Briefing for All Party Parliamentary Group for Disability on Welfare Reform in Northern Ireland

Introduction

1. In 2010 the UK Government embarked on a major reform of the welfare system. Parliament agreed the Welfare Reform Act1 in 2012 and changes began to be introduced in Great Britain in 2013. Many existing benefits were abolished and replaced by a new benefits system.

2. The Equality Commission for Northern Ireland has highlighted the adverse impact of welfare reform on disabled people; women and lone parents; younger people; mixed aged households and people from ethnic minority backgrounds2 and called for consideration of mitigating measures.

3. Implementation of welfare reform in Northern Ireland was agreed in the ‘Fresh Start’ Stormont Agreement3. Some time bound mitigation measures designed to act as a buffer against some of the harsher effects of the changes were subsequently agreed by the Executive4. The Welfare Reform (Northern Ireland) Order5 was introduced in November 2015 bringing forward significant changes to our current benefit systems.

4. This was followed by the Welfare Reform & Work (Northern Ireland) Order 20166. Changes began rolling out in Northern Ireland from 2016. The majority of changes have now been introduced7 although some mitigating measures will delay the full impact.

5. As part of the Independent Mechanism for Northern Ireland (IMNI), made a submission to the recent inquiry under the Optional Protocol of the UNCRPD8 which focused on the impact of welfare reform on persons with disabilities.

1 Welfare Reform Act 2012 2 ECNI (2013): DSD proposals on Welfare Reform - response 3 GOV.UK (2015): A Fresh Start for Northern Ireland 4 The Executive Office (2016): Welfare Reform Mitigations Working Group Report. 5 The Welfare Reform (Northern Ireland) Order 2015 6 The Welfare Reform and Work (Northern Ireland) Order 2016 7 Law Centre NI: Welfare Reform Timeline 8 UKIM (2016): Disability rights in Northern Ireland - Supplementary submission for CRPD List of Issues

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6. The Equality Commission for Northern Ireland has highlighted the need to protect the most vulnerable from the adverse impact of welfare reform. We have, for example, raised concerns about the potential impact of welfare reform proposals on people with disabilities and women.

7. We have called for steps to identify and commit to specific measures which will mitigate the adverse impact of welfare reform on the promotion of equality of opportunity, or alternate policies which might better achieve the promotion of equality of opportunity9.

8. We have noted recent proposals to mitigate the impact of some aspects of the welfare reform proposals10.

9. In addition, while many of the top priorities for older people are income related, older people are also shown not to fully access benefits and take up programmes.

10. Further, minority ethnic communities, including asylum seekers and refugees, can also experience barriers to accessing social protection and services.

11. The Commission continues to closely monitor the implementation of welfare reform in the Northern Ireland. The Commission believes that it has the potential to impact severely on some of the most vulnerable members of society and has been working with Government to ensure that issues of equality and potential discrimination are taken into account and adverse impacts mitigated where possible.

12. In our response to the Department of Social Development’s equality impact assessment of its welfare reform proposals (2011)11 the Commission agreed with the policy aim to ‘seek to make the social security system fairer, more affordable and better equipped to deal with poverty and welfare dependency’. The Commission raised four main areas of concern12 in terms of the policy proposals within the Welfare Reform Bill. These were: aspects of the Universal Credit proposal; lone parent conditionality; the housing benefit cap; and disability benefit reform.

13. We have consistently stressed the need to properly understand, consider and respond appropriately to the impacts of welfare reform. We raised concerns about the adequacy of the data presented in the original EQIA. However, following the subsequent publication by the Department of a ‘Welfare Reform Briefing Section 75 Update’, the Commission’s Statutory Duty Investigation Committee concluded that an investigation under

9 See: http://www.equalityni.org/pfg 10 The Executive Office (2016): Welfare Reform Mitigations Working Group Report 11 ECNI (2011): Response to the Department for Social Development’s consultation on the Welfare Reform Bill (NI) 12 Ibid.

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Paragraph 11 of Schedule 9 of the Northern Ireland Act 1998 would not be the most effective way to secure appropriate action13.

14. However, the Commission continues to monitor the work of the Department (now subsumed within the Department for Communities) in this important area and has noted that it needed to adequately address the equality implications of welfare reform and take mitigating measures where necessary to lessen adverse impacts on Section 75 equality groups14.

15. Furthermore, the Commission, as part of the Independent Mechanism for Northern Ireland (IMNI), made a submission on impact of welfare reform to the UNCRPD inquiry under the Optional Protocol to the Convention during 2015-16.

16. The Commission has also highlighted the impact of welfare reform on disabled people in Northern Ireland in the draft ‘List of Issues’ paper and in the final submission to for the United Nations Committee on the Rights of Persons with Disabilities (UNCRPD) prepared by the United Kingdom Independent Mechanism (UKIM)15 16.

17. The Committee’s concluding observations included a recommendation that the State Party ‘extend support packages to mitigate negative impacts of the social security reform in Northern Ireland’17.

18. The Commission will continue to press for adequate assessment of the impact of welfare reform and the development of mitigating measures to address any adverse impact. Welfare Reform Changes

19. In 2010 the UK Government embarked on a major reform of the welfare system as part of a range of policy initiatives to address the impact of the budget deficit linked with the banking crisis of 2009 and subsequent economic downturn.

20. Parliament agreed the Welfare Reform Act in 2012 and changes began to be introduced in Great Britain in 2013. Many existing benefits were abolished and replaced by a new benefits system18.

13 ECNI (2013): DSD proposals on Welfare Reform - response 14 Ibid. 15 UKIM (2014): Jurisdictional ‘Parallel’ Report on Implementation in Northern Ireland 16 UKIM (2016): Disability rights in Northern Ireland - Supplementary submission for CRPD List of Issues 17 United Nations Committee on the Rights of Persons with Disabilities (29 August 2017): Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland, CRPD/C/GBR/CO/1, paragraph 59 (d), page 14 Available at: Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland 18 https://www.citizensadvice.org.uk/benefits/changes-to-welfare-benefits/welfare-benefits-reform- what-s-changing/

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21. The Act was introduced by the UK Coalition Government as part of the programme of austerity with the aim of reducing the amount of welfare spending in the United Kingdom. In 2011-12, the Department for Work and Pensions reported a welfare expenditure of over £159 billion, approximately 22.8% of total government spending.

22. It is also a continuation of the programme of welfare reformation started under the previous Government addressing perceived flaws in the benefit system that creating a disincentive to work and a political consensus that work is the most effective route out of poverty19.

23. The Welfare Reform Act has led to a number of significant changes to including:

 a new welfare benefit called Universal Credit (to replace six of the main means-tested benefits and tax credits);  the phasing out of Disability Living Allowance and replacement with Personal Independence Payment;  reform of Housing Benefit, including introduction of under- occupancy penalty;  reform of Employment and Support Allowance;  changes to child support;  a new "claimant commitment"; and  stronger penalties for fraud and error.

24. In 2015, the Conservative Party made a general election manifesto pledge to find £12 billion from welfare savings on top of £21 billion savings delivered in the previous Parliament. After winning the general election this pledge was addressed in the summer budget in July 2015 and then in the Welfare Reform & Work Act (2016).

25. The Welfare Reform & Work Act (2016) introduced a further benefit cap reduction20; a freeze on the level of certain working-age social security benefits and tax credit amounts for the next four years21; a limit entitlement to the child element of Child Tax Credit and Universal Credit to a maximum of two children in each household22; abolition of the work- related activity component; and increased conditionality for responsible

19 http://www.cpag.org.uk/content/work-best-route-out-poverty 20 Outside of London the benefit cap will be lowered to the benefit cap to £20,000 per year for couples and lone parents and £13,400 for single claimants. 21 Income support, jobseeker’s allowance, employment and support allowance (ESA), housing benefit, universal credit (UC), the individual child elements of child tax credit (CTC) and most elements of working tax credit have all been frozen. 22 With limited exceptions for children born as a result of rape, multiple births, sibling adoption and kinship carers. Also if the a third or subsequent child is disabled, a reduced element will be paid, reflecting the difference between the existing disabled child element and the child element.

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carers (i.e., lone parents and main carers in couples) of children under five23.

26. As social security is a devolved matter, The Northern Ireland Assembly was required to bring forward its own legislation in accord with the principle of ‘Parity’ so that the social security system is consistent throughout the UK24 25.

27. Implementation of welfare reform in Northern Ireland was agreed in the ‘Fresh Start’ Stormont Agreement26. Some-time bound mitigation measures designed to act as a buffer against some of the harsher effects of the changes were subsequently agreed by the Executive27. The Welfare Reform (Northern Ireland) Order was introduced in November 2015 bringing forward significant changes to our current benefit systems28.

28. Many current benefits were to be replaced by new benefits and payment systems2930. From May 2016 a reduced benefit cap was introduced, limiting the total amount of benefit available to people of working age31.

29. A new benefit sanction regime also increased the number of weeks most sanctions can be applied32. It is estimated that rates of sanctioning are currently five times higher in Great Britain compared to Northern Ireland and concerns about this harsher regime were identified in the Welfare Reform Mitigations Group report33.

30. The National Audit Office has concluded that to date there is no evidence to show that welfare sanctions actually work or can be shown to be value for money. They also report that the DWP does not currently track the

23 Parents of three- and four-year-olds will be expected to be available for and actively seeking work. Parents of two-year-olds will be required to attend work-focused interviews and will be subject to a work preparation requirement, while parents of one-year-olds will continue to be required to attend work-focused interviews. 24NICCY (2012): An Examination of Parity Principles in Welfare and Wider Social Policy. 25 Law Centre NI (2011): Social Security Parity – A Note for the Social Development Assembly Committee 26 A Fresh Start for Northern Ireland 27 The Executive Office (2016): Welfare Reform Mitigations Working Group Report. 28 Department for Communities (2016): Welfare Changes Overview. 29 Major elements include the introduction of Universal Credit, which is replacing means-tested benefits and tax credits for working age families, and Personal Independence Payment (PIP), which is replacing Disability Living Allowance for people of working age. 30 There have also been significant changes to incapacity benefits, including the continued rollout of Employment and Support Allowance (ESA), and changes to the structure of ESA and “conditionality” for ESA claimants. Other measures which may impact on families with disabled people, include changes to benefits uprating policy and capping of the total amount of benefits the household can receive. 31 The Benefit Cap limits are: £384.62 a week for a couple (with or without children) or a lone parent and £257.69 a week for a single person with no dependent children living with them. 32 The minimum sanction period has been increased to four weeks. That means at least a month with no money unless a hardship loan is secured. If you are sanctioned twice in the same year it will be for a minimum of thirteen weeks. The longest period a person can lose their money for is 3 years (initially 18 months in Northern Ireland). 33 Scope NI (2016): Welfare sanctions in NI: the facts.

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costs and benefits of welfare sanctions and that the application of the sanctions regime varies across the country and from job centre to job centre34.

31. There has been a significant rise in the number and usage of food banks since the measures have taken hold. Research by the University of Hull which mapped food bank demand in the UK found that areas with more people unable to work due to long-term sickness or disability have the highest usage35.

32. Food bank usage in Northern Ireland has also increased significantly every year since 2014.36 Low income is identified as causing approximately 32% of food referrals37, which is higher than other areas in the UK, where delays or changes relating to benefits are often the most common reason.

33. Recently, evidence has emerged that more than a third (over 36%) of Disability Living Allowance (DLA) claimants in Northern Ireland have had their benefit stopped after being reassessed for the new Personal Independence Payment (PIP)38.

Flexibilities & Mitigations 34. Following the December 2014 Stormont House Agreement, the Northern Ireland Executive agreed a series of ‘flexibilities’ to delivery arrangements to help avoid rent arrears and provide women, in particular, with financial independence:

 the housing element of Universal Credit (UC) to be paid to the landlord rather than the tenant;  claimants to receive fortnightly rather than monthly payments of UC;  payment of UC for joint claims can be split rather than paid into a single back account. 35. Following the Fresh Start Agreement in 2016 a series of time-bound mitigation measures were also agreed as follows:39

 supplementary payments for some of those who will be adversely affected by the reforms such as carers, claimants with disabilities. This includes a supplementary payment to fully mitigate any households affected by the benefit cap.

34 National Audit Office (2016): Benefit Sanctions Report. 35 Trussell Trust (2016): Food Bank Usage. 36 Belfast Telegraph (2016): Record Numbers Relying on Food Banks. 37 Ibid. 38 BBC NI News (8 November 2017): ‘Third of NI DLA claimants' benefits stopped’. Available at: http://www.bbc.co.uk/news/uk-northern-ireland-41907828

39 Welfare Reform Mitigations Working Group

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 a Discretionary Support Scheme to replace the Social Fund;  financial support for the independent advice sector in order to assist people through the change process.

Summary of Changes 36. Universal Credit is a new single benefit for working-age people which will gradually replace most means-tested benefits. It will be introduced in Northern Ireland on a phased geographical basis from September 201740.

37. Benefits being replaced by Universal Credit are: Jobseeker’s Allowance (income-based); Employment and Support Allowance (income-related); Income Support; Child Tax Credits; Working Tax Credits; Housing Benefit (rental).

38. The benefits not being replaced and which will continue are: Jobseeker’s Allowance (contribution-based); Employment and Support Allowance (contribution-based); Child Benefit; Pension Credit; Carer’s Allowance; Industrial Injuries Disablement Benefit.

39. The purpose of Universal Credit is to address what the Government considers to be the two principal failings of the previous benefits system: complexity and insufficient incentive to take up paid work41.

40. Two Child Limit: From April 2017 a two child limit on receipt of the child element of tax credits applies for children born after 5 April 2017 and the child element of Universal Credit for families making a new claim (whether or not the child is born before April 2017).

41. Personal Independence Payment (PIP) will replace Disability Living Allowance (DLA) for people of working age with daily care needs or difficulty getting about. New and existing DLA claimants will be required to undergo an assessment to help determine their entitlement. From June 2016, fresh claimants have been moved directly under PIP with existing claimants undergoing reassessment over the period December 2016 to December 2018.

42. Changes in assessment criteria will make it harder for many people with disabilities and long-term conditions to qualify for PIP. Since its roll out in Great Britain the new scheme has come under significant criticism and there have been widespread reporting of delays, backlogs and rejections42. Tribunal outcomes indicate that two third of appeals are successful.43

40 Citizens Advice NI: Welfare Reform What is Changing in Northern Ireland 41 BBC News (2010): Welfare reform will restore fairness, says Duncan Smith. 42 BBC News (2015): PIPs disability benefit delay unlawful, says High Court 43 Benefits & Work (2016): PIP appeal success rate hits new all-time high.

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43. Housing benefit size restrictions in social housing. This change has been referred to as the removal of the spare room subsidy (or the bedroom tax). For example, a single disabled person living in a two bedroom council or housing association property will only receive Housing Benefit up to the level for a one bedroom property, unless they need a non-resident overnight carer.

44. Employment and Support Allowance (ESA): From October 2016 a time-limit has been set on claims for contribution-based Employment and Support Allowance for people in the work-related activity group. People receiving contribution-based ESA will no longer be eligible after 365 days. If you are in the support group you will not be affected.

45. Total Benefit Cap: There is an overall limit on the amount of benefit payable to people of working age. These limits are £384.62 per week for a Couple (with or without children) or a single parent and £257.69 per week for a Single person without children or not living with their children.

46. There is no Benefit Cap on older person’s benefits, but a couple where one member is working age and the other is older will be affected. The Benefit Cap will not apply to households that are in receipt of Disability Living Allowance/ PIP, Attendance Allowance, Employment and Support Allowance which includes the Support Group Component, Working Tax Credit or households which include a war widow/widower. Discretionary Housing Payments, support for childcare through Universal Credit and localised council tax support will not be included in the assessment of the total value of benefits received.

47. Bereavement support: A new form of bereavement support called ‘Bereavement Support Payment’ (BSP) was introduced in April 2017. This replaces the widowed parent allowance, bereavement allowance and the lump sum bereavement payment44.

48. Claimants with dependent children receive £3,500, plus £350 a month for 18 months, claimant without dependants receive £2,500 plus £100 a month for 18 months45.

49. Previously claimants with dependent children were entitled to additional support until a child turned 18 years old. Charities have warned the payments period for BSP is too short and that the changes will hit lowest- income families the hardest. It is estimated the cuts will affect 515,000 in the UK families by 202046.

50. Conditionality: A tougher conditionality regime has been introduced with the aim of seeking claimants’ compliance with specific actions in relation to job seeking. Failure to meet these conditions can lead to benefit sanctioning.

44 DWP Fact sheet Changes to Bereavement Support from 6 April 2017 45 Ibid. 46 House of Commons Library (2016): Universal Credit changes from April 2016

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51. Sanctions: A tougher but clearer system of benefit sanctioning has also been introduced with less discretion around the length of time a sanction is applied for.

52. Hardship Payments: Hardship payments are reduced-rate payments of jobseeker’s allowance (JSA), employment and support allowance (ESA) and universal credit (UC) that are made in limited circumstances, including where a claimant has been sanctioned, is waiting on a decision on whether or not they meet jobseeking conditions, or where their benefit has been stopped for a fixed period following a benefit fraud offence47.

53. A hardship payment is usually a loan and is roughly 60% of the amount the claimant was sanctioned by in the last month48. The Jobcentre will usually recover this payment by taking an amount of money from the claimant’s Universal Credit payment each month until it is paid off49.

54. Changes to the Social Fund: In November 2016 there will be a change in how some Social Fund payments will be made. Crisis loans and community care grants will become part of a new Discretionary Support Payment scheme.

55. Benefit appeal rights will change: From 23 May 2016 a claimant who doesn’t agree with a social security benefit decision must ask for it to be reviewed by a decision maker before it can be appealed. Impact on People with a Disability

56. A wide range of groups including academics, political parties, NGOs, churches, trade unions and equality and human rights bodies have expressed concerns about the negative impact of the reforms to social security benefits on people experiencing poverty in Northern Ireland, including disabled people50.

57. Research has shown that Northern Ireland will be the UK region to suffer the greatest financial loss. Northern Ireland has the UK’s highest claimant rates of incapacity benefits and DLA, two of the main targets for reform.51

47 Citizensadvice NI: Hardship Payments & Jobseeker’s Allowance 48 Ibid 49 Ibid 50 See for example:  Beatty and Fothergill (2013): The Impact of Welfare Reform on Northern Ireland; Centre for Regional Economic and Social Research - Sheffield Hallam University.  NI Assembly Ad Hoc Committee (2013): ‘Report on whether the Provisions of the Welfare Reform Bill are in Conformity with Requirements for Equality & Observance of Human Rights’.  A summary of concerns expressed by Church Leaders and Trade Unions on Welfare Reform Bill and its potential impact on Northern Ireland. BBC Report 2012.  Law Centre NI (2011): ‘Evidence to the Work and Pensions Select Committee Proposal to Replace Disability Living Allowance with Personal Independence Payment’.  Northern Ireland Welfare Reform Group (2012): ‘The Welfare Reform Bill: Briefing on the key issues for people with disabilities and carers’. 51 Beatty and Fothergill (2013): The Impact of Welfare Reform on Northern Ireland;

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58. Sickness and disability claimants will be hit especially hard. It is estimated that in Northern Ireland 57% in receipt of DLA will either lose their entitlements altogether or have their benefit decreased.52

59. The 66,000 individuals affected by incapacity benefit reforms can expect to lose an average of almost £3,500 a year. The 67,000 people are expected to lose out by an average of more than £2,100 a year, as a result of the change over from Disability Living Allowance to Personal Independence Payments. Often these will be the same individuals as most out of work DLA claimants of working age receive incapacity benefits53.

60. PIP requires more frequent testing based on the premise that some individuals’ conditions will improve and they will not therefore require the same level of benefit on a permanent basis.

61. The Department for Social Development data indicates that one in every three persons with disabilities in Northern Ireland have been wrongly assessed as fit for work and lost social security benefit54.

62. Furthermore claimants with severe mental illness are often assessed by staff who had no specialist understanding of the condition, such as physiotherapists and paramedics, who were reliant on a crude “mental state examination” to make critical life-changing decisions55.

63. The current process of welfare reform is anticipated to have an adverse and disproportionate impact on people with disabilities, their families and carers56.

64. The Independent Living Fund closed in 2015 and funding was transferred to the Executive. The fund was permanently closed to new applicants in 201057. There are also concerns about the extent to which the new system of self-directed support and direct payments are meeting the independent living support needs of people who would previously have been eligible for Independent Living Fund (ILF)58.

52 DSD (2013) Welfare reform briefing section 75 update. 53 The Detail (2013): Northern Ireland is UK region hardest hit by welfare reform. 54 Department for Social Development (2012): News Release ESA appeals upheld 55 Ibid. 56 Key concerns of the UK Independent Mechanism following the release of the CRPD Committee’s inquiry into the UK under Article 6 of the CRPD Optional Protocol, and the UK Government’s response 57 Community Care (2017): Council Cuts Care Packages Close Unequal Funding Gap. 58 Key concerns of the UK Independent Mechanism following the release of the CRPD Committee’s inquiry into the UK under Article 6 of the CRPD Optional Protocol, and the UK Government’s response

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65. On 19 May 2015, the Health Minister in the Northern Ireland Executive announced that the administration of the Independent Living Fund (ILF)59 in Northern Ireland would be undertaken by the Scottish Government60.

66. This followed a decision by the Department of Work and Pensions that the ILF would be closed in England and Wales with continued support of ILF users devolved to Local Authorities in England and to the Devolved Administrations from 1 July 201561. However, whilst the ILF is open to new users in Scotland, its operation in Northern Ireland is restricted to existing users only62. Thus, delivery of independent living resources is time bound and will lead to the eventual de facto closure of the ILF, whilst there is currently no clear indication of the arrangements to succeed the scheme.

67. There is an absence of quantitative and qualitative information on the extent to which disabled people with substantial needs, who are not existing Independent Living Fund users are having their needs met through the Self-directed Support and Direct Payments provisions.

68. Key stakeholders in Northern Ireland have pointed out that Direct Payments do not fund many of the activities that were funded by the ILF, and that disabled people using this scheme therefor have less choice and control than was possible through support from the ILF63.

69. The Joint Committee for Human Rights has highlighted that, in their view, welfare reform, changes to eligibility criteria for adult social care and the closure of the ILF ‘risk interacting in a particularly harmful way for disabled people. Some disabled people risk losing Disability Living Allowance (DLA)...whilst not getting support from the ILF, all of which may force them to return to residential care’64.

59 The Independent Living Fund (ILF) was an Executive Non-Departmental Public Body of the UK Department for Work and Pensions. In Northern Ireland the ILF budget was devolved to the Department for Social Development (DSD) but the administration was still done on a UK wide basis. 60 Written statement to the Assembly by Health Minister Simon Hamilton MLA (19 May 2015): ‘New arrangements for the future support of Independent Living Fund users In Northern Ireland’. Available at: https://www.health-ni.gov.uk/publications/dhssps-ministerial-announcements-and-statements-2015 61 Department for Work and Pensions (6 March 2014): ‘Future of the Independent Living Fund’. Available at: https://www.gov.uk/government/news/future-of-the-independent-living-fund 62 Welfare Weekly (20 May 2015): ‘Northern Ireland Independent Living Fund To Be Administered In Scotland’. Available at: http://www.welfareweekly.com/northern-ireland-independent-living-fund-to-be- administered-in-scotland/ 63 See, for example, comments by Disability Action and the Centre for Independent Living in Murphy, E. (2013): ‘The Independent Living Fund’, pages 4-5. Available at: http://www.niassembly.gov.uk/globalassets/documents/raise/publications/2013/social_dev/4413.pdf. 64 Joint Committee for Human Rights: ‘Implementation of the Right of Disabled People to Independent Living’, paragraph 161, Twenty Third Report, 6 February 2012. http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/257/25708.htm

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70. The draft delivery plan for Programme for Government Indicator 42, ‘average life satisfaction score of people with disabilities’, includes a commitment to work with disabled people and social care sector to address barriers and to increase take up of self–directed support and direct payments, for those who choose to access their care in this way65. However, a final plan has yet to be approved in the absence of a functioning Northern Ireland Executive.

71. If fully introduced, it is estimated that the curtailment of the ‘spare room subsidy’ will affect 32,000 households in Northern Ireland66. The UN Special Rapporteur on Housing has expressed deep concern that this could constitute a violation of the human right to housing67.

72. This measure has been criticised for failing to take into account that a spare room may be needed to accommodate equipment for a person with disabilities in the household. The regulations allow an extra bedroom in respect of disabilities in two specific scenarios. These are:

 Where two children cannot share because of a disability.  Where the person claiming housing benefit or that person’s partner requires regular overnight care and there is a spare bedroom for the carer to use.

73. The Supreme Court’s decision in the cases of Carmichael and Rutherford remedied the anomaly whereby disabled adults and children were treated differently if they needed a bedroom for overnight carers or where a bedroom could not be shared68.

74. National Audit Office Data69 cited by the Royal College of Psychiatrists show that people with mental health problems are disproportionately sanctioned. 50% of people in the work related activity group (WRAG) have a mental health issue, but received 60% of the sanctions70.The Royal College of Psychiatrists believe that possible reasons for this include: a lack of understanding of mental health throughout the benefits system; barriers faced by people with mental health conditions not being taken into account; and ineffective and inaccurate at assessment of claimants leading to errors in placement of appropriate benefit71.

75. A key problem is that the system of conditionality assumes that the threat of reduction or withdrawal of benefits will encourage people to engage in

65 The Northern Ireland Executive (2016): ‘Draft Delivery Plan for Programme for Government Indicator 42, Average life satisfaction score of people with disabilities’, page 12. Available at: https://www.northernireland.gov.uk/publications/programme-government-delivery-plans 66 Byrne et al (2014):‘Shortfalls in public policy and programme delivery in Northern Ireland relative to the Articles of the UNCRPD – Draft Final Report 11 March 2014’, Page 145. 67 Press Statement by the United Nations Special Rapporteur on adequate housing: End mission to the United Kingdom of Great Britain and Northern Ireland, 29 August to 11 September 2013. 68 Leigh Day (2016): Supreme Court Rules Government Acted Unlawfully 69 National Audit Office (2016): Benefit sanctions. Report by the Comptroller and Auditor General. 70 Royal College of Psychiatrists (2015): Sanctions and people with mental health problems. 71 Ibid.

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work seeking activities, it has been claimed. This assumption is misplaced, many people with mental health problems want to work but are prevented from doing so by the impact of their condition, systemic barriers and a lack of effective support, for example by the Work Programme72.

76. It is contended that the use of sanctions is not only ineffective, but has a detrimental effect on peoples’ physical and mental health73. Research has also found a “strong, dynamic relationship” between benefit sanctioning and food bank usage74.

77. The current scale of sanctioning in Northern Ireland is also significant. This was highlighted in an Assembly Question response75 when the Minister for Social Development advised that from April 2012 to February 2015: a total of 24,555 Job Seekers Allowance sanctions were imposed with 4,132 imposed specifically in relation to the Jobseekers (Northern Ireland) Order 1995. (Article 21) (5)76 According to the NI Benefits Statistics Summary (May 2015)77 the number of Job Seeker’s Allowance claimants was 41,150.

78. The Right to Work: Right to Welfare (R2W) Group carried out human rights monitoring with claimants from Social Security Offices across Belfast in 2014/15. They identified evidence of increasing problems in accessing benefits due to sanctions despite the full extent of reform remaining to be realised78.

79. The Northern Ireland draft Programme for Government (PfG) and delivery plans79 include a commitment to financially protect individuals with a disability impacted by the welfare changes up to a period of 12 months to afford them time to adjust to the new welfare reforms. This includes support for people currently on Disability Living Allowance (DLA) who lose out as a result of the introduction of Personal Independence Payment (PIP). Removal of the spare room subsidy has also been mitigated for four years.

80. The draft PfG also includes following wider commitments:

72 Ibid. 73 Church Action on Poverty (2016): Time to Rethink Benefit Sanctions. 74 University of Oxford (2016): 'The impact of benefit sanctioning on food insecurity: a dynamic cross- area study of food bank usage in the UK', 75 https://www.theyworkforyou.com/ni/?id=2015-02-02.5.22 76 Failure to take up / attend a place on the employment programme (or loss due to misconduct). 77 DSDNI (2015): NI Benefits Statistics Summary (May 2015). 78 Right To Work; Right To Welfare (2016): The People’s Proposal: Realising the Right to Social Security. R2W believe the reformed sanction regime is incompatible with the Executive’s commitment to, and obligation under, international human rights law and have called for the Executive to implement measures to safeguard the right to due process and minimum essential benefits. The People’s Proposal outlines an investigation and disciplinary process which guarantees a right to due process (including transparent information and the right to representation) and mitigating measures to ensure that no one falls below a minimum essential level of benefits. 79 Northern Ireland Executive (2016): Programme for Government Consultation.

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 the introduction of the benefit cap, which is to make sure that no household receives more in benefits than an average wage or salary, will not apply if any member of the household qualifies for a disability benefit (2017-18).  development of a comprehensive Social Inclusion Wraparound Service80, providing tailored interventions to support people at risk to access services from across the Social Inclusion Group (SIG) and across government.  full implementation of the Active Ageing Strategy with an emphasis on continuing progress in terms of benefit uptake, tacking financial abuse, fuel poverty and digital inclusion.

80 The Commission understands that this not involve additional resources but concerns making links between existing social protection programmes and sharing / accessing data on claimant’s incomes and benefits.

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Appendix A

Exerts from the Independent Mechanism for Northern Ireland (July 2017): United Nations Convention on the Rights of Persons with Disabilities - Jurisdictional ‘Parallel’ Report on Implementation in Northern Ireland (http://www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/IM NI_CRPD_ParallelJurisdictionalReport_WorkingPaper(Aug17).pdf)

Article 28: Adequate Standard of Living and Social Protection

The Northern Ireland Disability Strategy links Article 28 to Strategic Priority 13, to ‘Reduce poverty among people with disabilities and their families and protect their right to an adequate standard of living’ and Strategic Priority 14, to ‘Ensure that people with disabilities and their families have appropriate accommodation and adequate support to live independently’81. A number of actions under the PfG are identified in association with these Priorities including, to ‘Introduce UNCRPD compliant measures to tackle poverty and social exclusion’82 and to ‘Deliver 8,000 social and affordable homes that will include homes adapted to meet the needs of people with disabilities’83. However, the Strategy does not identify how this range of actions will be monitored with respect to meeting obligations under Article 28.

81 Office of the First Minister and the deputy First Minister (2013): ‘A Strategy to improve the lives of disabled people 2012-2015’, page 22. Available at: https://www.communities- ni.gov.uk/sites/default/files/publications/ofmdfm_dev/disability-strategy-2012-2015.doc. 82 Office of the First Minister and the deputy First Minister (2013): ‘A Strategy to improve the lives of disabled people 2012-2015’, page 37. Available at: https://www.communities- ni.gov.uk/sites/default/files/publications/ofmdfm_dev/disability-strategy-2012-2015.doc. 83 Office of the First Minister and the deputy First Minister (2013): ‘A Strategy to improve the lives of disabled people 2012-2015’, page 35. Available at: https://www.communities- ni.gov.uk/sites/default/files/publications/ofmdfm_dev/disability-strategy-2012-2015.doc.

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Welfare Reform The Northern Ireland (Welfare Reform) Act 201584, which received Royal assent on 25 November 201585, will bring about what are widely regarded as radical changes in the social security system86. According to research, the changes to disability benefits and the increased requirements on people with disabilities to look for work, as well as changes to Housing Benefit entitlement will impact far more on Northern Ireland than other parts of the UK87. There are a high proportion of people with disabilities living in Northern Ireland compared to other parts of the UK due, in part, to the legacy of conflict within the region. Just over 1 in 10 of the population in Northern Ireland is in receipt of Disability Living Allowance compared to just over 1 in 20 of the population in Great Britain88. Over 10% of the working age population in

84 The proposed welfare reform measures are broadly similar to the measures already passed into law in GB. For further information, see: http://www.niassembly.gov.uk/Assembly- Business/Legislation/Primary-Legislation-Current-Bills/Welfare-Reform-Bill/ 85 See: http://services.parliament.uk/bills/2015-16/northernirelandwelfarereform.html In Northern Ireland, Social Security is a devolved matter for the Northern Ireland Assembly. However, the following a period of political stalemate over the proposed reforms, the Fresh Start agreement included provision that the Welfare Reform Bill would be debated and approved by the Assembly by way of a Legislative Consent Motion. This approval would also cover a draft Order in Council which would give effect in Northern Ireland to the 2012 welfare changes in Great Britain. The motion was passed by 70 votes to 22 votes. The Northern Ireland (Welfare Reform) Bill did not itself contain welfare provisions but was instead an enabling measure providing a power by Order in Council to: • Legislate for welfare reform in Northern Ireland; and

• Confer powers on the Secretary of State or the Department for Social Development in Northern Ireland to make further provision by regulations and order.

See also: Bowers, P., Kennedy, S., Parkin, L., Armstrong, H. and Wilson, W. (20 November 2015): ‘A Fresh Start: the Stormont Agreement and Implementation Plan and the Northern Ireland (Welfare Reform) Bill 2015-16 [Bill 99]’, House of Commons Library Briefing Paper 7839. Available at: http://researchbriefings.files.parliament.uk/documents/CBP-7389/CBP-7389.pdf.

86 Northern Ireland Assembly (2011): ‘An introduction to Welfare Reform’, Research and Library Service Briefing Paper, paper 13/11, NIAR 606-10. Available at: http://www.niassembly.gov.uk/Documents/RaISe/Publications/2011/Social-Development/1311.pdf. 87 Beatty, C. and Fothergill, S. (2013): ‘The Impact of Welfare Reform in Northern Ireland’ (Centre for Regional Economic and Social Research at Sheffield Hallam University for NI Council for Voluntary Action). Available at: http://www.nicva.org/resource/impact-welfare-reform-northern-ireland 88 Department for Social Development (April 2013): ‘Welfare Reform Briefing Section 75 Update’, page 55, final paragraph, (Belfast: DSD). Available at: www.dsdni.gov.uk/welfare-reform-bill-section-75- update-april-2013.doc

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Northern Ireland is claiming Incapacity Benefit (IB) or Employment Support Allowance (ESA) compared to 6.6% in Great Britain (GB)89.

A wide range of groups including academics, political parties, NGOs, churches, trade unions and equality and human rights bodies have expressed concerns about the potential negative impact of the reforms to social security benefits on people experiencing poverty, including disabled people90.

In addition to a number of welfare reform ‘flexibilities’91 specific to Northern Ireland agreed by the Executive, as part of the ‘Fresh Start’92 agreement, a Welfare Reform Mitigations Working Group was established to develop proposals to assist people

89 MacInnes, T., Aldridge, H., Parekh, A. and Kenway, P. (2012): ‘Monitoring Poverty and Social Inclusion in Northern Ireland’, (York: Joseph Rowntree Foundation). Available at: http://www.jrf.org.uk/topic/monitoring_poverty 90 See for example:

Beatty, C. and Fothergill, S. (October 2013): ‘The Impact of Welfare Reform on Northern Ireland’, (Centre for Regional Economic and Social Research, Sheffield Hallam University for the Northern Ireland Council for Voluntary Action). Available at: http://www.nicva.org/resource/impact-welfare- reform-northern-ireland

Northern Ireland Assembly Ad Hoc Committee (2013): ‘Report on whether the Provisions of the

Welfare Reform Bill are in Conformity with the Requirements for Equality and Observance of Human Rights’. Available at: http://www.niassembly.gov.uk/Assembly-Business/Committees/Ad-Hoc- Committee-on-Conformity-with-Equality-Requirements-Welfare-Reform-Bill/Reports/Report-on- whether-the-Provisions-of-the-Welfare-Reform-Bill-are-in-Conformity-with-the-Requirements-for- Equality-and-Observance-of-Human-Rights/

A summary of concerns expressed by Church Leaders and Trade Unions on Welfare Reform Bill and its potential impact on Northern Ireland is available at: http://www.bbc.co.uk/news/uk-northern-ireland- 20132024

Law Centre Northern Ireland (September 2011): ‘Evidence to the Work and Pensions Select Committee Proposal to Replace Disability Living Allowance with Personal Independence Payment’. Available at: http://www.lawcentreni.org/Publications/Policy- Responses/ResponseWPSCreplacingDLA.pdf

Northern Ireland Welfare Reform Group (October 2012): ‘The Welfare Reform Bill: Briefing on the key issues for people with disabilities and carers’. Available at: http://www.disabilityaction.org/fs/doc/publications/disability-and-carers-policy-briefing-on-welfare- reform.doc

91 Including the housing element of Universal Credit (UC) to be paid to the landlord rather than the tenant; claimants to receive fortnightly rather than monthly payments of UC; and payment of UC for joint claims can be split rather than paid into a single back account. 92 Northern Ireland Executive (14 November 2015): ‘A Fresh Start: The Stormont Agreement and Implementation Plan’. Available at: https://www.northernireland.gov.uk/publications/fresh-start- stormont-agreement-and-implementation-plan-0.

17 through the implementation of the changes to the welfare system. The group produced a report which detailed a mitigation strategy93, subsequently approved by the Executive. However, a number of the key mitigations for persons with disabilities are limited to one year in duration94.

Transition from the Disability Living Allowance (DLA) to the new Personal Independence Payment (PIP) As a result of the proposed transition from the Disability Living Allowance95 (DLA) to the new Personal Independence Payment (PIP), it is estimated that 57% of those in receipt of DLA in Northern Ireland will either lose their entitlement altogether or have their disability benefit decreased96. Those individuals adversely affected by

93 Welfare Reform Mitigations Working Group Report (January 2016). Available at: https://www.executiveoffice-ni.gov.uk/publications/welfare-reform-mitigations-working-group-report The package of mitigation measures proposed by the Working Group and agreed by the Northern Ireland Executive includes: supplementary payments for those who will be adversely affected by the reforms such as carers, claimants with disabilities and ill health, households affected by the Benefit Cap and changes to tax credits, those affected by the new sanctions regime; a Discretionary Support Scheme to replace the Social Fund; and financial support for the independent advice sector in order to assist people through the change process. 94 For example, supplementary payments for:  Those who cease to receive contributory Employment Support Allowance (ESA) and are not entitles to income-based ESA;  Those who, after assessment, qualify for Personal Independence Payment (PIP) at a reduced rate;  Those who, after assessment, are judged to have no entitlement to PIP but score at least four points;  Carers who lose Carer’s Allowance if the person they care for does not, following assessment, qualify for Personal Independence Payment. 95 Disability Living Allowance is a social security benefit specifically targeted at disabled adults and children to help them with extra costs associated with having a disability addressing care and support requirements of day-to-day living and mobility requirements. Persons with disabilities could apply for either or both the care component of mobility component of DLA. This allowance also provided a passport to other additional social security benefits such as increased unemployment benefit. This benefit has been replaced, with revised criteria for eligibility, by the Personal Independence Payment. 96 Department for Social Development (April 2013): ‘Welfare Reform Briefing Section 75 Update’, (Belfast: DSD). Available at: www.dsdni.gov.uk/welfare-reform-bill-section-75-update-april-2013.doc

25% of those Disability Living Allowance recipients who will be reassessed before October 2015 will not be eligible for Personal Independence Payment and will receive no award while 32% will have their award decreased and 24% are expected to see an increase in their payments. The remaining 19% are expected to see no change. Beatty and Fothergill (see page 14 in reference 105 above) estimate that those losing out as a result of the changeover from DLA to PIP will lose an average of £2,000 per year.

18 incapacity benefit reform are expected to lose an average of almost £3,500 per year97.

The more stringent and frequent medical tests under PIP are based on a medical, rather than social model of disability. Further concerns have been raised in relation to the lack of an arrears system under PIP. For example, those wrongly held on remand do not qualify for their claim to be backdated for the entire period of their wrongful custody98. Although mitigating measures, by way of supplementary payments, have been agreed by the Northern Ireland Executive in respect of those who lose out in the transfer from DLA to PIP, these are limited to a duration of one year99.

Universal Credit It has been suggested that as a result of the transition to Universal Credit, disabled adults and children will receive less financial support from the social security system. For example, under this reform severely disabled people who do not have another adult to assist them will receive £28 to £58 less per week in care support100.

Housing benefit It is estimated that if the removal of the ‘spare room subsidy’ (also referred to as the ‘bedroom tax’)101 is introduced, it will affect 32,000 households in Northern Ireland102. This measure has been criticised for failing to take into account that a spare room may be needed to accommodate equipment for a person with disabilities in the household. In 2013, the UN Special Rapporteur on Housing expressed deep concern at both the impact of the measure and stated that it could constitute a

97 Byrne, B., Harper, C., Irvine, R.S., Russell, H. and Fitzpatrick, B. (2014): ‘Shortfalls in public policy and programme delivery in Northern Ireland relative to the Articles of the UNCRPD’, page 105. Available at: http://www.equalityni.org/Delivering-Equality/Addressing-inequality/UNCRPD-Disability 98 Byrne, B., Harper, C., Irvine, R.S., Russell, H. and Fitzpatrick, B. (2014): ‘Shortfalls in public policy and programme delivery in Northern Ireland relative to the Articles of the UNCRPD’, page 105. Available at: http://www.equalityni.org/Delivering-Equality/Addressing-inequality/UNCRPD-Disability 99 Welfare Reform Mitigations Working Group Report (January 2016), Op Cit. 100 Byrne, B. et al. Op Cit. 101 The removal of the ‘subsidy’ will reduce the amount of housing benefit paid to claimants living in social housing who are deemed to have surplus bedrooms - 14% for one bedroom and 25% for two or more. Source: Byrne, B., Harper, C., Irvine, R.S., Russell, H. and Fitzpatrick, B. (2014): ‘Shortfalls in public policy and programme delivery in Northern Ireland relative to the Articles of the UNCRPD – Draft Final Report 11 March 2014’, page 145. Available at: http://www.equalityni.org/Delivering- Equality/Addressing-inequality/UNCRPD-Disability 102 Northern Ireland Federation of Housing Associations and the Chartered Institute of Housing (5 April 2013): ‘Bedroom tax will cost more than it will save, say experts’. Available at: http://www.cih.org/news-article/display/vpathDCR/templatedata/cih/news- article/data/Bedroom_tax_to_cost_more_than_it_can_save

19 violation of the human right to housing103. Whilst one of the mitigation measures agreed by the Executive is that it will provide funding so that the ‘bedroom tax’ will not apply in Northern Ireland, this is on a time-limited basis (four years)104 subject to review.

Work Capability Assessment

The Work Capability Assessment measure, part of the welfare to work programme, is also likely to have an adverse impact on persons with disabilities105. There is evidence that persons with disabilities are being deemed by the government as fit for work and having their disability benefits reduced or removed106. Such circumstances arise at a time when the Government’s welfare to work measure intended to support disabled people and other long-term unemployed people into work has failed to deliver against the Government’s own targets107.

103 Press Statement by the United Nations Special Rapporteur on adequate housing: ‘End mission to the United Kingdom of Great Britain and Northern Ireland, 29 August to 11 September 2013’. Available at: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=13706&LangID=E 104 Welfare Reform Mitigations Working Group Report (January 2016), Op Cit, page 4. 105 Department for Social Development (1 August 2012): News Release. 67% of Employment and Support Allowance appeals upheld in Department’s favour. Therefore 33% of persons with disabilities in Northern Ireland have been wrongly assessed as fit for work and lost social security benefit. Available at: http://www.northernireland.gov.uk/index/media-centre/news-departments/news- dsd/news-releases-dsd-august-2012/news-dsd-010812-esa-appeals-upheld.htm 106 Department for Social Development (1 August 2012): News Release. Available at: http://www.northernireland.gov.uk/index/media-centre/news-departments/news-dsd/news-releases- dsd-august-2012 107 House of Commons Committee of Public Accounts (13 February 2013): ‘Department for Work and Pensions: Work Programme Outcome Statistics, Thirty-third Report of Session 2012-2013, report together with formal minutes and written evidence, conclusions and recommendations’. The report highlights the shortcomings regarding measures to secure access to employment for many disabled people, see pages 3-6. Available at: http://www.publications.parliament.uk/pa/cm201213/cmselect/cmpubacc/936/936.pdf

See also research by Disabled Person’s Organisation-Disability Rights UK (October 2013): ‘Taking Control of Employment Support’. The Work Programme (welfare to work measure) in Great Britain, similar to the Steps to Work Programme due to be introduced in Northern Ireland, set a (modest) performance target: 16.5% of people on the out of work disability benefit Employment and Support Allowance should secure sustained employment through the programme. Government figures from July 2013 show only 5.3% of new Employment and Support Allowance claimants had secured employment (a 95% failure rate). The most optimistic projections suggest this might rise to 12% as the most recent recruits go the full course of the programme (a failure rate, at best, of 88%) - see paragraph 3.1, third bullet point, page 12. Available at: http://www.disabilityalliance.org/policy- campaigns/reports-and-research/taking-control-employment-support

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Appendix B

The Equality Commission for Northern Ireland

1. The Equality Commission for Northern Ireland (the Commission) is an independent public body established under the Northern Ireland Act 1998. The Commission is responsible for implementing the legislation on fair employment, sex discrimination and equal pay, race relations, sexual orientation, disability and age.

2. The Commission’s remit also includes overseeing the statutory duties on the Department to promote equality of opportunity and good relations under Section 75 of the Northern Ireland Act 1998 (Section 75) and to promote positive attitudes towards disabled people and encourage participation by disabled people in public life under the Disability Discrimination Act 1995.

3. The Commission’s general duties include:  working towards the elimination of discrimination;  promoting equality of opportunity and encouraging good practice;  promoting positive / affirmative action;  promoting good relations between people of different racial groups;  overseeing the implementation and effectiveness of the statutory duties;  keeping the legislation under review;  promoting good relations between people of different religious belief and / or political opinion.

4. The Equality Commission, together with the Northern Ireland Human Rights Commission, has been designated under the United Nations Convention on the rights of Persons with Disabilities (UNCRPD) as the independent mechanism

21 tasked with promoting, protecting and monitoring implementation of the Convention in Northern Ireland.

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