Oxfam and Church Action on Poverty report on Food Poverty

Today Oxfam and Church Action on Poverty have published a report, Walking the Breadline: The Scandal of Food Poverty in 21st Century Britain. They highlight the alarming rise of people dependent on food banks in the UK (currently a whopping half a million people, according to their estimates). Even more worryingly, they point out that up to half of these people are seeking out food banks due to benefits being delayed, reduced or withdrawn altogether. They expect these numbers to rise with the introduction of Universal Credit.

They make the following recommendations:

1. The House of Commons Work and Pensions Select Committee conducts an urgent inquiry into the relationship between benefit delay, error or sanctions, welfare reform changes, and the growth of food poverty.
2. The Department for Work and Pensions publishes data on a regular basis on the number and type of household who are deprived of their benefits by reason of benefit delay, error or sanctions; the numbers leaving and returning to benefits after a short period of time, and the number of referrals from Jobcentre staff to local food banks.
3. The Department for Work and Pensions commission independent monitoring of the roll-out of Universal Credit, to ensure that there is no unintentional increase in food poverty.
4. All referrals to food banks/emergency food aid provision, made by government agencies, be recorded and monitored in order to establish more accurate numbers on people experiencing food poverty in the UK.
5. HM Treasury make tackling tax dodging an urgent priority, including promoting robust and coordinated international action at the forthcoming G8 meeting in Northern Ireland in June – to reduce the need for future cuts in benefits, and restore the principle that benefits should at least rise in line with inflation.

 

You can read the full report here.

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When is guidance ‘statutory’ and does it matter?

In the beginning was section 7, Local Authority Social Services Act 1970:

Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.

The Act which set up social services authorities over 40 years ago also set up a peculiar type of legal authority for social workers. On the one hand, it was guidance rather than law. On the other hand, we had to follow it. It is not surprising that a challenge was going to come: how can something be binding if it is guidance? The answer has also stood the test of time. In R v Islington LBC ex p Rixon [1998] 1 CCLR 119 it was held:

Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.

And there we have it: a peculiar kind of law emanating from the executive rather than the legislature. It is still guidance because, exceptionally and with good reason, we might deviate slightly from it; but it carries its own legal authority because, almost all the time, we must follow it.

Over recent years, other Acts of Parliament have created similar powers for executive-driven binding guidance; the guidance has been held to be binding on a wider range of people; and a plethora of both major and minor documents have been stated to have the status of what is now generally termed ‘statutory guidance’.

I think it is time to revisit the term ‘statutory guidance’. The label confirming the status ‘statutory guidance’ helped us for a while. I am not sure it does any more. I think we should be asking the question, is it ‘binding’ guidance instead. Here is why.

What is the status of non-statutory guidance?

All sorts of people throw guidance at professionals that does not bear the label ‘statutory’. It is of varying quality and usefulness. Some of it is driven by a political agenda, whether of politicians or campaigning groups. Much guidance emanates from employers – policy, practice and procedural documents.

As we weigh up the merit of what is being thrown at us, and decide whether to consign it to the bin, or to pin it to the notice board with fairy lights around it, we will make some important discoveries about non-statutory guidance. Some of it is darned good:

  • There are documents which merit our attention because they make the law more accessible;
  • There are documents that merit our attention because of the special expertise of the authors;
  • There are documents that merit our attention because they disseminate quality research that ought properly to inform our practice;
  • There are documents that merit our attention because they tell us what executive-driven guidance fails to tell us…

Such documents may not have the label ‘statutory’, but if they guide our path, improve our practice and keep us from legal error, they may have an important role nonetheless.

Six months ago, the High Court in Ali v London Borough of Newham [2012] EWHC 2970 (Admin) (30 October 2012) ruled on the status of a piece of non-statutory guidance.

The Department for Transport has produced guidance on the use of tactile paving to assist the visually impaired. The national guidance was developed in conjunction with and with the endorsement of Guide Dogs for the Blind and the RNIB.

So the guidance emanated from the executive, with the input of non-government expertise. The court ruled it had to be followed:

As to the principal contest between the parties, namely, the status and effect of non-statutory guidance, I recognise some force in [counsel’s contrary] submission that the court should be circumspect and careful so as to avoid converting what is a non-binding guidance into, in effect, mandatory rules. To do so would tend to subvert the intention of the guidance and would risk undermining the autonomy of the primary decision maker upon whom Parliament has conferred ultimate responsibility for discharging the function in question. However, this does seem to me to be yet another area which bears out Lord Steyn’s famous dictum that “in law, context is everything”. In my view, the weight that should be given to particular guidance depends upon the specific context in which the guidance has been produced. In particular (without intending to create an exhaustive list) I believe that it is necessary to give due regard to the authorship of the guidance, the quality and intensity of the work done in the production of the guidance, the extent to which the (possibly competing) interests of those who are likely to be affected by the guidance have been recognised and weighed, the importance of any more general public policy that the guidance has sought to promote, and the express terms of the guidance itself. In my view, it would be unwise for the court to descend into the intrinsic merits of the guidance, unless it was seriously contended that it was unlawful or very obviously defective. [my emphasis]

The caselaw has arrived at a significant point in relation to non-statutory guidance: we may be bound by guidance because it is authoritative and expert, rather than because of its label.

Can statutory guidance change our legal obligations?

There are a number of threads to pick up, to work out the effect that statutory guidance has on our legal obligations as social workers.

First, let’s not beat about the bush: by section 7 and similar sections, Parliament intended to delegate authority to the executive to create guidance that social workers should follow, irrespective of the wisdom of that guidance.

There are plenty of examples of guidance which have enlarged the law. That is to say, by embellishing the bare bones of the legislation, they have created additional obligations upon us. The various Codes of Practice we must follow (Mental Health Act, Mental Capacity Act, Deprivation of Liberty Safeguards) are examples.

It is one thing to suggest that guidance can enlarge the law, quite another to suggest that it can change it. Delegated guidance has to be consistent with the higher legal authorities from which it derives its own authority. That this includes human rights ought perhaps to be uncontroversial, but in fact two recent legal tussles have illuminated the interface of delegated guidance and human rights.

First is the Home Secretary’s frustration with the approach taken by the courts to deporting foreign nationals in the light of Article 8. In one bout of this ongoing struggle, the Home Secretary amended the Immigration Rules, purporting to tell judges how to apply human rights. These Rules have in common with statutory guidance that they emanate from the executive, and are not legislation. They go further than statutory guidance in that they are “presented to Parliament” under the primary statute, rather than simply deriving their authority from it.

As explained by Dr Mark Elliott in ‘A human rights reality check for the Home Secretary’, the Home Secretary’s attempt to tell judges how to think was doomed:

Quite properly, the Upper Tribunal has held that while the new Rules can “operate to enhance judicial understanding of the ‘public interest’ side of the [proportionality] scales”, they cannot relieve courts or tribunals of their obligation under the Human Rights Act 1998 to apply Article 8 itself.

Second is the decision last month in strategic litigation on the Police ‘Code C’, which treats 17-year-olds in detention as adults. The Codes are issued by the Secretary of State under part VI of the Police and Criminal Evidence Act 1984.The court ruled

that the Secretary of State acted in a way which was incompatible with Article 8 of the Convention in failing to revise Code C so as to distinguish between the treatment of an adult detainee and a detainee under the age of 18. Article 8, read with UNCRC, requires a 17 year-old in detention to be treated in conformity with the principle that his best interests were a primary consideration.

Statutory guidance, then, can usefully enlarge on the detail of our legal obligations, but cannot diminish our obligation to give precedence to human rights.

Appendix C to ‘Working Together 2013’

We have arrived at a point where authoritative expert guidance from the Executive that will help us to apply the law correctly might not need the prop of a ‘statutory’ label to make it binding; whereas even the label ‘statutory’ gives us no certainty that guidance is actually compliant with the law so that it should be followed.

That is the context in which, in an earlier blog, I boldly suggested practitioners might keep ‘Working Together 2010’ by their elbows. It had been modified over time to take account of developing learning; it set our lessons from research; it had whole chapters devoted to particular areas of practice difficulty; it incorporated lessons from the Laming reports; it attempted to set out how to comply with human rights principles; and it incorporated by reference a number of other specialist guidance documents. It was by no means perfect, but it was unquestionably useful. It served the purpose such guidance should serve, of drawing together in one place what we need to know to get it right.

One of the criticisms proffered of its successor guidance concerns Appendix C. Here, over 3 pages, is a list of “Supplementary Guidance”. But it is just that – a list. It doesn’t set the context of the documents, as Chapter 6 of ‘Working Together 2010’ did. Strictly speaking, it doesn’t even tell you whether you should follow the supplementary guidance. It’s more like a reading list.

This has led some to suggest or to fear that ‘Working Together 2013’ has downgraded the status of some of the specialist guidance that used to be incorporated, or incorporated by reference, in the older version. ECPAT, for example, has criticised the omission of the detailed guidance on trafficked children. That is only the tip of the iceberg of specialist materials that have been omitted in service of the goal of a shorter, pithier ‘Working Together’.

But I venture to suggest all is not lost. In this brave new world where we must look beyond the label, and check for ourselves whether guidance does what it says on the tin, the absence of authoritative detail may diminish ‘Working Together 2013’. But the documents mentioned in its Appendix C may be enhanced rather than diminished by standing alone.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.

See also:

Human rights have disappeared from ‘Working Together’

Losing control of the rudder?

‘Working Together 2013 ignores human rights and we must act on this’

More Trouble with Dr Jessen

A few weeks ago I blogged about getting twitterstormed by Dr Christian Jessen, presenter of the TV shows Embarrassing Bodies and Supersize vs Superskinny, after I asked him to be a bit more polite when talking to an eating disorder survivor. One problem with Twitter is the way a one-on-one argument can quickly be turned into a public affair simply by retweeting or by sticking text in front of somebody’s @ ID, thereby inviting any passerby to pile-in.

If the tweeter involved has a large following, then this can turn into a deluge of abusive messages. This happened yesterday when a famous comedian made an ill-advised joke about self-harm. Somebody with a history of self-harm sent him an angry tweet in response to this. He then responded in turn by retweeting her, with the result that she then received a stream of hostile tweets from his fans that lasted for 11 hours. To be fair to the comedian, she did swear at him, and he did later un-retweet her and ask his fans to stop, but by then the damage was done.

It’s a particularly rum business when this sort of thing involves health professionals. The various regulators (e.g. General Medical Council, Nursing and Midwifery Council etc) have made it clear they expect professionals to behave themselves on social media, and I’m sure bombarding people with abuse is something they expect us not to do.

A couple of weeks after I had my own run-in with Dr Jessen, it seems another Twitter user took issue with his online behaviour.

jessena

One thing that tends to come with a large Twitter following is a fair amount of grief from people lining up to have a go at someone, and if would be fair to say that Dr Jessen is no exception to that. However, it’s also fair to say that the person here was being strongly critical, but not abusive or insulting.

So, how did Dr Jessen respond?

jessenb

Yep, he reposted her message with “UTTER ROT” before it, thereby rebroadcasting it to his 236,000 followers. To put that into perspective, the daily circulation of the Guardian is 204,000. In old media terms, this would be the equivalent of sticking someone’s comments in a national newspaper with a comment of, “Look what this person said about me!” and putting their phone number at the end.

The result, predictably, was that she got several hours of abuse from Dr Jessen’s fans.  This seems to be something of a habit for him.

jessenc

What does the GMC social media guidance say?

You must not bully, harass or make gratuitous, unsubstantiated or unsustainable comments about individuals online.

jessend

On Cyberbullying

It occurred to me recently that in Child and Adolescent Mental Health Services (CAMHS) we seem to come across more cases of cyberbullying these days than real-world bullying. It shouldn’t be considered a trivial issue simply because it happens online. I’ve seen more than one case of a child winding up in hospital from an overdose following a cyberbullying incident.

My (admittedly anecdotal) impression is that the problem is getting worse. Possibly this may be due to the ever-evolving and increasing variety of ways that people can get online. The kids who use these new platforms via their computers, phones, iPods and XBoxes (give it another week, and they’ll be doing it through the fridge) are often more technically adept at social media than the parents, teachers and other adults who are supposed to be keeping an eye on what they’re doing. I consider myself pretty social media savvy. I use Twitter and blogs every day and have been for years. But even I keep coming across platforms mentioned by kids that I’ve never heard of (what the hell is Kik?) And if I’m struggling to keep pace, what hope for the more Luddite colleagues and parents I work with?

The trouble is, our kids may be the most technically-adept generation when it comes to social media, but in many cases they haven’t developed the emotional awareness to deal with some of the issues they may come across. If it’s a particularly vulnerable child, then this can be a recipe for disaster. If you include not just cyber-bullying but also online issues like pro-ana, or pro-self-harm sites, or online grooming, then there’s barely a day that goes by recently where we haven’t dealt with an issue of a child running into difficulties due to social media.

Don’t get me wrong, I’m not saying social media can’t be helpful. Those of you who’ve read my writings will know that I’m a big advocate of the manner in which these platforms can be used as a force for good in mental health. I do also come across kids gaining benefits from social media. Resources such as Teen Depression Connect have been recommended to me by young people who found them beneficial to their recovery. Socially isolated teenagers have found the internet a lifeline that gives them someone to talk to when there’s nobody else. But the pitfalls are there too.

A site that seems to be especially problematic is Ask.fm, in which users invite others to submit questions to them, sometimes anonymously. People have misused it to send abusive messages. The site has been criticised for lacking ways to block users or to report abuse. When I was browsing it yesterday, it looks like blocking methods are now in place, but I’m told they’re pretty easy to get around. Worryingly, I’ve been told of cases where a young person has suddenly received hundreds of abusive messages in the space of a few hours on Ask.fm.

Then again, if we’re talking about someone receiving large volumes of abuse in a short space of time, perhaps some of us adults can’t preach to the kids. In my previous post I mentioned an online friend with an anxiety disorder who relapsed after being Twitterstormed by people who identify with intersectional feminism. Although most of the reactions I’ve received to that post have been broadly supportive, some people have expressed scepticism that the woman who got piled-on didn’t deserve it. So I think I’ll say a bit more about what happened.

A prominent feminist with a large following stated on Twitter that she felt the other person had made a comment in an article which was transphobic. This person then responded saying that it wasn’t actually a reference to transgender people, but she had amended it to avoid any confusion.

Frankly, the matter should have ended there. Unfortunately the person who challenged her didn’t do it by messaging her directly. She publicly “called out” the other person to her tens of thousands of Twitter followers. The result was a large, intense stream of hostile messages that continued for several hours. Days later, the recipient was still getting the occasional angry message from people who got the memo late.

I suspect most people don’t know how intimidating and upsetting a Twitterstorm can be until they’ve been Twitterstormed themselves. I have been – not by the intersectionalists, but by the fans of a TV celebrity. It leaves the recipient feeling victimised, targeted and angry. It’s probably also fair to say that the experience of a participant in a Twitterstorm is likely to be very different from that of the recipient. They may not feel they’re bullying anyone. They may feel they’re just sending a message expressing disagreement. However, the person on the other end may have received hundreds of such messages in the past hour, and is unlikely to see it in the same way.

If this was an attempt to persuade the woman in question to come over to a more intersectional way of thinking, it was a dismal failure. Not only did her anxiety disorder relapse, but she also came to the decision that she wanted nothing more to do with feminism because, “the Raping Patriarchy seem more interested in fairness than the sistahood.” (note to the irony-deficient: she was being sarcastic there.) She’s also now gone on a break from the Internet in order to safeguard her mental health.

But then it’s debatable how much of this is about winning people over. Intersectionality – the idea that different liberation movements should unite and understand how different forms of oppression intersect with each other – is in itself a very laudable aim. I fully agree with it. But I don’t think these intersectionalist Twitterstorms are actually prompted by the ideas and theories. I think they’re more the result of certain communication styles.

I’m sure I’ll get some angry disagreement for saying this, but some of the pile-ons by intersectionalists strike me as having more than a whiff of personal vendettas to them. Frequent targets seem to be figures who are perceived to be major figures in feminism or on the broader Left. The Times columnist Caitlin Moran, the Independent columnist Owen Jones and the New Statesman editor Helen Lewis get this particularly regularly; often for the most mind-meltingly trivial reasons. Frankly, it reeks of jealousy. As in, “Why did they get newspaper columns and book deals, and not me?”

I want to conclude on a positive suggestion, so I’ll recommend this post by the feminist and trade union activist Ellie Mae O’Hagan.

I will continue to voice disagreements with other feminists, but I will do so in a spirit of solidarity and respect, which recognises that ultimately our aims are shared.

I will not be rude. I will not be condescending. I will not turn debates into a kind of theatre by ensuring they are as public as possible.

I will be civil. I will be kind. I will approach debates remembering that all feminists want independence and equality, even if we disagree on how to get there. I will recognise that I don’t have all the answers myself.

In social media we’re dealing with an evolving technology. Our ideas of kindness and decency don’t so much need to evolve with it as much as we need to take the age-old concept of respectful disagreement and apply it to new media.

Bullying is wrong, whether in cyberspace or meatspace. We as adults need to role-model that, because if we don’t refrain from cyberbullying, how can we expect our children not to?