, 100 metres or 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or repeatedly mobilize more than 50 metres, 100 metres or 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion.’

The case In this case, a Decision Maker had awarded the appellant six points by acceptance of the fact that, in his view, descriptor 1(d) was appropriate. The Decision Maker’s acceptance of the relevance of this descriptor was based on the fact that in addition to significant limitations in the activity of mobilization, he had upper limb restriction which would in turn have impaired his ability to propel a manual wheelchair. Hence it was accepted that in light of his restrictions, the

22 | Frontline | Summer Spring 2013 2013

appellant could not mobilize himself a distance of more than 200 metres.

The Tribunal on the other hand decided that, despite his upper limb restrictions, a manual wheelchair could reasonably be used and removed the points already accepted by the Decision Maker as being appropriate.

The appellant was suffering from the long term effects of having broken his leg some years prior to the date of the decision under appeal. In consequence of his resulting limitations, he required a walking stick to aid mobilization. He also experienced restricted movement in his shoulder and wrist which impacted on his ability to propel a manual wheelchair.

Given that the Tribunal awarded nine points by its acceptance of limitation with regard to the standing and sitting activity, the significance of this case was that had it decided that in view of upper limb restriction, the six points awarded by the Department was correct, the appellant would have scored 15 points so would have satisfied the requisite test.

It is accepted that the key to a person’s ability to mobilize him/herself to any of these distances is to be considered with or without any aid which can reasonably be used. However, the appeal to the Commissioner was brought in light of concerns that Tribunals appeared to be taking the view that if a person does not have limitations of upper limb function (or that those limitations in function would not impair ability), in the absence of evidence to the contrary, the inference which tribunals have been drawing is that a wheelchair can reasonably be used. The effect of this approach has been that an increasing

number of disabled claimants who have significantly restricted mobility are failing to attract any points through the general application of this activity at a tribunal.

Decision Having first provided an overview of previous case law which dealt with the interpretation of activity 1, the Commissioner gave guidance to tribunals regarding factors which need to be considered when dealing with the application of the mobilization activity.

In the Commissioner’s view, when considering the use of a wheelchair as activity 1 involves, it is important to remember that, while the heading to the “Mobilising” activity expressly introduces the condition that a wheelchair can reasonably be used, the legislation requires that a wheelchair is normally used in the context of “Mobilising”, the question to be considered is in terms of whether a wheelchair would normally be used by a person with the appellant’s degree of walking disablement in order to enhance his or her ability to mobilise. By focusing on the question of whether a wheelchair could reasonably be used by the appellant, the tribunal had omitted to address the question of whether a wheelchair would normally be used by a person with the appellant’s particular disabilities.

The Commissioner went on to consider how, in the absence of actual or recommended use, the system of eligibility for public provision of wheelchairs must remain a central factor. This is because, in general,

practitioner | Social security people who normally need to use a wheelchair will be assessed for one and if appropriate will have this item provided without charge by the NHS. In the context of a relatively specialised aid such as a manual wheelchair, it seems appropriate to construe the requirement of reasonableness in the heading to the activity of “Mobilising” with this aspect of government policy in mind.

Given that any assessment for a person’s eligibility for a wheelchair is likely to involve a referral from a health professional, eg a GP or an occupational therapist, against a background of therapeutic assessment, the Commissioner went on to state that, in his view, it would be difficult to conclude that a wheelchair would be normally used by a claimant with a particular degree of disability without the benefit of such an assessment Finally, the Commissioner stated, “49. … the question of the appellant’s physical ability to mobilise using a wheelchair is not a condition of the reasonableness of whether he could use one. Rather it is a matter to be assessed once it is accepted that he could reasonably use a wheelchair. This is because the scoring scheme for descriptors within the activity varies according to the distance which the appellant can mobilise. Where wheelchair use is reasonable, a decision-maker has to assess the likely distance over which a claimant could propel a wheelchair, bearing in mind benchmarks of 50, 100 or 200 metres. The only cause for variation in terms of the distance achievable, it seems to me, would be any physical condition which would compromise the ability to self-propel manually. If a physical restriction was to be viewed as rendering it unreasonable for a claimant to use a wheelchair per se, then there would be no point in legislating for nuances in terms of the distance a claimant

Wider implications There may be some scope for applying the principles outlined by the Commissioner to the use of other aids and appliances in the interpretation of other activities and descriptors on the WCA and when Personal Independence Payment is introduced.

More information

digest of case law or on request from Law Centre (NI) by contacting the socialsecurity advice line.

Advice line The Law Centre’s advice line operates between the hours of 9.30-1.00, Monday-Friday inclusive.

Telephone: 9024 4401 or 7126 2433.

A full copy of decision C1/12-13(ESA) can be found on the Northern Ireland

Disability discrimination

A

nursing auxiliary with a disability, whose employer failed in its duty to act promptly to put a reasonable adjustment in place to allow her to return to work, was awarded nrstly £17,000 by an industrial tribunal. The case, supported by the Equality Commission, was taken by Angela McCracken against the Northern Health and Social Care Trust.

Ms McCracken has a degenerative eye condition. She notified the trust in August 2011 that she was ready to return to work after maternity leave and was referred to the trust’s Occupational Health Department.

The Occupational Health Consultant stated that she was fit for work and set out clear steps to be taken to accommodate her visual impairment.

There was a further series of meetings in 2011 and, on 26 January 2012, Ms McCracken’s DEL Disablement Adviser was given the clear impression that Ms McCracken’s request for a reasonable adjustment had been refused. After a further meeting on 2 February at which Ms McCracken was told in person that her employment was terminated, she initiated a grievance. It was September 2012 before she was able to return to work and the final adjustments were not made until December 2012.

The tribunal concluded that ‘from 22 August 2011, the trust was under a duty to properly, that is promptly, consider Ms McCracken’s request for a reasonable adjustment to enable her to return to work at Holywell.’

Angela McCracken. Photo: Equality Commission

could mobilise using a wheelchair”.

In his view, the activities and descriptors which comprise the WCA do not allow for an accurate assessment of upper limb restriction which might impact on a person’s ability to self-propel a manual wheelchair.

23 Frontline | Frontline | Summer | Summer 20132013 | 23

EQUALITY COMMISSION | Gender equality

equal pay code A new Equal Pay Code of practice comes into effect over the summer. Jacqui McKee, Director of Advice and Compliance at the Equality Commission, explains the background and the importance of the Code.

It is now more than forty years since Barbara Castle introduced the first Equal Pay Act in the United Kingdom.

Of course, in 1970 the Equal Pay Act had to address a situation where unfairness was much more blatant than is the case today. At that time it was common for employers to have separate rates of pay for men and women, and women earned on average 30 per cent less than men. Now the situation has substantially improved. In Northern Ireland last year, female median hourly earnings, excluding overtime, were 90.3 per cent of male earnings – in 1997 that figure was 77 per cent but there is still more to do.

The Equality Commission’s new Equal Pay Code, which comes into force this summer, aims to help close the gap.

which covers non-contractual issues such as recruitment, training, promotion, dismissal and the allocation of benefits; all regulate pay in Northern Ireland.

A number of other pieces of legislation can give rise to claims related to pay discrimination, for example, the Pensions (NI) Order 1995.

While the legal framework looks complex, the purpose of equal pay legislation is simple – to ensure that where women and men are doing equal work for the same employer, they should receive the same rewards for it. A woman doing equal work with a man in the same employment is entitled to equality in pay

and other contractual terms, unless the employer can show that there is a material reason for the difference which does not discriminate on the basis of sex.

The Code The Commission has updated its Equal Pay Code to provide practical guidance on how to promote equality of opportunity and avoid sex discrimination in pay structures.

The Code gives guidance on the scope of the Equal Pay Act, on the concepts and definitions of like work, work rated as equivalent and work of equal value and on pay during pregnancy and maternity, part-time work and occupational pension schemes. It also sets out how the law is applied by the industrial tribunals, including the assessment of equal pay and employers’ defences to equal pay claims.

It also provides guidance on good practice and recommends that equal pay reviews are the most appropriate method of ensuring that a pay system is free from sex bias. Pay arrangements are often complicated and the features that can give rise to discrimination in pay are not always obvious – equal pay reviews can help employers evolve a pay system that is transparent and values men and women in the workforce equally.

Equal pay legislation The Equal Pay Act (NI) 1970 as amended, which applies to contractual pay or benefits and the Sex Discrimination (NI) Order 1976 as amended,

24 | Frontline | Summer 2013

Delegates at Getting a Fair Share conference. Photo: Equality Commission

EQUALITY COMMISSION | Gender equality

While the Code of Practice is not legally binding, it is admissible in evidence in any proceedings under the Equal Pay Act before the Industrial Tribunal - the tribunal may take into account an employer’s failure to follow the provisions of the Code.

Disposal of garden waste

Gender inequality

North Down Borough Council

Equal pay is just part of the picture of gender inequality in the workplace and the Commission is working to address the problem in a number of ways.

Sex discrimination is consistently the second most common cause for complaint to the Equality Commission, and women’s treatment in the workplace consistently gives rise to the largest proportion of these complaints. They involve issues such as pregnancy and maternity discrimination, sexual harassment, recruitment and selection, worklife balance issues, redundancy and dismissal, as well as equal pay.

The Equality Commission’s research report, ‘Childcare: Maximising the Economic Participation of Women’, launched in March 2013, highlights the high costs of childcare in Northern Ireland, costs which make up around 44 per cent of an average income compared to the UK overall figure of 33 per cent and twelve per cent across the EU. It also identifies that the availability of appropriate childcare does not match demand, particularly for families in rural areas or those with children with disabilities. Michael Wardlow, our Chief Commissioner, said, launching the research: “We will never realise the full and equal participation of women in our economy unless we ensure that adequate and affordable childcare is available to all.”

Thirdly, in conjunction with the Department for Employment and Learning’s ‘Success through STEM’ strategy, we are working with businesses in the science, technology, engineering and mathematics fields to look at sex bias in those areas and at examples of good practice that could be used to increase women’s participation in STEM industries and make these careers more accessible to them.

Ombudsman Northern Ireland

The Ombudsman received a complaint from a landscape gardener who believed that North Down Borough Council (the Council) was wrong in charging him for the disposal of garden waste at the Council’s Recycling Centre. The complainant advised that he had helped out a friend by delivering garden waste to the Recycling Centre. On another occasion he had disposed of garden waste from his own property. He was charged on both occasions for the disposal of this garden waste. He complained to the Council who eventually refunded the charges. However, he remained unhappy with the handling of his original complaint, the subsequent delays, and the lack of apology from the Council following the refund of what he considered to be unwarranted charges.

The Ombudsman’s investigation identified maladministration in the Council’s actions. These included delays in its handling of the complaint, and the lack of apology or explanation given following the refund of the charges incurred.

He recommended that the Chief Executive should personally apologise for the inconvenience caused by the unacceptable delays in the administration of the complaints process, and for the incorrect charges incurred by the complain-

A broader approach Many employers prefer to address unequal pay by considering it as part of a broader overall approach to equality considerations in their businesses. The Commission’s Advice and Compliance division offers free and confidential advice, support and training to employers and organisa-

ant. He also recommended that the Council make a payment of £250, in recognition of the inconvenience caused.

In the course of the investigation, the Ombudsman also indentified that the Council had no legislative authority to charge for the deposit of household waste, irrespective of who delivers the waste to the Recycling Centre. He noted with concern that the Council had been charging commercial users, such as the complainant, to dispose of household waste when they had no authority to do so. The decision to charge or not for the deposit of waste must be based on the nature of the waste, and the Council should make decisions on whether to accept the waste or charge for it on a case-by-case basis, and not by reference to any blanket policy or the occupation of the person delivering the waste.

The Ombudsman recommended that the Council should make arrangements to advise members of the public that no charge would be levied by the Council for the disposal of ‘household’ waste. He also recommended that the Council should offer refunds to those users of the recycling facility who have been incorrectly charged for the disposal of household waste at a Council facility. tions, to help them comply with the law. The Equal Pay Code is just one of a wide range of online, print and staff resources available from the Equality Commission to help employers avoid discrimination.

The Equal Pay Code is available on our website www.equalityni.org .

Frontline | Summer 2013 | 25

REVIEWS | Books

REVIEWS A Guide to the Labour Relations Agency Arbitration Scheme Published by LRA: www.lra.org.uk

This guide provides a comprehensive overview of the Labour Relations Agency Arbitration Scheme which was launched last year. The scheme operates to provide an alternative for the resolution of certain claims that could be brought before the Industrial Tribunal or Fair Employment Tribunal.

Published by the Labour Relations Agency, the guide provides helpful information on the operation of the Scheme and the overall process involved in making a claim under it.

It should be noted that the guide acts as an explanatory supplement to the Labour Relations Agency Arbitration Scheme Order (Northern Ireland) 2012 and is not exhaustive; therefore the legislation should be consulted by anyone taking part in the scheme.

Presented in a clear and practical way, this guidance gives a valuable outline of the Arbitration Scheme. It is separated into nine concise sections, each dealing with a separate stage in the arbitration process.

Within these sections, there is useful information for all parties on what to expect from the scheme, including both the advantages and limitations of the scheme. The information is presented in an understandable way that ensures it is accessible to legal

26 | Frontline | Summer 2013

practitioners as well employers and employees who may seek to avail of the scheme.

The appendices contain helpful practical tools covering different aspects of the scheme. These include a flowchart of the arbitration process, the jurisdictions covered by the scheme, a comparison of bringing a claim through the Industrial Tribunal and the Arbitration Scheme, a sample arbitration agreement and an overview of the arbitration hearing.

Overall this guide provides an effective overview of the new Labour Relations Agency Arbitration Scheme and gives useful practical information on the arbitration process. It should be consulted by anyone considering taking part in the scheme.

Niamh McKenna Law Centre (NI) apprentice solicitor

A-Z of Community Care Law

By Michael Mandelstam. Published by Jessica Kingsley. Price ÂŁ19.99.

First published in 1997 and back by popular demand, this concise community care A-Z offers an excellent overview of a complex area of law. It covers key terms in context,

Guide to finding a home for people with a disability The Housing Executive Disability Forum, facilitated by Disability Action, has produced a new guide to help people with a disability looking for social housing.

The guide, Advice for people with disabilities on finding a home, aims to help people with disabilities on their housing journey, from applying for accommodation to getting a home. It covers the steps in the process, the things to think about and where to get the information needed.

The booklet is available at Housing Executive offices or can be downloaded from www.nihe.gov.uk/news-new-guide-on-finding-a-home-for-people-with-adisability

REVIEWS | Books

REVIEWS important caselaw and legislation relevant to the field. Enhanced by a useful introduction that sets out how to use the book effectively, the text is user-friendly as the reader is guided throughout by the alphabetical structure, bold headings and clear crossreferencing between corresponding terms. Mandelstam’s style is succinct and accessible, offering clear explanation of any legal terms, including an excellent summary of judicial review.

Notwithstanding the differences in legislative background between Northern Ireland and England and Wales, this text serves as an invaluable starting point for further research, as it defines specialist terminology and flags up connections between concepts. Adding to his impressive line up of essential readings in this area of law, Mandelstam demonstrates his professional and academic expertise yet again.

This text is a highly recommended resource for both legal and non-legal practitioners working in community care.

Kirsty Linkin Law Centre (NI) apprentice solicitor

Embracing Diversity

By Margaret McNulty. Published by EMBRACE NI 2013. www.embraceni.org

Library news A selection of new publications added to the shelves of the Law Centre’s library June 2013

Books/reports Foster care and supported lodgings for separated asylum seeking young people in Ireland, by Dr Muireann Ni Raghallaigh.

UCD 2013.

Guidance on human rights for commissioners of home care.

Equality and Human Rights Commission, 2013.

Judicial review proceedings: a practitioner’s guide 3rd edition by Jonathon Manning. LAG 2013.

Safeguarding adults and the law 2nd edition, by Michael Mandelstam. Jessica Kingsley 2013.

Journal articles Child benefit: the wrong residence test? By Martin Williams, Welfare Rights Bulletin, June 2013. (N.B.representative in case discussed was Patricia Carty, Law Centre NI).

Is it in the contract? How terms can be incorporated into contracts from handbooks and other documents by Ian Moss.

Adviser May/June 2013.

Public Law Project guides The Public Law Project is publishing a series of short introductory guides to public law for advisers and lay readers. The first guides: ww An Introduction to Public Law

lished by Law Centre (NI) in association with the Northern Ireland Ombudsman and Queen’s University, would be a good complement to these publications: www.lawcentreni.org/publications/otherpublications/831.html

ww Making an Effective Complaint to

a Public Body

ww An Introduction to Judicial Re-

view

This is the 9th update of ‘Embracing Diversity’, first published in 2005, and it follows the same format as previous editions. A full review of the previous update can be found in Frontline 86, page 26.

are available to download from www.publiclawproject.org.uk/AdviceGeneral.html As the Public Law Project is based in London, Northern Ireland readers should exercise the usual caution due to the difference in administrative justice structures. Alternatives to Court in Northern Ireland, pub-

Frontline | Summer 2013 | 27

UPDATE YOUR SKILLS Training at Law Centre (NI) 08/08 WRAP Refresher - Disability Related Benefits Belfast 13/08 WRAP Refresher - Disability Related Benefits Derry 15/08 Understanding Universal Credit Belfast 20/08 Personal Independence Payment Belfast 03/09 Personal Independence Payment Derry 05/09 Carers and their Rights Derry 19/09 Carers and their Rights Belfast 19/09 Representing Clients at Mental Health Review Derry Tribunals 24/09 Social Security: Seeking Work, Other Belfast Requirements and Sanctions 26/09 Representing Clients at Mental Health Review Belfast Tribunals 03/10 European Law and Immigration Belfast 03/10 Understanding Universal Credit Derry 07/10 Redundancy, Lay Off and Employer Insolvency Belfast 08/10 Welfare Rights Adviser Programme – 8 days Derry 10/10 Personal Independence Payment Belfast 16/10 Advocacy Skills - two days Belfast 23/10 Tribunal Representation – six days Belfast

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