The UN Convention on the Rights of Persons with Disabilities came into force last month and will be binding on the UK when (as expected) the government ratifies it later this year.
The convention is the first new human rights treaty of the 21st century and the first that addresses directly the human rights of the world’s estimated 650 million disabled people. Its drafting commenced in 2002 and no UN convention has come into force with such speed. Currently 129 states have signed it (including all European states) and it has been ratified by 27 (including Croatia, Hungary, Slovenia and Spain).
The rights identified and protected by the convention span the spectrum from the fundamental (the right to life) to the social and economic (the right to employment and to community support services). Broadly these rights can be divided into those which come into force immediately – notably the prohibition of discrimination and the right to “equal treatment” in article five – and those that are to be “progressively achieved”, ie they are not immediately binding.
Into this latter category fall the vast majority of the convention’s provisions, for instance the right to accessible transport, to inclusive education, to participation in political and public life and so on.
Many of these rights are, or course, already protected by UK legislation and it might be thought that an “aspirational” convention of this type will do little make a practical difference to the lives of the disabled in the UK. This would be a mistake.
Although UN conventions are not directly enforceable in domestic courts or tribunals – they are referred to when difficult questions need to be resolved or ambiguous provisions need to be interpreted. In this respect the right to independent living (under article 19) is likely to be of particular interest. The convention uses expansive language when describing the extent of the right, but in essence it embodies a right to live in the community, to choose one’s place of residence and to receive a “range of domiciliary support services”.
The duty on the state to promote independent living will require local authorities and NHS bodies to re-examine a number of their policies. Most obviously for social services this will be their domiciliary care funding limits and for NHS bodies their routine failure to provide evening and weekend home nursing services.
Many councils have a funding ceiling on home care packages. Such policies stipulate, in effect, that only in exceptional circumstances could funding over a specified figure be made available. The underlying assumption behind the policy is that once a person has reached the financial limit on home care support, they will have to move to a care home (because at this point, institutionalisation is the cheaper option).
The UN convention will make these policies vulnerable to challenge. This is not to say that home care packages will have to be provided at any cost – but the reasonableness of refusing this will be subjected to robust scrutiny by the ombudsman and courts: for example, the amount of the costs ceiling, the rigidity with which it is enforced and the frequency with which it is waived.
The convention will require change to national as well as local policies. The obligation under article 18 to remove barriers to disabled people enjoying “liberty of movement and the freedom to choose [their] residence” will require an examination of the “ordinary residence” rules whereby the local authority an individual resides in is responsible for funding their care package.
This prevents care packages being portable and so for a disabled person any move to a new area is a step into the dark – with considerable uncertainty as to whether the new authority will be prepared to sustain the services they currently receive.
Indeed, Jane Campbell took up this fight in the House of Lords last week when she urged the government to allow disabled and older people to transfer their care packages when they move between council areas. Government whip Baroness Thornton said the issue would be considered as part of the six-month consultation on adult social care.
Meanwhile, from the perspective of the UK plc the ordinary residence policy makes little or no economic sense – as although one local authority might save money by shifting the cost of a care package to another’s budget, the total expenditure in the UK is the same – and would therefore be particularly difficult to justify before the UN monitoring committee that will oversee the implementation of the convention.
Another example of national action required by the convention, concerns the article 16 requirement that governments enact appropriate legislation to protect disabled people from abuse. The lack of statutory measures to protect vulnerable adults from abuse in England and Wales has attracted widespread condemnation and would become even more untenable with the ratification of the convention.
UN conventions of this nature are not magic wands that overnight vanish the social and economic barriers that so handicap disabled people. Such conventions can however bring about real change in more subtle ways, as was shown by the impact of the European Convention on Human Rights before it was incorporated into UK law by the Human Rights Act 1998. During that period, even though not part of our law, it was highly influential in shaping much of our social welfare legislation – for example, the Mental Health Act 1983, the Children Act 1989 and the Data Protection Act 1998.
At this stage, we can only speculate as to the extent to which the convention will result in a noticeable and positive impact on the lives of disabled people within the UK. It comes into force, however, at a time when two opposing agendas are in collision. On the one hand there is the government’s much trumpeted individualisation agenda of choice and user-led care planning and on the other is the depressing practical reality of squeezed budgets, tightening eligibility criteria, increased charging and new resource allocation schemes that promise significant cuts in funding for those in most need.
If the government hesitates in ratifying the convention, then it will send a powerful message to disabled people and their carers as to its true agenda.
● Luke Clements is a professor of law at Cardiff University, and consultant solicitor at Birmingham firm Scott-Moncrieff, Harbour & Sinclair
● Read Community Care’s blog on the convention at www.tinyurl.com/4aghky