SDS Explorers human rights work stream: our findings

1. SDS Explorers human rights work stream: our findings October 2012

2. SDS and human rights • One tool – amongst several – to advance “Independent Living” • Created by disabled people • A significant move in social policy from welfare dependency to citizenship & empowerment, it is a cultural change and a shift in power • Supports human rights and is underpinned by human rights It’s our world too About Scotland’s disabled people’s Independent Living Movement

3. What did we try to do? • Contact 4 LAs to consider some of the gateways to SDS, including; • Charging • Eligibility criteria • Resource Allocation Systems • Assessment • ‘FAIR’ & ‘PANEL’ approaches to human rights analyses • Developed a set of recommendations

4. FAIR approach to human rights analyses F = Facts: What is the experience of the individual? Is the individual being heard and if not, do they require support to do so? What are the important facts to understand? A = Analyses of rights: What are the human rights or issues at stake? Can the right be restricted? What is the justification for restricting the right? Is the restriction on the right ‘proportionate’? i.e. is it the minimum necessary restriction to meet the aim or is a “sledgehammer being used to crack a nut”? I = identification of responsibilities: What changes are necessary? Who has responsibilities for helping to make the necessary changes? R = Review: Have the actions taken been recorded and reviewed and has the individual affected been involved?

5. The specific human rights engaged • All of the human rights outlined in the ECHR, the Human Rights Act and in subsequent ratified Conventions, belong to disabled people ECHR most relevant Articles: • Article 14 = the right to enjoy all rights in the Convention without discrimination • Article 3 = the right not to be tortured or treated in an inhuman or degrading way • Article 8 = the right to respect for private and family life, home and correspondence • Article 2 = the right to life More in the British Institute for Human Rights: A Guide for Disabled People, 2006

6. The specific human rights engaged continued – UNCRPD Article 19 = states must ensure that “disabled people have a right to live in the community, with the support they need and can make choices like other people do” – put simply, the state must make sure that disabled people get the help they need to live in the community Other relevant UNCRPD articles = Article’s 18 & 20 on mobility, 27 on employment, 28 on an adequate standard of living & income, 29 & 30 on participation in cultural, political and civic life

7. Charging • Looked at non-residential charging for community care and concluded overall that: • Care and support is essential for many disabled people to access their basic human rights • applying community care charges inconsistently and indeed at all, could discriminate against disabled people in their access to the support they need to enjoy their human rights

8. Charging: recommendations • The Scottish Government and CoSLA should work together with DPO’s, to make community care free at the point of delivery • A commission on the funding for social care in Scotland should be set up • The Scottish Government should direct LA’s on charging

9. Methodology Looked at 1 LA to consider: • Eligibility inter-related • SEQ, Assessment & RAS factors/systems • Desktop Research • Round Tables with Disabled People & DPOs (12 cases) • Interview with Social Work Head of Adult Services • Round Table with social workers • Interview with BASW • Examined ‘the system and process’ when applying HR analysis- not the outcome

10. Reflections: Social Work Values Clear understanding that HRs matter to SDS and to SWS Historically Social Work has been committed to 5 basic values: • the dignity and worth of the individual person • fighting for social justice • providing a service to humanity • working with integrity • demonstrating competence “THE CODE OF ETHICS FOR SOCIAL WORK” BRITISH ASSOCIATION OF SOCIAL WORKERS (2002)

11. Social Work (Scotland) Act 1968 Essentially this is a matter of promoting the full personal development of the individual, emotionally as well as physically and mentally, and is largely concerned with the ways in which children are brought up and educated. . .. If positive work of this kind could be extended and developed, the benefits would be great. Individual people would be likely to become more effective, at work as well as in personal life, and community life could be richer and healthier” SOCIAL WORK AND THE COMMUNITY WHITE PAPER, 1966 (Cmnd 3065 SWC, 15, pp. 5–6)

12. Personalisation “by putting users at the heart of services, by enabling them to become participants in the design and delivery, services will be more effective by mobilising millions of people as co-producers of the public goods they value.” “PERSONALISATION THROUGH PARTICIPATION” CHARLES LEADBETTER, 2004

13. Human Rights Based Approach Human Rights Based Approach is a tool for process as well as outcome. PANEL approach is consistent with social work values and SDS: • Participation and Involvement • Ensuring Accountability • Non-discrimination and attention to vulnerable groups • Empowerment • Legality and recognition of rights and representation- links to advocacy PANEL helps to put human rights principles and standards at the heart of policy, planning and delivery.

14. Human Rights & SDS • Absolute prohibition on degrading treatment (Art 3) so packages of care must prevent such breaches; • A positive duty to respect private and family life (Art 8) which means ensuring disabled people can enjoy family life within their home; • Enabling people to participate effectively in the ‘administrative tribunal that is deciding their care package and the process is potentially driven by Article 6 eg right to an independent appeal; • People have the right to hold and express an opinion, and therefore have access to and gain the right information (Art 10).

15. Findings • SDS fits with a HR approach • But roll out of SDS coincides with a range of UK, Scottish and local service cuts within context of a global financial crisis. SDS= good, cuts=bad! • Negative impact of both the process and actual decisions on care packages for disabled people. • Concern that the RAS Panel is not ECHR compliant in terms of process e.g. Articles 6 and 13 and that it fails to respect rights e.g. Articles 3 and 8 • Clear that, within this environment of change, managers and staff are committed to getting the best deal for disabled people so that they can continue to live independent lives: both SDS & HR fit SW values but practice doesn’t always.

16. Report “Whilst it is accepted that human rights reflect the training, practice and ethos of social work and social care staff at all levels, there is an absence of evidence of explicit reference to human rightsin individual care decisions, in regulating the process e.g. the apparent absence of a dedicated appeals process on individual packages of care, and in preventing human rights abuse by monitoring the impact of cuts on the daily lives of disabled people,” Ewart Communications, October 2012.

17. Findings • Tension between adult protection/service regulations & overly cautious approach to risks (or perceptions about risks) Vs HRs and empowerment, choice and control. • Familiar balance between individual rights and risk • Proportionate & consistent decision making in question • Human rights are under threat in context of cuts NOT because of SDS • Rights agenda is being eroded

18. Resource and Risk Management “Social Work is formally committed to deliver a set of goals – which embrace the ideals of person centred support – and yet the system works to a completely different logicto control risk and resources” “PERSONALISATION AND PARTICIPATION: THE FUTURE OF SOCIAL CARE IN SCOTLAND, FINAL REPORT” CHARLES LEADBETTER & HANNAH LOWNSBROUGH, NOVEMBER 2005

19. BASW “Human rights and social justice serve as the motivation and justification for social work action....Social workers should be prepared to challenge discriminatory, ineffective and unjust policies, procedures and practice. They should challenge the abuse of power and the exclusion of people from decisions that affect them.” The Code of Ethics for Social Work http://www.basw.co.uk/codeofethics/

20. Structural Failings? • Growing understanding that human rights do not feature, generally, in the business of the public sector • No Human Rights Committee at Scottish Parliament – Joint Cttee at UK Parliament • SHRC cannot take cases, unlike EHRC – specifically excluded e.g. from advising on cases by 2007 legislation • Audit Scotland – explicit human rights agenda missing despite the potential threat to public pound from litigation • Social care budgets have shrunk!

21. Recommendations • Leadership- need to influence the decision makers in LAs- who are they? • Develop strategy, policies, processes & practice compliant with HR law in relation to SDS • LAs to develop ‘SDS and human rights policy’ and related Guidance embedding both the ECHR and the UNCRPD. • Training provided to all relevant SW staff in relation to SDS, Independent Living & Human Rights • HRBA applied to the delivery of SDS –involve DPOs, disabled people and the SHRC

22. Recommendations • More clarity and transparency about decision making including scoring, use of RAS & SDS process outlining rights including advocacy • Meaningful support for completion of the SEQ e.g. not being undertaken over the phone. • LAs should develop, as a matter of urgency, an appeals process (Article 13, ECHR) that is distinct from a complaint system. This should cover process & outcome. • Publication on HRBA, SDS and Disabled People in Scotland

23. Recommendations • Entire LA budgets need re-examined for progressive realisation of human rights- political influence : Can public sector budgets be increased? • Elected councillors and officials should be encouraged to realistically assess how much money is needed to provide SDS to the high number of disabled people that live within each area. As Audit Scotland pointed out in its 2012 report, using cost information will improve performance and can deliver real dividends for councils and their communities. • Basic freedoms personalisation & SDS encompass – participation, control, choice, self-determination, equally valued citizenship, the power to make informed decisions about your own life – should be reasserted and re-aligned with HRs in accordance with SW values and practice