Welfare Reform and the Shifting Threshold of Support for Disabled People

Publication Date01 November 2014
AuthorNeville Harris
DOIhttp://doi.org/10.1111/1468-2230.12096
Date01 November 2014
Welfare Reform and the Shifting Threshold of Support
for Disabled People
Neville Harris*
Among the highly signif‌icant changes to the benef‌its system made by the Welfare Reform Act
2012 is provision for a new disability benef‌it, personal independence payment (PIP). PIP is
replacing disability living allowance (DLA), received by three million people, as the principal form
of state f‌inancial support towards disability-related care and mobility costs for those of working
age. The legislation, including regulations prescribing a new disability assessment framework,
plays its traditional role in this f‌ield of rationing access to benef‌it and directing front-line policy
implementation. This article examines how, in the context of the Coalition government’s welfare
reforms, PIP shifts the threshold of entitlement for people with disabilities and it assesses PIP’s
potential impact on equality and the right to independent living, to whose realisation disability
benef‌its may be expected to contribute signif‌icantly. It also considers the impact on disabled
people of other relevant reforms, including the controversial ‘bedroom tax’.
INTRODUCTION
The provision of welfare benef‌it designed to assist individuals who have physical
or mental disabilities has signif‌icance not merely in terms of the state’s fulf‌ilment
of its social protection role in responding to need but also as a ref‌lection of a
wider commitment to advance social equality.1Therefore the present gover-
nment’s reform of disability living allowance (DLA) – a benef‌it in payment to
three million people in Great Britain2– has considerable importance. Under the
Welfare Reform Act 2012, DLA is being replaced by personal independence
payment (PIP) for those of working age.3Both PIP and DLA are non-
contributory benef‌its (that is, not based on a record of National Insurance
contributions). Their aim is not to provide income in lieu of wages for those
not working due to their limited capability for work caused by disease or
*School of Law, University of Manchester. The author is grateful to the anonymous referees for their
comments.
1 As recognised, for example, by the European Union (EU) in its disability strategy, European
Disability Strategy 20102020: A Renewed Commitment to a Barrier-Free Europe COM(2010) 636
f‌inal.
2 Department for Work and Pensions (DWP) statistics, May 2013, also showing that there are
almost equal numbers of male and female recipients and that over two-thirds of them are aged 50
or over, at http://tabulation-tool.dwp.gov.uk/100pc/dla/cnage/ccsex/a_carate_r_cnage_c_ccsex
_may13.html (all URLs last accessed 28 July 2014 unless stated otherwise).
3 See the Welfare Reform Act 2012, Pt 4. DLA will only be available to the under 16s, the rationale
being their different needs and development across various stages making it inappropriate to bring
them into PIP. See further Department for Work and Pensions (DWP), Government’s Response to
the Consultation on Disability Living Allowance Reform Cm 8051 (2011) 37. DLA and PIP are
variously referred to by the generic term ‘disability benef‌it’ in this article.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(6) MLR 888–927
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
disablement.4That is the function of employment and support allowance (ESA),
introduced in 2008 with a view to reducing long-term dependency on incapac-
ity benef‌it by helping to prepare as many claimants as possible for (re-)entry into
work,5and now also the capability for work elements of the new universal credit.
Rather, DLA and PIP are designed to help people meet the additional costs
which may be incurred in combating the limitations to daily life or mobility
resulting from their physical and/or mental disability.6They therefore have
particular signif‌icance for the right to independent living enshrined in the UN
ratif‌ied by the UK in 2009.7This right is embodied in various of the Conve-
ntion’s provisions and especially in Article 19, which requires States Parties to
‘recognize the equal right of all persons with disabilities to live in the commu-
nity, with choices equal to others’ and to ‘take effective and appropriate measures
to facilitate full enjoyment by persons with disabilities of this right and their full
inclusion and participation in the community’.8At EU level, there is a similar
treaty obligation.9
Independent living connotes an ability of disabled people to enjoy choices and
control over their lives. Lack of f‌inancial resources is a known barrier to
independent living.10 While arrangements to support independent living may
4 As Tindley explains, incapacity (for work) is ‘not synonymous with “disability” and “disable-
ment”’: R. Tindley, ‘The concept of incapacity for work: Is it really measurable?’ (2012) 19 JSSL
74, 75.
5 Department for Work and Pensions, A New Deal for Welfare: Empowering People to Work Cm 6730
(2006). See P. Larkin, ‘Incapacity, the Labour Market and Social Security: Coercion into
“Positive” Citizenship’ (2011) 74 MLR 385 and N. Harris and S. Rahilly, ‘Extra Capacity in the
Labour Market?: ESA and the Activation of the Sick and Disabled in the UK’ in S. Devetzi and
S. Stendahl (eds), Too Sick to Work? (Alphen aan den Rijn: Kluwer Law International, 2011) 43.
ESA, both its contributory form (now paid for up to 365 days only) and income-based form (for
those with an inadequate contributions record or who have exhausted contributory ESA entitle-
ment), was introduced under the Welfare Reform Act 2007. Income-based ESA is being replaced
by the universal credit ‘capability for work’ elements.
6 Mental conditions are presently the only or primary disability of approximately one in four
recipients of DLA. Arthritis is the most common physical problem (one in six claimants) followed
by back pain or ‘disease of the muscles, bones or joints’ (one in ten claimants have one of these
conditions): DWP Statistics at http://tabulation-tool.dwp.gov.uk/100pc/dla/disabled_new/
carepay/a_carate_r_disabled_new_c_carepay_may13.html (last accessed 17 December 2013).
7 The UK has also ratif‌ied the Optional Protocol to the Convention on the Rights of Persons with
Disabilities, which enables communications by individuals or groups of individuals concerned
about violations and also provides for inquiries.
8 See also CRPD, Art 3, providing for ‘Full and effective participation and inclusion in society’ and
‘respect for individual autonomy’.
9 Charter of Fundamental Rights of the EU, by which the Union ‘recognises and respects the right
of persons with disabilities to benef‌it from measures designed to ensure their independence, social
and occupational integration and participation in the life of the community’ (Art 26).
10 See eg, FRA (European Union Agency for Fundamental Rights), Choice and control: right to
independent living. Experiences of persons with intellectual disabilities and persons with mental health
problems in nine EU Member States (Vienna: European Union Agency for Fundamental Rights,
2012); and Citizens Advice, Holes in the safety net: the impact on disabled people of the severe disability
premium within Universal Credit Report 2 (London: Citizens Advice, 2012). See also Just Fair,
Dignity and Opportunity for All: Securing the Rights of Disabled People in the Austerity Era (London: Just
Fair, 2014), which analyses support for independent living in a human rights context.
Neville Harris
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. 889(2014) 77(6) MLR 888–927
vary they will often involve direct cash payments, usually by local authorities,11
‘in lieu of community services’.12 But centrally administered disability benef‌its
should be considered another form. Indeed, the inclusion of ‘independence’ in
the name of the new benef‌it ref‌lects its intended role in supporting ‘personal
independence’ for disabled people.13
Although it is set to have by far the greatest impact on disabled people
collectively, by shifting the threshold for support, the introduction of PIP is not
the Coalition government’s only welfare reform of relevance to this group. In
particular, there is also universal credit, mentioned above, which is slowly
beginning to replace the core income-related benef‌its for those of working age
who are unemployed, or unable to work due to sickness, disablement or caring
responsibilities, and working tax credit for those who are in lowly paid employ-
ment.14 Concern and criticism have been expressed that the omission of certain
specif‌ic allowances for disabled people which are part of the schemes being
replaced (such as the income support severe disability premium),15 and for which
entitlement is for many conditional on disability benef‌it entitlement, will, once
transitional protection has eroded, result in reduced means-tested benef‌it for well
over 200,000 people.16 The government claims that ‘disabled people will on
average gain £8 a month under universal credit’,17 but much of that average gain
(if correct) seems to be attributable to the extra allowance against income for
those with a limited capability for work,18 from which not all will benef‌it. The
11 Under the Community Care (Direct Payments) Act 1996. For details of how the direct payments
arrangements have operated in practice, see V. Davey, J.-L. Fernandez, M. Knapp, N. Vick, D.
Jolly, P. Swift, R. Tobin, J. Kendall, J. Ferrie, C. Pearson, G. Mercer and M. Priestly, Direct
Payments: A National Survey of Direct Payments Policy and Practice (London: PSSRU London School
of Economics, 2007).
12 F. Garabedian, ‘Independent Living’ in C. Cameron (ed), Disability Studies (London: Sage, 2014)
81, 81. See also J. Swain, S. French and C. Cameron, Controversial Issues in a Disabling Society
(Buckingham: Open University Press, 2003) 84–85.
13 ‘The Coalition Government is committed to supporting disabled people to exercise choice and
control, and lead active, independent lives’: DWP, n 3 above, 10, para 1.
14 Income-based jobseeker’s allowance, income support, housing benef‌it, income-based ESA, child
tax credit and working tax credit are the means-tested benef‌its and tax credits to be covered by
universal credit under the Welfare Reform Act 2012, part 1. The slow process of progressive
implementation of the credit started in April 2013. The new credit aims to facilitate entry to
employment since, for example, claimants may carry some entitlement into work rather than
having to apply for working tax credit: see DWP, Universal Credit: Welfare that Works Cm 7957
(2010).
15 The severe disability premium forms part of entitlement to core means-tested benef‌it (such as
income support or income-based jobseeker’s allowance) to those without a carer (that is, someone
entitled to carer’s allowance) who are severely disabled as established by their receipt of a
qualifying disability benef‌it such as the care component of DLA at the middle or higher rate (see
below). See eg, the Income Support (General) Regulations 1987 (SI 1987/1967), Sch 2, para 13.
16 House of Commons Work and Pensions Committee, Third Report of Session 2012–13, Universal
Credit implementation: meeting the needs of vulnerable claimants HC 576 (2012) paras 100–115; Citizens
Advice, n 10 above.
17 Secretary of State for Work and Pensions, Government Response to the House of Commons Work and
Pensions Select Committee’s third report of Session 201213, Universal Credit implementation: meeting the
needs of vulnerable claimants Cm 8537 (2013) para 62.
18 The monthly allowance (effectively a disregard) is £647 (equal to £7,759 per annum): the
Universal Credit Regulations 2013 (SI 2013/376), reg 22, read with the Welfare Reform Act
2012, s 12.
Welfare Reform and Disabled People
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
890 (2014) 77(6) MLR 888–927

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