FRONTLINE Law Centre (NI) social welfare law quarterly
Separated children
new benefits & Tax credit rates benefit cap NI advice services consortium housing equality campaign social media and employment law
91 spring 2014
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CONTENTS
FRONTLINE 91
editorial
practitioner
Migrants and benefits
4
news Speedmatching event
5
Migrants and benefits guide
5
Women’s Aid helpline
7
Fund for migrants
13
features
FRONTLINE 91 Editor Catherine Couvert Design & Layout Michael W Beggs Cover photo: Zzvet © Law Centre (NI) 2014 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).
Separated children
6
Modern slavery bill
8
The work of NIASC
10
Budget 2014
11
Benefit cap
12
Welfare reform round up
14
Benefit rates 2014-15
16
Care homes
19
Housing equality campaign
29
Equality Commission
22
Employment update
24
Social security update
26
reviews E mployment tribunals / Human rights
29
iscrimination claims / D Judicial review proceedings
30
Dementia and the law
31
12
Editorial Panel
Editorial/Advertising
Kevin Higgins Advice NI
124 Donegall Street, Belfast, BT1 2GY Tel: 028 9024 4401 Fax: 028 9023 6340 Textphone: 028 9023 9938 Email: admin.belfast@lawcentreni.org Twitter: @LawCentreNI Website: www.lawcentreni.org
Pól Callaghan Citizens Advice Sharon Geary Housing Rights Service Gráinne McKeever University of Ulster Ursula O'Hare, Patricia Carty and Jennifer Greenfield Law Centre (NI)
Law Centre®
ISSN 0962 - 8800 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).
Frontline is available in large print on request from our publications unit. Phone: 028 9024 4401 or email: admin.belfast@lawcentreni.org Frontline | Spring 2014 | 3
EDITORIAL
Open season on migrants and benefits It appears to be an ‘open season’ to make life difficult for EU migrants. Despite seven years notice of Bulgarian and Romanians becoming full members of the European Union, the government waited until the last minute to tighten up further access to social security benefits. As it is no longer possible within European law to introduce changes affecting Bulgarians and Romanians, the changes affect European Union nationals as a whole. First, from 1 January 2014 the habitual residence test has been amended to require both EU nationals and returning UK nationals to have been living in the UK, Ireland, Channel Islands and the Isle of Man for three months. Ironically, this is likely to have a greater impact on returning UK nationals. The habitual residence test already incorporated the concept of living in the UK for an appreciable period before becoming entitled to key means tested benefits. Based on caselaw, this could be between one to three months normally or almost immediately in exceptional circumstances for those who had lived in the UK before. The loss of flexibility will mean that UK nationals returning in an emergency following a death abroad or to care for family members, coming back from voluntary service overseas, after a gap year or after working abroad are likely to have to wait three months before receiving benefit.
4 | Frontline | Spring 2014
Second, EU migrants who lose employment will find it harder to receive certain means-tested benefits. In effect, EU migrants who have worked less than twelve months will normally only be able to claim Income-based Jobseeker’s Allowance for six months, those migrants working for between twelve months and five years will have to provide compelling evidence of a genuine prospect of work to retain Income-based JSA after six months. The guidance on what comprises genuine prospects of work has still to be written. To date, the only formal suggestion from the Department for Work and Pensions is that such evidence would be a written job offer with a start date – setting the bar very high indeed. From 1 March 2014, new guidance has been introduced to determine which EU migrants retain worker status (one of the ways in which the right to reside can be automatically satisfied) for the purposes of the habitual residence test. Claimants earning more that £150 a week will be deemed to satisfy the test while those earning less through employment or self employment will be subject to further scrutiny. In European law, work entails activities that are genuine and effective and not marginal and ancillary. This definition has been liberally and flexibly interpreted by the Court of Justice in the European Union. It remains to be seen how the Social Security Agency decision makers interpret the issue. Finally, the government has curtailed access to Housing Benefit for certain EU migrants from 1 April 2014. EEA jobseekers who are not already on Income-based JSA before 1 April 2014 will be affected
‘Evidence based policy has been sacrificed at the altar of high politics. Sadly, EU migrants and UK nationals returning from abroad will be the ones picking up the pieces.’ by the proposals. In practice, jobseekers on Income-based JSA will no longer automatically receive Housing Benefit. The Equality Impact Assessment published by DWP shows that of 300,000 EU nationals registering for national insurance numbers in 2011/2012 only 3,000 subsequently claimed Housing Benefit as jobseekers. Moreover we do not know how many of the 3,000 worked before having to claim as jobseekers. These figures undermine the notion of the EU ‘benefit tourist’. It is significant that the initial reforms and the proposed Housing Benefit changes were signalled through articles by David Cameron in the Financial Times and Ian Duncan Smith and Theresa May in the Daily Mail rather than brought through normal parliamentary procedures. The speed and paucity of detailed information behind these reforms suggest that evidence based policy has been sacrificed at the altar of high politics on the European Union as Britain gets ready for an election. Sadly, EU migrants and UK nationals returning from abroad will be the ones picking up the pieces. Les Allamby
NEWS
Migrants and benefits: a useful addition to an adviser’s toolbox Migrants and Benefits, an adviser’s guide, is a new publication by Law Centre (NI) produced as part of our partnership with Belfast Integration and Participation Project. A comprehensive but concise guide written in plain English, Migrants and Benefits addresses the following questions, as well as other common issues that arise when migrants need advice on benefit entitlement: ww How does immigration status affect
a person’s entitlement to benefit?
ww What is habitual residence? ww What does right to reside mean
for benefit entitlement? An important tool for advisers dealing with this complex area of work, Migrants and Benefits contains
tips for dealing with difficult situations and practical guidance. You can download the new guide or read it on screen here: www. lawcentreni.org/news/recentnews/38-featured-slideshow/1066migrants-and-benefits-a-newguide.html The guide and other Law Centre publications on migrant workers’ rights is also available here: www. lawcentreni.org/publications/ migrant-workers.html As this is a complex area of law, if any questions arise in specific cases that cannot be answered simply through reading the guide, please contact the Law Centre’s advice line: 9024 4401, Monday to Friday, 9.30am to 1.00pm.
Media speedmatching event a big success for local groups The annual speedmatching event run by Northern Ireland Council for Voluntary Action, Law Centre (NI) and View Digital and supported by the National Union of Journalists took place at the Law Centre on 27 February. Speedmatching involves community and voluntary sector groups each getting five minutes with a local journalist or media producer, and using those five minutes to pitch story ideas and talk about their work. Eight community organizations made contact with producers and reporters from the BBC, including education correspondent Maggie Taggart, as well as local papers and specialist publications. Elizabeth Hendron, PR coordinator at NICVA, explained: “By only giving groups five minutes it really helps communications workers in the sector get to grips with the idea that you need to be able to quickly and clearly sell in your story to the
media. We hope that tonight is just a first step, and that the organisations that took part are able to follow up with the contacts they made and use them to get more media coverage and support for the work we do.”
Feedback was very positive and plans are being made for another speedmatching session later in the year. With thanks to NICVA, View Digital and NUJ.
Speedmatching event at the Law Centre. Photo Michaël Marie.
Frontline | Spring 2014 | 5
FEATURE | Separated children
on their side
Guardianship for separated children
Following the publication of ‘By their side and on their side’, a NICCY review of the needs of separated children who are subject to immigration control, Liz Griffith, policy officer at Law Centre (NI), reviews the progress of efforts to bring about a guardianship system for separated children in Northern Ireland.
In February 2014, the Northern Ireland Children’s Commissioner for Children and Young People published a review of the evidence for guardianship for separated children in Northern Ireland. The term ‘separated children’ is used to refer to those under the age of 18, outside their country of origin and without a parent or primary caregiver. This group includes unaccompanied asylum seeking children, trafficked children and other children who are subject to immigration control and who find themselves alone. The number of separated children in Northern Ireland is small, but the issues they face are complex and many.
the responsibilities of a ‘guardian’, which include advocating for the child’s best interests; ensuring the child’s participation in all processes affecting her or him; protecting the personal safety of the child and identifying and securing implementation of a durable solution.
Different models The NICCY review involved detailed evidence gathering from different stakeholders as well as from separated children themselves. The review presented a range of models for Northern Ireland to consider
Human rights requirements Recognising the inherent vulnerability of these children, international human rights law requires states to appoint a ‘guardian’ for any separated child in their jurisdiction. The law does not specify, however, exactly what form a guardian should take and European countries interpret this requirement differently. However, there is agreement on
6 | Frontline | Spring 2014
Mark Moreland
while noting that there is no need, at present, for a stand-alone guardianship service. For many years, the UK government was sceptical about the need for guardianship. However, change is afoot, thanks in no small part to the efforts of voluntary and community organisations and human rights bodies that have worked tirelessly to keep this issue on the agenda. A pilot guardianship service in Scotland proved so successful that the Scottish government has agreed to now fund it. Earlier this year, the UK government announced two pilot projects of specialist advocacy for trafficked children in Britain.
FEATURE | Separated children
‘international human rights law requires states to appoint a ‘guardian’ for any separated child in their jurisdiction. The law does not specify, however, exactly what form a guardian should take’ Guardians for trafficked children Meanwhile, Lord Morrow’s Human Trafficking and Exploitation Bill continues to gain momentum in Northern Ireland. Clause 12 of the Bill would place a duty on the Department of Health, Social Security and Public Safety to set out arrangements for the appointment of
a child trafficking guardian as soon as possible after identification of a trafficked child. This would be the first statutory duty in UK domestic law and thus would place Northern Ireland at the forefront of ensuring legal protections for this vulnerable group.
Extend to all separated children
Thus any separated child should be appointed a ‘guardian’ as some may later become recognised as victims of child trafficking. This is an exciting time for those interested in children’s rights. The NICCY review provides much fertile thinking and Lord Morrow’s Bill offers a tangible framework. Will Northern Ireland lead the way?
While welcoming the clause wholeheartedly, the Law Centre is keen to ensure that the guardian will apply to all separated children rather than the smaller subset of trafficked children. There is an important reason for this: victims of trafficking are not always immediately identified as such. This is usually because trauma or fear inhibits victims making a full disclosure straightaway. Once a victim feels safe and supported, a fuller account is more possible.
NEWS Women’s Aid launches new sexual violence helpline
W
omen’s Aid Northern Ireland has launched a new, expanded, 24 hour domestic and sexual violence helpline. The Helpline has been operating as the 24 Hour Domestic Violence Helpline for 19 years with calls increasing every year. During 2012 – 2013 the 24 Hour Domestic Violence Helpline managed 47,597 calls, an increase of eight per cent on the previous year. These rising numbers are a success story as domestic and sexual violence are so often kept hidden. The expanded helpline now also reaches out to all victims of sexual violence, women and men. The 24 Hour Domestic & Sexual Violence Helpline is co-funded by the Department of Health, Social Services and Public Safety, the Department
Women’s Aid banner at International Women’s Day rally Belfast 2014. Photo Anne Ramsey.
of Justice, and the Department for Social Development through the NI Housing Executive.
24-hour Domestic and Sexual Violence Helpline: 0808 802 2424
Frontline | Spring 2014 | 7
FEATURE | Modern Slavery Bill
CHANGING PUBLIC CONSCIENCE
A Westminster response to trafficking
Ursula O’Hare, assistant director (policy and publications) at Law Centre (NI), unpicks the complexities of progress toward anti-trafficking legislation both in Northern Ireland and across the water. In March, a Joint Committee at Westminster completed its prelegislative scrutiny of the Modern Slavery Bill. Led by Frank Field, the Committee took evidence from a wide range of stakeholders, including David Ford, the Northern Ireland Minister for Justice, and Lord Morrow, whose private member’s Trafficking and Exploitation Bill is currently before the Assembly Justice Committee. A report from the Joint Committee is expected in April. So too is the report from the Assembly Committee on the Morrow Bill. Publication of the Modern Slavery Bill changes the local anti-trafficking policy landscape. This note outlines the backdrop to the Modern Slavery Bill, highlights the main provisions and concludes with a preliminary assessment of its implications for anti-trafficking law and policy in Northern Ireland.
Background The backdrop to the Modern Slavery Bill lies in the Field Review (Establishing Britain as a World Leader in the Fight Against Modern Slavery: Report of the Modern Slavery Bill Evidence Review, 2013). Appointed to lead a review to gather evidence about a new bill,
8 | Frontline | Spring 2014
Frank Field’s report, published in tandem with the Modern Slavery Bill in December 2013, articulated an expectation that the Bill would ‘set a standard for the rest of the world’ and change public conscience about the crime of slavery. The Modern Slavery Bill reframes the issue of trafficking as one of modern day slavery. It follows earlier initiatives by way of private members bills to legislate on measures to support potential victims of trafficking and to prevent the incidence of trafficking for all forms of exploitation. In 2012, for example, a private members bill was introduced in the House of Lords and in Scotland, a private members human trafficking bill was proposed in 2013 by Jenny Marra, MSP. Lord Morrow’s private members bill was introduced to the Assembly in June 2013 (Human Trafficking & Exploitation (Further Provisions and Support for Victims) Bill). In March this year, the Scottish government announced that it would bring forward an anti-trafficking bill which would give effect to the Marra proposals. The Field Review outlined a number of provisions which it considered a ‘pre-requisite for a world class Bill’ as well as some changes to policy. The proposals include: ww putting the protection and
support arrangements for victims on a statutory footing along with existing guidance on nonprosecution of victims;
ww creating a mechanism for
appealing against a National Referral Mechanism decision;
ww setting up an independent anti-
slavery commissioner; and
ww putting in place a requirement
that companies scrutinise their supply chains and account for steps they have taken to eradicate slavery in their supply chains.
In terms of policy change, the review recommendations included that decisions about whether someone is a victim of trafficking should no longer be made by the Home Office and that a ‘survivor support pathway’ is created to support victims in their long-term recovery. It also urged the pre-legislative scrutiny committee to examine a system of ‘guardianship’ for trafficked children.
The Modern Slavery Bill Frontline 90 gave a synopsis of the Bill. In broad terms, the Bill proposes: ww consolidation and simplification
of existing slavery and trafficking offences;
ww an increase in the maximum
sentence for slavery offences from 14 years to life and mandatory life sentencing for a person convicted of a second offence unless there are particular circumstances which would make this unjust;
ww the introduction of new civil
orders: a Slavery & Trafficking Prevention Order which would impose restrictions on a person
FEATURE | Modern Slavery Bill who has been convicted of an offence under the legislation, and a Slavery & Trafficking Risk Order which, likewise, would impose restrictions on a person who a court believes is a serious risk to others but who has not been convicted of an offence under the legislation. Interim variants of both orders would also be available to law enforcement authorities; ww the establishment of an anti-
slavery commissioner for England and Wales and a duty on certain public authorities to co-operate with the commissioner;
ww a legal duty on public authority
‘first-responders’ (those with authority to refer a potential victim into the National Referral Mechanism) to report suspected victims to the relevant authorities.
In launching the Bill, the Home Secretary also announced a review of the National Referral Mechanism process. This has not yet started.
What does the Modern Slavery Bill mean for Northern Ireland? The Department of Justice has published a consultation which seeks views on implementing the proposals in the Modern Slavery Bill in Northern Ireland. This includes a proposal that the powers of the Anti-Slavery Commissioner set out in the Modern Slavery Bill are extended to Northern Ireland. The Department proposes a number of measures that do not mirror the Bill. These include that: ww offences relating to slavery can
be tried only on indictment as a means to underscore the seriousness of the offence;
ww while it is proposed to increase the
maximum sentence for a human trafficking offence, mandatory life sentences for repeat offenders should not be introduced; and
ww prevention orders should not be
imposed on children under 18 years of age.
A number of issues call for careful scrutiny, including the potential impact of the introduction of new prevention and risk orders as well as the role and powers of a UKwide commissioner. These must
David Yu
be sufficiently robust to enable the commissioner to act independently of government and the current draft Bill appears to constrict the powers of the commissioner in some important ways. The UN Paris Principles should act as a framework for the officer of the commissioner. The Justice Minister has indicated that he supports a number of provisions in the Morrow Bill and it appears that the Morrow Bill will be the legislative vehicle for taking forward at least some of these proposals. The draft legislation that ultimately emerges is therefore likely to look significantly different from the original Morrow Bill proposals that were introduced into the Assembly last year. How, for example, the promised review of the National Referral Mechanism will affect the Morrow proposals for putting support for victims on a statutory footing is unclear. Whether the proposals for a Northern Ireland antitrafficking rapporteur will survive given the proposal for a UK-wide
commissioner is a further unknown. What is fairly certain, however, is that other innovations in the Morrow Bill, such as the proposal to create a system of ‘guardianship’ for trafficked children, along with the more high profile proposals to criminalise the purchase of sexual services, make it likely that the end result of the legislative process in Northern Ireland is likely to differ considerably from England and Wales.
Delivering change The UK Human Trafficking Centre reports that the UK National Referral Mechanism received 1,746 referrals in 2013. Of these, 41 were from Northern Ireland; a 173 per cent increase on 2012. The human stories and the blighted lives behind the figures are the driver for ensuring that the legislative responses across the jurisdictions of Northern Ireland, Scotland and England and Wales really are ‘world class’ and deliver the change to consciousness that was the ambition of the Field Review.
Frontline | Spring 2014 | 9
FEATURE | NIASC
WORKING TOGETHER
Northern Ireland Advice Services Consortium (NIASC) The Northern Ireland Advice Services Consortium comprises Advice NI, Citizens Advice and Law Centre (NI) and represents an equal collaboration between all three organisations in relation to the single infrastructure contract for advice services funded through the Department for Social Development (DSD). The Consortium is currently engaged in work on a number of important areas including:
Quality assurance The Consortium has awarded a tender aimed at developing a new quality standard for the advice sector in Northern Ireland which will be suitable for use by all generalist voluntary advice providers. It is envisaged that the new standard will demonstrate the quality of provision to clients and funders alike; accommodate work done to meet membership criteria and achieve other external standards. Workshops will be taking place during March with frontline providers in order to ensure a sound understanding of how this work might impact upon clients, advisers, managers and funders. An online survey has also been developed in order to maximise engagement with advice centres across Northern Ireland.The aim is to submit the report to DSD in April 2014.
Financial Support Service trial An innovative and collaborative Financial Support Service trial is being developed in three pilot areas across Northern Ireland (Falls Road, Omagh and Strabane). The trial will involve the signposting of clients from the Social Security Agency to the independent advice sector for support
10 | Frontline | Spring 2014
on financial capability issues such as managing money, planning ahead and increasing awareness about the costs and risks of high cost credit products. It is proposed that the trial will run for three months, with evaluation and monitoring taking place throughout. The Consortium is committed to supporting the trial but has flagged up concerns regarding the additional pressures this emerging area of work will place on the advice sector and has called for learning from the trial to be used to evaluate potential resource implications if consideration is to be given to further roll-out of the trial.
Policy developments The NIASC Policy Group has continued to build on the work conducted in 2013. Last year the Policy Group published the Discussion Paper ‘Why advice matters: Welfare Reform and the Value of Independent Advice’. The Consortium also made a welfare reform presentation to the All Party Group (APG) on Mental Health and produced a ‘Welfare Reform
Mitigations Paper’ in response to a request made by the APG. The Policy Group is continuing to work on welfare reform related issues and on quantifying the value of advice services in terms of financial and nonfinancial outcomes.
Management Information The NIASC Management Information working group has worked with the DSD to agree a template for recording advice statistics. This will ensure a consistent read across the data captured by all frontline advice providers and therefore more accurate reporting. DSD is requiring that all advice providers reporting to Council use this template.
Training The NIASC Training Team is taking forward the recommendations of the ‘NIASC Joint Advice Sector Training Framework’ which the team developed in 2013, including increased collaborative working around marketing, development and delivery of training. The Team has worked jointly to support the Financial Support Services pilot, by assisting the Financial Support Officer training and developing financial capability training for generalist advisers involved in the project. The group is also working together to achieve the Money Advice Service quality mark for Wiseradviser money advice training. All NIASC training has been mapped to the National Occupational Standards, and the Team has assisted and continues to assist a range of statutory organisations with regard to training issues, including the Child Maintenance Service and Social Security Agency. The Team is currently in the process of revising a baseline measure of minimum training standards expected across various areas of advice work. The Team continues to input on the quality standard for the advice sector, having written the ‘Quality Assurance in the Advice Sector’ paper in 2013, and continues to develop and deliver training to meet the core and emerging needs of the advice sector. Kevin Higgins, Advice NI, produced this information on behalf of the Northern Ireland Advice Services Consortium.
FEATURE | Budget
T
he Chancellor announced that the government will introduce a cap on welfare spending, setting the overall limit at £119 bn in 2015-16, subsequently voted through parliament. The social security spending that will count towards the cap will include Employment and Support Allowance, Disability Living Allowance, Housing Benefit and tax credits. Jobseeker’s Allowance (JSA), JSA-passported Housing Benefit and State Pension expenditure will be excluded from the cap. Advice NI Chief Executive Bob Stronge said: ‘The move to introduce a cap on welfare spending will represent a further attack on the poorest and most vulnerable families. It is inevitable that the impact of any cap will filter down and hit those people reliant upon sickness and disability benefits. Those in low paid work and reliant upon tax credits will also be in the firing line.’ ‘At a time when many families on low incomes are struggling to afford food and heating costs, the proposal to introduce a benefit cap will cause further distress. Many working families are reliant on social security benefits and the Chancellor’s rise in the lower income tax threshold will not offset the impact of the cap nor the further cuts we can expect under current welfare reform proposals. Indeed if you take the cuts already made to tax credits for low paid families the impact of the tax charge will be negligible.’ Other key points within the Budget included: ww Carer’s Allowance income disregard -
the government will increase the earnings limit in Carer’s Allowance to £102 per week from May 2014 (this addresses an anomaly whereby carers claiming Carers Allowance and working 16 hours at NMW saw their earnings increase to £100.96 in October 2013, above Carers Allowance earnings limit of £100);
ww support for mortgage interest
(SMI) - temporary measures to increase the support provided by the SMI scheme are extended
BUDGET 2014
Sick and disabled and the low paid will bear brunt of budget cap on welfare spending
Kevin Higgins, head of policy at Advice NI, the independent advice network, is warning that cuts contained within the Budget would impact most on sick and disabled benefit recipients and low waged households.
for working-age claimants - the waiting period will remain at 13 weeks and the workingage capital limit will remain at £200,000 until 31 March 2016; ww Employment and Support
Allowance (ESA) - a seven-day waiting period will apply to new claims for contributory and income-related ESA from October 2014;
ww tax-free childcare - the government
has confirmed that all Universal Credit claimants will be able to receive up to 85 per cent of their childcare costs - an extension of the original proposal that only those claimants who paid income tax would be eligible for the 85 per cent rate, with other claimants
continuing to receive the current rate of up to 70 per cent; ww direct recovery of debts - the
government will strengthen HMRC’s powers to recover tax and tax credit debts directly from debtors’ bank and building society accounts, including ISAs - this will focus on debtors who owe at least £1,000 and have been contacted multiple times by HMRC to pay and a minimum aggregate balance of £5,000 will be left across all accounts, including ISAs, after the debt is recovered - the government will consult on the implementation of this measure shortly after Budget 2014;
Continued on page 28 Frontline | Spring 2014 | 11
FEATURE | Benefit cap
THE BENEFIT CAP Limiting prospects for children in poorer households Rose Henderson, information and policy officer at Citizens Advice, looks at how the benefit cap affects children in Great Britain and asks whether Northern Ireland politicians should consider removing this from the local welfare reform agenda.
A
ccording to Ipsos MORI, three quarters of the British public support the introduction of the benefit cap, the policy that no working-age household should be able to get more on benefits than one earning an average wage. The coalition government says it promotes fairness between those in work and those receiving out of work
benefits, and it incentivises claimants to move into work. However, both these claims are open to challenge and it will be children that will be disproportionately affected.
The benefit cap in Great Britain The benefit cap, which sets a limit on the total amount of benefit a working-age household can receive,
was introduced into four London boroughs in April 2013 and has now been rolled out across Great Britain. For working-age households, total benefit income is restricted to: ww a maximum of £350 a week (or
£1,517 a month) if the claimant is a single person;
ww a maximum of £500 a week (or
£2,167 per month) if the claimant is either: a couple with or without dependent children; a lone parent with dependent children.
Initially, any excess payment over the cap is deducted from Housing Benefit. Once Universal Credit is claimed, the cap applies to the combined income from Universal Credit and other benefits such as Child Benefit and Carer’s Allowance1, with any excess being deducted from the Universal Credit payment. Households are exempt from the cap if anyone in the household receives Working Tax Credit or certain illness or disability benefits2. The Department for Work and Pensions has estimated that this will leave 40,000 affected households, losing £93 per week on average.
Average take-home pay versus net household income
Catherine Couvert
12 | Frontline | Spring 2014
The average net earnings of a household in the UK is £26,000. However, a family with children on this average wage is eligible for Child Benefit and tax credits. To take the example of a family with three
FEATURE | Benefit cap children living in social housing, in addition to their weekly take home pay of £500 they would also receive Child Benefit of £47.10, Child Tax Credit of £25.73 and Housing Benefit of £52.79. Their weekly household income would therefore be over £600, their annual household income over £31,000. When making the comparison between a working and a nonworking family, like is not being compared with like. If the cap were set at the average household income of an in-work family, then it would have to be set much higher.
Incentivising work Figures from Great Britain show that two per cent of capped households claim Employment and Support Allowance, which means that they have been found unfit for work, 39 per cent claim Income Support, which means they have been judged unable to work, and 34 per cent claim Jobseeker’s Allowance, so are already looking for work. The cap is thus penalising people who cannot work or cannot find work. Ian Duncan Smith, Secretary of State for Work and Pensions, has claimed that the threat of the benefit cap has directly persuaded 8,000 claimants to get a job. He was immediately contradicted by the UK Statistics Agency, who said there was no statistical information to support this claim. There is no clear evidence to support this second rationale for the cap.
The benefit cap in Northern Ireland The cap is included in the Welfare Reform Bill (NI), which is still under consideration by the Assembly. The Department for Social Development has estimated that over 13,000 households in Northern Ireland receive benefit payments in excess of the cap. However, the vast majority will be exempt, mainly because someone in the household is in receipt of Disability Living Allowance. This leaves approximately 620 households, containing 3,120 children, which will be capped. There is an average of five children living in impacted households. Approximately two thirds of the affected households consist of lone parents.
Estimates for Northern Ireland differ from Great Britain in that it is predicted that 70 per cent of households impacted will be claiming Income Support, 18 per cent Jobseeker’s Allowance, 15 per cent Carer’s Allowance, seven per cent Employment and Support Allowance and six per cent Incapacity Benefit. It is overwhelmingly lone parent households that are going to be affected, with 61 per cent of capped households losing up to £50 per week. Predicted savings to government are £1.7 million3. Evidence from England suggests that the benefit cap is causing an increase in child poverty, it is forcing families to relocate, breaking up support networks and disrupting children’s education, and it incentivises family breakup as parents who live separately, dividing their children between them, can claim up to £1,000 per week, whereas if they live together they can only claim £500. All these
consequences come with a financial as well as a social cost. It is a misconceived policy targeted at non-working adults yet will have the effect of making poor children poorer. It will save little money up front and is likely to lead to increased costs elsewhere. So it is neither fair nor effective and it may cost more than it saves. Do we really want to introduce it in Northern
Ireland? Notes 1
For the full list of benefits included in the cap see www.nidirect.gov.uk
2 For the list of exemptions see www.adviceguide.co.uk 3 DSD: Northern Ireland Benefit Cap Information Booklet
Crisis fund for vulnerable migrants
T
he Office of the First and Deputy First Minister (OFMDFM) is to set up a crisis fund for migrants, refugees and destitute asylum seekers living in Northern Ireland who have issues with benefits and unemployment, have suffered family breakdown or been victims of domestic violence. News of the plans follow the success of an emergency fund pilot project set up in 2011-2012, where 13 organisations were allocated £45,000 to provide help for 1,332 people The fund provided vital support for migrants experiencing financial hardship and in some cases helped families avoid a period of destitution. The Emergency Fund was intended to supplement existing state support during a particular emergency or to cover gaps in provision where state support was delayed or was not enough to meet the needs of the individual or family group. In relation to dependents, many recipients of the funds had children.
An OFMDFM spokesperson said: ‘In line with recommendations from an evaluation of the Minority Ethnic Development Fund, agreement has been reached in principle for the introduction of a 'crisis fund'. The department is currently considering operational details of the fund including eligibility and governance arrangements. It is hoped that the fund will be up and running by the start of the new financial year (2014-15).’ The Law Centre is among a number of organisations that have been calling for the fund to be established, and we therefore welcome this announcement. A report on the pilot project is available at: http://socialwelfare. bl.uk/subject-areas/services-clientgroups/minoritygroups/communityfo undationfornorthernireland/142864ef undpilot2.pdf
Frontline | Spring 2014 | 13
FEATURE | Welfare reform
breaking the deadlock Open discussion needed on welfare reform Law Centre (NI) director Les Allamby rounds up available information on the progress of welfare reform in Northern Ireland, and also argues for open discussion on what has been agreed so far between the two largest parties and on what further flexibilities are available.
The Northern Ireland Welfare Reform Bill remains stalled. In March 2012, the Welfare Reform Act was passed in Britain paving the way for the introduction of Universal Credit and cuts to contributory ESA for certain claimants, the introduction of the bedroom tax and benefit cap, greater conditionality arrangements when looking for work with tougher sanctions and replacement of hardship payments with loans, easier recovery of overpayments and tougher powers and penalties for dealing with fraud. The Northern Ireland Bill was published in October 2012 and went to the Assembly’s Social Development committee for scrutiny. Following representations from voluntary organisations and the Equality and Human Rights Commissions, the Bill was sent to an ad-hoc committee to look at these issues. That committee reported in January 2013 and the Bill went back to the Social Development committee which completed its scrutiny.
14 | Frontline | Spring 2014
A number of amendments have been tabled for consideration when the Bill eventually reaches the Assembly for full debate.
Negotiations In the meantime, the two main parties met regularly during the summer of 2013 to try to reach a deal on some flexibilities compared to Britain. Some agreement on flexibilities has already been reached. In October 2012 the DSD Minister Nelson McCausland announced that Universal Credit will be more readily paid fortnightly than monthly, that greater flexibility will be taken to split Universal Credit payments between couples and that housing credit in Universal Credit will normally be paid
‘One immediate step would be for the DUP and Sinn Fein to publish what has been agreed to date, including the detail of split payment and other arrangements for Universal Credit.’
direct to landlords. A working group was set up to examine the actual details, although to date nothing concrete has emerged as to exactly how the flexibilities will operate in practice. Also in the public domain are plans to introduce the ‘bedroom tax’ for new claimants only and a scheme to allow claimants to pay for medical evidence when coming up for assessment under PIP. The latter will entail spending around six million. Elsewhere, other changes are likely to mirror action taken in Scotland with more money going into the Discretionary Support Fund which is due to replace the discretionary Social Fund. A different approach to sanctions is also being mooted.
Further concessions v threatened sanctions The two main parties have agreed these changes but, while that is the deal for the DUP, it is a staging post for Sinn Fein who are looking for further concessions. The DWP and Treasury are growing impatient and the Financial Secretary wrote to the (then) DFP minister Sammy Wilson outlining that a financial penalty would be applied if the Northern Ireland legislation was not in place by January 2014. The penalty is based on not achieving the savings expected
FEATURE | Welfare reform
Women’s groups protest against welfare reform at International Women’s Day rally Belfast 8 March 2014. Photo Catherine Couvert.
and received from the Welfare Reform Act in Britain. The penalty has been assessed at £5 million a month rising upwards to around £105 million in 2014/2015. The Department has a new indicative timetable for welfare reform, but it remains one based on hope that the political parties reach an accommodation. At present, the dialogue appears to be more confined to the airwaves, which is not likely to lead to a resolution.
The cost of welfare reform Recent research commissioned by Northern Ireland Council for Voluntary Action from Sheffield Hallam University revealed that the cost of already implemented welfare reforms and those contained in the Bill will cost Northern Ireland £750 million a year. While Universal Credit will bring in come extra monies it will be way short of the losses to the local economy and claimants. Three of the four worst affected local authorities in the UK are in Northern Ireland (Strabane, Derry and Belfast) and eleven of the worst 40 local authorities affected are here too.
The difficulties of slipping timetables In Britain the timetable for the roll out of Universal Credit and Personal Independence Payment have been prolonged significantly. Officially in Northern Ireland, Universal Credit and Personal Independence Payment are due to start in spring 2014 but this is not going to happen. There remain interesting short term difficulties to resolve. One issue is that the Social Fund will have to continue during 2014/2015. Another is how the financial penalty is actually costed although it does appear that the Treasury has the powers to levy such penalties. The longer the delay the greater the numbers of anomalies that will occur.
created with relatively little or no cost. Some examples of such proposals were produced by the Northern Ireland Advice Services Consortium for the Assembly’s all party mental health group who took evidence from the Consortium in December 2013.
Time for open discussion The welfare reform bill creates the biggest change to social security for working age claimants for a generation. Against that backdrop the need for an open discussion about the options and the impact becomes an even greater imperative.
Publish what has been agreed One immediate step that could be taken would be for the DUP and Sinn Fein to publish what has been agreed to date, including the detail of split payment and other arrangements for Universal Credit. This would allow further debate on what more can be argued for. There are a number of areas where further flexibilities can be
Frontline | Spring 2014 | 15
BENEFITS & TAX CREDITS 2014-2015 2014-2015
For Northern Ireland only - from 6 April 2014 except where stated otherwise
Means tested
related ESA (ie after 13 weeks)
INCOME SUPPORT AND INCOME BASED JSA PERSONAL ALLOWANCES single under 25 aged 25 or over lone parent under 18 aged 18 or over
£57.35 £72.40 £57.35 £72.40
couple both under 18* both under 18, with child one under 18 one under 25 one under 18 one over 25 both aged 18 or over
£57.35 £86.65 £57.35 £72.40 £113.70
* for more details of rates for under 18s, see Law Centre (NI) Encyclopedia of Social Welfare Rights or the CPAG handbook 2014-2015
dependent children (pre April 2004 claimants) birth to day before 20th birthday £66.33 PREMIUMS family pensioner couple single (JSA only) disability single couple
£17.45 £112.80 £75.95 £31.85 £45.40
enhanced disability single couple child severe disability per qualifying person
£15.55 £22.35 £24.08 £61.10
carer
£34.20
disabled child
£59.50
DEDUCTIONS FOR NON-DEPENDANTS (MORTGAGE INTEREST) aged 18, or over, and in remunerative work gross income £128 - £187.99
£32.45
£188 - £244.99
£44.55
£245 - £325.99
£72.95
£326 - £405.99
£83.05
£406 and above
£91.15
Others, aged 18 or over and not in work or earning less than £128 or on IS or Incomebased JSA and 25 or over or in receipt of Pension Credit or on main phase income
16 | Frontline | Spring 2014
£14.15
Note: Disregards for rates are covered in Housing Benefit.
PREMIUMS pensioner single with work related activity £47.20
DEDUCTIONS
single with support component £40.20
child maintenance (standard) £7.30 child maintenance (lower) £3.65 fines (standard / lower) £5.00 / £3.65 direct payment of fuel (5% rate) £3.65 housing and rates arrears £3.65 strikers £40.00 recovery of ordinary £10.95 overpayment (max) recovery if convicted of fraud (max) £18.25
single with no component
£75.95
couple with WRAC
£84.05
DISREGARDS earnings - single £5.00 earnings - couple £10.00 earnings - lone parent or in receipt of carer’s / disability premium £20.00 war pensions, War Widows Pension £10.00 and Widowed Parent Allowance student loan £10.00 student’s covenanted income £5.00 income from boarders (plus 50% of the balance of the charge) £20.00 income from sub tenants £20.00
couple with support component £77.05 couple with no component
£112.80
COMPONENTS (from week 14 - main phase) work related activity support
£28.75 £35.75
HOUSING BENEFIT: RENT APPLICABLE AMOUNTS – ie personal allowances and premiums as for IS except: personal allowance couple - both under 18
£86.65
couple - one under 18
£113.70
single person on main phase ESA £72.40 couple, claimant entitled to main phase ESA £113.70
voluntary and charitable payments, child maintenance, DLA and AA ignored in full
family premium
SURE START MATERNITY PAYMENT £500.00
*only if entitled to this premium prior to 1998
(where baby is the only child under 16 in the household, or in some cases where there is a multiple birth)
COLD WEATHER PAYMENT
£25.00
CAPITAL LIMITS disregard
£6,000
resident of care home, disregard £10,000 upper limit child upper limit
£16,000 £3,000
tariff income on capital between disregard and upper limit is £1 for every £250 or part thereof
INCOME RELATED EMPLOYMENT & SUPPORT ALLOWANCE (ESA)
lone parent rate*
single aged 60-64 £148.35 couple - one or both 60-64 £226.50 single / one parent aged 65 £165.15 or over couple - one or both 65 or over £247.20 AMENITY DEDUCTIONS heating
£3.20
lighting
£2.20
cooking
£3.20
MEALS DEDUCTIONS
PERSONAL ALLOWANCES
each person aged 16 or over each child under 16 £72.40
both under 18 with child (after 13 weeks)
£113.70
one 18 or over, one under 18 (certain conditions apply)
£113.70
£27.55
hot water
full board (3 or more meals a day)
both under 18 (after 13 weeks)
£22.20
pensioner personal allowances
same as IS, except: couple
£17.45
£26.55 £13.45
half board (less than 3 meals a day) each person aged 16 or over each child under 16
£17.65 £8.90
breakfast only each person (including children)
£3.25
BENEFITS & TAX CREDITS 2014-2015 2014-2015
For Northern Ireland only - from 6 April 2014 except where stated otherwise
NON-DEPENDANT DEDUCTIONS
£394 or more
£9.90
same as IS, except: no deductions for nondependants on IS or JSA (IB) & under 25, on Pension Credit or on main phase ESA (IR)
£316 - £393.99
£8.25
£183 - £315.99
£6.55
under £183
£3.30
EARNINGS DISREGARDS
others (for whom deduction made) £3.30
Earnings disregards [monthly rate]
no deductions for non-dependants on IS, JSA (IB), Pension Credit or ESA (IR)
Single
CAPITAL DISREGARDS, TARIFF INCOME, EARNINGS & OTHER DISREGARDS as for rent
responsible for one or more children
£263.00
limited capacity for work
£192.00
permitted work (lower)
£20.00
permitted work (higher)
£101.00
lone parent – not in receipt of IS £25.00 where the claimant has a partner £10.00 single claimant
£5.00
where carer or disability premium awarded £20.00 CHILDCARE COSTS
Note: disregards for rates also apply for owner occupiers on IS, JSA (IB) and ESA (IR). Non dependant deductions for rent are as per mortgage interest deductions.
UNIVERSAL CREDIT [If introduced later in 2014/15 - per month key figures only - assessment period]
not responsible for a child
£111.00
Couple as above except: responsible for one or more children
£222.00
1 child 70% up to £175.00 2 or more children 70% up to £300.00
PENSION CREDIT
Standard allowance
OTHER INCOME DISREGARDS
[Key figures only]
Single, under 25
£249.28
Single, 25 or over
£314.67
Couple, both under 25
£391.29
Couple, both 25 or over
£493.95
maintenance child maintenance
£15.00 ignored in full
war pensions
£10.00
Widowed Parent’s Allowance
£15.00
student loan
£10.00
student’s covenanted income
£5.00
additional earnings disregard
£17.10
income from boarders (plus 50% of the balance of the charge)
£20.00
income from sub tenants
£20.00
voluntary & charitable payments, DLA and AA ignored in full CAPITAL LIMITS same as IS, except: Capital limit for Housing Benefit claimants above qualifying age for Pension credit is £16,000 Tariff income on capital between £10,000 disregard and £16,000 upper limit is £1 for every £500 or part thereof if aged 60 or over. No upper limit if on Pension Credit guarantee credit.
standard mimimum guarantee single couple
£148.35 £226.50
additional amounts severe disability (per qualifying person)
£61.10
carer
£34.20
savings credit threshold single threshold couple maximum single maximum couple
£120.35 £192.00 £16.80 £20.70
capital No upper capital limit disregarded tariff income
£10,000 £1 for each £500 above
as for rent except that personal allowances are not payable for young people aged 16 and 17 NON-DEPENDANT DEDUCTIONS aged 18 or over, and in remunerative work gross income
First child
£274.58
Other child(ren)
£229.17
Additional amount for disabled child or qualifying young person Lower rate
£124.86
Higher rate
£362.92
Limited capability for work element
£124.86
Limited capability for work and £311.86 work related activity element
housing costs
Higher work allowance
deductions for non-dependants as for IS
Single
disregards / deductions
not responsible for a child
as for IS generally except no reduction for strikers
HOUSING BENEFIT: RATES PERSONAL ALLOWANCES AND PREMIUMS
Child element
Benefit cap [for all benefits] [If introduced later in 2014/15. It is possible that this may be introduced for new claimants only]
£111.00
responsible for one or more children£234 limited capacity for work
£647.00
Couple as above except: responsible for one or more children
£536.00
Lone parents, couples £500.00 weekly with children Single or couple, no children
£350.00 weekly Continued over page
Frontline | Spring 2014 | 17
BENEFITS & TAX CREDITS 2014-2015 2014-2015 For Northern Ireland only - from 6 April 2014 except where stated otherwise
Non means-tested
[KEY FIGURES ONLY]
ATTENDANCE ALLOWANCE Higher rate lower rate
£81.30 £54.45
Bereavement alowance £33.36 to £103.42
standard rate
£111.20
Widowed Parents Allowance
£111.20
Bereavement payment
£2,000
Widow’s Pension / Widowed Mother’s Allowance (standard) £111.20 CARER’S ALLOWANCE
£61.35
increase for adult dependant (some existing claimants only)
£36.10
Earnings limit (from 20 May 2014) £102.00 CHILD BENEFIT only or eldest child £20.50 other child(ren) £13.55 Reduced by 1%per £100 income over £50,000 CONTRIBUTORY ESA week 1-13 (assessment phase) under 25 £57.35 25 or over £72.40 components - from week 14 (main phase) WRAC £28.75 support component £35.75 CONTRIBUTION BASED JSA under 25 25 or over DISABILITY LIVING ALLOWANCE care component higher middle lower mobility component higher lower
£57.35 £72.40
INCAPACITY BENEFIT short-term (under pension age) lower rate higher rate adult dependant
£81.30 £54.45 £21.55 £56.75 £21.55
SEVERE DISABLEMENT ALLOWANCE basic rate
£73.75
adult dependant
£36.30
£78.50 £92.95 £47.10
age-related addition
lower rate
£99.90
higher rate
£104.10
STATUTORY ADOPTION PAY, STATUTORY MATERNITY PAY, STATUTORY PATERNITY PAY
adult dependant
£58.20
long-term
£104.10
adult dependant
£60.45
increase of long-term for age lower rate higher rate
£6.15 £11.00
higher rate
£11.00
middle rate and lower rates
standard rate earnings threshold
£6.15
£138.18 £111.00
STATUTORY SICK PAY standard rate earnings threshold
£87.55 £111.00
INDUSTRIAL DEATH BENEFIT (widow’s pension) lower rate
£33.93
higher rate
£113.10
INDUSTRIAL INJURIES DISABLEMENT PENSION max lump sum
£11,020
Tax Credits
18 or over or under 18 with dependants
WORKING TAX CREDIT
from 100% assessment
threshold
to 20% assessment
£166.00 £33.20
reduced earnings allowance (max) £66.40 MATERNITY ALLOWANCE standard rate MA threshold (for variable rate)
(per year unless stated)
£6,420
withdrawal rate
41%
basic element
£1,940
30-hour element £138.18 £30.00
£800
couple and lone parent element £1,990 disabled worker element
£2,935
severe disability element
£1,225
personal independence payment
increase in income disregard
[If introduced later in 2014/15]
childcare element
daily living standard rate
£54.45
enhanced rate
£81.30
mobility
EARNINGS RULES permitted work earnings limit £101.00 for incapacity for work benefits (higher) incapacity for work benefits £20.00 (lower)
18 | Frontline | Spring 2014
£16.35
short-term (over pension age)
Bereavement benefits aged 45 - 54
GUARDIAN’S ALLOWANCE
standard rate
£21.55
enhanced rate
£56.75
70% of weekly cost for 1 child up to costs of 70% of weekly cost for 2 or more children up to costs of CHILD TAX CREDIT
£5,000 £175 £300
(per year)
threshold (entitled to CTC but not WTC) £16,010
RETIREMENT PENSIONS
withdrawal rate
single person (category A and B) £113.10
family element
spouse* or adult dependant (retirement)
£64.90
child element (per child)
£2,750
spouse* insurance (category B) £67.80
disabled child element (in receipt of DLA)
£3,100
over 80 age addition (retirement) £0.25
severely disabled child element £1,255
category C and D
£67.80
* spouse = husband, wife or civil partner
41% £545
(in receipt of DLA higher rate care component)
FEATURE | Care homes
U
NISON has responded to the Health and Social Care Board (HSCB) Stage 1 consultation on the criteria the Board will use to close and privatise Northern Ireland’s remaining NHS care homes. It is clear that the current process is flawed beyond repair and should be stopped.. The Board must also now advise the Minister to reconsider his stated policy aim in Transforming Your Care to close our NHS care homes.
Equality and human rights obligations The Equality and Human Rights Impact Assessment shows the HSCB’s failure to fulfil, not only its own policies, but also its legal duties to current residents and future service users under both the NI Act 1998 and the Human Rights Act 1998. UNISON is pursuing this matter with both enforcement agencies. The HSCB fails to provide evidence of the potential adverse impact of closure and involuntary transfer on the health, well-being and mortality of residents. This evidence has been produced by leading authorities such as Professor David Jolley, a Consultant in the Psychiatry of Old Age.
A cuts driven process The current proposals to close remaining care homes remove choice and security for current and future residents and deny them the highest quality care available. The closure proposals are an integral part of the Transforming Your Care cuts driven process which has, at its core, the privatisation of medicine, residential care and home care. Rather than a real process of consultation, the fundamental policy imperative within the existing proposals remains to close all NHS homes – the only difference being that the long-standing Ministerial / HSCB plan will be implemented more slowly and that homes will be closed one at a time as in the past. The doors remain closed to new admissions. The remaining residents will see out their days as a dwindling community, or their relatives will be forced to move them out.
UNISON REJECT care home closures Thomas Mahaffy, policy officer at UNISON, explains the union’s position on plans to close care homes in Northern Ireland.
No evidence-based reasons for the closures have been produced, despite clear evidence that in the future the older population will need a strong combination of home care, residential care and nursing care including full access to hospitals. ‘This is a war of attrition against older people and an abuse of their fundamental human rights as well as a breach of age discrimination laws. These are the same strong, articulate residents that called the Minister to account. They will continue to do so and UNISON and others will support them. It would be unthinkable for the HSCB to propose that the right to
life and the right to a private life of residents could be sacrificed in order to implement a health and social care change policy.’ The homes must stay open, allowing existing residents to be secure and reassured, and future residents to be confident that the option of high quality NHS residential care will remain. UNISON’s full response is available on www.unison.org.uk/northern-ireland/
Residents’ views must be heard The Law Centre’s response to HSCB consultation
T
he Health and Social Care Board (HSCB)’s consultation on the future of statutory care home provision ended at the beginning of March. The consultation document consisted of criteria by which statutory care homes could be assessed, against which those that scored poorly would be earmarked for closure. Despite improved engagement with care home residents, families and staff from the HSCB on the current process, we were disappointed that the criteria gave no formal recognition to the views of residents. We argued
that residents should be fully involved in the decision making process and that appropriate alternative accommodation must be available to all residents of any care home that would be considered for closure. You can read our response at: www.lawcentreni.org/Publications/ Policy-Responses/HSCB_Future%20 accomodation%20needs%20of%20 older%20people.pdf.
Frontline | Spring 2014 | 19
FEATURE | Housing inequality
THE RIGHT TO ADEQUATE HOUSING
Addressing community inequalities in North Belfast housing Dessie Donnelly, director (development) at Participation and the Practice of Rights (PPR), explains the background and reactions to the recent report of the United Nations Special Rapporteur on the Right to Adequate Housing, particularly on community inequalities in housing need in North Belfast. In February 2014, the United Nations Special Rapporteur on the Right to Adequate Housing, Ms Raquel Rolnik, released the report of her official visit to the UK, which was presented to the UN Human Rights Council in March1. While much of the media attention surrounding her report focussed on issues such as the ‘bedroom tax’, of particular relevance to Northern Ireland (although virtually unreported in the local press) was the call for a ‘concerted effort’ to address persisting religious inequality impacting the Catholic community in North Belfast. In making these ecommendations, the UN Rapporteur was reiterating a 2009 Concluding Observation by the United Nations Economic, Social and Cultural Rights Committee recommending action be taken to eradicate the religious inequality in housing 2. Ms Rolnik was also echoing concerns made by the then Council
20 | Frontline | Spring 2014
of Europe Commissioner for Human Rights Thomas Hammarberg in 2012 when he said he was ‘disappointed that no action appears to have been taken in response to [the UNESCR Committee’s Concluding Observations on religious inequality].’ The series of recommendations and comments have arisen from the determination of a broad group of residents from North Belfast to make visible the daily indignities they experience due to the nature of persisting and structural religious inequalities in housing provision across a number of decades.
The evidence In August 2013, Participation and the Practice of Rights (PPR) released a report entitled ‘Equality Can’t Wait’ which chronicled over a decade’s worth of government failings to tackle inequality in North Belfast 3. Some of the findings included: ww in 2008, the Girdwood Barracks
and Crumlin Road Gaol Equality Impact Assessment stated that, by 2012, 95 per cent of the need for new social homes in North Belfast was among the Catholic community;
ww in the same year, the Northern
Ireland Housing Executive (NIHE) altered the manner in which it calculated where to build new social housing and scrapped the ringfencing of social housing new build provisions in areas where inequality existed. Together the result was a projected 29 per cent decrease for new social housing units in North Belfast – despite it being an area marked by an acknowledged high level of religious inequality; ww from 2009, the NIHE method for reporting information on religious background in North Belfast changed. This resulted in an apparent reduction in the numbers from the Catholic community reported to be in housing stress (from 73 per cent in 2009 to 46 per cent in 2011 despite no corresponding change on the ground). Crucially, however, the new system also allowed for the religious background of large numbers to be reported as ‘unknown’ and thus inequalities were not tackled but merely hidden from view; ww opportunities to eradicate religious inequality in housing are being wasted by public authorities such as the 27 acre Girdwood Park, the 20 acre Belfast Harbour land, and the City Centre, capable, according to the Forum for Alternative Belfast, of housing up to 60,000 new people. Recent policy announcements continued the trend of government failing to tackle religious inequality in housing or target need including the Department for Social Development’s ‘Housing Led Regeneration’ policy which will provide housing in areas of recognised low demand, and the Fundamental Review of Housing Allocations which includes proposals which dilute the principle of allocation solely on the basis of objective need.
Response of the Executive On 1 December 2013, in the aftermath of the UN Rapporteur’s 2014 visit the DSD Minister Nelson McCausland MLA spoke in the Northern Ireland Assembly on the ‘corrosive narrative that suggests that there is an overwhelming demand in one community and virtually no demand
FEATURE | Housing inequality
‘it is critical to understand that examining only statistics from the housing waiting list produces only a partial view of the need for new social housing in any area, namely the demand side’ examine the supply side – how the projected turnover of existing stock (allocations), voids, and proposed new builds will be able to meet existing demand. The figures cited by the Minister do not consider this essential factor.
What about need in the Protestant community?
The Seven Towers, New Lodge in North Belfast. Photo: Dessie Donnelly
in the other community’. Producing previously unreleased figures relating to the North Belfast Parliamentary constituency, the Minister cited that there are 1,994 Protestants and 1,988 Catholics on the waiting list for social housing. When analysed, the DSD Minister’s position seems to be based on three factors: (a) a use of the new method of calculating religious/community background; (b) a sole consideration of housing waiting list figures in the assessment of housing need without considering if need was being met; and (c) examination of the North Belfast Parliamentary Constituency as opposed to the North Belfast Housing District.
On point (a) it is critical to reflect that religious inequality in the workplace, which has steadily decreased over the last number of decades, was achieved using a residuary methodology (similar to the one previously employed by the NIHE) to infer religious background should the applicant fail to self-identify. Because someone does not identify as Catholic or Protestant does not mean that their life opportunities will not be shaped by historic and existing inequalities which impact on the community from which they come from. On points (b) and (c), it is critical to understand that examining only statistics from the housing waiting list produces only a partial view of the need for new social housing in any area, namely the demand side. To get a full picture of the need for new social housing, one must also
A charge levelled against those seeking the promotion of equality in housing, is that to do so is to somehow push a ‘republican’ or ‘nationalist’ agenda. However, the call for housing equality is not a call which is exclusive of calling for Northern Ireland Executive action to promote equality for people living in deprived, and predominantly Protestant communities. These communities have experienced decades of marginalisation, compounded by being some of the areas across Northern Ireland worst impacted by ‘The Troubles’. Government statistics demonstrate that areas like the Lower Shankill and Lower Oldpark in North and West Belfast experience chronic health, educational and employment need. Indeed, these communities will be further disadvantaged by proposed welfare reforms which will literally disinvest millions of pounds of public money from marginalised communities. However, re-directing a social housing budget to areas of little evidenced demand for new social housing provision stands to further embed existing inequalities.
Conclusion Ms Rolnik has not had an easy ride following the publication of her provisional and final recommendations. On 1 October 2013,
Continued on page 28 Frontline | Spring 2014 | 21
EQUALITY COMMISSION | Gender equality
are we there yet? International women’s day 2014 Mary McSorley, Equality Commission for Northern Ireland, outlines what still has to be done to achieve equality between men and women.
The UK Government, including the devolved legislatures, is subject to a review every four years of its compliance with the United Nations Convention on the Elimination of all forms of Discrimination against Women – CEDAW. The Equality Commission prepares a shadow report to the UN on the performance of the NI Executive against the provisions of CEDAW and our most recent shadow report, last summer, was a great opportunity to put forward our recommendations on furthering equality for women in Northern Ireland. We asked the CEDAW Committee to raise a number of concerns with Government in its report.
Participation in public and political life One of the most important areas in which we have recommended actions is that of participation by women in public and political life. The commitments that were made in the Good Friday/Belfast Agreement on increasing the representation
22 | Frontline | Spring 2014
of women in Northern Ireland in political and public life remain unrealised and the special measures that are allowed by law have not been implemented. We are facing local government and European elections this year. Increasing the number of women on local councils is important not least because, for many politicians, it can be a stepping stone to go forward for higher political office. At present, only about one in four councillors is a woman (23 per cent). We know that special measures can bring results. The Commission was involved in the Women in Local Councils initiative which aimed to increase the number of women applying to become councillors and in senior management posts within councils. There was real progress – within a few years, six councils had appointed a woman chief executive, where previously there was only one. With the reorganisation of the councils, we see only three women chief executives of ten of the new ‘super-councils’ - Belfast has still to appoint. In our own Assembly, 21 of our 108 MLAs are women, just 19 per cent, when women make up just over half the population. In a recent debate on the issue, Megan Fearon MLA said: ‘The North has a population of around 1·5 million. Are we expected to believe that, in that population,
‘The world is still under-performing on gender equality, and a large gap remains between laws and their implementation.’1 there are not 54 intelligent, capable and articulate women who are right for the role of MLA?’ 2 On public bodies, women’s representation rose to 35 per cent at best. The Commissioner for Public Appointments, John Keanie, in a report published last month, highlighted his concern about the lack of women and diversity in general on the boards of our public bodies. We welcome the start that he has made by increasing the turnover of board memberships by limiting reappointments. We are asking Government to set out the steps that need to be taken in order to redress the balance. We know that change in the political sphere is slow and difficult to achieve, but we also believe that it’s possible within the law to take special measures to accelerate the pace of change. We still haven’t seen political parties make use of all of the positive action measures allowed under the law and we would like to see parties
EQUALITY COMMISSION | Gender equality setting targets for improving gender balance at all levels of political representation within their parties. Although all the main parties have expressed their willingness to encourage more women, we are not seeing as much success as we would like. We will be looking to OFMDFM’s Gender Equality Strategy for a wideranging and coherent approach, incorporating more measurable targets and annual updates on progress. UN Security Council Resolution 1325 has also enjoyed some profile around International Women’s Day. It has four main pillars: the participation of women in peace processes, gender training in peacekeeping operations, protection of women and girls and respect for their rights and gender mainstreaming in the reporting and implementation systems of the UN relating to conflict, peace and security. To meet our obligations under this Resolution, the commitment of the Good Friday/Belfast Agreement to ensure ‘equal opportunity in all social and economic activity’ for women must be made real and the role of women in peace building recognised and supported. It’s clear from our most recent equality awareness survey, Do You Mean Me? that the majority of people here are almost equally comfortable with a man (9.25 out of a possible 10) or a woman (9.13) in the highest elected office. The results also show that the percentage of respondents who agree we need more female MLAs has risen from 56 per cent in 2008 to 63 per cent in 2011 – and in fact in the west of Northern Ireland that figure rises to 73 per cent in favour of more female MLAs.
Economic independence The other key theme of our CEDAW response was women’s economic independence. We want Government to focus on everything from educational opportunities to employment opportunities to welfare policies, bearing in mind the impact on women. It’s well known that girls outperform boys in education and exam results, but this superior performance is not mirrored in the workplace or indeed in the pay
Mary McSorley with speakers at a Northern Ireland Rural Women’s Network event. Photo: Equality Commission
packet. Women are still underrepresented in the STEM subjects of science, technology, engineering and mathematics, but these are the areas prioritised by government to grow the UK economy. Unless we challenge gender roles and gender stereotyping in education and training, women will not achieve their fair share of the benefits that come from a developing economy. Some women are making it into higher positions in the workplace in both public and private sectors. Yet, in spite of the evidence around the world that companies managed by mixed boards are more successful, there is still a reluctance to adopt particular special measures to increase women’s participation at the top. Particularly important for most women, though, is the issue of equal pay. The voluntary approach has not by and large worked and there is still disparity, particularly for women who work part time. We are asking Government to make equal pay audits mandatory. For working women with families, the issue of good quality, affordable childcare continues to dominate. While work patterns change, including irregular hours and shift patterns, most childcare provision is still based on the traditional nine-tofive working day. Flexible working has the potential to benefit both men and women, but in practice it’s often women who avail of these rights. It’s a subject we reported on last year in ‘Childcare: maximizing women’s
economic participation’, which made five main recommendations on availability, cost and access to childcare and removing barriers to employment for women.
Time to make change happen The figures add up, the evidence is there and everyone seems in favour of these changes – and yet they still aren’t happening. The thrust of the CEDAW review of Government progress will apply some pressure to help make the changes happen and lessen the gap between the laws and their implementation.
Notes 1. Speech by UN Women Executive Director Phumzile Mlambo-Ngcuka at the UN commemoration of International Women’s Day 2014, UN Headquarters, New York, 7 March 2014 - See more at: www. unwomen.org/ru/news/stories/2014/3/ eds-iwd-speech#sthash.q5ZG8Qqt.dpuf 2. Women in Politics, NI Assembly debate, 10 March 2014.
Frontline | Spring 2014 | 23
practitioner | Employment
EMPLOYMENT update Dismissal
The impact of social media in employment law David Mitchell, apprentice solicitor at Law Centre (NI), explains the context for a recent Law Centre case involving dismissal on grounds of social media use. This article summarises a leading Employment Tribunal case concerning social media in the employment field, while also reporting Law Centre (NI)’s experience in assisting a client who was dismissed due to her social media use. Overall this article is designed to provide an overview of the considerations an employment tribunal may make when determining a case where an employee has been disciplined or dismissed due to his or her conduct via social media. Social media have become an integral part of the 21st century world, with sites such as Facebook, Twitter and LinkedIn providing instant communication on a global level. The impact of social media to modern day living is now so extensive that it is practically impossible for any workplace to avoid their presence. However, social media, despite their ever-growing uses as business and recreational tools, introduce potential legal challenges for both employee and employer. A key area of legal dispute arises where it is alleged that an employee’s social media use has damaged the reputation of the employer. An employer’s response to discipline the employee may be appropriate in such cases; however, employers need to strike a balance between their own interests and the employee’s Article 8 and Article 10 rights under the ECHR.
Preventing the use of social media in the workplace Although employers may try to restrict social media access in offices via firewalls on office computers, employees may access social
24 | Frontline | Spring 2014
media during the course of their employment and in their spare time via their own PC tablets and smartphones. Therefore employee access to social media is readily available and employees can update their Facebook status or ‘tweet’ their opinions covertly during working hours, during rest breaks or after working hours with ease. Employers may need to accept that social media are here to stay and rather than prevent their use, they may wish to specify boundaries of acceptable behaviour to employees.
Social media policy Social media policies are becoming more and more prevalent, in an attempt by employers to specify employee boundaries. Employers will not wish to be affiliated with an employee’s derogatory social media comments, while an employee will not want to face disciplinary action or dismissal as a result of them, so clear, proportionate boundaries on conduct are a positive step for all concerned.
The balance between the employer’s interests and the employee’s private life needs to be drawn sensibly
A good social media policy should detail what is acceptable social media use and what is not, in the interest of fairness and clarity, to enable employees to act within the policy and know their limits. In accordance with Labour Relations
Agency (LRA) guidance, there should be consultation with staff in order to determine, in the context of that particular workplace, what conduct is and is not acceptable. Additionally, the LRA advises that employers should consider whether employees require training on social media usage and the social media policy, so employees are fully aware of what is expected of them. Employees may also wish to consider customising their privacy settings on social networking sites, in order to minimise the extent of their audience and thus any potential damage to the employer’s brand or reputation. Cumulatively, these measures can go a long way in preventing legal issues or disputes and therefore may prove beneficial to both employee and employer.
Preece v JD Wetherspoons PLC Liverpool Employment Tribunal (2011) In Preece v JD Wetherspoons plc, the tribunal gave significant weight to the fact that the employee had signed up to a social media policy. Ms Preece was working in a Wetherspoons pub in Cheshire when she was subjected to abusive behaviour from two customers. After the customers left the business premises they made anonymous and abusive phone calls to her, prompting her to vent her feelings about the customers on Facebook. She was subsequently dismissed for misconduct. In this case the tribunal held that the employer’s decision to dismiss was within the band of reasonable responses available to the employer, particularly as Ms Preece had signed
practitioner | Employment up to the Wetherspoons social media policy which clearly stated that dismissal may occur if social media activity by an employee had the potential to ‘lower the reputation of the organisation, staff or customers.’ The tribunal held that the employer had conducted a fair investigation, had a genuine belief that Ms Preece’s negative comments about identifiable customers amounted to misconduct and that, despite the mitigating factors, dismissal was a fair conclusion for the employer to make. The Preece case demonstrates that a clear social media policy can form a key consideration for the tribunal. Although in this case the social media policy proved beneficial to the employer rather than the employee, this decision confirms that employers need to carry out fair investigations before making any decision to discipline or dismiss and that the decision must, as always, come within the realm of the reasonable responses available to them.
Law Centre case Similarly to the Preece case, Law Centre (NI) was instructed by an employee who was dismissed after posting a comment about a customer on Facebook. In this matter our client was in her place of work when her ex-boyfriend arrived and began to make her feel very uncomfortable. Our client felt that she was the victim of stalking behaviour from her ex-boyfriend. She then made a comment on Facebook suggesting, in somewhat graphic terms, that he should take his custom elsewhere. This comment was anonymously reported to the employer, resulting in her being summarily dismissed for gross misconduct, namely for bringing the employer’s company brand into disrepute. Our client appealed to the employer against the decision and the Law Centre represented at the internal appeal hearing. The Law Centre’s stance was that she did not bring the company brand into disrepute as there was no actual damage caused to the company, nor was it reasonable to conclude that it was potentially damaging in these circumstances. Additionally, while the organisation’s social media policy enabled the employer to discipline in
KeiferPix
a case of an employee causing actual damage to the company brand, the policy did not cover potentially causing damage. We also alerted the employer to the employee’s Article 8 right to a private and family life in respect of the breakdown of her relationship with her boyfriend. We further highlighted the defects in the investigation process, particularly in relation to the investigation of the anonymous caller. In this case our client also had significant mitigating factors that required full consideration by the employer in that she had no previous disciplinary record and also that she reported the alleged stalking to the PSNI. The appeal panel overturned the decision and reinstated our client. This case demonstrates the benefit of an employer conducting a genuine internal process, which revisits and reconsiders the issues afresh, with the real opportunity to influence the panel’s outcome. The case further highlights the difficulties employers may find themselves in if they assume an employee can be fairly dismissed due to social media comments, without considering whether the company or organisation has suffered any actual damage as a result. While it can be appropriate to discipline an employee for social
media use, it must be proportionate with full consideration of all of the facts. The balance between the employer’s interests and the employee’s private life needs to be drawn sensibly, to avoid a knee-jerk response from the employer, as the position is rarely black and white and therefore a holistic, measured approach is required in all cases.
Conclusion As our dependency on information technology and social media becomes more and more prevalent it is fair to say that social media cases will become more common before the Industrial Tribunal. While social media policies are becoming more widespread in the workplace and have their uses in setting clearer boundaries for employees, inevitably there will be instances where an employer may act disproportionately or outside the powers of the policy and the employee may require legal advice. Should an employee require advice or assistance with this type of employment matter or with any other employment enquiries, the Law Centre offers free, confidential advice to employees via the employment advice line from Monday to -Friday 9.30am to 1pm on 028 90 244 401.
Frontline | Spring 2014 | 25
practitioner | Social security
social security update Mandatory reconsideration and direct lodgement of appeals Lee Hatton, social security legal adviser at Law Centre (NI), explains the workings and impact of recent changes to social security appeals processes in Britain. Although they do not yet apply to Northern Ireland, the Department has already started to put in place mechanisms to prepare for the changes. From 28 October 2013, social security benefit decisions in Great Britain have been subject to the new rules around challenging or appealing such decisions. While the Welfare Reform Bill continues to make it way through the legislative process in Northern Ireland, these rules do not yet apply here. However, they will start to apply here once the Bill is passed and the Department has already started to put in place internal mechanisms and review procedures in preparation for these changes. In addition, due to the fact that Northern Ireland shares the IT system with Great Britain, people will have already started receiving decision notices referring to mandatory reconsideration (albeit with a separate insert advising people to ignore the references to mandatory reconsideration and to appeal decisions under the existing system). It is therefore an opportune time to review the changes that these amendments will introduce.
Current appeal procedure A person who receives a decision on a social security benefit that he or she wishes to challenge generally has two options. The first is to ask for the decision to be looked at again, reconsidered or reviewed. Different terminology is used but in legislative terms the person is applying for a revision under Article 10 of the Social Security (NI) Order 1998. This allows a decision to be changed in certain circumstances. The second option is to appeal against the decision. The appeal is sent to the office which made
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the original decision (so an appeal against an ESA decision is sent to the ESA office) and as part of the appeal process, a reconsideration is carried out by the Department to see if the decision can be changed before proceeding to appeal. If it is not changed, the Department will send an appeal submission to the person appealing and to the Appeals Service. The Appeals Service (TAS) is then the body responsible for administering the hearing of the appeal by a social security appeal tribunal.
Mandatory reconsideration and direct lodgement The new procedure will be that a person cannot appeal a decision on benefit entitlement until he or she has applied for a mandatory reconsideration and received a decision on that application. The application for a mandatory reconsideration is still made to the office that made the decision on the benefit claim. There are no new arrangements for requesting one, so the same rules regarding applying for a revision apply. The request does not have to be in writing but it is probably better that it is, as the aim will be to provide further information in order to demonstrate that the original decision should be changed. In addition, a written application will receive a written acknowledgement that the application has been received. The time limit for making the application will be one month from the date of the original decision. When the Department receives the request, the original decision
is looked at again by a different decision maker. Any additional evidence that the person has sent with the reconsideration request is taken into account. The decision maker will then phone the person to explain in detail how the original decision was made and what the disputed issues are, and to check if there is any additional information the person can supply. The person will then be given time to supply additional information or evidence. When the reconsideration decision is made, the person will receive two copies of a Mandatory Reconsideration Notice (MRN). This will explain the decision made and advise on how to appeal if the person is still not satisfied with the decision. ‘Direct lodgement’ means that a person will no longer submit the appeal to the benefit office. Instead, the appeal is sent directly to TAS. The appeal can be on the official appeal form, or just submitted in writing. It must, however, include one of the MRNs that the person received and must be made within a month of the date the MRN was issued. Once TAS has received the appeal, the person will receive an acknowledgement and the appeal will be sent to the relevant benefit office. In Great Britain, time limits have been put in place within which the benefit office is to submit its appeal response. There appears to be no intention to have similar time limits in place in Northern Ireland. The benefit office then sends an appeal response to TAS, and TAS passes a copy on to the person appealing. An appeal hearing (if the person has requested an oral
practitioner | Social security hearing) will then be arranged in much the same way it is now.
Impact Any changes which result in improved decision making have to be welcomed. The introduction of a phone call from decision makers to explain the decision and identify what additional evidence is required should be helpful in ensuring that the right information is provided as early as possible. However, it is questionable whether making reconsideration mandatory is necessary and whether it will not simply slow down the process of disputing a decision. Under the current system, a decision is reconsidered anyway when a person submits an appeal. The biggest impact will undoubtedly be on those who claim Employment and Support Allowance. Under the current system, a person receives ESA at the assessment phase rate until a decision has been made on her/his limited capability for work. If found to not have limited capability for work, a person can appeal this decision and will continue to get paid the assessment phase rate while waiting for the appeal to be determined (as long as he or she can continue to provide a doctor’s sick line to cover the period). Under the new system, a person will not be entitled to ESA while the mandatory reconsideration request is being processed. As this does not count as an appeal, no ESA will be paid. Instead, a person will be required to claim Jobseeker’s Allowance while pursuing a mandatory reconsideration. It is only once the MRN is issued that a person can submit an appeal and will then be entitled to ESA while waiting for the appeal to be determined. To mitigate the difficulties this may present, the ESA branch is putting in place a new process whereby a person will receive a phone call from an ESA decision maker prior to the original decision being made on the claim. During this call, the person receives a full explanation of the decision that the decision maker is considering making and is invited to provide additional evidence or information which addresses the areas of dispute. It is hoped that this will improve
a person’s understanding of what evidence is required; of the final decision; and, in the event of a negative decision, of why he or she did not satisfy the Work Capability Assessment descriptors. The focus on trying to obtain as much relevant evidence as early as possible is certainly to be welcomed but there will remain those who for various reasons are not able to get additional evidence at all or evidence which addresses the specific criteria for ESA.
Stop-gap benefit claims Those whose claim to ESA is refused and who wish to dispute the decision will have to claim a different benefit while the mandatory reconsideration process is ongoing in order to have some kind of weekly income. Some may be in the increasingly small number of people who can claim Income Support but most will have no option but to claim JSA. Such persons will have to meet the normal jobseeking conditions in order to be entitled, although the limitations as a result of their health should be taken into account. Once the mandatory
reconsideration process is over, and assuming the person still wishes to appeal, an appeal can be lodged and ESA entitlement while appealing can be established. It is unclear if at that stage a person must specifically end her/his JSA entitlement to allow the ESA award pending appeal to begin or if he or she will be automatically transferred over. In practice, this means that there might be situations where we might be best off advising clients claiming ESA that it is in their interests to have the mandatory reconsideration process go as quickly as possible so it can be refused and they can lodge an appeal. Finally, while the current timetable for SSA administered benefits suggests an introduction in 2015, the procedure has been introduced for HMRC benefits, including tax credits and Child Benefit, from April 2014. The Social Security Advisory Committee is consulting on the impact of this regulation alongside the earlier package of measures. See: www.ssac.independent.gov.uk.
Housing Benefit amendments for EEA jobseekers
W
ith effect from 1 April 2104, new rules have come into effect in Great Britain regarding Housing Benefit for EEA jobseekers. The explanatory memorandum for the regulations also states that similar rules will come into effect for Northern Ireland. The amendments now mean that those EEA nationals whose only right to reside in the UK is on the basis of being a jobseeker and receiving Income-based Jobseeker’s Allowance will no longer be entitled to Housing Benefit. Under the current rules, a person in receipt of JSA will also be entitled to Housing Benefit. This will no longer be the case unless the person has a right to reside other than as a jobseeker. For those
who are currently getting JSA as a jobseeker and also getting Housing Benefit, the regulations provide for transitional protection so that the person will continue to get both benefits until she/he either ceases to be entitled to JSA or makes a new claim for Housing Benefit. The Social Security Advisory Committee is consulting on the impact of this regulation alongside the earlier package of measures. Law Centre (NI) social security advice line: 9024 4401 and 7126 2433, Monday to Friday, 9.30 to 1pm. Lee Hatton
Social security adviser, Law Centre (NI)
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Housing equality campaign Continued from page 21
Minister McCausland, on the floor of the Northern Ireland Assembly, stated: ‘I think it was the Daily Express that described her as the ‘Brazil nut’. Other newspapers followed a similar line. Her Marxist pedigree seemed to have influenced some of her comments.’ OFMDFM - as the department responsible for promoting equality across the Northern Ireland Executive - has not commented on her recommendations. The institutions established under the Good Friday Agreement to protect human rights and equality – the Northern Ireland Human Rights Commission and the Equality Commission - have also, to date, remained silent on her recommendations relating to religious inequality. However, in delivering her report, Ms Rolnik was fulfilling both the letter and spirit of her mandate: to bear witness to the experiences of those most vulnerable in our society, those experiencing chronic inequalities and a systematic denial of fundamental human rights, and use the powers vested in her office to make these issues visible and compel government to take positive action. As evidenced above, much effort has been expended on denying that a problem exists. It is now time to refocus that energy to developing a time-bound, fully resourced strategy to eradicate religious inequality in housing in North Belfast.
Northern Ireland
Ombudsman
Hospital care standards
T
he complainant contacted the Ombudsman about the care and treatment provided to her late husband by the Southern Health and Social Care Trust (the Trust). In particular she felt that, upon her husband’s admission, the doctor in the emergency department should have had results of investigations that had been carried out the previous week. She was also not satisfied with the nursing care provided to her husband in terms of personal hygiene care; collection of stool sample; record of weight; wound care; and quality of nursing notes. The complainant also questioned the Trust’s diagnosis of her husband’s condition, the decision to discharge him and information regarding his acquisition of Clostridium difficile infection. He investigated the complaint and found no maladministration in respect of the actions of the doctor in the emergency department, the Trust’s diagnosis of her husband’s condition, the decision to discharge him or in relation to information regarding his acquisition of Clostridium difficile infection.
There was evidence that the Trust’s nursing care was not of a reasonable standard in relation to personal hygiene care and the collection of stool sample but noted that the Trust had acknowledged these failings at local resolution stage. The Ombudsman found maladministration in relation to how the Trust recorded the complainant’s husband’s weight, his wound care and the quality of nursing notes. The Trust advised the Ombudsman that it had introduced new projects to address the failings identified. The Ombudsman reminded the Trust that procedures had previously been in place to avoid these failing but were not followed; therefore it was imperative to ensure that staff follow procedures. He recommended that the Trust provide the complainant with an apology and a payment of £1,000 in recognition of the injustice suffered by her late husband because of the Trust’s failings and in recognition of the effort in pursuing her complaint. The Ombudsman is pleased to record that the Trust accepted his recommendations.
Footnotes 1
The UN Rapporteur’s comments can be read on: www.ohchr.org/en/ NewsEvents/Pages/DisplayNews. aspx?NewsID=13706&LangID=E
2 Download the Concluding Observations here: www.justice.gov.uk/downloads/ human-rights/cescr-concludingobservations.pdf 3 Read the report here: http://issuu.com/ ppr-org/docs/equality_can_t_wait or download it here: www.pprproject. org/sites/default/files/Equality%20 Can%27t%20Wait.pdf
For more information, contact Participation and the Practice of Rights, Royal Avenue, Belfast: 9031 3315
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Budget 2014 Continued from page 11 ww strengthening compliance
checks for EEA migrants - the government will increase compliance checks on EEA migrants’ claims for Child Benefit or Child Tax Credit to establish whether they meet the entitlement conditions to receive them - the checks will be applied to both new claims and to existing awards; and
ww increasing maximum recovery
rates from ongoing tax credit awards - from April 2016, the rate of tax credits debt recovery from ongoing awards will increase from 25 per cent to 50 per cent for households with an income of over £20,000 a year.
The Chancellor’s Budget 2014 speech and accompanying Treasury documents are available from: www.gov.uk/government/topicalevents/budget-2014.
REVIEWS | Books
REVIEWS Employment Tribunal Claims (tactics and precedents) Fourth edition. By Naomi Cunningham and Michal Reed. Legal Action Group, 2014. Paperback: £38. Ebook: £28.50.
This is the fourth edition of Legal Action Group’s practical guide to employment tribunal claims. The third edition was published in 2009. Whilst readers need to be mindful that the book reflects the employment law position in England it is an effective resource if readers turns their attention to the Industrial Tribunal NI Rules 2005 rather than the English equivalent. The book is ideal for the selfrepresenting claimant, newly qualified practitioner or those new to the field of employment tribunal claims. It provides a structured navigation through the labyrinthine legal system in a clear and understandable language. In the introduction, the authors set out that the key aim is to alert users to the unwritten rules and guide them in the art of staying on the right side of the decision making body. The book further seeks to offer encouragement and confidence to the reader in the form of step by step tactics, examples and precedents, which are drawn from a large number of real cases. To complement the information discussed throughout the chapters, there is a table of cases and a glossary which further serve to give the reader an in-depth and practical guide to this area of law.
The book includes a walk through the ET1 claim form, the employer’s response, getting information from the other side via discovery, the role of witnesses, negotiation and settlement, stages in the proceedings including case management discussions and postponement requests, preparing for the main hearing, procedure at the hearing, compensation, decisions, costs and review of decisions. Therefore the book essentially unpacks the process of bringing a claim to the Industrial Tribunal from the very initial stage of weighing up whether to bring a claim at all. As the Hon Mrs Justice Cox DBE described in the foreword to the first edition, the text provides comprehensive and straightforward advice and successfully demystifies the legal process. This edition does not disappoint and is an invaluable aid for all levels of experience in this often complicated and intimidating area of law. David Mitchell, Apprentice solicitor, Law Centre (NI)
Human Rights and Public Finance Budgets and the promotion of economic and social rights Edited by Aoife Nolan, Rory O’Connell and Colin Harvey. Published by Hart Publishing. Price £55.00, ebook £49.50.
This book is a timely contribution to the look at the relationship between human rights and public finance and how the human rights framework
might be applied both theoretically and in practice to social and economic issues. The book emerged from a two year research project within the School of Law at Queen’s University Belfast. The book is a collection of essays arranged around four themes – foundations, governance, group specific work (particularly children’s and gender issues) and analysis in action (focusing on housing and equality and human rights proofing of economic and social policies). There is recognition in the book that, traditionally, discussions have concentrated on the role of the courts in economic and social rights. Judges have generally fought shy of directly intervening in the realms of economic and social policy – see, for example, the Law Centre case of re Hanna where the legitimacy of resource based waiting lists for nursing home care survived a human rights legal challenge. The waiting list was legitimate provided it had an effective process for keeping priorities and serious need under review. Only occasionally have the courts intervened, for example in Limbuela (2005) where the House of Lords held that the government was obliged to provide support to asylum seekers verging on destitution. Instead, the book looks at what human rights instruments and frameworks bring to the table alongside economic theory and policy-making and explore the limitations and opportunities. The later chapters focus on how it has worked or not in practice. This remains an under-explored area of research at a time when austerity measures are increasingly driving economic and social policies. There are interesting developments afoot – the Welsh government, for example, has outlined its intention to embed economic and social rights analysis within policy-making, al though what it means in practice is yet to emerge. This book is a valuable scholarly addition to the debate on how human rights frameworks can contribute meaningfully to policy-making. Les Allamby Director, Law Centre (NI)
Frontline | Spring 2014 | 29
REVIEWS | Books
REVIEWS Discrimination Claims: A Handbook By Declan O’Dempsey et al. Published by Legal Action Group. Price £55.00.
Discrimination Claims: A Handbook is a LAG publication in the style of similar LAG publications: a team of experts - in this case drawn from Cloisters Chambers, a London barristers’ set renowned for their involvement in equality cases - has provided an easy-to understand explanation of the law. Each chapter concludes with a section entitled ‘practical points’ and other practical summary sections, entitled ‘Keypoints’, are dotted throughout chapters to help the reader digest this complex area of law and focus on those elements that are likely to be central to the progress of claims through the tribunal system. A separate chapter offers advice on practice and procedure in a tribunal and template documents are included as appendices. The most significant drawback with this text from a Northern Ireland perspective is one not of the authors’ making, but reflects the manner in which equality law here has fallen behind that of the rest of the UK. The book is focussed, logically enough, on the Equality Act 2010 which, of course, does not apply in Northern Ireland. A volume like this highlights the necessity of re-igniting the stalled Single Equality Act process, and addressing the ever-widening gap between the law here and that
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applicable in Britain. Indeed, the manner in which Northern Ireland equality law is being left behind is reflected in the fact that the original UK public sector duty – ‘Section 75’, of the Northern Ireland Act 1998 – does not even feature in this volume. Naturally, the value of the chapter on practice and procedure and the template documents is also diminished from a local point of view in that they too relate to English and Welsh practice, but they still retain a utility for representatives and selflitigants. This aspect of the book is one that could be expanded in future editions because the self-represented claimant, in particular, is constantly unsure about how to frame his or her claim in writing, or how to seek further information or relevant paperwork, or how best to respond to correspondence originating with the employer. Texts like this always re-enforce my view that if any area of law requires the availability of publiclyfunded help and support it is that of employment law. People’s employment status is central to their fortunes, governing their ability to support themselves and their families, and to invest and consume, activities central to developed capitalist societies. Legal knowledge is necessary in order to steer one’s claim competently in an efficient manner. And yet the complexity of discrimination law is immediately obvious once one begins to tackle a text like this, which after all is designed to provide a definitive goto guide for a wider audience than qualified legal practitioners. How claimants can secure advice and quality representation at a reasonable cost will be one of the challenges for legal services delivery in the future. In the meantime, this text will be very welcome here and especially in England where the new fees for lodging discrimination claims have placed further barriers in the way of claimants and forced many more of them to act for themselves. Ciaran White, LLM Clinical Legal Education course director, School of Law, University of Ulster
Judicial Review Proceedings: A Practitioner’s Guide (3rd edition) By Jonathan Manning, Sarah Salmon and Robert Brown. Published by Legal Action Group. Price £50.00.
This book is a comprehensive and practical introduction to the law, practice and procedure of judicial review. It comes nine years after the second edition (Judicial Review Proceedings, A practitioners guide, 2nd edition, 2004, Jonathan Manning) and comprises updates on changes including the creation of a judicial review jurisdiction in the Upper Tribunal in England as well as developments in substantive law. As with any publication from England and Wales, readers in Northern Ireland should bear in mind the notable differences in the two jurisdictions - most strikingly, the new remit of the upper tribunal to hear judicial review cases which does not apply in Northern Ireland. Another key difference is legal aid. Readers should exercise particular care when reading Chapter 16 - public funding and the appendices, whilst Chapter 19 on the new remit of Upper Tribunal is barely relevant at all in Northern Ireland. Reading this book alongside a Northern Ireland specific text and the practice direction published by the Northern Ireland Court service may be beneficial. That being said, it remains an invaluable resource for practitioners in Northern Ireland and the lucid, concise and well structured content would seem
to be unrivalled - as is the detailed reference to case law. The 21 chapters are well set out and appropriately categorized. Sections on law relating to housing, education, social security, police powers, planning law, information and children contain particularly useful guidance on the specifics of each area and make it a useful handbook. Meanwhile, there are chapters devoted to various sections of procedure – from the substantive grounds on which a claim can be brought through to hearing, remedies, costs and finality. The user friendly and concise nature of this text makes it an excellent first port of call for any judicial review practitioner and a welcome addition to the book shelf of law students, advisers and practitioners alike. Laura Banks, solicitor Specialist Support, Citizens Advice
Dementia and the Law By Tony Harrop-Griffiths, Jonathan Cowen, Christine Cooper, Rhys Hadden, Angela Hodes, Victoria Flowers & Stephen Fuller. Published by Jordan Publishing, 2014. Price £46.75.
Library news A selection of new publications added to the shelves of the Law Centre’s library
Books and reports Child care law in Northern Ireland by Michael Long. British Association for Adopting and Fostering (BAAF), 2014. The difference it makes: putting human rights at the heart of health and social care. British Institute of Human Rights, 2014. Still a travesty: justice in immigration bail hearings . Second Report from the Bail Observation Project. B.O.P., 2013. Winning your benefit appeal: what you need to know. Child Poverty Action Group (CPAG), 2013.
Journal articles The benefits of work: implications of zero-hours contracts. Adviser January/ February 2013. The Dublin III regulation: what will be different? By Steve Peers. Journal of Immigration Asylum and Nationality Law 28 (1) 2014. New restrictions for migrants. Rebecca Walker explains the new residence requirements from Jan 2014. Welfare Rights Bulletin (238) February 2014. The real reason for the misery of work assessments – investigating the practice and management of ATOS healthcare and how ESA decisions are made, by Keliya Frank. Poverty 147 Winter 2014. Should I stay of should I go now? : a look at the problematic topics of habitual residence and the ‘right to reside’ test. Adviser January/February 2014. UK refugee lawyers: pushing the boundaries of domestic court acceptance of international human rights law Boston College Law Review 54 (3) 2013. Walking, wheelchairs and the WCA: Simon Osborne explains a current split in the caselaw regarding ability to ‘mobilise’– functional limitations via personal factors. Welfare Rights Bulletin (237) December 2013.
Dementia is a complex condition which impacts on the lives of those it touches and the lives of their families and carers. The regional strategy ‘Improving Dementia Services in Northern Ireland’ (2011) estimates that at present in Northern Ireland there are 19,000 people living with dementia. As the population of Northern Ireland ages, the numbers of people with dementia are expected to rise to 23,000 by 2017 and around
60,000 by 2051. The law relating to dementia is equally complex, with different legal issues tending to arise at different stages in the journey from diagnosis through to long term care. Dementia and the Law seeks to cover these legal issues in a comprehensive yet accessible manner when it comes to the law in England and Wales, although it does not deal with Northern Ireland or Scotland. Nonetheless it provides a helpful overview of the legal issues which can arise in the context of a person with dementia such as: access to personal information; rights to assessments; care and treatment;
planning for the future; and making best interest and welfare decisions where a person lacks the capacity to make the decision themselves. This is a useful reference work for anyone working with people with dementia, although in Northern Ireland it is more a guide to potential legal issues, than a guide to the relevant law itself. Another major text in this area of law is due for publication by Hart in 2014 and this may prove to be more useful in the Northern Ireland context. Colin Harper Assistant Director (Community Care and Mental Health), Law Centre (NI)
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training at Law Centre (NI)
Rights in Progress
Belfast
Human Rights and the Human Rights Act
A guide to the European Convention on
date
course
6 May
Welfare Rights Advisers Programme 8 days - Introductory level
20 May
Introduction to Mental Health Law Introductory/Intermediate
23 May
Understanding Universal Credit Introductory/Intermediate
29 May
Personal Independence Payment Introductory
10 June
Carers and their Rights Advanced
12 June
Dublin III Regulation ½ day Advanced
27 June
Social Security Appeals – Identifying Errors in Law and Appeals to the Social Security Commissioner Advanced
date
course
15 May
Understanding Universal Credit Introductory/Intermediate
22 May
Personal Independence Payment Introductory
18 June
Carers and their Rights - Advanced
Derry
All Law Centre courses count towards CPD requirements for solicitors, barristers and CAB advisers. Contact Elaine McCorriston for details: admin.derry@lawcentreniwest.org or visit www.lawcentreni.org. Full Training Programme online: www.lawcentreni.org/training/training-programme
Fourth Edition
revised and expanded Les Allamby and Jonathan Simpson Law Centre (NI) 2013, ISBN 978-1-872299-27-3 £10.00 (postage and packing free)
Are you a public authority with obligations under the Human Rights Act, legal adviser, law and social policy or politics student or researcher? Then this guide is for you. Order from: Publications Unit, Law Centre (NI) 124 Donegall Street, Belfast BT1 2GY Or online: catherine.couvert@lawcentreni.org
Training and conference rooms for hire The Law Centre’s training and conference room seats 40 people and can be hired at the rates listed below. An additional meeting room, seating ten people, can be booked subject to availability, at rates to be negotiated. Members
Non-members
£60 (half day)
£70 (half day)
£120 (full day)
£140 (full day)
These rates include the hire of the room and use of equipment, which must be pre-booked and is subject to availability. Catering also available.
For more information or to book: contact Ann Cartwright on: 028 9024 4401 or email: ann.cartwright@lawcentreni.org