Section 242 and the Disability Equality Duty – Making a Happy Marriage

We do not get many comments on the blog so we were delighted when Michelle Valentine, the author of the piece that follows, was sufficiently interested by an entry that Andrew Craig wrote in March on complying with Section 242 to note in our comment box “This new duty could be quite a powerful lever for disabled people, and it will be interesting to see how this duty will be implemented alongside the duties imposed by the DDA 2005 to involve disabled people. I would welcome a discussion about this.” This was rather unwise of Michelle because of course we immediately invited her to kick off such a discussion. Her article follows.

Michelle has her own consultancy Disability Forward Ltd and we know her from her work with the BSI Consumer and Public Interest Network. You can reach her at michelle@disabilityfwd.co.uk

Section 242 is shorthand for the general legal duty on the NHS to consult and involve service users in everything to do with planning, provision and delivery of services, which has applied since 1st April this year. The Disability Equality Duty, which applied to all public bodies including the NHS from December 2006, requires it to pay due regard to the need to:

• Eliminate unlawful discrimination;
• Promote equal opportunities;
• Eliminate disability related harassment;
• Promote positive attitudes towards disabled persons;
• Take steps to take account of disadvantage experienced by disabled people even where this involves treating them more favourably
• Encourage participation by disabled persons in public life;

NHS bodies also have to meet the specific duty which requires them to:

• Develop, publish, and monitor progress against a disability equality scheme
• Involve disabled people in the development and evaluation of schemes
• Produce single equality schemes but they MUST show how they meet the DED specifically

The two most important aspects of the Duty which should dovetail with the Section 242 obligations are the need to take a strategic approach which addresses the causes of inequality and lack of access to services at a macro level, using the social model of disability, and the duty to effectively involve disabled people in policy scoping and policy decision making as well as monitoring policy implementation at the coal face.

So, taking a strategic approach that uses the social model of disability, what does that mean here? Let me use an example in relation to social services, An individual complains that the accessible lift fitted in their home by social services has been working intermittently for several months. Another individual complains that they have not used the equipment provided to them by social services because they ‘manage as they are’.

Firstly what’s the link between these two cases? To answer this NHS bodies need to go back to their procurement strategy and your contract processes for equipment and adaptations for older and disabled people and ask:

1. Has the procurement strategy effectively involved disabled people and industry representatives?
2. How has their input influenced the strategy?
3. Has the strategy been equality impact assessed, properly?
4. Have the contract arrangements ensured that there is a proactive and effective equipment maintenance process which does not rely on the disabled person dealing with lots of different companies?
5. Is there ongoing support for people who have equipment provided, but may be fearful or reluctant to use it without ongoing support and advice from someone, or may have felt that they were given something that they didn’t want and weren’t given what they did want?

But what about the social model of disability? Some readers may not have heard of this so I will put it in very crude terms. There are basically two ways of understanding how disabled people are viewed by society. The medical model basically means that society sees disabled people as the problem because we have ’something wrong with us’ and who need medical and other interventions to make us more like non-disabled people, i.e. more ‘normal’. However, those who operate within the medical model and the NHS is really still doing this, will focus on the disabled person as the one that needs help and assistance. The social model turns this on its head and states that it’s society which is the problem, because it has not designed itself to include disabled people, whether in terms of the physical built environment or in terms of employment, services or any aspect of civil life. So the focus for change is on organisations, employers, service providers, government etc. Of course, reality is never so clear cut. As a visually impaired person I carry a symbol (white) cane so that others are aware I cannot see well, and I also have adaptive technology to make computer use much easier. I wouldn’t be without these, any more than a person with Diabetes would be without their insulin, but I still expect employers and service providers to meet their legal duties and involve us to enable them to make sensible decisions about how to improve things.

So to go back to the faulty lift and the unused equipment, it would be tempting for the authority to see both cases as unconnected and related to those individuals, but if they answered the questions above and got a no, or a ‘we can’t evidence that one way or another, or it’s supposed to happen but we are not sure it does’ then how can they say the problem is related to that individual?

A much better understanding of what a strategic and thorough approach to equality really means has to be developed in Section 242 and the Duty are going to be effective.

Secondly, In order to ensure effective implementation of both duties there area couple of other things that NHS bodies MUST address:

1. They must understand the difference between consultation and involvement. Often the two terms are used interchangeably and this should not be the case. Disability Forward would suggest the following definitions:
   • Consultation – a passive process where the agenda has already been set by the consulting body and where there is often no clear evidence of how consultation responses have influenced thinking
   • Involvement – a professional process of engagement and in-depth working between disabled people and organisations, and which delivers tangible benefits and outcomes for BOTH parties.

   The Disability Rights Commission (now replaced by the Equality and Human Rights Commission) has produced guidance on involving disabled people, which is a good start but is only that.

2. Understand what ‘representative group’ means
   Disability is a complex issue, not all people with visual impairments have the same access requirements, some people have multiple impairments, and some people may have access requirements but don’t see themselves as disabled people. Therefore any attempt to work with ‘representative groups’ needs to be much more sophisticated than it has been generally to date.

Overall I think as they say on TV Section 242 and the DED were ‘made for eachother’ but as well all know few marriages work without give and take and understanding.

Michelle Valentine
Director
Disability Forward Limited (contact information)

We have caught our first LINks – the Wandsworth Care Alliance and the Partnership are chosen to be the LINks Host in Wandsworth

That Fabulous Beast
Loyal readers will remember from past blogs our somewhat over-extended metaphor of that fabulous beast the greater spotted LINks seen prowling the precincts of Westminster – was the beast to be set free and be seen all over England as the new embodiment of patient participation? Would it flourish and survive where so many other species of patient engagement have failed and died out?

Well in Wandsworth, we will be helping answer those questions. We will be establishing the best of habitats for this new animal working with the Wandsworth Care Alliance and Wandsworth Borough Council to set up the Wandsworth LINk – one of the first in the country.

We have been writing about LINks in our blog for a long time now – the first article was in July 2006 and with regular mentions since then. We are now about to discover the difference between being the commentator and taking the role of participant. The thread that unifies the two is being able to learn and draw some lessons from the work.

We are getting off to a very fast start since Wandsworth is an area that Val Moore and Andrew Craig know very well. They are already plugged into the local health economy in a number of ways – at the grassroots as members of the Balham Park Surgery Patients Liaison Group and then at an institutional level, Andrew Craig as the Lay Member on the PEC and Val Moore as a non-exec at St Georges Hospital.

All the partners will be working on the project and we look forward to doing a good job assisting the Wandsworth Care Alliance as it builds a new structure for the users of health and social care services in Wandsworth.

Business as Usual
In the meantime, we will be continuing the blog with our usual eclectic mix of articles – last month, we gave our views on the new proposal for a single door entry point for citizens who have a complaint and returned to the source with some musings about Beveridge’s original plans for the NHS. The last newsletter pointed out our propensity to value things like post offices only when they are threatened with extinction. This one has focused on new life for patient engagement in the form of the new LINks structures.

Eirlys Roberts – a personal tribute

So with these thoughts of death and renewal, it is the moment to pay my own tribute to Eirlys Roberts who died on 18 March aged 97. Maurice Healy one of her adjutants at Which? described her correctly in his Guardian obituary as “the mother of the modern British consumer movement“. Michael Young, later Lord Young of Dartington, is credited as the founder of Consumers’ Association, publishers of Which? Magazine. Founding was what Michael was good at – if what he set up survived, it was because he found/left in place people like Eirlys with the passion and skills needed to make sure the infant organisations survived and prospered to give a life time’s work to people like me.

The prose style Eirlys required all the Which? writers to observe, was in her words “to use concrete nouns, not abstract ones, the active not the passive voice, short sentences, short paragraphs and short Anglo-Saxon words“. Each piece destined for Which? was edited at least 4 times and pared back to the libel-free, truthful minimum. An Eirlys editorial session was a risky and exhausting encounter for those of us with a disdain for boring detail and a taste for wordy generalisations.

I joined Which? in 1969 just before the launch of Money Which? The Which? Guide to Contraception had been published shortly before. The Eirlys style was a fabulous formula for success – money and sex discussed in that clear, rational Which? style that helped the middle classes conquer their embarrassment at their materialistic and sexual urges and gave them permission to be interested in both subjects, discussing the relative qualities of their fridges at the dinner table, probably even in bed. (The quality and price of white goods in those less affluent days occupied the place in people’s conversations that entire houses and kitchens do now.) Reason reigned and consigned the vulgar emotions of envy and acquisitiveness conjured up by the adman to the bin (did we test those I wonder?).

I took those words of Eirlys’s from the Times obituary where as a classicist, she would have been amused to share the obituary page with Charlton Heston, the great charioteer of Ben Hur.

Vale Eirlys and thank you for that style and way of thinking – remnants of which I still cling to even now particularly when discussing patient engagement scenario situations at the cutting edge of positive citizen participation strategies rolling forward to the big picture event horizon of Local Involvement Networks. Clear enough?

When Citizens Complain – what should happen?

The Public Administration Select Committee are in the news for advocating a single entry point for public services complaints.

Para 42. “We agree with Sir David Varney and the National Audit Office that the Government should explore the scope for a common access point nationwide for all non-emergency public services. This would provide a single point of contact for impartial information on where to make a complaint or seek redress. We restate our predecessor Committee’s recommendation in favour of just such a service-’Public Services Direct’-which would offer an easy access, one-stop-shop approach to a complex web of public services. Public Services Direct should be both a gateway to government organisations and services, and a source of basic advice to public service users. It would act as the starting point for people unsure of how or where to lodge their initial complaint, and would provide them with the appropriate information and guidance.” When Citizens Complain, Fifth Report

In the terms we use about complaint handling, the above is a referral site. What the public want is a problem-resolution site. Most people build complaint handling processes offering an initial point of contact and then a second one if the problem does not get sorted there. Where the complainant wants to see Houses of Correction, the public service build great Palaces of Escalation. For resolution, read referral.

The committee quotes this example:

“…for agencies of the Department for Work and Pensions complaints are dealt with initially by staff at local level. Complainants can then escalate a complaint to line management as necessary. If they are still unsatisfied they can raise the case directly with the Business Chief Executive, and then appeal to the Independent Case Examiner.57 Finally, the Ombudsman can consider the case if it is referred to her by a Member of Parliament.”

The big growth in the public services is in the intermediate complaint handling organisations:

“There are also an increasing number of independent, or quasi-independent, complaint review bodies to which complainants can turn before raising matters with the Ombudsman. These intermediate or second-tier complaint handlers exist particularly where the Ombudsman receives a large number of complaints about an organisation. They include:

• The Adjudicator’s Office, which investigates complaints about HMRC, the Valuation Office Agency, the Public Guardianship Office and the Insolvency Service.
• The Healthcare Commission, which at present is responsible for reviewing complaints about the National Health Service (NHS) or independent healthcare services that have not been resolved at local level. From April 2009, however, the Healthcare Commission will no longer have a role in complaints handling, as complaints processes for health and social care will be brought together and the system streamlined to emphasise local resolution of complaints.
• The Independent Case Examiner, who reviews complaints about DWP bodies including the Child Support Agency, the Pension Service and Jobcentre Plus.
• The Independent Complaints Reviewer, who investigates complaints about a range of organisations including the Audit Commission, the Charity Commission, the Housing Corporation, the National Archives and the Land Registry.”

These organisations are sort of junior organisationally specific Ombudsoffices but without the clout or the power of being the last stop.

The committee’s suggestion for a one stop shop will merely add another layer to an already complex and expensive system that institutionalises delay, decreases satisfaction and increases escalation. Hooray for the Health Service that has abolished the middle layer.

Also people at entry points for complex multi-organisational or multi-cause complaints systems while often recruited from the ranks of the beginners, the juniors and the newly-joined have to be the best qualified people in the whole system. They must have extraordinary gifts of diagnosis, have access to completely up-to-date knowledge about who does what together with telephone numbers for named individuals and be possessed of extra-ordinary personal attributes of empathy, listening skills and clarity of expression.

Do you think ‘Public Service Direct’ could deliver that? How many years would pass as everyone from departments sat round tables evolving protocols, manuals, interrogative algorithms, contact detail updating processes? There would of course be a need for an independent complaint handler for complaints about Public Service Direct. Decades would drift by. NHS Direct anyone?

What surprised me finally was not to see NACAB’s name listed amongst those supplying evidence. They are at last trying to grapple with the complexities of how best to concentrate and manage resources to advise people on the whole range of public services and products. Give them £10 or £20 Million for 7 years and tell them to set up the front door – they seem to be well down that path already. See http://www.nacab.org.uk/ and their change programme:

Year one (2005/06)
In the first year, we had a good look at what we were already doing, produced an award-winning film showing what we might look like in the future and completed a number of key initiatives:

• designing a new approach to service delivery
• piloting an out of hours, telephone, email and chat service
• setting up three centres to pilot the new approach to service delivery
• developing a set of national referral protocols
• commissioning the production of a new advice kiosk

Year two (2006/07)
Having successfully completed year one we are now moving forward by:

• establishing a single national telephone advice number
• setting up a national email advice service
• improving access to web based information and services
• introducing the new approach to service delivery
• considering how interactive (chat room style) advice can best be used
• forging productive partnerships with other agencies and advice providers

And it goes on.

It is not a question of avoiding re-inventing the wheel – more a question of not adding yet another redundant wheel when we already have all the wheels we need to propel this particular vehicle thank you.

Read more about M-A-C’s complaint handling consulting, and download templates for reviewing and implementing better complaint handling at www.mooreadamsoncraig.co.uk