Is it all about the money?
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The White Paper Valuing People talks about the importance of community presence and participation, but £1.75 per week to spend is not enough to enable anyone to do that.
Parent and carer of an adult with a learning disability.[171]
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If the Government is serious about stopping human rights abuses against people with learning difficulties, then it will simply cost money. If society decides that ultimately it does not care enough about people with learning difficulties to spend money on us, then society exists as a society where people are left out, marginalised and abused in our midst.
Andrew Lee, Director of People First (Self-Advocacy)[172]
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111. A significant number of witnesses told us that funding for
services and support was the key reason that Valuing People
was not being implemented effectively. Dame Jo Williams, Mencap,
told us that more information was required on the need for services
and funding, which they hoped to feed into the Comprehensive Spending
Review:
The evidence that we have to date is that the increase in
the population of people with learning disabilities is about one
per cent per annum. The current investment is not keeping pace
with that
We are hearing about cuts in services which are
affecting people's lives.[173]
112. The evidence we have received on this issue focused principally
on access to social and community care services provided by local
authorities. Witnesses raised two issues of concern:
- tightening local authority eligibility criteria undermining
Valuing People and putting the rights of people with learning
disabilities and their carers at risk; and
- inadequate provision for people who could benefit
disproportionately from a low level of support, because of the
prioritisation of people with more complex support needs.
113. We asked the National Co-Director for Learning
Disabilities how the tightening of local authority eligibility
criteria would impact on people with learning disabilities and
the implementation of Valuing People. He told us:
Certainly, if authorities go down that route,
there will be significant numbers of people who have traditionally
been in receipt of support, to help them get lives as outlined
in Valuing People, who will not be getting those services
in the future.[174]
114. When making assessments of need and decisions
about service provision, councils must act in accordance with
Fair Access to Care Guidance, issued by the Secretary of
State. In setting eligibility criteria, councils must take account
of their resources, local expectations and costs and agreements
with the NHS. They should also consult users and others. Councils
are advised in Fair Access to Care that they "should
have regard to" their legal obligations under the Sex Discrimination
Act 1975, the Disability Discrimination Act, 1995, the Human Rights
Act 1998, and the Race Relations (Amendment) Act 2000.
115. Recent figures released by the Commission for
Social Care Inspection show that the proportion of councils planning
only to support people with substantial or critical needs was
likely to rise from 53% to 62%, before the end of 2007.[175]
116. Difficult questions about allocation of resources
may be involved when deciding whether to provide support in specific
cases. However, we consider these questions must be answered within
the context of the legal obligations of local authorities and
other public authorities, to respect the dignity and rights of
service users. Local authorities must act in accordance with the
Disability Equality Duty.[176]
117. We previously considered the positive duties
of public authorities under the Human Rights Act in our recent
report, The Human Rights of Older People in Healthcare.[177]
The Government has since rejected our recommendation that it should
legislate to make explicit that all public authorities, including
councils, are under a positive duty to take active steps to protect
and respect human rights, where the ECHR imposes a positive obligation
so to do. The Government said that such a positive obligation
was unnecessary, in the light of the duties of the Equality and
Human Rights Commission to encourage public authorities to comply
with the Human Rights Act.[178]
We are deeply concerned about the Government's negative response
to our recommendations on the need for an express positive human
rights duty for public authorities. The creation of a positive
duty to respect human rights would help kick-start a change of
attitude to the role of the Human Rights Act and to rights more
generally. We doubt that, at least in the short term, oversight
by the Equality and Human Rights Commission will encourage individual
authorities to take a more proactive approach. On the other hand,
witnesses to this inquiry, including the Minister for Care Services
and the Minister for Disabled People, stressed their view that
the potential impact of the Disability Equality Duty will be to
change fundamentally the way that public authorities look at disability
rights. We remain persuaded that the same is true of positive
duties and the Human Rights Act. We reiterate our recommendation
that the Government consider the introduction of an express positive
duty on public authorities to promote respect for human rights,
where the European Convention on Human Rights imposes a positive
obligation on the State.
118. The Minister for Care Services told us he was
not persuaded that we were getting the best use of investment
in services for adults with learning disabilities.[179]
119. The National Co-Director for Learning Disabilities
told us that increasing respect for the rights of adults with
learning disabilities was not principally an issue of expenditure.[180]
He explained that a more positive approach to the rights of people
with learning disabilities could be achieved by changing attitudes
towards learning disability (we consider this issue below). We
asked a number of our witnesses about how to make improvements,
if no more additional resources were available. Suggestions ranged
from increasing awareness of the Disability Equality Duty and
the Human Rights Act,[181]
through better control over care planning and management, to more
individualised support with greater flexibility.[182]
120. We asked the Minister about tightening eligibility
criteria and the balance which councils were required to strike
between cheaper support for those with low support needs and more
expensive intervention when their needs became critical. In the
latest Comprehensive Spending Review, the Government committed
to a process of consultation on a Green Paper on the long-term
funding of social care.[183]
Valuing People Now proposes the transfer of responsibility
for learning disabilities from Primary Care Trusts ("PCTs")
to local authorities. Associated budgets will also be transferred.
Only specialist learning disability healthcare commissioning will
remain with PCTs.[184]
Shortly after giving evidence to us, the Minister for Care Services
published Putting People First, a proposal for individual,
or personalised, budgets for the care and support of elderly and
younger disabled people, including adults with learning disabilities.[185]
This programme has a ring-fenced budget of £520 million which
will be distributed between 150 councils in England, over three
years.
121. The recent initiatives by Government to grapple
with funding in social care, particularly in relation to learning
disabilities, seem like a step in the right direction, although
they were announced at a late stage in our inquiry, after we had
finished taking evidence. We heard some positive support for the
introduction of individual budgets, but have also heard concerns
about the adequacy of those budgets and the need for separate
funding for independent, effective brokerage.[186]
We strongly recommend that guidance to local councils should
remind them that decisions about funding must be taken in a way
which is compatible with the Disability Equality Duty and the
Human Rights Act. We recommend that the Government rewrite its
Guidance, including Fair Access to Care, to ensure it provides
clear, straightforward and accessible examples of a human rights
based approach, explains how social care funding decisions could
lead to a breach of Convention rights and sets out how to comply
proactively with the Disability Equality Duty.
Negative attitudes, assumptions
and stereotypes about people with a learning disability
Some people take the mick out of me and I used to get bullied, but I know people know about my learning disabilities
my girlfriend does not have a learning disability. She gets treated fairly more than me because I have a learning disability. People laugh at her when she is with me, but she just says "he is the same as any one else".
A person with learning disabilities[187]
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When we are born, our parents are given negative views about our chances in life. They are encouraged to mourn the fact that they have abnormal children, and their disappointment stays with us throughout our lives.
Andrew Lee, Director, People First (Self-Advocacy)[188]
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122. Witnesses told us that providers of mainstream services and
people on the street often had negative attitudes, assumptions
and stereotypes about people with learning disabilities which
made it difficult for people with learning disabilities to gain
respect for their human rights. These attitudes and assumptions
could lead directly to the denial of individual rights, for example
through bullying or hate crime, or they could underlie decisions
by others which marginalised people with learning disabilities
and undermined their ability to speak up for their rights. Mencap
told us:
Despite welcome changes both to the law and to social attitudes,
people with a learning disability are still subject to prejudice
and misunderstanding and to assumptions that they have little
to contribute to society. The experience of prejudice may also
discourage people with a learning disability from attempting to
play a full role in their community and contribute to their isolation
and exclusion.[189]
123. Negative attitudes and assumptions can be a particularly
significant problem for certain groups, such as people with complex
and profound learning disabilities. For example, the PMLD (Profound
and Multiple Learning Disabilities) Network told us:
One of the greatest barriers that people who have profound
and multiple learning disabilities face is the negative attitudes
of others. Judgements are made about the meaning and quality of
people's lives. This can stop people being offered more innovative
forms of support, such as individual funding, because some people
do not think that they will benefit
But these negative attitudes
can also be life-threatening - for example if they result in the
denial of medical treatment.[190]
124. Other witnesses confirmed the difficulties they encountered
as a result of negative attitudes on the part of professionals
and service providers. For example, in seeking access to healthcare
(which we consider below, in Chapter 5):
People (in health services) think that because we have a disability
they don't need to talk to us and they talk to our carers instead.
This isn't fair, we're people too. [191]
125. They also told us how negative attitudes could cause difficulties
in the wider community:
People felt that there was a general lack of tolerance within
the community. The main barriers to people accessing this very
important right to participate fully in their community range
from a 'benign' lack of understanding of people with learning
disabilities to the more worrying abuse of rights such as intolerance
and discrimination.[192]
and
People treat you funny. They won't let you have a relationship.
People against us getting married.[193]
and
We have experiences, seen and heard, about lots of bullying
happening in the community. People with learning disabilities
are often scared to go out. We're often called names or people
take the mickey in a really nasty way.[194]
126. Andrew Lee, Director, People First (Self-Advocacy) told us:
One of the most tragic things about the recent abuses in Sutton
and Merton was that staff did not even know they were doing anything
wrong.[195]
127. We agree with our witnesses that one of the most distressing
and worrying things about the investigation by the Healthcare
Commission and CSCI into the treatment of people with learning
disabilities in Cornwall was that "many of the staff did
not believe and understand that what they were doing was wrong".
This episode provides a most harrowing example of how a lack of
awareness of the rights of people with learning disabilities can
have a devastating effect, leading to situations where the right
to be treated with respect for private life is ignored (Article
8 ECHR), and the rights to life and to be free from inhuman and
degrading treatment are endangered (Articles 2 and 3 ECHR).
128. Some witnesses told us that training for professionals
and others on learning disability by people with learning disabilities
would be needed to change the situation. For example:
People with learning disabilities should be able
to access mainstream services but barriers remain, mostly attitudinal
barriers and through a lack of education and training, this looks
like being a long time before change will occur. We have commenced
this change process by offering user led disability equality training
and trying to change attitudes of our local community. By promoting
a positive image of people with learning disabilities and placing
value on their contribution to society we are helping to adjust
mind sets and hopefully commence the trend of people with learning
disabilities being fully integrated into their community.[196]
129. The National Co-Director for Learning Disabilities
told us that changing attitudes would involve promoting the rights
of people with learning disabilities:
Those negative attitudes will often come from
people who have only ever experiences people with learning disabilities
in a negative, passive role in society
It is only when society
sees what people are really capable of that I think we will begin
to make some major changes.[197]
130. The British Institute of Human Rights said that
the promotion of a human rights based approach could improve the
treatment of people with learning disabilities, not only by empowering
people with learning disabilities but by promoting change within
service providers:
We see the wider potential of human rights ideas
and human rights approaches for learning disabled people to claim
more power and control over their own lives. In addition to individuals
acting to claim their rights, we also see the potential for organisations
to behave differently - not only taking steps to avoid the worst
human rights breaches but also to fully promote and fulfil the
human rights of learning disabled people in a way that enables
them to flourish as human beings.[198]
131. We welcome the recognition by the National Co-Director
for Learning Disabilities of the importance of educating people,
and particularly service providers, to see people with learning
disabilities as people with human rights which need to be respected.
He told us:
Because society has dehumanised people with learning
disabilities for centuries, there is still a significant chunk
of society that believes it is okay to treat people with learning
disabilities in a different way to which would treat a non-disabled
person
The importance of the human rights approach, is
that over time, you will gradually create a culture where people
understand that what they were brought up on, [such] attitudes
[which] are not acceptable in modern society.[199]
132. We welcome the recognition of both the Minister
for Care Services and the Minister for Disabled People, that while
the Government has a responsibility to ensure public authorities
meet their duties to respect the rights of adults with learning
disabilities under the Disability Discrimination Act and the Human
Rights Act, a move away from negative attitudes and assumptions
is required:
What we are doing at every opportunity is highlighting
to those who deliver our public services in particular, but also
to those in the private sector who deliver jobs and various other
services, that they have a responsibility to work with those with
a learning disability as individuals and no categorise them, stereotype
them or make assumptions about what they can and cannot do. That
is where, I think, the human rights perspective is so powerful.[200]
133. We agree that taking a human rights based
approach to service provision could contribute to reversing negative
attitudes, assumptions and stereotypes. We again stress that the
Department of Health and the Office for Disability Issues should
take a lead in creating a positive approach to the implementation
of both the Human Rights Act 1998 and the Disability Equality
Duty. However, "taking a human rights based approach"
means more than using the appropriate language in policy documents
or in statements to parliamentary committees. A proactive and
practical approach to the implementation of individual rights
for people with learning disabilities is needed to replace the
existing culture, which has allowed society to "dehumanise"
people with learning disabilities for centuries.
Helen continued to be distressed and her confusion increased. She was sent to a psychiatric ward, where she behaved in ways very unusual for her, pacing and groaning in pain. As Helen's behaviour worsened she was sectioned under the Mental Health Act. Helen's family tried to explain ... they believed that the pain
was the most likely explanation for her change in behaviour. Doctors informed her family that Helen was "just doing this for attention".
Mencap Case Study[201]
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134. The evidence that we have received in this inquiry strongly
suggests we are failing adults with learning disabilities, by
failing to afford adequate respect for their human rights. In
the following chapters, we focus on four areas which we consider
provide the starkest illustrations of adults with learning disabilities
being treated without dignity and respect for their human rights:
- The treatment of adults in health and residential care settings,
an area that has already had a significant amount of public attention
in the light of high profile cases (Chapter 5);
- The experience of parents with learning disabilities
(Chapter 6);
- The treatment of adults with learning disabilities
in the criminal justice system (Chapter 7); and
- Barriers to an ordinary life confronting adults
with learning disabilities (Chapter 8).
97 Q 1. Back
98
Annex 2, para 5. Back
99
Ev 48, 50, 52, 66, 68, 82, 408. Back
100
Ev 55, 84, 92, 110, 116. Back
101
Ev 326, 379, 391, 410. Back
102
Ev 50, 56, 242, 256. Back
103
Ev 116, 219, 238-239, 241, 411. Back
104
We have summarised some of the evidence we received from people
with learning disabilities, their families and supporters in Annex
2; See also Ev 56. Back
105
Annex 2, para 6. Back
106
Ev 53, 94, 222, 299, 304, 310, 377. Back
107
Ev 327. Back
108
Ev 122. Back
109
Ev 194, 359, 391. Back
110
Ev 373. Back
111
Ev 49, 50, 163. Back
112
Ev 327. Back
113
Submission by Dr Alex McGlanghlin, School of Social Sciences,
Nottingham Trent University, 16 May 2007, enclosing research findings.
Available from Parliamentary Archives. Back
114
Ev 50, 57, 58, 328. Back
115
Ev 52, 110. Back
116
Ev 359. Back
117
Ev 121. Back
118
Ev 382. Back
119
Ev 153. Back
120
Committee Visit to Lewisham, Meeting with members of South London
Keyring Housing and Support networks, 17 October 2007. See also
Ev 390 - 392. Back
121
Ev 69. Back
122
Ev 237. Back
123
Ev 334. Back
124
Ev 69, 222, 327, 347, 359. Back
125
Ev 323. Back
126
Committee Visit to Lewisham, 17 October 2007. Back
127
Ev 65. Back
128
Ev 49, 50, 56, 58, 67, 184, 222. Back
129
Ev 68. Back
130
Ev 49. Back
131
Valuing People, para 7.39. Back
132
Ev 50. Back
133
Ev 69. Back
134
Ev 68. Back
135
Ev 69. Back
136
Ibid. Back
137
Submission from Macclesfield Speaking Up Speaking Out Centre.
Available from the Parliamentary Archives. Back
138
Ev 50. Back
139
Annex 2; See also Ev 57. Back
140
Annex 2, para 9. Back
141
Ev 287. Back
142
Mencap, No ordinary life, 2001, p.10, cited Ev 204. Back
143
Valuing People Now, para 10.1.3. Back
144
e.g. Ev 56, 232, 242, 287, 317. Back
145
Ev 317. Back
146
Ev 287. Back
147
Ev 317. Back
148
Ev 287. Back
149
Committee Visit to HFT Resource Centre, 24 October 2007, discussions
with a parent of two adults with learning disabilities. Back
150
Ev 245. Back
151
Ev 232. Back
152
Ibid. Back
153
Ev 217. Back
154
Ibid. Back
155
See for example Ev 298. Back
156
Annex 2, para 7. Back
157
Ev 136. Back
158
Ev 407. Back
159
Ev 97. Back
160
Q 118. Back
161
Q 154. Back
162
Q 158 (Mr Lewis). Back
163
Ibid. Back
164
Q163. See also Q164. Back
165
The Story So Far, Foreword. Back
166
Annex 2, para 6. Back
167
Ev 53, 74, 76, 94. Back
168
Ev 114, 160-161, 181. Back
169
Ev 392. Back
170
Ev 219. Back
171
Annex 2, para 7. Back
172
Q 17. Back
173
Q 13. Back
174
Q 126. Back
175
Figures provided following a request by Mencap, published by the
Learning Disability Coalition. http://www.learningdisabilitycoalition.org.uk/news/news_9.asp.
Back
176
The High Court recently ordered Harrow London Borough Council
to reconsider a decision to change their eligibility criteria,
because they had not shown that they had considered the Disability
Equality Duty: Chavda v Harrow [2007] EWHC 3064. Back
177
Eighteenth Report of Session 2006-07, The Human Rights of Older
People in Healthcare, HL Paper 156-I, HC 378-I, para 146 - 153. Back
178
First Report of Session 2007-08 'Government Response to the Committee's
Eighteenth Report of Session 2006-07: the Human Rights of Older
People in Healthcare' HL Paper 5; HC 72. Back
179
Q 171. Back
180
Q 129. Back
181
Q 62-3. Back
182
Q 20. Back
183
Comprehensive Spending Review, October 2007, para 6.9. Back
184
Valuing People Now, 16.2. Back
185
Putting People First: a shared vision and commitment to the transformation
of adult social care, Department of Health, 10 December 2007. Back
186
Annex 3, para 25 (Philippa Russell). Back
187
Annex 2, para 5. Back
188
Q 1. Back
189
Ev 137. Back
190
Ev 204. Back
191
Ev 69. Back
192
Ev 88. Back
193
Ev 49. Back
194
Ev 69. Back
195
Q 1. Back
196
Ev 51. Back
197
Q 129. Back
198
Ev 131. Back
199
Q 138. Back
200
Q 164 (Mrs McGuire). Back
201
Ev 139. Back