Social care direct payments and same sex carers - could individuals be liable for discrimination claims?

[PencilsInSpace]

Over the past few years the way social care is funded has changed. Those who are eligible for support from their local authority now get a personal budget to purchase their own care and support. You can choose to have your council manage your budget and arrange services for you, you can spend your personal budget with an agency, or you can choose to receive direct payments and employ your own carers directly.

Those who employ carers directly take on all the responsibilities of any other employer - tax and NI, holiday and sick pay, rest breaks, health and safety ... and compliance with equality law.

It is generally lawful to use the Genuine Occupational Requirement EA exception to advertise for a same sex carer who is not a transsexual person, however we have seen how women's organisations have been reluctant to do so, even for roles that are cited as examples in the explanatory notes to the EA itself. Partly this is due to funding pressures which would not apply to individuals entitled to and managing their own budgets, but partly it is due to fear of litigation.

Could we see individual disabled women taken to tribunal for attempting to assert their right to same sex care?

Here is an example of a typical ad for a carer, citing the EA exception.

I would contribute towards a crowd fund for legal fees, if someone put in a job advert which mentioned the Equality act sex exemptions, as a test case.

Unlikely.

As you state yourself the individual is the employer. Why would they employ someone in the first place that they were uncomfortable with?

People don't have to take their budget as a direct payment it's one of a range of options available to them. Once they are in receipt of the direct payment it's up to them to use it to meet their assessed care needs providing it is used lawfully. The whole point if a direct payment is that the person gets full control over who provides their personal care.

That's not to rubbish your concern by the way, it's just that having supported many many people to employ personal assistants using direct payments over the years I can't envisage a situation where a disabled woman would be forced to use their direct payment to employ a male bodied person if they didn't want to.

If a male bodied person applied for the role their application could binned before it even got to interview stage under the EA exemptions, or if it didn't become apparent until interview could be politely declined on the basis that it wouldn't be a good fit. Even if that left no other suitable applicants (which happens a lot of the time in normal circumstances any way) the disabled woman still wouldn't be required to employ unsuitable people just because they were the only applicant.

Yes, it's unlikely. I've now lost count of the number of unlikely things that have happened though.

If a TW decided to apply for such a post and then claim discrimination when they were turned down I can see nothing to prevent a tribunal case. Using direct payments lawfully includes adhering to the EA and there is no case law around this.

I would very much hope such a case would be unsuccessful but the stress and distress caused to the individual by being dragged through that process would be horrendous.

But they wouldn't be able to claim for discrimination because they wouldn't have been unlawfully discriminated against. They wouldn't have met the occupational requirement of the job description, which is to be female.

The employer would be covered by the equality act and would be able to lawfully use the exemptions under that. The fact that some organisations (such as refuges) are choosing to drop the occupational requirement because they are running scared of activists doesn't change the fact that Ann Smith with multiple sclerosis is still perfectly entitled to use the exemptions.

Its exceptionally difficult to bring any kind of discrimination claim because you didn't get a job anyway, and no court in the land is going to consider progressing a case where the outcome is a vulnerable disabled person is in theory forced to receive intimate personal care from someone they are uncomfortable with.

My mother employs a carer directly, and I, as her POA do my best to do it properly: contract, job description, NEST pension, PAYE, employer insurance etc.

I felt like I was taking a crash course in Personnel management, but though I received lots of advice/warning from both the lawyer and, effectivly, the insurance company on stuff like the European Working Time Directive, disputes, and redundancy, this did not come up.

There is money to be made by someone who sets up a one stop service to help new small employers employing carers. Its really complicated. I think a TRA using a disabled person as a test case would be an own goal.

There's huge disagreement even among highly qualified legal professionals on whether sex and gender are the same or different in law, whether a TW with a GRC is legally of the female sex or just treated as if they are of the female sex for almost all purposes, and when and how an EA exception can legally be used. Here are six views, all different.

Until a week before the consultation ended, EHRC stated in their guidance that where a person has a GRC they must be treated in their acquired gender for all purposes. That guidance was only taken down after pressure from women, to be replaced with guidance that says you can't ask for a GRC anyway.

For 8 years, Cambridge City Council had a policy that stated all single sex spaces, services and employment positions run by them would be trans inclusive. That was only changed a few weeks ago, again because of women campaigning ( Ann Sinnott).

We know that some TRAs are extremely litigious and will pursue cases that are utterly nonsensical, often with very high level legal representation. Probably it wouldn't succeed at a tribunal hearing. Probably it wouldn't get that far. It may get as far as a preliminary hearing though. In any case the employer would be required to respond to the claim before it was struck out. That would be enough to cause severe distress.

It's not a question of the employer being forced to accept care from a male person. That wouldn't happen even if the claim was successful. They may be worried about being ordered to pay compensation though, as well as all the usual social shaming that gets heaped on anyone accused of transphobia.

A lot seems to rest on the employer knowing to say, if asked, that the applicant was turned down because they were simply not a good fit, and not to say they were turned down because they were trans and so did not meet the female only requirement. Even though the employer would be legally entitled to say that.

I agree it's very unlikely. That's not good enough though because unlikely things keep happening lately. The EA exceptions need clarifying and strengthening so they can be used with confidence.

There are services that manage it all for you Needmoresleep. Some people choose to go it alone though and they are vulnerable. For example I have seen people getting in a muddle with NI and sick pay because they just haven't understood all the implications of being an employer.

I think a TRA using a disabled person as a test case would be an own goal.

Yes it would. They seem to score a lot of those.

They do tend to go for own goals and scorched earth behavior.

This is an important aspect to consider.

There have been challenges by transwomen to protected single sex services and spaces in countries where gender self-id has been adopted eg Canada Vancouver Rape Relief

Individual transwomen have demonstrated that they believe they are both women and female. Where an individual transwoman believes they have been discriminated against, publicity and legal challlenge seems to often follow.

Small businesses have struggled to deal with these threats.

Its important to consider the potential impact on those managing their personal budget to employ others.

Direct Payments can be used to employ care companies too. Councils have arrangements with local care companies have for a lower hourly charge for care.
this could be messy in terms of hiring carers, and assigning cares. most women want female cares, especially with personal care, washing dressing etc. Many have dementia and could be very distressed, by what they perceive as man in their home.
Also many muslim women work in care, and many not be able to work with men, if they have a TW client who wants female cares, then there is that to manage.
Good luck care companies!!

Anyone can sue. They dont have to have a solid case, and the effect on the victim of vexatious litigation are as bad as if they were guilty of wrongdoing.
There are constant, similar challenges where self ID has been introduced in Canada, and also in North America where self ID hasn't been introduced.
They include cases against women only Rape Crisis, DV shelters and homeless shelters; and a case against a beauty salon where a Muslim woman was employed to provide a personal waxing service.

Its pointless saying 'it cant happen'. The worst case scenario that you can think of has already happened, and yet this movement gathers momentum with many men supporting it.

We need to think ahead now.

I am not sure it would not happen.

I don't do direct payments but something similar. I always have blokes getting arsey and hinting at discrimination when I reject them. However, when I explain that there is an element of personal care involved, they back off. I can definitely see a transwoman doubling down at that point of the conversation.

As an aside, when I reject women they never come back to me in the same manner.

I found this: National Audit Office report on adult social care. Figures for adult social care in England 2016-17:

581,000 people receive home care and support from their local authority. 86% of these are age 18-64 and fall into one of three groups in terms of their primary care needs: physical support, learning disability support, mental health support = 499,660 people.

Of these, 88% receive some form of direct payment or personal budget = 439,700 people.

Of these, an average of 37% receive direct payments = 162,689 people.

This doesn't include those over 65. It's not clear from the data in this report how many people over 65 are purchasing their own care directly (16% of those who receive a personal budget) - it would be worth looking at the original NHS data that NAO have used.

This doesn't include those under 18.

This doesn't include people who self fund their care. There are an estimated 145,000 to 249,000 people paying for their own care in their own homes.

Around 85,840 carers receive direct payments. 52,000 received respite care but it's not clear from this report how many carers arranged their own respite care.

This is just England. It doesn't include Wales, Scotland or Northern Ireland.

This is just back-of-a-fag-packet stuff but it's already clear this affects hundreds of thousands of the most vulnerable people in the UK.

'Unlikely' isn't good enough.

Pencils, I think you've raised a a very good (and very worrying) point. If self-ID becomes law a TW could very easily claim sex discrimination if they weren't appointed to a carer's post that was open to women only. And as Upstart says, it costs nothing to start an employment tribunal claim. There are provisions for a meritless case to get thrown out but discrimination cases tend to go the distance because employment judges usually take the view that it's impossible to determine whether a case has merit without hearing all the facts.