Transcript SDS Explorers human rights work stream: our findings

SDS Explorers human rights
work stream: our findings
October 2012
SDS and human rights
It’s our
world too
About Scotland’s disabled
people’s Independent Living
Movement
• 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
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
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?
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
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
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
Charging: recommendations
1. The Scottish Government and CoSLA
should work together with DPO’s, to
make community care free at the point of
delivery
2. A commission on the funding for social
care in Scotland should be set up
3. The Scottish Government should direct
LA’s on charging
Methodology
Looked at 1 LA to consider:
• Eligibility
• SEQ, Assessment & RAS
inter-related
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
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)
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)
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
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.
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).
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.
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
rights in 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.
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
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 logic to control
risk and resources”
“PERSONALISATION AND PARTICIPATION: THE FUTURE OF SOCIAL CARE IN SCOTLAND,
FINAL REPORT” CHARLES LEADBETTER & HANNAH LOWNSBROUGH, NOVEMBER 2005
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/
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!
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
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
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