An update to the equality analysis for the 'Future of Access to Work May 2015'

Question 1

Option A Retaining cap at current level of 1.5 times average salaries and ending transitional protection as planned in April 2018

Accepted Answer

9. Customers have had 3 years notice since March 2015 to work towards a cap of 1.5x salaries. Although the number of individuals benefitting from TP from October 2015 was higher than the number of individuals identified as spending above the 1.5 times level (then £40,800) in the original equality analysis (approximately 240 versus approximately 200) this was not unanticipated as individuals had a 6 month window to try to ensure they entered the TP period on the most advantageous terms.

10. In terms of changing behaviours to make best use of resources, the average spend of the approximately 200 TP individuals with substantial current spend, has reduced from a protected average of £57.000 per person a year to £45,000 per person a year, an average reduction of £12. 000 per person in annual spend.

11. 42% of the TP customers have reduced their spend to below the April 2018 1.5 times cap figure of £43,100.

12. This has freed £2.4 million a year to be recycled to support more AtW applicants.

13. Since October 2015, customers who are not transitionally protected at their October 2015 levels of spend have been subject to the cap. Becoming capped could occur for example when a brand new customer presents with needs above the prevailing limit or when a customer with an existing award wishes to have it increased to a level beyond the prevailing limit. When this happens a new annual award is made up to the level of the cap. For 2016/17 DiSC reported 150 individuals receiving such awards at £41,400 (0.6% of all awards) of whom 140 reported as ‘Deaf or hard of hearing’ and 10 as ‘visually impaired’.

14. Although the cap as not been in operation for the TP group, the period was provided for the explicit purpose of working towards the 1.5 times figure and it is clear that substantial progress has been made.

15. There are no reasons to suggest that the position for groups with other protected characteristics has materially altered from the 2015 equality analysis. As noted information on many characteristics is not relevant to the administration of the scheme and is therefore not recorded.

16. By far the most significant characteristic that distinguishes capped and uncapped customers remains disability type. Deaf customers are in the vast majority, with the small remainder comprised mostly of those with visual impairments as per the 2015 study. This is however inevitable in any measure that seeks to place an upper limit on awards to address the contradiction and unsustainability of making infinite commitments of support from finite resources, where the overwhelming beneficiaries of the lion’s share of high value awards have come from one or 2 specific disability groups. It remains the case that due to the very small numbers affected at the 1.5 times level (150 non TP customers and approximately 120 TP customers, of whom approximately 140 and approximately 110 respectively are Deaf/hard of hearing) the chances of a particular customer from those groups being affected are low (for example 7% of Deaf/hard of hearing customers and less than 1% of visually impaired customers).

17. In general, stakeholders have submitted that the introduction of a cap would have a ‘chilling’ effect on the recruitment and retention of Deaf people however to date we have not seen a decline in Deaf people being awarded provision although this metric will continue to be kept under review.

18. In 2016/17 the number of customers with any type of AtW provision awarded in-year rose to 25,020. As chart 1 shows, the number of Deaf customers with AtW provision approved in each year has been broadly flat since 2011/12 and there is no evidence of divergence from this trend since the cap was introduced in 2015.

Chart 1: Provision approved by year for selected groups^{[footnote 5]}

Chart showing amount of Access to Work provision each year from 2011/12 to 2016/17 for Deaf or hard of hearing people, people with back or neck problems, people with dyslexia, people with visual impairments and people with a mental health condition

19. At the time of writing, publication of official statistics for the labour market status of disabled people has been suspended due to data discontinuity^{[footnote 6]}. As such analysis of employment rates of disabled people by primary disability type cannot be performed.

20. Inclusion London has reported in general terms that the cap has (due to insufficient support worker cover) resulted in some Deaf employees missing days of work, experiencing non-communication days at work, experiencing isolation at work and being unable to participate in professional development. Whilst we accept that the existence of a cap necessarily impacts on some of those customers with the highest needs falling above the cap level who despite their and their employers’ best efforts cannot manage their needs to below the cap level, and that that group is predominantly Deaf British Sign Language users due to them being the overwhelming beneficiaries of the highest award levels, when viewed against the underlying purposes of the cap (behaviour change for employers, increased use of technology, the widening of the scheme to more disabled people with a range of needs which whilst lower cost are no less important), we maintain that the rationale for the cap is proportionate and its effect largely beneficial from an equality perspective. We also observe that the information put forward by Inclusion London does not take account of the core policy objectives of behaviour change (incentivising employers to comply with their statutory reasonable adjustment duties and both employees and employers making better use of technology and shared resources) which when achieved substantially mitigate the effects of the cap and significantly narrow the numbers affected.

21. Specifically, the survey by DeafATW in September 2017, relating to 29 customers already capped and 58 customers who would be capped in April 2018, reported that:

Deaf and disabled people are worried that the cap will act as a ‘glass ceiling’, making it more difficult for Deaf people to get and progress in customer facing, professional and more senior roles; and that the cap inhibited customers (60% of the capped respondents) with regard to applying for future promotions, had prevented past promotions (38% of the capped respondents) and had the effect of blocking career development
only a small percentage of employers (30% of the capped respondents’ employers) were paying some or all of the shortfall between support costs and AtW payments, conversations about the cap had negatively affected some customers’ relationship with their employer (62% of the capped respondents and 57% of the respondents to be capped); and some deaf customers (63% of the capped respondents) worked on some days without the communication support they needed, some (48% of the capped respondents) did not attend meetings or training that they should attend as part of their job and others (34% of the capped respondents) said they could no longer meet the needs of their job role
some employers (28% of the capped respondents’ employers and 37% of those to be capped) were contemplating action to check whether respondents could still do their job properly. In summary, the consequences of the shortfall between support costs and AtW payments would be underperformance leading to potential disciplinary measures and loss of employment, either instigated by the employer or arising from such severe stress that the employee is forced to leave employment
the not-for-profit and public sectors, and Deaf and Disabled People’s Organisations (DDPOs), are key sources of employment opportunities for disabled and deaf BSL users; and these organisations are facing increasing funding constraints
the cap will erect barriers to Deaf and disabled people obtaining employment, resulting in increased discrimination, lack of equality of opportunity and segregation within the labour force. One deaf BSL user was reported as having had their job offer withdrawn by a local authority once they found out about the cap

22. As regards the DeafATW survey findings, we observe that:

in relation to a ‘glass ceiling’ (progress in professional and more senior roles) and promotions, the primary objective of the AtW scheme is to assist as many disabled people to enter and remain in work as reasonably possible, and if it can additionally enable them to progress and realise their potential then that is a welcome aim; however, the scheme cannot realistically guarantee to eradicate all difficulties experienced by disabled people but instead is most proportionately used to spread what meaningful benefit it can make over the widest possible range of employment scenarios and disability groups
in relation to the reported low percentage of employers assisting with support costs, barriers to training opportunities, the deficit in communication support cover and the reported contemplated disciplinary action, there is a clear implication that further behaviour change is needed because employers are not sufficiently discharging their statutory reasonable adjustment duties; and the cap is a key driver needed to achieve that behaviour change; further, no concrete evidence was provided that employers in the survey in fact pursued any disciplinary action. One of the intended effects of greater uptake of AtW funded holistic workplace assessments is the facilitation of 3-way conversations between the assessor, the customer and the employer, exploring what adjustments can be made and supportively reminding employers of the statutory nature of their duties to make ‘reasonable adjustments’ – which could well be extensive if their resources are significant
in relation to funding constraints, whilst we accept that size and nature of employer is one of the factors to be taken into account in relation to whether an adjustment is reasonable under the Equality Act 2010, we do not agree that the public, not-for-profit sectors and DDPOs are necessarily unable to assist with disability costs by way of reasonable adjustment; indeed those sectors often have the suitable experience and culture to enable them effectively to assess and put in place suitable adjustments for disabled employees;
in relation to alleged barriers to employment, we maintain that the underlying purposes the cap are beneficial from an equality perspective, and that the negative effects fall upon only a very small number of customers as opposed to the benefits applying to the overwhelming majority of customers. We therefore maintain that taken as a whole the cap is a proportionate means of achieving positive equality aims

23. Although a considerable proportion of TP individuals have made progress towards the cap, and over 40% now fall within the April 2018 level based on their 12 month spend to November 2017, approximately 120 people remain above the cap. UKCoD have made representations based on their survey data and case studies, particularly concerning those (approximately 120 TP customers) whose spending remains above the 1.5 times level but also concerning the aspirations of future generations whom they believe the current level does not allow to be supported in instances where employers do not provide extra support – albeit that there are statutory rights to reasonable adjustment enshrined in the Equality Act. Whilst stimulating behavioural change to ensure greater use of resources and allowing the overall scheme to help more people are key aims which we re-iterate and uphold, it has always been policy intent to pursue those aims whilst attempting to minimise negative impacts on the careers and livelihoods of those who still find themselves outside the cap despite making better use of resources – insofar as this is reasonably possible. Accordingly, whilst we maintain that the current cap in principle is necessary and proportionate in light of the points made above in its favour, we also consider below the potential impact of varying the cap or TP level/duration.

Question 2

Option B Retaining cap at current level of 1.5 times average salaries and extending transitional protection at certain levels and for certain periods

Accepted Answer

24. Given that we believe the available data does point to the cap at 1.5 times level substantially achieving the aims of people managing their support at lower cost and freeing resources it is a logical step to consider whether the residual problem of approximately 120 TP customers still spending above the 1.5 times level is simply one of more time that could be addressed by extending TP further – possibly by an intermediate amount rather than October 2015 protected levels. All approximately 120 individuals would benefit to some degree by such a move, the extent to which they would do so varying according to the level and duration of any further TP.

25. The clearer arguments against such a move are the entrenching of a 2-tier system. Individuals who have made greater efforts to move within the cap, or not been protected could point to an unfairness. Further the policy intention behind providing a generous TP period was to permit as much progress to be made as possible. It is unclear that if the approximately 120 TP customers spending over the 1.5 times limit have been unable to bring their spend to within that limit in 3 years that any more time to do would be helpful. UKCoD also maintain that extending TP without revising the basic cap level would do nothing to address the issue they raise on longer term aspirations for new generations of Deaf applicants.

Question 3

Option C Raising cap to 2.5 times average salaries (£71,500) and ending transitional protection as planned in April 2018

Accepted Answer

26. Raising the basic cap for all AtW customers in a way that retains the link with earnings is an important design principle as it allows the value of awards to keep pace with the (usually) human support that the awards mostly pay for. However it is necessary to consider which multiple of earnings is used. We must consider what represents the optimum and proportionate balance between changing behaviours to drive efficiencies and employers having shared incentives.

27. Raising the cap to this level would leave only around 10 TP individuals affected with 110 TP customers (over 90%) taken out of scope entirely. These approximately 10 individuals are exclusively Deaf/hard of hearing or visually impaired (VI) but overwhelmingly Deaf/hard of hearing and have an average current 12 month spend of £74,500. They represent a tiny fraction (1/2500) of those with any AtW provision approved annually. With an award limit of £71,500, AtW would be supplying over 95% of their needs. The direct loss in savings compared to a cap of 1.5 times from April 2018 would be around £1.2 million a year. This assumes transitionally protected customers continue their current average spend, and those spending above £71,500 will be capped at this level. Raising the cap to this level could also lead to a change in behaviour, the size of which is by nature hard to quantify but we estimate to be in the region of £4.5 million a year. Our analysis is based on the distribution of awards relative to average salaries in the years before the AtW cap was announced. This £4.5 million represents the potential rises in the value of repeat awards for customers previously impacted by the cap and the awards to new customers as compared to an environment where awards are capped at 1.5 times average salaries. Therefore we estimate a total cost to be around £5.7 million a year. It should however be noted that advisers will not invariably agree to raise amounts up to the cap in all cases. If customers have demonstrated that they have been managing at the level of the cap then there is no specific reason to award more than that.

28. At such a high level, the cap assumes a more theoretical than practical limit for nearly all customers. It is unclear what the unintended consequences of setting the cap so high as to be quite unrelated to the experiences of most even high value award customers could be – particularly in encouraging a rolling back of efficiencies made, and also in signalling to employers that AtW provides a contribution in partnership with disabled people and their employers rather than the taxpayer meeting virtually all costs in nearly all circumstances. However, we assess on the basis of the evidence base thus acquired during the transitional protection period thus far, that the effect of a 2.5 times average salary cap would be to reverse the progress thus far made in terms of the core objectives of the scheme.

Question 4

Option D Raising cap to 2 times average salaries from April and ending transitional protection as planned in April 2018

Accepted Answer

29. An intermediate position between the 1.5 times salary position (£43,100) and the 2.5 times level (£71,500) is a 2 times multiple (£57,200) from April 2018.

30. Setting the universal cap figure at this level would mean over 80% of the original TP group who still have significant spend being brought within the cap level. There are approximately 40 individuals still spending above this level with an average of £64,100. Accordingly an AtW award at the limit would meet nearly 90% of the needs of these approximately 40 individuals at a continued combined cost of just over £2 million a year to AtW.

31. Assuming a fairly typical 230 working days per year for a full time individual, an award at this level would provide AtW support of just under £250 per day. Given as with all levels of award at this level, they are overwhelmingly held by Deaf customers – particularly BSL users, this figure is particularly pertinent as it closely corresponds to the suggested fees provided by the National Union of British Sign Language Interpreters (NUBSLI) for full day BSL interpreting for 1 January 2017 to 31 March 2018^{[footnote 7]} which for fully qualified interpreters (RSLI) are given as from £210 in the north east to £260 in London and the south east.

32. The effect on future AtW resources available for re-allocation is potentially minus £1 million a year due to having a cap at this level compared to 1.5 times salaries from April 2018. As above, there is a potential behavioural impact which is difficult to quantify. We estimate this behavioural impact would be around £3.4 million a year. In total this gives a reduction in savings for re-investment in the region of £4.4 million a year. However, it more closely meets the needs of many of the primary disability group that are affected by the cap at all levels – as well as other affected groups and addressees many of the issues presented by UKCoD. It also represents an easement for those with smaller employers who may have lower statuary duties to provide reasonable adjustments in addition to AtW support than those with larger employers or self-employed people who have greater choice and control in the work they take on. For all these reasons a 2 times average salary level could represent a more finely balanced position which would address the concerns voiced by stakeholders whilst retaining the design principles and the key rationales and benefits of the cap, whilst avoiding the risk of reversing the significant gains made to date by the cap in those areas.

33. A further reason for raising the cap to the 2 times level is the fact that the central contracting proposed for BSL interpreters through the Crown Commercial Services has not proceeded, and the market review did not identify any impact on reductions in the costs of interpreting, which was a potential factor during the transitional period, owing to the fact that the BSL interpreter market does not demonstrate perfect competition. As one of the potential mitigations considered in the earlier equality analysis has not delivered any relief, this might indicate that the 1.5 times level would have a more severe effect than could be expected with such a mitigation in place as it provides around £185 per day for a typical working year which is unlikely to source a full day’s BSL interpreting, whereas the 2 times average salary level provides for just under £250 per day – much closer to the upper range of BSL interpreter daily rates as suggested on the National Union of British Sign Language Interpreters (NUBSLI) website which range from £210 to £260 for 2017/18.

Question 5

Option E Further supporting mitigations alongside consideration of overarching cap level and/or transitional protection

Accepted Answer

34. This measure would complement the prevailing cap level and hence would not add any disadvantage over and above the fact of the existence of the cap at that prevailing level. It would apply to all customers equally without disadvantaging any sub-group. Its purpose would not be to seek to reduce spend below the prevailing cap level, but instead to assist those customers who may be having difficulties in managing their needs within the prevailing cap level, to find ways in partnership with their employer to manage within the cap level whilst avoiding detriment. Hence, we judge that the measure is neutral if not beneficial from an equality perspective because it seeks to manage customers’ needs so as to avoid detriment, thereby potentially removing adverse effects of the cap for those near or not significantly beyond it. For those significantly beyond the cap level, there would also be a benefit in that any shortfall may be reduced. The voluntary cost share element would likewise be beneficial from an equality point of view because it would perform the same function whilst (due to its voluntary rather than mandatory nature) not undermining the aim of the scheme to de-risk the employment of disabled people.

(b) AtW to offer links to UKCoD suggested help sites

35. This measure would assist customers to access and source assistance with managing their day to day needs. In the same say as the award scrutiny / voluntary cost share measure, it thereby has the potential to benefit all customers by either removing or limiting any adverse effect of the cap. We therefore judge that the effect would be beneficial from an equality perspective.

(c) Workplace assessments – provided co-produced guidance is available to assessors on sensitively leveraging reasonable adjustments and promoting technology; and trialling technological solutions not prejudicing returns to original award packages (Tech fund included)

36. The purpose of this measure would be to assist those customers who may be having difficulties in managing their needs within the prevailing cap level, to find ways in partnership with their employer to manage within the cap level whilst avoiding detriment. Three way conversations between the assessor, the customer and their employer are important in ensuring that adjustments that can be made are fully explored, and in supportively reminding employers of the statutory nature of their duties to make ‘reasonable’ adjustments. Therefore, the measure is beneficial from an equality perspective because it seeks to manage customers’ needs so as to avoid detriment, thereby potentially removing adverse effects of the cap for those near or not significantly beyond it, and reducing any shortfall for those significantly beyond the cap level.

(d) Managed personal budgets

37. The purpose of this measure would be to increase the control that customers have over the use of their awards, enabling them better to manage fluctuations in need at short notice and avoid missing opportunities to make urgent flexible choices that could potentially involve better use of resources than having to go through a process to get AtW agreed provision changed to meet new circumstances. The measure therefore potentially assists all customers who choose to participate in this way to manage their awards, and is therefore beneficial from an equality perspective.

(e) Retention of discretion to allow previous years underspends to be offset against subsequent year purchases in exceptional cases for example in cases of multiple disadvantage

38. Inclusion London reported that disabled people with high support needs are concerned that the cap will affect them in years when they have to purchase expensive equipment such as electric wheelchairs, the cost of which can take them well over the cap. We acknowledge that this is a potentially unintended consequence of the cap and therefore an issue that it is appropriate to seek to address if possible. A way of addressing it would be to allow the discretion for underspends to be offset against subsequent year purchases in exceptional cases for example in cases of multiple disadvantage.

39. This measure would allow some customers to benefit from awards higher than the cap temporarily over a part of their three year award. There will be an adverse impact on customers not benefiting from the measure, in the sense that those customers with permanent needs above the cap will not have the same advantage. Those with permanent needs over the cap will, on current data, predominantly be BSL users, though only a small percentage – potentially around 7% of BSL users assisted by the scheme overall will be adversely affected by not benefitting from that concession^{[footnote 8]}. However, we think that the measure is justified notwithstanding that adverse effect because:

the measure is aimed at providing a mechanism for those with multiple disadvantages partly met by ongoing support usually below the cap to avoid being penalised by the cap for temporary excess
due to their multiple categories of need, that group of customers is arguably more severely disadvantaged than customers with purely BSL needs and the measure actively promotes equality of opportunity for that group and
the measure is a proportionate way of achieving the aim in the first bullet because it does not permanently violate the integrity of the cap and the disadvantaged group of customers only suffer a limited and time-bound form of disadvantage
ultimately over the three year period, everybody is treated in the same way

(f) Continued monitoring of the impact on the TP group, recording at annual reviews any changes to employment, roles, hours etc

40. In the event of any option being proceeded with, in line with the Public Sector Equality Duty (PSED) the department will continue to monitor the impact of the cap – in particular recording changes to employers, job, roles, and hours worked and seniority. If elements of Option 5 are also incorporated for example asking for voluntary cost-share beyond a certain trigger point – then the extent of that and employer responses will also be recorded.

41. In conjunction with the above further supporting mitigations, this measure seeks to track how the cap is affecting the transitionally protected group, with a view to ascertaining whether they can be assisted in managing their needs and reducing any shortfall. It is therefore positive from an equality point of view because it seeks to provide a route to reducing any adverse effects of the cap.

Question 6

Points to note

Accepted Answer

This addendum draws on management information held on transitionally protected customers rounded to nearest whole ‘10s’ (so may present some rounding anomalies – particularly due to the small sample sizes).

Non-TP customers who are already subject to the cap are derived from DiSC and are subject to the usual roundings to the nearest ‘10s’; Due to the part year nature of implementation (from Oct 2015) and 2017/18 not yet being concluded, figures used are for 2016/17.

Statistics may exclude people who withdrew their application entirely after finding out they were subject to the cap or existing customers who did not apply for a further element they otherwise would have that would have exceeded the cap – including TP customers.

They may include people who coincidentally applied for an element with an anticipated cost equal to but not in excess of the cap.

An unquantifiable amount of savings is already likely to have been realised from those who are already capped but might have had higher awards in the absence of the cap. The equality analysis published in 2015 estimated the total overall savings as £3 million a year which would start to be achieved gradually from introduction and only fully realised from April 2018.

Around 20 TP customers still had live claims in the period to November 2017 but anomalously low spends which could indicate career, breaks, maternity/paternity leave, sickness etc. These have been disregarded to avoid conflating impacts with those we believe are due primarily to the cap. ↩
Disability Service Client – the Database used by AtW. ↩
http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2015-03-12/HCWS372/ ↩
http://deafcouncil.org.uk/about-us/member-organisations/ ↩
Derived from Access to Work official statistics ↩
https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/datasets/labourmarketstatusofdisabledpeoplea08 accessed on 23/04/18. ↩
http://www.nubsli.com/guidance/interpreter-fees/ ↩
Estimated 3,000 total BSL customers from 2015 equality assessment. Estimate those BSL users above cap so will not benefit from concession are 140 of the 150 ‘new’ capped customers in 2016/17 plus the 68 TP customers with spend over £50,000 a year. ↩

An update to the equality analysis for the 'Future of Access to Work May 2015'

Option A
Retaining cap at current level of 1.5 times average salaries and ending transitional protection as planned in April 2018

Chart 1: Provision approved by year for selected groups^{[footnote 5]}

Option B
Retaining cap at current level of 1.5 times average salaries and extending transitional protection at certain levels and for certain periods

Option C
Raising cap to 2.5 times average salaries (£71,500) and ending transitional protection as planned in April 2018

Option D
Raising cap to 2 times average salaries from April and ending transitional protection as planned in April 2018

Option E
Further supporting mitigations alongside consideration of overarching cap level and/or transitional protection

(b) AtW to offer links to UKCoD suggested help sites

(c) Workplace assessments – provided co-produced guidance is available to assessors on sensitively leveraging reasonable adjustments and promoting technology; and trialling technological solutions not prejudicing returns to original award packages (Tech fund included)

(d) Managed personal budgets

(e) Retention of discretion to allow previous years underspends to be offset against subsequent year purchases in exceptional cases for example in cases of multiple disadvantage

(f) Continued monitoring of the impact on the TP group, recording at annual reviews any changes to employment, roles, hours etc

Points to note

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Option A Retaining cap at current level of 1.5 times average salaries and ending transitional protection as planned in April 2018

Chart 1: Provision approved by year for selected groups[footnote 5]

Option B Retaining cap at current level of 1.5 times average salaries and extending transitional protection at certain levels and for certain periods

Option C Raising cap to 2.5 times average salaries (£71,500) and ending transitional protection as planned in April 2018

Option D Raising cap to 2 times average salaries from April and ending transitional protection as planned in April 2018

Option E Further supporting mitigations alongside consideration of overarching cap level and/or transitional protection

(a) Using the 1.5 times level as a trigger for greater award scrutiny and systematic asks (and recording) of voluntary cost share from employers

(b) AtW to offer links to UKCoD suggested help sites

(c) Workplace assessments – provided co-produced guidance is available to assessors on sensitively leveraging reasonable adjustments and promoting technology; and trialling technological solutions not prejudicing returns to original award packages (Tech fund included)

(d) Managed personal budgets

(e) Retention of discretion to allow previous years underspends to be offset against subsequent year purchases in exceptional cases for example in cases of multiple disadvantage

(f) Continued monitoring of the impact on the TP group, recording at annual reviews any changes to employment, roles, hours etc

Points to note

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Option A
Retaining cap at current level of 1.5 times average salaries and ending transitional protection as planned in April 2018

Chart 1: Provision approved by year for selected groups^{[footnote 5]}

Option B
Retaining cap at current level of 1.5 times average salaries and extending transitional protection at certain levels and for certain periods

Option C
Raising cap to 2.5 times average salaries (£71,500) and ending transitional protection as planned in April 2018

Option D
Raising cap to 2 times average salaries from April and ending transitional protection as planned in April 2018

Option E
Further supporting mitigations alongside consideration of overarching cap level and/or transitional protection