Disability Action Plan

Debate between Baroness Brinton and Baroness Sherlock

Tuesday 6th February 2024 Lords Chamber

[Baroness Sherlock (Lab)]

My Lords, I thank the Government for advance sight of the Statement, which came out yesterday. This is the latest in a series of moves on the part of the Government designed to improve the position of disabled people and to tackle societal barriers. I am sorry to say that I think disabled people would be the first to say that the track record so far does not inspire confidence.

First, there was the National Disability Strategy, which was announced in the 2019 Queen’s Speech but did not appear until 28 July 2021. It was then held up in a lengthy court case brought by disabled people who disputed the legality of the consultation process. Then came the health and disability White Paper, which set out plans to reform employment support and disability benefits. The centrepiece of that was the proposal to scrap the work capability assessment, but that has left many disabled people concerned that the benefits system will rely solely on the flawed PIP assessment process.

Now, we have the Disability Action Plan. There are some positives in the plan. It attempts to address some of the well-known barriers disabled people continue to face, through measures such as tackling guide dog refusals, raising the profile of assistive technology and increasing support for disabled people to take part in politics. However, it is impossible to ignore the very large hole at the centre of the action plan: there is little or nothing to address the top concern facing many disabled people at the moment—the cost of living crisis.

The Government know this is an issue, because paragraph 5.12 of the plan starts by saying:

“Another theme which ran through responses to the consultation was the long-term impact of the rising cost of living on disabled people, with respondents calling for greater support for disabled people. Research has shown that disabled people are significantly affected by rising costs”.


When the Government went out to consultation, the preliminary response of the RNIB was to say that

“it’s disappointing there’s no mention of any support measures to address the rising cost of living”.

It is still an issue today. Energy bills are still high, making life very expensive if people rely on specialist medical equipment, or need to heat their home more than the average household. As Scope has calculated, on average, disabled households face extra costs of £975 per month to have the same standard of living as non-disabled households.

If the Government want to know how things are for disabled people at the moment, they need look only as far as the document Below Average Resources, published on 18 January. This was the very interesting update on the work the DWP is doing to look at developing a new poverty measure, named “below average resources”, or BAR. It compares the impact of measuring resources versus measuring income. It told us something quite interesting along the way about the position of disabled people. It says that in the financial year ending 2022,

“30% of individuals in families with a disabled person were in low resources, compared to 27% in low income. Of individuals in families without a disabled person 17% were in low resources in FYE 2022 compared to 19% in low income”.

That is quite a big gap by anybody’s measure.

However, the only commitment on this matter I could find in the action plan was action 30, which says that the disability unit

“will continue to engage across Government to highlight concerns related to disabled people and the cost of living, sharing insights from the Disability Action Plan consultation findings, stakeholder engagement and our broader disabled people’s experience panels”.

Does the Minister think that is enough on the single biggest issue facing so many disabled people right now?

There is also nothing in the plan on another challenge which is actually caused by the Government itself—the fact that our current social security system puts disabled people through multiple upsetting and dehumanising assessments. Too often, they are denied their legal entitlements unless they have the strength and support to go through the appeals process.

Let us look at the figures. Claimants who are turned down for PIP are not allowed to appeal until they have first been through the mandatory reconsideration of their claim by DWP officials, which, as of last October, was taking an average of 36 days. Last year, only 11% of claimants were successful. They are forced to go through this extra gateway and only 11% get through it. Only then can they go to a tribunal. But if they go to a tribunal, nearly 80% are awarded their enhancement. At this point, normally the Minister will say, “Ah, yes, but it is all new information”. In fact, in 2023, 55% of cases that had their decision overturned after a tribunal hearing listed

“Reached a different conclusion on substantially the same facts”


as the summary reason for the change in decision. Why is there nothing in the action plan about ensuring that DWP gets more decisions right first time?

Without addressing the fundamental problems, the actions today risk feeling like tinkering around the edges. Despite all the consultation, there is not enough action to deal with the major challenges faced by disabled people today. I think the Minister probably knows this, because the action plan says, at paragraph 4.2, that:

“Many respondents criticised the short-term focus of the plan, highlighting the need for longer term action”.


Does the Minister think the Government responded sufficiently to that critique? I look forward to his reply.

[Baroness Brinton (LD)]

My Lords, I declare an interest as vice-president of the Local Government Association. In that capacity, I am currently chairing the LGA disability forum for council officers and for members.

I am grateful to follow on from the noble Baroness, Lady Sherlock, partly because she summarises the issues about benefits so well. It also means that I do not have to say them again, because I completely agree with her concerns and her questions.

I am going to pick three or four things from the areas for action that give me real cause for concern that this new plan does not recognise the mess that the Government have got themselves into in the past. I want to start with the support for disabled people who want to be elected to public office. It says on page 15 of the Disability Action Plan that the coalition Government

“provided some financial support in the past, such as the Access to Elected Office Fund, which ran between 2012 and 2015”.

I wonder why it stopped in 2015. Who cancelled it? It was created by my noble friend Lady Featherstone when she was a Minister in the other place. It was cut the moment that we left government. The onus was put on political parties to provide it. That may be fine if you are the Conservative Party with millions and millions of pounds, but small parties do not have the capacity to fund the sort of things that are needed, such as BSL interpreters for a candidate. As far as I am aware, there has never been either a Member of Parliament or a Peer who uses BSL as their first language. That is because the barrier to get them into Parliament is too high for them to bear on their own. Action 2 in the Disability Action Plan states that the

“DU will develop and publish new guidance by summer”,

but until then the current arrangement will continue—so great words, but no change really.

The second action is another that has been raised in your Lordships’ House on a number of occasions: disabled people’s needs in emergency and resilience planning. About a year ago, when we were concerned about energy prices and the shortage of energy as a result of Russia’s invasion of Ukraine, I asked a Minister in the then BEIS to look at how we could ensure that significant power outages did not hurt the people who relied entirely on emergency support when the power went out for more than an hour or two once their own batteries had gone down. People such as our own colleague, the noble Baroness, Lady Campbell of Surbiton, would be one of those affected.

The plan says:

“Government departments already consider disabled people’s needs in emergency and resilience planning, in line with the Public Sector Equality Duty”.


On 16 January, however, the Department for Health and Social Care—which, somehow, in the game of “Don’t sit down last,” ended up taking on responsibility from BEIS for the negotiations with the energy companies on what to do in power outages—wrote to John Pring of Disability News Service saying:

“We have concluded that, due to the specificity of individual needs and circumstances, individuals and their care teams are best placed to develop plans for how they can prepare for and respond to loss of power to their home”.

That is not government departments working together; it is worse than that. A year on, there is now no way that any disabled person who relies on power can go to anybody in government to say, “My energy company is not helping me”. My baby granddaughter, who was on a ventilator for the first three years of her life, had one such power outage in her area. Had she not been in a carrycot and been able to be brought out of the outage—which adults cannot do—she would have hit very serious problems, so, for me, this is a very personal matter.

The plan says that the Government were learning from previous events such as the Covid-19 pandemic and the Grenfell Tower fire. I remind the House that we still do not have PEEPs post-Grenfell fire, which is a very serious issue if you are in a wheelchair and are trying to get down even five flights of stairs—let me put it more bluntly: even one flight of stairs. I am afraid that the actions on that are unworkable.

The section on families in which someone is disabled says the right words, but this Government have consistently starved local government of funding for children’s services, including for education, health and care plans. As a result, schools and the local authorities have zero money to be able to provide, which is why many children are not able to access the help that they are entitled to under the law.

The noble Baroness, Lady Sherlock, mentioned issues relating to assistance dogs. Dr Amy Kavanagh, who is a blind activist, said today on social media:

“We don’t need to define assistance dogs. The law does this already. I would welcome an ADA ‘legal questions you can ask’ model. Is the dog supporting a disability?”—


what on earth does that mean? She continues:

“What tasks does the dog perform?”


Frankly, once somebody has an assistance dog, it should not be necessary for a taxi driver to say, “What task does your dog perform?” That is the point at which there is a problem, and the answer is very simple: it is illegal to stop it. Yes, the Government are right: we need to make sure that more businesses know what they are doing.

Katie Pennick, from Transport for All, said that there is:

“Nothing on transport, nothing on housing, nothing on social care, nothing on PIP, nothing on hate crime, nothing on urban planning, nothing on healthcare, nothing nothing nothing…”


Rachel Charlton-Dailey said that, this week:

“Many disabled people are once again missing out on the gov cost of living payment … those on personal independence payment (PIP) or its predecessor disability living allowance (DLA) have received … £300, while those on benefits such as universal credit, child tax credits and employment support allowance will have got £900”.


That is discrimination against disabled people who, as we have heard, have much higher energy costs.

I will not repeat the data mentioned by the noble Baroness, Lady Sherlock, but I want to mention one final thing about the two Bills that are cited in the plan: the British Sign Language Act 2022 and the Down Syndrome Act 2022. When the Down Syndrome Act went through your Lordships’ House, we were promised that other genetic conditions would be looked at. Nobody understood why just one condition got the support. Nothing to date has happened. Worse than that, no funding has been allocated whatever, even under the terms of the Down Syndrome Act. It feels like everything else that I covered so far: warm words but no actual benefits to disabled people.

Bereavement Benefits (Remedial) Order 2022

Debate between Baroness Brinton and Baroness Sherlock

Tuesday 17th January 2023 Grand Committee

[Baroness Brinton (LD)]

My Lords, I too start by thanking the Minister for his helpful explanation. I apologise for not being able to attend the briefing, but Monday mornings are a problem.

On balance, we on these Benches are as pleased as other speakers that this has now come to fruition. We are grateful for the work that the previous Minister, the noble Baroness, Lady Stedman-Scott, did on this. The example given by the noble Baroness, Lady Hayman, was extremely helpful, and the points raised by the noble Baroness, Lady Altmann, and the noble Lords, Lord Jones and Lord Davies, on some of the other implications, such as tax, are very interesting.

I am sorry that I will now get into some really difficult areas; I hope the Minister will bear with me. I appreciate that I am creating a scenario to which there may not be a speedy response, and I am more than happy to have a written reply. I am particularly interested in paragraphs 7.23 to 7.25 of the Explanatory Memorandum, which set out the determining hierarchy should there appear to be more than one claimant. It is very helpful.

In his introduction, the Minister talked about polyamory, but there are other circumstances as well, such as where people with caring responsibilities live under the same roof, which might include familial members who are not actually spouses but, in the event of the death of the parent—for this purpose I am assuming it is a sole parent who is dying—there are others who will take over responsibility for the children. I know that there has been some concern over multiple claims, and paragraphs 7.23 to 7.25 helpfully set out the priority order.

For me, the issue is much more about the JCHR’s proposal that this benefit should be identified as belonging to children. I am not sure it said it should be paid directly to the children, but because much of it is determined on the age of the children it is clearly designed to support extra costs for somebody with children who has lost a partner. For me, that is important, because I want to raise the issue of kinship carers.

I make a full declaration: I think that my husband and I counted as kinship carers 20 years ago when we became foster parents and then guardians, approved by the family courts, for our best friend. When she died, her children joined us. We had to navigate all the systems in place at that time, which included going to the family court and getting the residency order. That enabled us to claim child benefit for the children. I know that is now means tested, but I am talking about eligibility for child benefit.

The organisation Kinship consistently reports that family members who take on responsibility for children after a partner either has been unable to look after them or has died, as in this circumstance, have ended up having to leave their jobs, not being entitled to benefits and finding every barrier put in their way because they are not typical family carers. Even though they may have had to go through the fostering approval process, as we did, because the courts need to be satisfied that they are capable of looking after and taking responsibility for the children, they are not entitled to foster payments because they are regarded as kinship carers.

The “Emmerdale” actor Jay Kontzle, who was raised by his grandparents after his mother died when he was four, recently said he saw at first hand the way it affected their lives. His grandmother had to stop work and they both had to take on the very difficult task of looking after their orphaned grandchild. It is helpful that he has done that. Kinship surveys have shown that 45% of carers give up jobs and have found repeatedly that they were not eligible for support.

I am remembering my schoolgirl Latin. There is a word, “num”, which notoriously requires a negative answer. I think I expect a negative answer, but there is a real injustice here for this group of kinship carers, whose identification is confirmed by the courts and other benefits but who would not be eligible under these arrangements unless they were living in the same house. How long do they need to live in the house? I wonder whether the Minister can look at this. It may be that this is one of those special cases where there is nobody else who would obviously qualify but where it is needed, for the children and the life changes they will face, for the kinship carers to be considered eligible.

[Baroness Sherlock (Lab)]

My Lords, I thank the Minister for his introduction to this remedial order and all noble Lords who have spoken. I always think that any debate that starts, “Let me give some context from 1925” is never going to be speedy, but let us work through what we have heard today.

Before I start, I congratulate the noble Baroness, Lady Hayman. It is always lovely to find that somebody who writes to a Member of the House of Lords is listened to, the issue is taken up and something happens. I congratulate her on her perseverance, as well as the former Minister, the noble Baroness, Lady Stedman-Scott, on her willingness to listen.

I would be very interested to hear answers to a number of the questions that have come up. Obviously, I am glad the Government are stepping forward to take the appropriate response to fulfil their legal obligations. We would not want in any way to stand in the way of this, but there are some important questions still to be asked about how it will work in practice, as my noble friend Lord Davies said.

First there is the question of how DWP will make decisions on whether someone was cohabiting with a partner who has died and therefore is eligible for support. As we have heard, DWP has established practices to decide whether someone is cohabiting. Many years ago, I ran a charity working with single parents, and the rumour mill was alive that the “two toothbrushes test” was the one deployed. Whether or not this was ever the case, the assumption is that in plenty of cases there was no formal evidence, such as a shared rent book or shared bills, yet people were held to be cohabiting when in fact they were being given benefits as a single parent.

There is no question that the DWP has ways of determining this. The noble Baroness, Lady Altmann, pointed out that it has always been able to do so. Indeed, ironically, widowed parent’s allowance was not given to someone who was cohabiting, but you lost it if you started cohabiting after you were bereaved. There obviously must have been some means for making this assessment.

My noble friend Lord Davies asked a really good question: will the criteria be the same for this as for other tests that are applied? If the Government could explain that, it would be really helpful. I would be very interested in the answer to the question raised by the noble Baroness, Lady Brinton, about the hierarchy and the breadth to which that is accepted.

The next thing I found myself wrestling with is the fact that WPA is an “overlapping benefit”, in the jargon, so presumably there will be some people who claimed another contributory benefit because, at the time, they were deemed not to be eligible for widowed parent’s allowance, yet they should have been and had they been entitled to WPA they might have been better off. Can the Minister tell us whether the previous benefit payment is off-set against the backdated WPA where this happens? If so, over what period are the payments?

As we have heard, the order has retrospective effect to the date of the McLaughlin judgment in 2018. My noble friend Lord Jones asked some very good questions about how many people will be affected and the global sum involved. To take that on a stage, can the Minister tell us the most that any one person could be due in backdated benefits? I want to know because of the point raised by the noble Baroness, Lady Altmann: if the sum is large enough for someone on modest means, they might want to husband it quite carefully, but if that is the case, they might have some left over when they go into the next financial year because it has been disregarded for only 12 months. If so, they could find themselves penalised and given less in means-tested benefits in the following year because they had this capital sum available. Will they be told that? How will they be warned that this could happen? The other side of the coin—the point made by the noble Baroness, Lady Altmann—is: if they decide to spend it all in the first 12 months, is there any danger that it then gets treated as notional capital because the rules on deprivation of capital hove into view? If the Minister could reassure us, that would be helpful.

The next question is on tax credits. I confess that I am quite confused on this. I was trying to listen to what the Minister said, but I did not quite catch it. Tax credits do not treat capital in the way universal credit does, so I am still not clear as to how any backdated lump-sum payment for WPA will be treated for those on tax credits. I think I heard the Minister say that a backdated payment will be assessed in the year of payment, not the year of entitlement. Can he confirm that? Could he possibly confirm to me now, before I carry on asking questions, whether that lump sum is treated as capital or as income for tax credit purposes? Maybe he could nod if it is capital or if it is income—I am trying to avoid having to intervene to ask the question again when he responds. If it is treated as capital and it is all treated in the year of payment, then it is disregarded and we do not have a problem; if it is treated as income, we do. In which case, can he explain what happens? What is it set against? Is it just the tax credit entitlement in year? Is there any effect from previous years? If this is the case, I assume there is no question of going back and reopening finalised previous tax credit awards. Is there any implication for previous years’ tax credit awards that are not yet “finalised”, in the jargon? Could that happen in any way?

Finally on this point, there is the question of the benefit cap. WPA and BSP both count towards the benefit cap, so it is obviously possible to imagine that a lump sum might take somebody over the benefit cap threshold when an annual entitlement would not have. Will this be affected by the benefit cap, or will the cap be applied retrospectively to previous years by attributing the relevant WPA to each year? What will happen there?

On the money front, there is the question of taxation. As we have heard, BSP is not taxable but WPA is, and in the year of entitlement rather than the year of payment. Therefore, if a lump sum is paid for backdated entitlement, tax is likely to be due on that. Like others, I read the very interesting briefing from the Low Incomes Tax Reform Group. It pointed out that the plan seems to be to pay lump sums gross rather than net of tax, so the obligation then rests on the claimant to pay the backdated tax. I think I heard the Minister say that the Government will flag these cases up to HMRC so that it knows to make an assessment for tax, and I think he said they will flag it up to the claimant so that they know the tax will be payable. Could he clarify that last point in particular? Will they be told what is payable and which tax year it applies to? Many of those people will not have an accountant or any way of understanding this, but they need to know how much of this lump sum to keep to give to the taxman down the line, rather than spending it and then finding themselves even worse off.