Brexit: social and equality impacts

Case Study: Disabled People

Disabled people make up 20% of the population in Scotland.^[351] Disabled people's organisations have argued that Brexit will have a deleterious effect on the rights and welfare of disabled people.^[352]

The potential adverse impacts of Brexit on disabled people in the UK has been highlighted by disabled peers in the House of Lords. On a debate on 'Brexit: Disabled People', Baroness Scott of Needham Market underlined the negative effects of the loss of EU structural funds, the potential weakening of anti-discrimination laws, the potential loss of the Blue Badge scheme and the impact on the care sector, for disabled people.^[353] Other disabled peers also campaigned vigorously against a 'no-deal Brexit', which was considered 'disastrous' for disabled people, in particular due to impacts on social care recruitment.^[354]

Disabled people's organisations have criticised the UK Government for failing to represent disabled people in the UK's negotiations with the UK, the lack of accessible information for disabled people on the potential impacts of Brexit, and the lack of formal impact assessments on disability.^[355] According to Inclusion Scotland,

"disabled people are at a heightened risk [from Brexit]. They are more likely to be living in poverty, have been hardest hit by austerity which the UN has said has led to 'grave and systematic violations of their rights'"^[356]

The potential impacts of Brexit on disabled people (both the legal and the socio-economic impacts) are summarised in the infographic below:

Disabled People: Legal Rights

The EU has played an important role in advancing legislation that protects the rights of disabled people. The EU framework directive for equal treatment in employment and occupation went further than the UK's Disability Discrimination Act in protecting workers from direct and indirect discrimination based on disability, requiring the UK to adapt its legislation in 2004.^[357] The UK was also obliged to adapt its disability legislation in 2008 as a result of a Court of Justice of the European Union (CJEU) ruling that it is unlawful to discriminate against employees because of their relationship to a disabled person.^[358] EU membership has therefore provided disabled people with a "large degree of protection… because of its directives on equality" and in particular, protection from discrimination.^[359]

The UK's decision that the EU Charter of Fundamental Rights will cease to apply after Brexit will potentially have an adverse effect on the rights of disabled people. The Charter includes many social and economic rights, such as free-standing rights to non-discrimination and rights to fair and just working conditions, which the UK's domestic law and Human Rights Act currently do not cover.^[360] For instance, Article 21 of the Charter prohibits discrimination on various grounds, including disability and Article 26 recognises the right of disabled people to "benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community."^[361]

Furthermore, Brexit would entail a loss of recourse to the Court of Justice of the European Union (CJEU) for disabled people. The CJEU has played an important role in protecting the rights of disabled people from workplace discrimination, and its rulings have led to increased sanctions and compensation for disabled claimants. The Charter is upheld by the CJEU and, once the UK leaves the EU, the Charter falls away and UK courts are no longer subject to CJEU rulings, there is a possibility that "if disabled people wished to try and strike down UK legislation as incompatible with rights under CFR under EU law – that avenue may not be available after the vote to leave."^[362] Therefore, Brexit implies a loss of recourse to the CJEU for disabled people, which would remove the EU's 'holding-to-account' mechanisms as UK courts and tribunals would no longer be able to refer cases to the CJEU.^[363]

Disabled people may also potentially lose certain rights that are not embedded in EU primary legislation, and which are more vulnerable to being repealed or diluted. For instance, the EU Air Passenger Rights regulation, which ensures the accessibility of vehicles and assistance for disabled passengers on board, is not currently embedded in UK domestic law.^[364]

Furthermore, disabled people will potentially lose out on the EU's development of its equality legislation in the future. According to the charity Independent Living, "people with disabilities would not benefit from any further directives or regulations that the EU issued on disability rights and would be reliant on domestic legislation and common law keeping pace with the advancement of the rights of people with disabilities."^[365]

One such piece of legislation is the European Accessibility Act, which was proposed by the EU in 2015. The Act aims to remove accessibility barriers that disabled people face in their day-to-day lives, by establishing European-wide requirements to make products and services accessible, including computers, ATMs, ticketing machines, smartphones, TV equipment, passenger transport, banking services and e-books. For example, "ticket machines at train stations would be required to allow for the screen to be magnified or for the information to be provided in different colours or alternative formats."^[366] However, disabled people are unlikely to benefit if the UK has left the EU by the time the Act has passed.^[367]

Disabled People: Public Services and Funding

Disabled people have a higher-than-average need to access public services, in particular, health and social care services. Therefore, if there are any reductions in public services after Brexit, then disabled people will be disproportionately affected by such cuts.

One of the greatest concerns of disabled people's organisations is the impact of Brexit on health and social care services, upon which disabled people and long-term illnesses rely.^[368] There are also significant recruitment problems in both these sectors^[369], partly caused by a decline in the number of EU nationals remaining in, or coming to, the UK, and there are fears that these recruitment shortages will get worse post-Brexit when EU free movement ends.^[370]

For instance, Inclusion Scotland is concerned that post-Brexit changes to the immigration rules are "likely to impact on the availability of personal assistants (PAs), which could see disabled people "slide back" into depending on institutions and being unable to live independently at home."^[371] Furthermore, there is a possibility that some current EU nationals living in the UK and employed as PAs will not meet the requirement for settled status, and that disabled people may "not be able to recruit replacements if restrictions are placed on immigration from the EU".^[372] This would lead to a reduction in independent living, affecting disabled people's quality of life, access to employment or volunteering, and wellbeing, and may require disabled people to go into residential care homes.

Given the possibility that a no-trade deal Brexit, which would erect trade barriers between the UK and EU, could potentially cause disruptions to medicine supplies, DPOs are concerned that this could have "serious implications" for disabled people's access to vital medicines and medical technologies.^[373] A Scottish MP criticised the UK Government for failing to take the needs of disabled people into account in their Brexit contingency planning, arguing that ""We already know there will be huge potential impact on access to medications and medical aids alongside the negative impact on staff in social care, all of which will impact dramatically upon the most vulnerable."^[374]

There are also concerns about the accessibility of public and commercial services for disabled people after Brexit, given that many accessibility requirements are derived from EU law, including secondary legislation that is not currently on the UK's statute books.^[375] Independent Living in Scotland has listed several EU legal protections afforded to disabled people through EU membership "which may cease to be applicable" after Brexit:

• the European Union Employment Equality Directive, which requires Member States to prohibit disability discrimination in employment;
• the European Union Air Passenger Rights Regulation (together with similar regulations on rail, ship and coach travel), which requires disabled people to be given assistance when travelling by plane in EU and European Economic Area (EEA) countries
• the European Union Medicinal Products for Human Use Directive, which requires the packaging of medicinal products to include Braille labelling
• the European Union Public Procurement Directives, which require public bodies to include accessibility in technical specifications^[376]

The potential loss of EU-wide public services will also be likely to disproportionately affect disabled people. This includes the European Health Insurance Card (EHIC), which entitles EU citizens travelling to other members states to access free or reduced-cost healthcare. The EU has also created an EU Disability Card, which ensures disabled people have equal access to benefits across EU Member State borders, in the areas of culture, leisure, sport and transport. Disabled people in the UK also currently benefit from the Blue Badge parking scheme, which is an EU-wide reciprocal scheme that provides disabled people with parking concessions for on-street parking, allowing them to park closer to their destination in any EU country.^[377]

Will these schemes be retained in the UK after Brexit? So far, it appears that the EHIC scheme would end in the UK under a no-trade deal Brexit, however, the card may potentially be included in future UK-EU negotiations.^[378] With regard to the EU Disability Card scheme, the UK has not (yet) signed up to this, and there is no indication that it will do so after Brexit. Finally, the UK Government has not yet issued a statement on whether or not the UK Blue Card may be used in the EU27 after Brexit. However, one journalist has conducted an investigation into the Blue Card scheme, finding that the UK Government has already started issuing Blue Cards without the EU symbol.^[379] Furthermore, it appears that EU reciprocity for the Blue Card will be on a case-by-case basis after Brexit, with some EU27 countries recognising the UK Blue Card and others will not, while UK local authorities will have discretion over whether they recognise Blue Cards of EU nationals.^[380]

Disabled people living in the EU will be affected by any decision to remove social security system cross-border reciprocal arrangements post-Brexit, which is most likely in a no-trade deal scenario. Disabled people in particular need access to welfare support systems, in order to participate in society and the labour market.

Finally, there are deep concerns amongst DPOs about the impact of ending European funding on disabled people after Brexit. According to the Academic Network of European Disability Experts, almost one-fifth of the European Structural and Investment Funds (ESIF) are spent on projects directly supporting disabled people. The EU funds have thus provided extensive financial support for disabled people in the UK to date. Inclusion Scotland have argued that disabled people's organisations in Scotland are reliant on this EU funding, especially in providing employability and skills support to disabled people.^[381]

While the UK Government has proposed that the ESIF funding will be replaced through a 'Shared Prosperity Fund' after Brexit, DPOs are concerned that there could be potential gaps in funding for equalities initiatives, including supporting disabled people. For instance, the Voluntary Organisations Disability Group has voiced concerns about the continuity of funding for disability programmes after Brexit.^[382]

Disabled People: Employment, Housing and Spending

Disabled People's Organisations are concerned about several potential impacts of Brexit on disabled people's employment prospects, housing, quality of life and spending power:

• the potential loss of employment protections for disabled people
• the potential loss of health and care support – which will affect disabled people's quality of life, wellbeing and ability to live independently
• the potential reduction in accessible housing
• the impact of food and fuel price rises on disabled people

On employment, the majority of UK employment law derives from EU law, which provides minimum standards for general and specific protections for disabled people. This includes the EU's introduction of no statutory limits on compensation for disability discrimination claims, which has enabled disabled people in the UK to be compensated in full for harm caused as a result of disability discrimination.^[383] There are concerns that, after Brexit, disabled people will those this right and a statutory limit would be re-introduced in the UK.

The potential impact of Brexit on the health and social care sector could have profoundly negative effects on the ability of disabled people to live independently. DPOs are concerned that there are falling numbers of Personal Assistants (PAs) who support disabled people to live independently, due to reductions in EU migration^[384], and that this situation could worsen when free movement ends after Brexit and salary thresholds are introduced for EU nationals. This could mean that a larger number of disabled people will have to move into residential care homes and would no longer have the personal support in place to work or to volunteer.

Brexit has been forecast to have a continued negative impact on the construction sector^[385], again, due to a potential labour market shortage resulting from declining numbers of EU nationals. This may lead to a reduction in house building, including a reduction in accessible and adapted house-building, which would give disabled people fewer housing options.

Disability is strongly associated with poverty, "because disability brings with it extra costs which reduce the resources available relative to non-disabled people, and because it often reduces the capacity to work."^[386] As a result, any increase in food or energy prices, as a result of a post-Brexit economic downturn or no-trade deal Brexit, would disproportionately affect disabled people, who are more likely than average to be on low-incomes. Furthermore, as Inclusion Scotland reminds us, some disabled people are restricted to special diets, which may be especially impacted by any food shortages or an increased reliance on foodbanks.^[387]

Disabled People: Resilience

Disabled people are represented by a network of active, engaged and well-organised disabled people's organisations in Scotland/the UK. These groups have also been proactive in researching and anticipating the possible impacts of Brexit on disabled people. In particular, Disability Rights UK – at the UK level – and Inclusion Scotland – at the Scottish level – have produced extensive research, analysis and recommendations on how to mitigate the potential adverse effects of Brexit on disabled people. The Voluntary Organisations Disability Group also provides an important voice for organisations across the voluntary sector who work with disabled people. However, when it comes to parliamentary representation, disabled people only make up 0.8% of MPs in the UK Parliament (5 disabled MPs out of a total of 650 were elected in the 2019 general election)^[388], and only 1 MSP in the Scottish Parliament identifies as disabled (0.8% of MSPs since 2016).^[389] Furthermore, there are generally low levels of disabled people across public life (councillors, public board chairs, commissioners)^[390], suggesting that disabled people have a smaller public platform to voice their concerns and progress disability equality objectives.

Disabled people's organisations also provide important sources of information and support to disabled people, including public helplines for disabled students, advice on hate crime reporting and independent living, and general guidance on legal protections, social security benefits and public services for disabled people. These groups in Scotland include Inclusion Scotland—the National Disabled People's Organisation, Disability Equality Scotland, Independent Living in Scotland, Capability Scotland, Disability Agenda Scotland, People First (Scotland), Vox—Voices of Experience, Self-Directed Support Scotland, the Scottish Association for Mental Health, and the Mental Health Foundation Scotland.^[391]

There are also generic advice services available to everyone, including disabled people, for instance on debt management, social security benefits and legal rights and protections. These vital publicly funded advice services are offered by local councils, statutory bodies such as the Scottish Legal Aid Board (SLAB), and third-sector providers, such as the network of Citizens Advice Bureaux.

However, like women (as we saw above) and other people with protected characteristics, the extent to which disabled people are connected to these groups and networks, or are resilient to the impact of Brexit, is mixed. Not all disabled people have diagnosed, or sought help and support for, their disability. Not all disabled people have access to the resources available (in particular, older disabled people may have more difficulty accessing online resources). And not all disabled people will be aware of the research and recommendations being put forward by disabled people's organisations.

Furthermore, the extent to which disabled people are financially resilient to any adverse economic impacts of Brexit is mixed. While research has shown that disabled people are disproportionately represented among low-income groups^[392], we can also expect that some disabled people have sufficient financial resources to weather any economic downturns. Like women, then, we can assume that the least financially resilient disabled people are those who have the least disposable income and are most dependent on public services. Furthermore, disabled people facing multiple disadvantages – for instance, disabled women, disabled people on precarious employment contracts, disabled minority ethnic people – will face multiple socioeconomic and legal impacts of Brexit, reducing their overall resilience to these.

Impacts under different Brexit scenarios

The following table provides a general indication of which of the impacts on disabled people analysed in this section are most likely to occur under each of the Brexit scenarios discussed in the report – a hard Brexit (withdrawal under the terms of the Withdrawal Agreement and Political Declaration, with no binding commitment to comprehensive level playing-field provisions), a softer Brexit (UK-EU negotiations to include strengthened level playing-field commitments and closer alignment with EU law) and a no-trade deal Brexit (the UK fails to obtain an EU trade deal and reverts back to trading on WTO rules).

* 'higher risk' implies that there is a higher risk that this impact is likely to happen compared to the status quo of the UK being a full member of the EU, given the UK Government's economic forecasts^[393]