The High Court has ruled that a legal challenge of the Access to Work cap can go ahead. The restrictions were introduced by the Department for Work and Pensions to limit the amount of support that individuals can be awarded by the once flagship disability employment scheme. (1) The launch of the challenge comes just a few months after the government published its disability employment strategy with the ambitious target of getting one million more Disabled people into work (2). It also follows publication in October 2017 of research commissioned by Inclusion London which found evidence of systemic problems with Access to Work (3).
The cap which will fully come into force in April 2018 (4) disproportionately impacts on Deaf BSL users and Disabled people with high support needs, effectively removing employment support from those with the most complex needs and placing them at a disadvantage when trying to get into, stay in and get on in paid work. The case is being brought under the Equality Act 2010 with funding from the Equality and Human Rights Commission.
Claimant David Buxton said: “I am extremely pleased to learn that my case has been granted a hearing on the basis that I have an arguable case that the Government has acted unlawfully.
The two key issues being heard relate to the public sector equality duty and indirect discrimination. As a Chief Executive, it cannot be right that my career is impacted by limiting my language and communication needs because I am Deaf and use British Sign Language. There is some way to go yet but the support from the Equality and Human Rights Commission and my legal team are signs that this is a case which could challenge and change existing practices, decisions and future provision.”
Solicitor Anne-Marie Jolly from law firm Deighton Pierce Glynn who are taking the case said: “As a result of this case, the government’s decision to cap Access to Work funding will finally be exposed to the scrutiny of the High Court. Government decision-making around Access to Work has historically been lacking in clarity and transparency. In keeping with that history, the decision to cap the scheme was made with no formal consultation or adequate evidence base, despite its profound impact on those affected. Mr Buxton’s claim makes the case that the Access to Work cap discriminates against Deaf and disabled people and fails to take account of the impact on them of such a regressive move. The cap perversely impacts on those with the most demanding jobs and highest support needs, the overwhelming majority of whom are Deaf BSL users, preventing them and their employers or businesses from reaching their fullest potential.”
Campaigns and policy manager Ellen Clifford from Inclusion London, whose Disability Justice Project is supporting the legal challenge, said: “The cap is already having a serious negative impact on Deaf and Disabled people’s employment. On the one hand the Government says they want to reduce the disability employment gap and get another million disabled people into work, yet here is a disability employment scheme with a track record of success where cuts to individual awards, delays, changes and continual administrative errors are combining to the point where it is no longer a viable form of support. Deaf and Disabled people are frustrated and anxious at the risk of unemployment and benefit dependency, which will come at a much higher cost to the State than the support package they need to remain in work.”
Geraldine O’Halloran, co-founder of #StopChanges2AtW (6) said: “The idea put forward by the government that employers will pay for the support that Deaf and Disabled people need in order to do their jobs on an equal basis with non-disabled people is nonsense. However much an employer values you, the majority of employers don’t have the spare money to effectively pay to take on Deaf or Disabled staff. Yet in the bigger picture it benefits the government to invest in disability employment support with research showing that the Treasury makes a surplus on investment for every pound invested in Access to Work and that’s before the wider benefits of savings to the NHS and social care are taken into consideration.”
1) The cap is set from April 2018 at £43,100 which is 1.5x the average national salary.
The research which was carried out before the cap took effect found that almost half of respondents to a survey carried out by #StopChanges2AtW had experienced changes to their Access to Work package with “cuts” or “cost cutting” as the most frequently given reason. The report also found evidence of rationing strategies being deployed at various levels including more frequent re-assessment, often leading to a reduced award, tighter eligibility criteria, and increased restrictions on the use and portability of support, especially for the self-employed. More than half of respondents said they found Access to Work difficult to use, with one in four reporting severe difficulty. Many respondents said they effectively lost support because the processes for claiming Access to Work has become so complex and protracted with a dramatic rise in administrative problems so that the scheme was no longer a viable form of employment support. Nearly all of those experiencing changes said they had impacted negatively on their work, reducing their standard of work or their productivity. In the worst cases people had lost their job, turned down work or reduced their income as a result of the changes. Many respondents reported a personal, as well as professional, impact from the changes: through stress, poorer health, and loss of self-esteem or confidence due to feeling “like a burden”.
4) Mark Harper, then Minister for Disabled people announced the introduction of the cap in March 2015:http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2015-03-12/HCWS372/
5) The Sayce Report which was backed by the Government gave a figure of £1.48 back to theTtreasury for every £1 invested in Access to Work.https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/49779/sayce-report.pdf
6) StopChanges2AtW is a campaign led by Deaf and Disabled professionals and British Sign Language interpreters to oppose the increasingly adverse impacts of changes and cuts to the Access to Work scheme brought in since 2014.https://stopchanges2atw.com/