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Home > Vol 20, No 3 (2014) > Collingbourne

The Care Act 2014: a missed opportunity?

Tabitha Collingbourne [1]

Cite as: Collingbourne T., "The Care Act 2014: a missed opportunity?", (2014) 20(3) Web JCLI

Abstract

This paper examines the Care Act 2014 in relation to the requirements of the UN Convention on the Rights of Persons with Disabilities 2006, in particular those of Article 19, the right to live independently and be included in the community. It finds that the Act's overarching principles are broadly compatible with the Convention and that its legislative framework constitutes a significant improvement on previous provisions. The paper argues, nonetheless, that an opportunity to enact legislation which fully implements Article 19 in England has been missed. Article 19 is a 'hybrid' right: it melds together civil and political rights to autonomy and inclusion with the socio-economic right to support services essential for their exercise. In England, by contrast, the provision of services continues to be understood not as 'right' but as 'welfare' entitlement. The 'paradigm shift' from a welfare to a rights approach to disability which is the fundamental purpose of the Convention is thus not fully accomplished. As a result, it is argued, there is no recognition in the Act of a right to live independently and be included in the community; and further gaps in compliance with the Convention arise. Vital areas where further development is required include commitment to progressive realisation of the socio-economic elements of Article 19 to the maximum of available resources; effective monitoring and redress systems; and full central government accountability. The paper concludes that the opportunity provided by development of the Care Act 2014 to enact CRPD-compliant legislation to implement Article 19 has been missed. The support services essential for the exercise of Article 19 remain vulnerable to retrogression, unmonitored and unenforceable. As a result, Article 19 does not have full domestic legal effect in England, calling into question implementation here of the Convention as a whole.

Keywords

Care Act 2014; UN Convention on the Rights of Persons with Disabilities; economic, social and cultural rights; independent living; progressive realisation; redress; accountability.

1. Introduction

The Care Act 2014 (the Act) updates and consolidates the legal framework for provision of social care in England. It comes five years after the United Kingdom ratified the UN Convention on the Rights of Persons with Disabilities 2006 (CRPD/the Convention). This paper examines the Act in relation to the requirements of the CRPD, in particular those of Article 19, the right to live independently and be included in the community, and the socio-economic right to support services under Article 19(b).

The purpose of the Convention is to 'promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all disabled people and to promote respect for their inherent dignity'. [2] It has been described as an 'implementation' convention: [3] it aims to ensure that all existing rights are actually enjoyed in practice by all disabled people on an equal basis with others. Rights reaffirmed include civil rights to life, liberty and a fair trial; political rights to take part in government, access public services and vote in elections; economic and social rights to education, to work, to health and an adequate standard of living; and the right to participate freely in the cultural life of the community. The CRPD also sets out other, 'enabling' rights. One such is Article 19, which enshrines the right of disabled people to live independently, with choices equal to others, and to be included in the community.

Article 19 is arguably one of the most important rights in the Convention, since the choice, freedom and inclusion it demands are pre-requisite for the exercise in practice of all other rights. To facilitate such autonomy and participation, Article 19 requires ratifying States to ensure that disabled people have the opportunity to choose where and with whom they live; and that they have access to the range of services necessary to support community living and to prevent isolation or segregation. Key to realisation in practice of Article 19, and so of the Convention as a whole, is therefore the domestic legal framework for provision of such services.

The United Kingdom ratified the CRPD in 2009, promising to ensure and promote the full realisation of all human rights for all disabled people in its jurisdiction. In so doing, it undertook 'to adopt all appropriate legislative, administrative and other measures for implementation of the rights recognized in the… Convention', [4] including Article 19.

At the time, the domestic legal framework relating to adult social care in England had long been recognised as being in need of review. In 2008, the Law Commission [5] identified 34 relevant Acts of Parliament, noting the legislation's out-dated concepts that favoured institutional care for disabled and older people, its offensive, stigmatising language, and its potential incompatibility with European Convention rights. Unsurprisingly, this body of law gave rise to many difficulties in its application. These included wide and unpredictable geographical variations in the availability of support, duplication of bureaucracy, [6] and the on-going failure of statutory bodies to work together, [7] all of which resulted in significant avoidable costs for local authorities, the State and disabled people alike. [8] For the latter, the cost was not just financial: it resulted in restriction or denial of the support required for the exercise of their Article 19 rights to live independently and be included in the community. [9] This legislative framework was therefore ripe for repeal, with development of its replacement offering an opportunity to introduce new, CRPD-compliant, 'legislative, administrative and other measures' [10] to implement Article 19.

The resulting Care Act 2014 seeks to address some of the problems outlined above, while also consolidating and updating the legal basis for provision of social care in England. This paper recognises that the Act's overarching principles and legislative framework constitute a significant improvement on previous provisions, and appear, on their face, to be broadly compatible with the Convention. However, it holds that the opportunity to enact legislation which fully implements Article 19 has been missed in some key respects. One central omission is the failure to enact a clear statutory right to live independently and be included in the community. This, it is argued, springs from successive United Kingdom governments' continuing (mis)understanding of the socio-economic elements of Article 19 as 'welfare' rather than as 'rights'. This (mis)understanding also leads to other vital areas where further development is required. Compliance with international human rights law requires progressive realisation of the socio-economic elements of CRPD Article 19 to the maximum of available resources; establishment of effective monitoring and redress systems; and full central government accountability.

The analysis below considers Part 1 of the Care Act as it relates to the individual receiving care in England. [11] The Act's overarching principles and legislative framework are first compared to those of the CRPD. Enactment of a statutory right to independent living is then discussed, before other areas for further development are highlighted.

2. The Care Act and the CRPD

2.1 Over-arching principles

The philosophy and practice of independent living, as developed by disabled people since at least the 1970s, [12] has been described as 'the emancipatory philosophy which empowers disabled people and enables them to exert influence, choice and control in every aspect of their life'. [13] In direct contrast to the 'welfare' model, which sees people as passive recipients of compensation for their exclusion from society, [14] it aims to bring about holistic social change, not only in the lives of individuals but also more broadly to structures, attitudes and approaches to disability in the wider community.

Disabled people and their organisations played an influential role in bringing about and in drafting the CRPD, [15] and elements of their independent living discourse can be found reflected throughout the Convention. [16] During drafting of Article 19, the interpretation of 'independent living' was contentious, with some stressing that it should not be seen as endorsing disabled people's independent living movement. However, the concept was important to many delegations, and concensus was eventually reached for using the term 'living independently' with the understanding that it was intended to reinforce the concept of 'community living'. [17]

The CRPD sets out the 'general principles' underlying the Convention in Article 3. First on the list is:

1. Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons.

Others include

2. Non-discrimination
3. Full and effective participation and inclusion in society, [and]
4. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.

Article 19 itself fleshes out these core principles in the context of living arrangements and inclusion, requiring ratifying States to 'recognize the equal right of all persons with disabilities to live in the community, with choices equal to others'.

Independent living, as understood by disabled people, has also featured strongly in English domestic policy. The Prime Minister's Strategy Unit 2005 report on Improving the Life Chances of Disabled People [18] identified independent living as one of four areas central to future strategy for bringing about its 'ambitious vision' that by 2025, disabled people should have the same opportunities and choices as non-disabled people and be respected and included as equal members of society. [19]

Work towards the 'transformation' of delivery of social care through 'personalisation' of services and integration of funding streams ensued, [20] as did a review of relevant legislation.

In 2010, the Law Commission's initial consultation in its review of adult social care [21] included 'a principle…based on the concept of independent living' [22] as one of a list of possible statutory principles to be included in a future consolidation Act. [23] The Commission's provisional view was that 'independent living is not … easily translated into a precise statutory principle', but it asked for views. [24] The responses received were mixed. On one hand, those familiar with disabled people's understandings of the concept [25] were strongly supportive of its inclusion and primacy, believing that it should become 'the first and paramount consideration whenever social services make a decision or take action.' [26] Others were less clear about its meaning, and thus about its relevance. [27] In due course, the Commission recommended individual 'well-being' as the statute's central principle, [28] and the Government agreed. [29] Efforts to re-introduce the concept of independent living as an over-arching principle continued throughout Parliamentary debate on the Care Bill. [30] These arguments were resisted by the Government on the grounds that 'it is unnecessary because the concept of "independent living" and "community inclusion" are already a core part of the wellbeing principle.' [31] Individual 'well-being' was finally enacted as the over-arching principle of Part 1 of the Care Act. [32]

'Well-being' is not defined in the Act, but is supported by a list of outcomes and matters to which the local authority must 'have regard'. These resonate compatibly with CRPD principles and Article 19. In particular, the Act emphasises mental and physical integrity, [33] dignity, [34] and individual control of services, and challenges traditional assumptions of dependency. [35] The individual's participation in decision-making is promoted, [36] and the holistic nature of independent living recognised, as is the principle of non-discrimination. Protection from abuse and neglect echoes CRPD Article 16; [37] and other matters reflect rights to work, to family life, to education, to housing options and an adequate standard of living, and to cultural inclusion, all of which feature as rights in the CRPD. Fundamental to a more rights-based approach to disability is the recognition in the Care Act that the individual - not the State - is best placed to judge their own well-being. [38]

In general, then, although 'independent living' does not feature in the text of the Act, the principles set out there appear broadly compatible with those underlying the Convention. [39] When compared to previous paternalistic, out-dated and stigmatising legislation, they constitute a welcome transformation in approach. This incipient transformation is however negated in practice by the government's insistence that neither the well-being principle nor its supporting outcomes or factors are intended to create any directly enforceable or individual rights [40] - a point to which we return below.

2.2 Legislative framework

The aim of the Act is not only to bring the principles and language surrounding social care up to date, but also to consolidate the mass of legislation, regulations, directions and guidance accumulated in this field since the 1940s. In doing so, it leaves the existing framework essentially unchanged, though with some changes in focus.

Under the Act, local authorities have two levels of duty: universal and individual. At the universal level, they must promote individual well-being; prevent, reduce or delay the onset of needs for care and support; [41] provide information and advice; cooperate with local partners in the integration of services; and shape a market of care and support providers. In line with the current government's strong free market agenda, the Act accelerates the on-going shift from local authority to private and voluntary sector provision, [42] requiring local authorities to 'promote the efficient and effective operation of a market in services' [43] so that individuals have a variety of high quality services available when making choices in their lives.

At the individual level, a single 'duty to assess' remains the sole means through which eligibility for services is determined, [44] though now remodelled to address some of the problems outlined above and to conform to the Act's over-arching principles. While each local authority has until now had discretion, within national guidelines, [45] as to how assessment is carried out, how eligibility criteria are applied, and whether, and how much, service-users will be charged, under the Act, regulations set out these aspects in more detail, and set national eligibility criteria. [46] The Act also introduces the new promise of a cap on care costs, [47] which will limit the amount any one person must pay towards their care over their lifetime.

From a CRPD perspective, this legislative framework, when considered within the over-arching principle of 'well-being' outlined above, constitutes in many ways a significant improvement on previous provisions. The emphasis on prevention, information and advice, and integration of services is positive, as are efforts towards consistency in assessment, eligibility and charging . Nonetheless, it is argued here that key elements are missing from the Act which prevent it from fully meeting the Convention's requirement for 'appropriate legislative, administrative and other measures' for implementation of Article 19. First and foremost is the failure to enact a statutory right to live independently and be included in the community.

3. A 'right' to independent living?

Over past decades, disability activists and their allies in England have achieved some notable successes. These include formulation of a highly influential social model of disability; moves away from segregation and hospitalisation and towards 'care in the community'; [48] and enactment of the first disability discrimination legislation in Europe. [49] They have also resulted in the introduction of some elements of entitlement and choice into a paternalistic welfare state, [50] including a right to receive support in the form of Direct Payments [51] and a (limited) right to choose one's residential accommodation. [52] Such developments have helped to implement in practice the civil and political rights to autonomy, choice and inclusion set out in the head of Article 19, and they are reaffirmed and further carried forward in the Care Act. [53]

More recently, as noted above, the Prime Minister's Strategy Unit report on Improving the Life Chances of Disabled People was published in 2005, while the Convention was still in negotiation. Despite the UK's involvement in those negotiations, there is no reference to them in the Report. Nevertheless, the aims and understandings of the writers of Report also fit closely with those of the drafters of the CRPD, and with the terms of Article 19.

At the same time, a private member's Bill setting out a right to independent living was drafted and presented to Parliament. [54] This took respect for and promotion of disabled people's human rights as a central principle. [55] It set an emancipatory and inclusive agenda, based in the principles of independent living and including provisions to bring about fundamental and holistic change in line with the terms, purpose and ethos that we can now recognise as compliant with the CRPD. The Independent Living Bill was passed three times by the House of Lords, but made no further progress. Instead, the Law Commission began its own review of adult social care, discussed above.

In the policy field, the process of 'transformation' in the delivery of adult social care, noted above, was set in train in 2006. In the course of that transformation, the understandings of independent living which lie behind the Life Chances report and the Independent Living Bill have undergone a variety of interpretations and re-interpretations, [56] initially without reference to human rights, to the CRPD or to Article 19. A turning point came in 2012 with the Joint Committee on Human Rights' report on Implemention of the Right of Disabled People to Independent Living. [57] Here, the Committee stressed the binding nature of the CRPD, [58] regretted that the Convention had not been incorporated into UK law, [59] and noted that 'disabled people in the UK do not enjoy a right to independent living in domestic law.' [60] It was 'concerned… that merely filling in the gaps in the current legislative framework will still not accord the right to independent living the legal status that its fundamental importance deserves', [61] and recommended consideration of free standing legislation to implement Article 19. [62] During Parliamentary debate on the Care Bill, the JCHR [63] and others [64] renewed their advocacy of enactment of a free-standing right to independent living, but to no avail. [65]

While these events were in train in England, the CRPD was drafted, adopted, came into force, and was ratified by the UK. The CRPD crystallises what Quinn and Arnandóttir have described as a 'triumph of ideas': '[i]t both reflects - and helps us to clarify as well as accelerate - the shift from a traditional framework of reference on disability (often referred to as the 'medical model') to one based more explicitly on securing the rule of law and human rights for persons with disabilities.' [66] The Convention thus demands of ratifying States a transformation in understanding of and approach to disability. Here, impairment is no longer seen as an aberration to be 'othered', but as universal human variation to be accepted, respected and accommodated. [67] Disabled people are no longer viewed as excluded recipients of welfare, but as active, valued and equal rights-holders. As Quinn and Arnandóttir insist, '[t]he importance of this paradigm shift cannot be overemphasized.' [68]

We have seen above that Article 19 is fundamental towards that shift in understandings. [69] To ensure its role as an 'enabling' provision, Article 19 is a 'hybrid' right: it melds together civil and political rights to autonomy and participation with the socio-economic right to the support services essential for their exercise. [70] As Serbian delegates recognised early in the Convention negotiations, 'one of the preconditions to exercise the freedom of choice of where to live would be the necessary support.' [71] The two are inseparable, not only in law, but also in practice.

In England, however, despite strong support for civil and political rights to autonomy, choice and inclusion, we have found longstanding resistance, even in the context of CRPD ratification, to enactment of a right to independent living. To explore why this might be the case, we must return to the international human rights arena. The indivisibility and interdependence of all human rights - civil, cultural, economic, political and social - is a well-established doctrine at international level, and one to which - at least in this arena - the United Kingdom subscribes. [72] It is a principle that has particularly significant consequences for disabled people. As Quinn and Bruce argue,

[s]et against the backdrop of using rights to restore power to people, economic, social and cultural rights have an enabling function - they provide a bridge whereby persons with disabilities can take their place as valued and often highly productive citizens…. they enable people to take charge of their own lives. It is in this sense that economic, social and cultural rights enhance freedom. [73]

Article 19 melds together the two 'sets' of rights for exactly that purpose. [74]

The United Kingdom, however, has not incorporated international economic, social and cultural rights standards into its domestic law. Whilst the Human Rights Act 1998 'brings home' the civil and political rights set out in the European Convention on Human Rights, and the Equality Act 2010 prohibits discrimination on the basis of disability, successive governments [75] have chosen to view international socio-economic rights not as 'rights' but as principles and objectives to guide politicians in the allocation of scarce resources. [76] They argue that these 'principles and objectives' are implemented through the policies, laws and practices of the British welfare state [77] - such as, for example, the Care Act 2014. Under this argument, rather than being identified as constitutional rights of equal importance to and indivisible from the civil and political rights they enable, support services become 'welfare entitlements' subject to the gift (or denial) of the State. To enact a free-standing, directly enforceable 'right' to independent living, and by analogy to the services required to support that right, would directly counter this long-held and strongly entrenched position. [78] Indeed, during CRPD negotiations, the United Kingdom government argued against the inclusion of Article 19(b) which requires the provision of access to a range of services to support community living and to prevent isolation and segregation. [79]

So does it matter that the Care Act is welfare- rather than rights-based? We have seen that the CRPD demands paradigm change: from a welfare to a rights perspective. We have also recognised that the over-arching principles set down in the Care Act show significant improvement on previous provisions, and appear, on their face, to be broadly compatible with those underlying the Convention. To that extent, an incipient transition in approach appears to be under way as compared to that evidenced in the paternalistic legislation inherited from the 1940s. However, one important ingredient is still missing. As Quinn et al reiterate, 'in the context of disability… the removal of barriers through civil rights and non-discrimination law is clearly not enough.' [80] Here, the role of economic, social and cultural rights is not one of welfare provision as compensation for exclusion, but is one of enabling inclusion, and thereby the exercise by disabled people of all other Convention rights.

In England, [81] however, this discourse remains invisible. The socio-economic elements of Article 19 continue to be viewed not as equal, constitutional rights, but as 'welfare' entitlements. Individuals, policy-makers and law-drafters have no recourse to international human rights frameworks to guide implementation. The 'paradigm shift' from welfare to rights thinking which is the fundamental goal of the Convention is not fully accomplished; and the opportunity to enact a new, CRPD-compliant right to live independently and be included in the community in line with Article 19 is missed. [82]

Moreover, further gaps in compliance with international human rights law arise. When the UK ratified the CRPD, it undertook to realise the economic, social and cultural rights in the Convention - including those under Article 19 - in line with international law obligations. [83] These obligations are found in the International Covenant on Economic, Social and Cultural Rights (ICESCR/the Covenant) and its jurisprudence. According to that jurisprudence, States ratifying the Covenant, as the United Kingdom did in 1976, give an unqualified undertaking to 'take steps… with a view to achieving progressively' realisation of the rights. [84] Steps taken must be 'deliberate, concrete and targeted as clearly as possible' towards meeting the obligation set out in the Covenant. [85] A 'minimum core obligation' must be met 'to ensure that satisfaction of, at the very least, minimum essential levels of each of the rights'. [86] Failure to do so constitutes breach of a State's obligations. [87] Beyond this minimum, States must respect, protect and fulfil the rights concerned. Failure to perform any one of these three duties, albeit progressively, also constitutes a violation of the right; [88] and any deliberately retrogressive measures must be fully justified. [89] To ensure that these obligations are met, 'the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.' [90]

The remainder of this paper examines the Care Act 2014 in light of these requirements.

4. The Care Act and international law obligations

4.1 Minimum essential levels of provision

To avoid fundamental breach of the Covenant, at least a minimum essential level of provision must be met. Under the Care Act, the allocation of resources in any individual case will continue to depend on the application of eligibility criteria, until now determined by each local authority in line with national guidance. [91] Since 2003, that guidance has set out four bands of eligibility: critical, substantial, moderate and low. "Critical" means that life is at risk, or there is great risk of serious illness or harm; "substantial" covers situations of abuse or neglect, and/or where the majority of personal care routines, work or education, social relationships and/or family responsibilities cannot be sustained; the inability to sustain several of these personal, work and social routines and responsibilities constitutes the "moderate" band; and "low" eligibility applies where one or two such roles or responsibilities cannot be undertaken. As yet, no English local authority has taken a decision not to provide services to those eligible at critical level, although a small number currently provide services only at that level. [92]

English common law has also recognised a minimum essential level of provision which appears to correspond broadly with the 'critical' band of the guidance, albeit dressed in common law arguments of 'reasonableness'. In the 1997 Gloucestershire case, [93] McCowan J held that the availability of resources should be 'no more than one factor' in assessment of eligibility, recognising that:

[c]ertain persons would be at severe physical risk if they were unable to have some practical assistance in their homes. In those situations, I cannot conceive that an authority would be held to have acted reasonably if they used shortage of resources as a reason for not being satisfied that some arrangement should be made to meet those persons' needs. [94]

It is arguable that these provisions meet the 'minimum core obligation' under international law, although significant examples continue to arise where they have not been realised in practice, with consequent serious harm and loss of life amounting to breach of CRPD rights. [95]

Beyond this minimum, States must take steps to progressively realise provision to the maximum of available resources.

4.2 Progressive realisation

Over recent years, in response to long-term systemic underfunding, [96] local authorities have increasingly raised the threshold of eligibility for social care. By 2012, 84% of councils were providing services only at the 'substantial' level and above, while 5 councils provided at 'critical' level only. [97] According to the National Audit Office, '[e]ighty-five per cent of adults over 65 now live in local authorities which arrange services for adults with substantial or critical needs only. One per cent of adults live in authorities which provide for critical needs only.' [98] It has been further estimated that 69,000 working-­age disabled adults in England have fallen out of the care system because of these changes to eligibility. [99] Older adults have experienced the greatest reduction in provision, at 12 per cent in real terms, while younger adults with learning disabilities have experienced the smallest reduction, at 0.2 per cent in real terms. [100] In addition, because social care provision is means-tested, there are many 'self-funders' who have not had access to the system in the first place. [101] Combined with other cut-backs in financial support, the rising eligibility threshold for social care has led the Joint Committee on Human Rights to warn of 'a significant risk of retrogression of independent living and a breach of the United Kingdom's Article 19 obligations.' [102]

Much therefore depends on the national eligibility criteria set out in the regulations made under s13(6) of the Act. These [103] state that an adult will meet the eligibility criteria if (a) the adult's needs are caused by a physical or mental impairment or illness; (b) as a result of those needs, the adult is unable to achieve two or more of a list of outcomes; and (c) in consequence there is, or is likely to be, a significant impact on the adult's well-being. The listed outcomes include (a) carrying out basic care activities, such as eating and drinking, getting dressed, preparing meals and maintaining one's home; (b) maintaining family or other significant personal relationships; (c) accessing and engaging in work, training, education or volunteering; (d) accessing necessary facilities or services in the local community such as medical, educational or recreational facilities; and (e) carrying out any caring responsibilities the adult has for a child. Whereas the Draft Regulations required only one of the list of outcomes to be unachievable, the final Regulations require two or more: they thus raise the elegibility threshold further, excluding more people from eligibility for lower level services and leaving informal carers, where available, to fill in the gaps. [104] In practice, much will depend on interpretation of what constitutes a 'significant impact' on a person's well-being. However, the new criteria look set to be broadly equivalent to the current 'substantial' band of eligibility.

Local authorities will be free to set their eligibility threshold at a lower level, but not to raise it above the new national level. If the new regulations are interpreted as broadly equivalent to the 'substantial' band, they will reflect the current status quo, and should prevent future restriction of eligibility to 'critical' only. However, given the starting point described above, it is difficult to see how the current pattern of social care provision at or near crisis point only can be turned around to support the government's agenda without a substantial and sustained injection of funding. As the Joint Committee on Human Rights pointed out, 'the new eligibility criteria for adult social care… could represent a potentially retrograde step in the promotion of the right to independent living under Article 19 if the national eligibility threshold is set so high as to exclude large numbers of adults from access to care and support.' [105]

Prevention and early intervention, whilst highly desirable from the perspectives of both the individual and the State, require availability of low-level support from the onset of a person's difficulty in order to avoid its escalation into crisis. Moreover, it is often low and moderate level support services that actually enable someone to go to work, to take part in education, leisure or family activities, to participate in the community and to make the choices to which they are entitled under Article 19. As the Joint Committee on the Draft Care and Support Bill concluded, "the overall level of funding available for care and support will impact on how far the reforms… can be realised, particularly the stated goal of shifting emphasis from crisis intervention to prevention and early intervention." [106]

4.3 To the maximum of available resources

For realisation of Article 19 to be genuinely progressive, in line with international requirements, it must be achieved to the maximum of available resources. As noted above, it has been widely recognised that social care in England has suffered from long-term systemic underfunding. Since 2010, in a period of austerity and deep public funding cuts, the Coalition government has provided some additional funding towards social care. [107] Nevertheless, in June 2012 the Association of Directors of Social Services (ADASS) reported a £890 million shortfall in adult social care funding, constituting a cumulative reduction in adult social care budgets of £1.89 billion over two years, at a time when pressure from the number of older and disabled adults was growing at 3 per cent per year. [108] The majority of those reductions were met from service re-design, efficiency or increased charges, but front-line services have also been cut, and further direct reductions in services have been predicted in the absence of a new, sustainable funding system. [109] This situation also impacts more widely. Funding shortfalls in local authority spending have resulted in more delayed discharges from hospital; greater demand for community and mental health services; more acute admissions to hospital; more A&E attendances; and more emergency readmissions, [110] with all the concomitant negative impacts on those people's lives and their rights to independent living.

The National Audit Office confirms that 'local authorities' total spending on adult social care fell 8 per cent in real terms between 2010-11 and 2012-13 and is projected to continue falling.' [111] Their analysis shows that around three-quarters of the fall in spending has been achieved by reducing the amount of care provided. As they point out, this may not be entirely negative: it could reflect the effective prevention of need for care, as well as tightening eligibility criteria or reductions in service. Other savings may have been achieved through paying less for care, again either reflecting more efficient commissioning, or a risk of deterioration in standards in an already undervalued profession. While central government's intention in the 2010 spending review may have been to protect spending on adult social care, many agree that the additional funding provided is insufficient. Moreover, that funding is not ring-fenced, and many local authorities have had to take difficult decisions when weighing up their overall priorities in a period of deep public funding cuts. [112] The Department of Health estimates additional annual costs to local authorities of between £17.9m and £23m in moving to a national minimum eligibility threshold; and costs to those authorities that have moved to "critical" only of between £10m and £25m per annum to move back to a 'substantial'-equivalent level. [113] Further pressures will be imposed from 2015 as local authorities take on responsibility for those previously in receipt of support through the Independent Living Fund. [114]

In 2012, whilst recognising the exceptional economic circumstances facing the UK, the Joint Committee on Human Rights reminded the Government that it must 'give due attention to [its] obligations under international law'. [115] Those obligations include funding the progressive realisation of Article 19 services to the maximum of available resources. Felner [116] points out that monitoring this requirement has its difficulties, but that it should not be claimed that lack of progress is due to insufficient resources when, in fact, the problem is not the availability but rather the distribution of resources.

4.4 Monitoring progressive realisation

To meet international requirements, specific targets must be met to satisfy a detailed substantive standard. International human rights jurisprudence has developed methods of measuring progress in the realisation of rights. One such framework is the tri-partite duty to respect, protect and fulfil each right. [117] The Maastricht Guidelines set out obligations of conduct, and obligations of result. [118] Benchmarks or indicators have been developed to help assess and monitor further progress, [119] including in relation to CRPD implementation; [120] and the Ruggie Principles, albeit not binding, extend such obligations to the private sector. [121] However it is done, it requires a structured system for collection of relevant information and statistics to enable measurement and monitoring. [122]

The CRPD requires that States designate one or more 'focal points' within government to co-ordinate and monitor implementation of the Convention. [123] The United Kingdom's 'focal point' is the Office for Disability Issues (ODI), which is tasked with co-ordinating the Coalition government's disability strategy, "Fulfilling Potential". [124] This is an ongoing project, based on three themes of realising aspirations, individual control and changing attitudes and behaviour. These themes are broadly compatible with the purpose and principles of the Convention, and since 2012, strategy documents have specifically related their content to implementation of the CRPD. Included in the strategy's aspirations is reform of public services to support independence and participation, [125] in line with Article 19.

The ODI is also responsible for collecting and publishing disability statistics in accordance with CRPD Article 31, and it does so in line with the three "Fulfilling Potential" themes. However, the questions asked in the field of independent living and, consequently, the data produced, are limited to broad questions about 'life satisfaction' and whether disabled people believe they 'frequently have choice and control' in their lives. [126] Whilst these questions are important for Article 19, they again reflect the UK's strong focus on individual civil and political freedoms as against the socio-economic rights essential for their exercise. They fail to ask, for instance, about the 69,000 working age disabled adults estimated to have fallen out of the care system due to tightening eligibility criteria; about the experiences of the many self-funders who were unable to access the system in the first place; about the many, particularly older, people who have been placed against their wishes in residential care for lack of resources in the community; or who may face returning to residential care, in direct contravention of Article 19, as a result of closure of the Independent Living Fund. [127]

States must also maintain independent mechanisms for monitoring implementation of the Convention. [128] The Equality and Human Rights Commission (EHRC) fulfils this role in England. The EHRC has published a Human Rights Measurement Framework based on international models [129] which has been used to assess progress in implementation of some key socio-economic as well as civil and political rights. This framework is far more thorough and stringent than that of the ODI, bringing together legal and policy developments with concerns raised by a range of bodies, from regulators and ombudsmen to non-governmental organisations and media reports. However, work to assess progressive realisation of the socio-economic aspects of CRPD Article 19 using this framework has not yet been undertaken, [130] with the result that no independent assessment of progress or retrogression in this field is currently available.

4.5 Effective remedies for breach

Full implementation of economic, social and cultural rights requires that aggrieved individuals or groups have access to appropriate means of redress or remedies, [131] a requirement echoed in Article 13 of the CRPD. Under the current welfare system in England, it is normally necessary for social care disputes to exhaust internal local authority complaints procedures [132] before proceeding to the Ombudsman or to judicial review. However, none of these administrative options address the merits of the substantive decision being challenged, and all present difficulties for the complainant.

The internal complaints procedure is designed to give 'voice' to the service user as a means of improving service quality. Research [133] has consistently suggested that even this limited administrative objective has not been effectively met. Key issues here are the perceived lack of independence of internal complaints systems, in an administrative setting where power relations between service providers and users are highly unequal; and confused, sometimes conflicting, expectations on the parts of both complainants and service managers concerning the purpose and possible outcomes of the procedure. [134] Judicial review currently provides the only 'legal' recourse for dis-satisfied complainants. Following lively Parliamentary debate, [135] section 73 of the Care Act ensures that all registered care providers in England are covered by section 6 of the Human Rights Act 1998 when providing domiciliary or residential services, [136] so enabling claimants to assert their European Convention rights in the courts. And, as we have seen above, the Care Act principle of well-being is intended to carry indirect legal weight in judicial review proceedings. [137] But here again, the complainant faces many constraints and frustrations. The process of judicial review, like internal complaints, concerns procedural rather than substantive issues; [138] recent legal aid cuts have closed the courtroom door to many applicants; [139] and case law has raised the threshold for human rights claims in this field to all but the most extreme cases. [140] The courts themselves have directed prospective claimants to the Parliamentary or Local Government Ombudsmen, who 'are designed to deal economically… and effectively with claims for compensation for maladministration.' [141] Here there are fewer barriers for the complainant. The Ombudsmen's service is free and accessible, their investigations inquisitorial and flexible, their brief to counter public sector maladministration broad and unfettered by precedent, and their remit inclusive of private sector providers. [142] Moreover, the Ombudsmen recognise their role in supporting international commitments to socio-economic rights, [143] and regularly deal with complaints that touch upon dignity and rights in the context of disability. [144] However, here too, the focus remains on 'maladministration' rather than substance, and those complaints that reach the Ombudsman represent the tip of the iceberg: the Ombudsmen's capacity to provide an effective channel for redress is limited to a tiny minority of Article 19 cases. [145]

Section 72 of the Care Act allows for regulations to make provision for appeals by individuals against decisions taken by a local authority in exercising its functions under Part 1 of the Act. At the time of writing, no draft regulations have yet been issued for consultation. In the meantime, it is argued here that the current 'monumentally opaque' [146] redress systems available are inadequate to constitute the 'appropriate means of redress, or remedies' required under international human rights law.

4.6 Central government accountability

Finally, international human rights law requires central government accountability. It is States which are the duty-holders under the CRPD and other international human rights treaties; it is their national governments on which international legal obligations rest. The Coalition government's 'localism' agenda shifts many aspects of that responsibility to local communities and to the individual. It is the local authority's role to facilitate a 'thriving social market'. [147] Through the system of 'personal budgets', [148] disabled people become individual employers and consumers, stimulating market competition and responsible for their own 'welfare' outcomes.

These localised, individualised and market-driven solutions may constitute one effective method of facilitating enjoyment of the right to live independently and be included in the community. [149] However, they also present significant risks. The UN Committee on Economic, Social and Cultural Rights issued the following warning in 1994:

[g]iven the increasing commitment of Governments around the world to market-based policies, it is appropriate in that context to emphasize certain aspects of States parties' obligations. One is the need to ensure that not only the public sphere, but also the private sphere, are, within appropriate limits, subject to regulation to ensure the equitable treatment of persons with disabilities…. Where such protection does not extend beyond the public domain, the ability of persons with disabilities to participate in the mainstream of community activities and to realize their full potential as active members of society will be severely and often arbitrarily constrained… in such circumstances it is incumbent on Governments to step in and take appropriate measures to temper, complement, compensate for, or override the results produced by market forces. [150]

Moreover, market solutions may not achieve the desired results. Stevens et al argue that:

the focus on choice of service and resources is at best insufficient and potentially counter to the overall goals of independent living and increased autonomy and rights… This can be seen as a problem, not with the abstract concept of choice, but in the specific emphasis given in public policy to the market model of individual agents making free purchasing choices. [151]

They offer three critiques. Firstly, the question remains whether individual purchasing choices will actually influence market supply or service quality for the better. Secondly, the exercise of choice in this way involves a challenge to existing power relationships with professionals who have previously been key players in decision-making. [152] And thirdly, even assuming availability of accessible information, those with the insight, energy and ability to identify better buys, or with access to willing relatives or brokerage services, are likely to gain most from the increased choice, while those without such advantages risk poorer outcomes. As O'Cinneide points out, many disabled people 'are not self-sufficient monist entities, but rather depend upon collective social action to make provision for their basic rights.' [153]

There therefore remains an important role for central government - one which, in some respects, the present government appears reluctant to shoulder. In development of the Care Act, care and support was seen as 'a locally managed and delivered service, for which local authorities are responsible.' [154] When the Joint Committee and others [155] suggested that the Secretary of State should also be subject to the general duty to have regard to 'well-being', the government disagreed: '[l]ocal authorities are responsible and accountable for social care. We believe that creating new duties for the Secretary of State would distort these clear lines of accountability.' [156] This position was successfully overturned in debate. [157] Nevertheless, the government's view remains that the additional resources it has provided should be sufficient to enable local authorities to protect access to care, and that 'ultimately, spending on social care is a matter for local decision-making.' [158] As we have seen, those local spending decisions impact directly on the lives, choices and dignity of disabled people, for which national government holds responsibility under the CRPD and Article 19. There must therefore be a limit to how far central government can distance itself from local decision-making and outcomes without in effect resiling from its own overall accountability under international human rights law.

5. Conclusion

This paper has examined the Care Act 2014 in relation to the requirements of the UN Convention on the Rights of Persons with Disabilities, in particular those of Article 19, the right to live independently and be included in the community and the socio-economic right to support services under Article 19(b). It has found that the Act's over-arching principles are broadly compatible with those of the Convention; and that its legislative framework constitutes a significant improvement on previous provisions. Nonetheless, it has argued that key elements are missing from the Act which prevent it from fully meeting the Convention's requirement for 'appropriate legislative, administrative and other measures' for realisation of Article 19.

As an 'implementation' Convention, the CRPD demands 'paradigm shift': a transformation in understanding of and approach to disability from 'welfare' to 'rights'. To this purpose, Article 19 exemplifies the doctrine of indivisibility and interdependence of rights: it blends together civil and political rights to autonomy and participation with socio-economic rights to the support services essential for their exercise. The 'wellbeing' principle of the Care Act, by contrast, is not intended to create any individual or directly enforceable rights. It has been argued here that this outcome stems from successive United Kingdom governments' reluctance to incorporate international economic, social and cultural rights standards into domestic law, choosing instead to view them as principles and objectives to be implemented through the policies, laws and practices of the British welfare state. In consequence, such rights are rendered invisible in English independent living policy, law and administration; and in the consciousness of individuals, policy-makers and law-drafters. There is no recognition in the Act of a right to live independently and be included in the community; 'well-being' remains a 'principle', not a 'right'; the socio-economic elements of Article 19 are not 'rights' but 'welfare'. The required 'paradigm shift' is not achieved, and the opportunity to enact a new, CRPD-compliant right to live independently and be included in the community is missed.

The invisibility of international standards in this context has further consequences. Whilst international jurisprudence requires progressive realisation to the maximum of available resources, eligibility for social care in England has reduced over a number of years due to systemic underfunding. Despite international requirements for monitoring implementation, no national targets for social care provision exist, and independent monitoring of progress or retrogression is currently unavailable. Where international law requires access to appropriate means of redress, individuals aggrieved by a social care decision have recourse only to 'monumentally opaque' [159] administrative procedures which fail to address the substance of their claim. And where international law requires central government accountability, current policy devolves responsibility for social care funding decisions to local level, and relies on market forces to deliver outcomes. Provision of the support services essential for the exercise of Article 19 remains vulnerable to retrogression, unmonitored and unenforceable.

In England, the transition from a 'welfare' to a 'rights' approach to disability which is the fundamental purpose of the Convention is not yet fully accomplished. As a result, the opportunity provided by development of the Care Act 2014 to enact CRPD-compliant legislation to implement Article 19 has been missed: the right to live independently and be included in the community does not have full domestic legal effect. Partial implementation of this key 'enabling' right in turn undermines realisation of all Convention rights, and calls into question the United Kingdom's Article 4(1) undertaking as a State Party to the Convention to 'ensure and promote the full realisation of all human rights and fundamental freedoms for all disabled people' .

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International

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United Kingdom

Care Act 2014

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Care and Support (Eligibility Criteria) Regulations 2014, SI2014/000

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Legal Aid, Sentencing and Punishment of Offenders Act 2012

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NHS & Comminuty Care Act 1993

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Anufrijeva [2003] EWCA Civ 1406

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