Social Care and Justice: How the UK government is Breaking the Law

By Charlotte Thriepland: Sitting on his single bed in an overcrowded B&B set only a few feet back from a main road, Shairaz Khan, who has moderate learning difficulties and a history of mental illness, tells openJustice that he has been “neglected by social services”.

He has been in this place for three years, having been told he would be there for two weeks. There are rats on the ground floor and bed bugs in his room. His disabilities mean that basic care is difficult and, rather than receiving the three hours of care per day he needs, he lives in filth, struggling to feed himself.

The difference between what is required by law in terms of social care for those who need it, and what actually happens in the United Kingdom in 2019 could not be more stark, families, lawyers and campaigners told openJustice. Our investigations, which will be published over the next few weeks, suggest that the problem is systemic and extends beyond the realm of social care.

It’s already been widely reported that the austerity drive which began in 2010 under the then Conservative-Liberal Democrat coalition government and has continued to the present day, has increased the gap between rich and poor by dismantling the mechanisms that reduce inequality. These include benefit reductions, cuts to local government budgets and the virtual destruction of legal aid. Put simply, the social safety net is smaller and people are entitled to less. This has led to unacceptable levels of poverty. Earlier this year it was estimated that 4.5 million people are living more than 50% below the poverty line, and 7 million people live in persistent poverty.

 

Earlier this year it was estimated that 4.5 million people are living more than 50% below the poverty line, and 7 million people live in persistent poverty

 

What is less reported is that even where support for those who need it does still exist, there is another factor at play preventing people from accessing it. Unlawful public practices have been identified and reported by NGOs and charities for some time. For the first time, throughout our series the Unlawful State, openJustice will start to join the dots.

Local governments are now in a position, as a result of austerity and an increase in demand, where they are simply unable to manage their budgets. According to the LGA, almost 60p out of every £1 provided from central to local government will have been cut between 2010 and 2020. The Association of Directors of Adult Social Services (ADASS) recently admitted that by 2020 only 5% of local authorities are “fully confident” they can meet their legal duties to provide care.

This means that local authorities are forming strategies to reduce the amount they are spending on support services. The result is a range of unlawful practices that place a barrier between people and the services upon which they rely. As Svetlana Kotova, Director of Campaigns at Inclusion London told openJustice, “over the last 10 years there has been a dramatic change in how local authorities work. Now budgetary considerations are a primary concern and so they trump consideration of people’s needs. This has manifested partly in an increase in decisions where local authorities are withholding support from people entitled to it or knowingly implementing policies that harm disabled people.”

The impact of these practices are grave. They affect not just the individual subject to the decision but their families and wider society. Mencap, who support people with learning disabilities, told us of the severe impact it is having on some of their service users “people are denied care to wash themselves; they are falling prey to sexual predators, drug dealers, and financial abuse because they are missing out on the support they need to stay safe; people are isolated and alone, unable to get out of their homes safely without support”.

This is a situation that Shairaz Khan, who has been repeatedly bullied, beaten and abused – including by drug dealers who used his room as a base for their operations – knows only too well. And as he suffers, so his family – his mother, his sister and her children and husband – suffer, caught in bureaucratically enforced dead ends and fearful, particularly since he already tried to take his own life, that the conditions in which he lives will bring him to breaking point.

Our investigations suggest that the phenomenon of unlawful public decision making applies across different areas, and is not just happening at local level but centrally too, particularly in immigration and citizenship cases.

“Home Office personnel often seem spectacularly incurious, looking for reasons to say no, not enquiring further and sometimes rigidly sticking to lines that they say they have been given. There seems to be little if any reflection. That is not what the law demands,” Nick Armstrong of Matrix Chambers told us.

In a report published earlier this year, the House of Commons’ Public Accounts Committee recommended that “the Home Office should address its lack of curiosity and establish safeguards to protect innocent people in the future” after unfairly treating tens of thousands of international students who may have been wrongly accused of cheating in English language tests.

This is borne out in a string of unlawful practices. A report from the Asylum Support and Appeals Project demonstrated inexplicable and unlawful delays in providing asylum seekers support. Earlier this year, the Court of Appeal declared that the Home Office’s policy of disputing the ages of young migrant children, which meant that children were being left in unsuitable and unsupported adult accommodation for lengthy periods, was unlawful. The Project for the Registration of Children as British Citizens (PRCBC) will be in the High Court later this month arguing that the Home Office are placing barriers between people and their citizenship rights by imposing a profit-making element on children’s citizenship. Finally, Theresa May’s “right to rent” scheme was recently declared unlawful by the High Court. These are just a few examples.

The justice system and rule of law are in place to try and prevent unlawful public decision making. But after the legal aid cuts of 2012 most people are now unable to resort to the courts as a form of redress, so central and local government can often act with impunity.

As well as breaching statutory obligations, central government is also in violation of other legal obligations relating to people’s needs. In his damning report, Professor Philip Alston, the UN’s Special Rapporteur on extreme poverty and human rights, indicated that the UK was in breach of UN human rights obligations relating to a range of areas including women, children and disabled people. A 2017 UN inquiry found “evidence of grave and systematic violation of the rights of persons with disabilities” contrary to the UK’s obligations under the UN Convention on the Rights of Persons with Disabilities. It has been documented how extreme poverty levels resulting in a lack of food for many thousands of people are putting government in breach of the basic right to food contained in several international treaties to which the UK is committed.

As we head deeper into the digital age, there are rising concerns too around unintended bias in the government’s use of automated decision making. Algorithms are already being used in the areas of welfare and immigration, as well as in the criminal justice system. But there is evidence to suggest that they can amplify bias from the real world. The first known legal challenge to the use of algorithms was reported this month.

Rachel Logan, Law & Human Rights Programme Director at Amnesty, told openJustice that the government’s behaviour across a range of areas suggest that it sees human rights obligations – both international and domestic – as “softer” obligations of less importance than others. She cited the example of the government backtracking on its promise to hold a judicial inquiry into claims its officials were involved in rendition, torture and mistreatment of detainees by other countries. Such obligations, she says, are “too often politicised, wrongly characterised as ‘external’ or ‘outside’ influences that impinge on national sovereignty and thus have less legitimacy in a domestic context”.

 

“we have seen a complete u-turn from the sentiment of the late 1990s, where human rights were viewed as something to be proud of”

 

This suggests that we have seen a complete u-turn from the sentiment of the late 1990s, where human rights were viewed as something to be proud of. Then Prime Minister Tony Blair proudly announced he was ‘bringing rights home’ when he passed the Human Rights Act 1998. A sentiment you’d be unlikely to hear from the current occupant of 10 Downing Street.

Unlawful practices appear to be happening at an epidemic level. Although tied up with funding cuts, it is a distinct phenomenon with a distinct solution. Unlawful decisions must be fought with the law. Whether it’s learning when decisions are unlawful rather than just seeming ‘wrong’, or litigating government practices in the courts, NGOs are increasingly using legal tools to achieve their mission.

 

Charlotte is a lawyer, researcher and campaigner and Editor of openJustice. 

 

 

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