Discrimination and Volunteers with HIV

posted: 09/02/2011

Volunteers do not have the same rights at work as paid workers, and that means disability discrimination at work against a volunteer with HIV remains legal.

The Equality Act 2010 left untouched this loophole in disability rights in the workplace.

This was made clear by the Court of Appeal recently when it threw out a HIV+ woman volunteer’s claim that a Sussex Citizens Advice Bureau had discriminated against her because of HIV, by stopping her working as a volunteer. Her case was backed by the Equality and Human Rights Commission.

 

The Appeal Court ruled that disabled volunteers do not have the disability rights protection of paid workers.

This has revived concerns about the unfair treatment some volunteers face at work.
 

Prospects for volunteer equality?

Mrs X wants to appeal to the Supreme Court, but to do this first she has to convince the court that she has a reasonable legal point that the Appeal Court got wrong. That looks unlikely to succeed. The other hope is for law change, but with the Equality Act less than one year old that is not going to be a priority for Parliament.

Volunteers are not ‘employed’ so don’t have paid workers’ rights
The court found she was not protected by disability rights law for workers because she was unpaid and did not have an employment contract. Mrs X was a volunteer with a law degree, a post-graduate qualification and she also hoped to secure a training contract with the Citizens Advice Bureau so she could qualify as a solicitor.
 

No European rights either
The court also found that volunteers were not protected by the European Union’s equal treatment directive.
 

Alex Eastwood, a legal caseworker for Disability Law Service, said discrimination against disabled volunteers was “all too common”, so it was “strange” they were not covered by the law. He said government welfare reforms were likely to lead to disabled people being forced to undertake voluntary work, but without any protection from anti-discrimination laws. He said: “Employers will therefore have no duty to make adjustments for disabled volunteers or take steps to prevent harassment of volunteers.”
 

‘Big Society’ wants volunteers but without equal rights 
The Equality and Human Rights Commission (EHRC), which “intervened” in the case, warned that if such laws do not apply to volunteers, organisations will legally be able to discriminate against disabled people and other groups. An EHRC spokeswoman said: “Given that many employees begin their working life as volunteers, which provides them with valuable experience which they can use as a step up to paid employment, it seems unfair that certain groups of people can legally be denied this experience.”
 

Andy Williams, from solicitors Charles Russell, who represents Mrs X, said the ruling could stop some people volunteering, harming the government’s “Big Society” programme. He said: “If the government’s Big Society vision involves an increased requirement for volunteers, as things stand those volunteers currently have no legal rights whatsoever.”
 

Discrimination may be legal, but it’s wrong
A CAB spokeswoman said: “The law is clear that volunteers do not have the same legal rights and responsibilities as paid employees. That is not the same as saying that organisations should be able to treat volunteers unfairly.” She insisted that CAB was “committed to equality, values diversity, and challenges discrimination” and had a “range of policies to support disabled people to volunteer”, with more than 1,500 disabled people volunteering across England and Wales last year.

What is the law?

The Volunteering England factsheet tells us:

"Discrimination and harassment           Anti-discrimination legislation applies to employment and the provision of goods and services, so doesn’t cover volunteers because they are not employed under the relevant legal definitions. Volunteering England advises organisations to reflect the spirit of such legislation in their volunteer involvement as a matter of good practice, to help ensure that volunteers are treated fairly and equally.
 

Harassment differs from discrimination, and although the Protection from Harassment Act 1997 doesn’t specifically refer to volunteers, it appears that anyone found guilty of harassment could face imprisonment and/ or a fine, as well as civil action by the person subjected to the harassment.

To summarise, if a volunteer were found guilty of harassment then they could face legal proceedings as well as civil action (although their status would be that of an individual, rather than a ‘volunteer’). Similarly, if a volunteer were subject to harassment, then they (as an individual) would be covered by this legislation.
 

Protection from Harassment Act 1997: The case of Majrowski v Guy's and St. Thomas' NHS Trust (2006) UKHL 34 suggests that it may not just be the abusive or threatening staff member who may be liable - their organisation may have vicarious liability as well. Majrowski v Guy's and St. Thomas' NHS Trust (2006) UKHL 34
 

To summarise, volunteers may have some form of redress against the worst forms of bullying or similar behaviour, but does this does not give them protection against discrimination as such."

Employment rights as a volunteer

Disability Law Service - rights factsheets

Volunteering England factsheet : When things go wrong

Source – Disability Law Service

More Disability Tests for Benefits

posted: 08/12/2010

All 3 million people with disabilities and long term conditions such as HIV, including pensioners and children, who are getting Disability Living Allowance will soon be forced to have medical tests.

Ministers announced yesterday plans to end the automatic right to disability living allowance, worth up to £70 a week for care and up to £50 a week for travel needs. This benefit will soon be called the 'personal independence payment'.

Waiting and testing

Claimants will have to wait for a year for the new "personal independence payment" and then face a series of medical and other tests focusing on "an individual's ability to carry out a range of key activities necessary to everyday life".
 

Medical tests already under fire

The existing system of medical tests that are used to judge people claiming sickness and disability benefits (Incapacity Benefit and Employment Support Allowance) is already under review after mounting evidence that people with serious illnesses like HIV are being judged fit to work, when they are not. The tests for the replacement 'personal independence payment' will be based on these.

Many claim that the disadvantages of the medical tests will outweigh any benefits. The medical tests system is often very wrong and very inefficient. 40% of people who appleal the decision win their appeals.

"We have fundamental concerns that the cost of the administration will mean there is no saving here. Claiming these benefits mean at the moment filling out a very long form. I don't think the answer is a whole new process of interviews, which many disabled people may find intimidating," said Guy Parckar of the Leonard Cheshire disability charity.
 

Do what we say

Welfare support will also be conditional on disabled people acting on government instructions to "better manage or improve their situation if appropriate".
 

Behind the changes - cuts of £1 billion from Disability Living Allowance

Charities said they were "deeply concerned" about the proposals – the government plans to save £1bn from DLA in the June budget.
 

"There's no evidence of widespread fraud and no evidence to back up claims that the benefit acts as a barrier to work," said Richard Watts, of the Essex Coalition of Disabled People.
 

Department of Work and Pensions announcement 

Consultation proposals

Consultation on the proposed changes - response deadline 14 February 2011

Source

Better Benefit ‘Work’ Tests

posted: 24/11/2010

The government has said it will overhaul its controversial medical tests to decide whether the seriously ill and disabled can claim long-term sickness benefits. An independent review found they were "impersonal, mechanistic and lacked empathy", leaving many claimants feeling unjustly treated and distressed.
 

The review, conducted by the academic Malcolm Harrington, an occupational health specialist, looked at whether the 'working capability assessment' was a fair system. There is mounting evidence that people with serious illnesses, like HIV, are being judged fit for work, when they are not. 40% of people who appeal, win their appeals.
 

Testing 94,000 people a month
The tests, first introduced in October 2008, mean 53,000 people are assessed a month for 'employment and support allowance'. The numbers being tested will balloon from next April as another 41,000 incapacity benefit recipients are re-assessed under the ‘work capability assessment’ every month.
 

Long-term ill and disabled somehow pass ‘work’ tests
Harrington found that the assessments, run by a French multinational, Atos Origin, which received £54m from the coalition government for the contract, failed people with mental illnesses and long-term disabilities.
 

‘Impossible’ 28 page form
One form which claimants needed to complete is 28 pages long and almost half the people "found the questionnaire difficult or impossible to complete".
 

Another problem is that people’s ability to work is measured by a computer questionnaire that uses "descriptors" - questions that are apparently unrelated to work. One example is that people are asked whether they had "loaded a dishwasher or washing machine" that day. "It does not bother to ask whether the claimant has a dishwasher or washing machine. That is the danger with computer systems and drop-down menus," said Harrington.
 

Another question asks if you sit and watch TV. Say yes and they assume you can sit for long periods in a chair.
 

"We want to rely much more on healthcare professionals and assessments., said Harrison..

He pointed out that 40% of those found fit for work by the system appealed and won – and added that most people who appealed provided "additional medical information".
 

Radical change needed
Harrington called for a radical overhaul, with jobcentre staff having to take into account health records, the Atos assessments and an individual's own testimony before making a decision about whether someone on sickness benefits should be forced back into work.
 

At present benefits staff rarely dissented from Atos's verdict, he said, and "a lack of procedural justice can lead people to feel embittered and for some this can lead to psychological distress with affects on physical and mental health".
 

Champions to help
The report also recommends the appointment of lay "champions" to guide claimants through the process, and detailed explanations of why a benefit has been refused.
 

Welcome for review
Many working with the poor and vulnerable welcomed the report, saying it was a long overdue recognition of the system's problems. Citizens Advice said its surveys showed a 41% increase in complaints from claimants in the past year alone.

NAT, National AIDS Trust welcomed the findings and recommendations. They say ‘we fully support the call for change to ‘improve the fairness and effectiveness of the WCA’ by improving transparency, empathy and communication within the assessment process for Employment Support Allowance (ESA)’. NAT were among the 400 organisations and individuals to contribute to the independent review, based on their research report Unseen disability, Unmet needs – A review of the impact of Work Capability Assessment on people living with HIV. Deborah Jack, Chief Executive of NAT (National AIDS Trust), said: ‘NAT supports the recommendations of the independent review and we were extremely pleased to see some of our concerns included in the final report.

Government to make all the changes

The government said it accepted Harrington's conclusions and would implement them in full. The work and pensions minister Chris Grayling said: "There were no targets or goals to get people off benefits. This is meant to be a fair process … we are dealing with claimants who we have had very little contact with."
 

Reform delay criticised

However, Harrington did criticise the government for failing to implement a key recommendation quickly enough: that of a "personalised summary of assessments in plain English" to be produced by Atos. The government could only promise that ministers "explored the feasibility of providing a summary" by the end of 2011. Given the planned expansion in the scheme next year, Harrington said, this "was just not good enough".
 

Charities said the "review pinpoints what is wrong with the system". Matthew Lester of the Papworth Trust, a disability charity, said the main concern now was how quickly the government would implement the report's main findings. "Even if they get the main points implemented by April that will mean another 250,000 people being assessed by a system that we already know is unfair."

NAT report

Source (adapted)

Volunteers - Skilled for Health

posted: 05/11/2010

Our volunteer programme is featured as a case study in the new Skills For Health Volunteering Guide. It's for people advising about volunteering in the health sector.
 

The guide includes

• Surprising facts about volunteering in the health sector
• Individual case studies showcasing personal stories of volunteering
• Organisational case studies detailing how volunteers make an impact on services
• Tips for successful volunteering
• Careers information
• Links to further information.

Apart from the two page George House Trust volunteers case study, you will find examples of volunteering in healthcare across community groups, voluntary groups, charities and the NHS and find out the difference it makes to patients, people using services, staff and volunteers.
 

There is also information about building volunteering experiences into a career.
 

These success stories inspire potential volunteers to consider the benefits of volunteering in healthcare organisations across the UK.
 

Information about volunteering with George House Trust

Careers in Healthcare: A Guide to Volunteering in Healthcare Organisations The George House Trust case study is on pages 32 & 33.
 

Skills for Health
 

Failed Work Capability Assessments

posted: 28/10/2010

Tests for the new sickness and incapacity benefit called Employment Support Allowance are wrongly failing people with HIV. The tests, called the Work Capability Assessments, fail to recognise that HIV can prevent and limited people from working, says new research by NAT (National AIDS Trust).

Appeal - 40% Win

The Department of Work and Pensions has revealed that almost 40% of the people who appeal these decisions win. That is a dreadful rate of expensive administrative failure.

NAT’s report Unseen disability, Unmet needs – A review of the impact of Work Capability Assessment on people living with HIV sets out the problems. These start with the design of the assessment test and how it is used in practice.

• For example, the test does not properly allow for illnesses and conditions where symptoms come and go, where fatigue, side-effects of HIV treatment and depression affect our ability to work.
• People going through the medical examination may not have the chance to talk about how HIV affects their physical and mental health in ways that limit the ability to work.
• NAT‘s research finds that continuing ignorance about HIV among the medical assessors and decision makers drastically reduces the likelihood of a fair and accurate assessment and decision about people with HIV’s ability to work and need for sickness and disability-related benefits.

Deborah Jack, Chief Executive of NAT, says:

‘HIV is a disability, and like many other disabilities, people living with HIV can have vastly varying experiences relating to their condition. Whilst some find they can still work, many others find the impact of HIV or their treatment means employment is not an option at the moment and they need to claim disability related benefits.

‘As it currently stands, the WCA is based on an outdated model of disability which only recognises a narrow medically defined set of physical and mental impairments. Also, it does not appropriately acknowledge the fluctuating nature of the condition and the impact that low self esteem due to HIV related stigma can have on a person’s ability to work.

‘NAT has submitted our ongoing concerns to the Independent Review of WCA, lead by Professor Malcolm Harrington, and hopes these will fully considered before any new rules are finalised and come into effect.’

Key findings

• The test ignores key HIV clinical markers, such as CD4 count, in the medical assessment
• WCA decision makers often pay more attention to the company contracted to do the medical assessment than to the person’s own HIV clinician and GP, who know the patient and their needs much better
• A wide range of problems with administration and communication of the tests harm the health and well-being of people with HIV through stress, delays and pressure.

Tim’s tale

Tim is a young man who applied for Employment and Support Allowance (ESA) with the help of his aunt and an HIV specialist benefits adviser. At the time of completing his ESA50 form, Tim’s CD4 count was 19. Medical evidence from his doctor explained that at the time of diagnosis, Tim had a CD4 count of 0 and PCP, a form of pneumonia associated with a low CD4 count.

Despite providing information about his blood test results, these were not discussed during the medical examination. The record of the examination contradicted itself by saying that Tim experienced ‘no side-effects’ but then noted that he had diarrhoea as a side effect of his medication. He was not given any points for his incontinence.

Tim was found fit for work. His doctor submitted further medical evidence but the case still ended up at appeal. Tim’s adviser said that, “on the day, we won that appeal, without me having to say a word or even sit down...The judge looked up and said, “oh – ESA successful, he’s in the support group, that’s not a problem”.’

Tim is now in the support group of ESA.

Grace's grievances

Grace had a CD4 count of 40 when she was refused ESA. She claimed Job Seeker’s Allowance and attended the jobcentre for help to find work, where she was placed in a job as a cleaner. Grace became sick after only a couple of hours work, owing to her compromised immune system. She was ill for a fortnight.

Her HIV-specialist benefits adviser said, ‘me and the social worker went ballistic at her when we found out [that Grace had gone to work] but she said “I wanted to try because I don’t want to claim”. We said “we know darling, but you’re too knackered, so don’t”.’

The adviser took Grace’s case to appeal, and was successful. Grace is now in the support group.

About the tests - the Work Capability Assessment (WCA)
The Work Capability Assessment (WCA) is the medical test used to decide whether a person is eligible for Employment and Support Allowance (ESA). The WCA aims to identify claimants who have ‘limited capacity for work’ or ‘limited capacity for work-related activity’, so that they may receive the right amount of financial and employment advice support to help them live and (where appropriate) return to work. Those who are found ‘fit for work’ are refused ESA. They can then appeal and claim Job Seekers Allowance instead. 40% of people who appeal WCA test decisions win their appeals.
The WCA test contains a series of questions, called ‘descriptors’, which relate to physical and mental functions, and each awards some points. You need to get enough points to get ESA.

The report

NAT’s report Unseen disability, Unmet needs – A review of the impact of Work Capability Assessment on people living with HIV

In October 2008, Employment and Support Allowance (ESA) started to replace Incapacity Benefit and Incapacity-based Income Support as the main benefit for people who are unable to work due to disability or illness. Everyone now on Incapacity Benefit will have to go through the new ESA WCA tests, starting in 2011.

George House Trust helped with this report.