By Mitchell Woolf
NOTE: this article is a summary of a webinar Mitchell gave on 7 October 2020 as part of the René Cassin Hummus and Human Rights Speakers Series
November 8th marked the 25th anniversary of the passing of the Disability Discrimination Act 1995. The Act places duties on employers, to make ‘reasonable adjustments’ to allow disabled people access to employment opportunities, and on the state, to remove obstacles preventing people with disabilities from accessing transport and other services in their community. The legislation was the result of years of committed campaigning and demonstrating by the disabled community to have their voice heard.
The creators of the modern welfare state following the end of World War Two had not given much consideration to the way in which disabled people could be provided with support to meet basic needs in the home (that are otherwise taken for granted) or to be supported in the community. Consequently, from 1948 onwards a complex patchwork of, sometimes inadequate, laws were heaped upon each other in order to try and plug the gaps in the social care system. This piecemeal approach was swept away with the passing of the Care Act 2014, which speaks the language of ‘participation’, ‘choice’ and ‘control’ for disabled people and places a duty on local authorities to promote the wellbeing of service users. It is a laudable response to the decades of sub-standard provision that left great numbers of disabled people marginalised.
However, the silence about the under-funding inherent in the social care system was made all the more deafening by the Care Act’s introduction in the austerity period following the global crash, which has resulted in severe cuts to local authority budgets and undermines the effectiveness of the legislation. The social care funding gap created by the cuts is estimated to be £2.6 billion in 2020/2021.
Against this background and with the COVID pandemic raging, the Prime Minister announced in his speech on the economy in June 2020 with all the confidence of ‘a man with a plan’:
“…and we won’t wait to fix the problem of social care that every government has flunked for the last 30 years.”
This was not an off-the-cuff remark. When Mr. Johnson took his turn to bound up to the Downing Street lectern on 24 July 2019 and proclaim his fresh new vision, he declared that:
“… we will fix the crisis in social care once and for all with a clear plan we have prepared to give every older person the dignity and security they deserve.”
The ‘plan’ has not been shared but the focus on older people should raise alarm bells. This is not because the challenge of providing social care for an elderly population is not significant. Age UK estimated that around 1.5 million people over the age of 65 have unmet care needs and our aging population means that this is an issue that cannot be left unaddressed. The concern stems from the failure to acknowledge the full extent of the social care crisis.
We may hope that the bravery of front-line care workers during the COVID crisis will not be forgotten. Unlike the NHS, social care is overwhelmingly provided by self-employed carers or carers working for private companies, a number of whom are on zero-hour contracts. The extreme pressure caused by under-funding, insufficient time allocated to complete support tasks, and lack of training to meet the sometimes complex needs of disabled people had contributed to an estimated carer workforce shortage of 122,000 people before the pandemic.
However, the crisis in social care is far-reaching and cross-generational. It can be seen in the lack of support for disabled children. It has been exposed in the mistreatment of young people with Autism and learning disabilities inappropriately placed in Acute Treatment Units. It is evident in the loneliness suffered by people who are confined to their homes with little or no support to access the community. It is found in the distress of family members being pushed to breaking point as they provide care without respite while facing the frustration of battling a system that does not have the resources to provide required support.
When disabled people are denied support, the problems do not disappear. The hardship remains and increases the risk of neglect, distress or accident that can result in admission to hospitals or mental health provision. Therefore, the budgetary saving through inaction by a local authority is likely to result in a more significant burden being placed on NHS resources, often at a greater cost to the taxpayer. And, this says nothing of the physical and psychological harm suffered by the individual or the emotional distress caused by their loss of independence and dignity. Ignoring the harm caused by disregarding hard-fought rights is a societal problem.
The social care challenge facing our politicians and those who advise them is formidable. But it needs to be tackled in the knowledge that another failed opportunity to address the structural and funding challenges will only make the problems more intractable.
 It has now been incorporated in the Equality Act 2010
 Anyone wanting to find out more about social care law is recommended to read Luke Clements ‘Community Care and the Law’ (7th edition LAG, 2019)