THE BRITISH RESPONSE
The Coronavirus Act 2020 (Commencement No. 2) Regulations 2020 effectively relaxes existing social care duties owed by local authorities (LAs) to the most vulnerable (in-depth analysis of the Regulations can be found here). This change has sparked heated debate amongst those working in law and social services.
Social Care Duties are public sector equality duties owed by local councils to societal groups with special needs and/or facing specific risks. This article will focus on the duties owed to disabled adults and children.
The Care Act 2014 creates the legislative framework regulating the exercise of said duties, which are:
The duty to assess (the special needs and circumstances of the individuals at risk);
The duty to provide (care and services tailored to the specific needs identified through the initial assessment);
The duty to deliver (timely and efficient provisions to safeguard the individual).
Under the UK Coronavirus Act 2020 (section 15 and Schedule 12), a worrisome “easement” of the duties is envisaged, whereby the aforementioned obligations are replaced by a discretionary “power” to provide support and services. Emergency powers are thereby turning basic and inalienable rights in optional provisions. These ‘sunset clauses’ will be in force for two and a half years, and can be renewed upon expiry.
This highlights the potential long-term impact of emergency legislation on disability rights. Additionally, the arbitrary scope of the “reasonably practicable” standard gives ample leeway for councils to depart from what has been described as an “absolute duty to deliver provision”.
Although there is, at least theoretically, a protection of the individual’s rights under the European Convention on Human Rights (ECHR), in practice it provides no positive, self-standing right to social care. The only applicable clauses are those under Articles 3 and 8, prohibiting torture and inhumane and degrading treatment, and protecting the right to family and private life respectively.
However, even after having determined their applicability, the bar still stands exceptionally high in terms of the legal test to be met for a successful claim. Therefore, no concrete protection is offered, and many adults with special needs are placed at risk of being left to their own fate in such a critical time.
The novel relaxations conceded to the care of children with Special Educational Needs (SEN) are also incredibly concerning. The specified time periods, mandated by the Special Educational Needs and Disability Regulations 2014 , are being amended to now mean discretionary timescales, where action will be taken only as soon as reasonably practicable.
The time periods are a key lever in the fulfillment of the duty to assess, which has been condemned – as hinted above – as a temporary downgrading of an absolute right. Moreover, a modificaton notice is being introduced, affecting children with education, health and care plans (EHCPs), which allows LAs to discharge their specific legal obligations (under section F) by “reasonable endeavours”.
Thankfully, there is a positive obligation on councils to prove compliance is not reasonably practicable, and that the reason directly relates to COVID-19 and its incidence and transmission, to justify continued delays and poor performance. Once again, the vague wording creates an opportunity to opt out of statutory responsibilities at will, during a critical time. Further, there is a risk that these “temporary” amendments will be treated as trials for long-term change.
A CLOSER LOOK: AFGHANISTAN
Social care safeguards are also being dramatically eroded in Afghanistan, where girls and women with disabilities face systemic abuse. Afghanistan holds the title of one of the globe’s largest populations per capita of people with disabilities.
This is a direct result of four decades of war, coupled with widely under-resourced and strained health services. Afghan women are denied their basic rights to health, education and work, and are subject to sexual harassment because of their vulnerable state.
The stigma associated with reporting such incidents prevents most victims from speaking up, and fuels a toxic climate of entrenched discrimination and isolation, that is – in principle – prohibited by both the Afghan constitution and international human rights law.
“They do not want to enroll them, because they need to be taken care of”; “I have no hope for the future, but if I get treatment, I would have hope”. Those are just two of the testimonies found in Patricia Gossman’s report, ‘Disability is not weakness: Discrimination and Barriers Facing Women and Girls with Disabilities in Afghanistan’. The escalating violation of disability rights in Afghanistan calls for policy reform and state action.
RESISTING THE EROSION OF DISABILITY RIGHTS
Internationally, weakening protections for people with disabilities have generated various national responses. The latest of these was a successful claim against the Alabama Department of Public Health’s 2010 emergency operations plan, brought by the Alabama Disabilities Advocacy Program. This group is now strongly pushing for equality in the deployment of responses to the pandemic.
Disability rights are protected under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and national anti-discrimination law and must be upheld now more than ever. Remember: “we are only as safe as our most vulnerable neighbour”.
Diana is a law graduate, legal advisor and research assistant. She has worked in the fields of immigration, asylum and equality law. She strongly advocates for minority rights, social welfare and the rule of law. Diana holds an LL.B. in European and Comparative Law from Maastricht University and is currently studying the accelerated LL.B. at the University of Glasgow to qualify as a solicitor-advocate.