5. Submissions by Mr Friedman

Mr Friedman: My Lady, we act for Disability Wales and Disability Rights UK and this is their first appearance in Module 2B and can we thank Mr Poole KC and his team for the way they have updated us and welcomed us into this part of what is a unique four nation Inquiry process.

As we did with Scotland last week, can I briefly summarise some Welsh reference points that provide an initial route into understanding how the risk to disabled people was governed during Covid.

My Lady, you and your team must adopt many lenses to scrutinise the events this Inquiry is tasked with exploring. We speak for a particular but essential lens because of the triple jeopardy that disabled people faced during the pandemic, which was: first, far more fatal Covid outcomes; second, being cut off from other acute healthcare and treatment to fatal and damaging effect; and, third, the disproportionate impact of lockdowns and related measures.

In Wales, the statistics on that triple jeopardy are stark. 68 per cent of deaths from Covid-19 between March and July 2020 were among disabled people. Their exposure was foretold by Government studies in the two years before the emergency. 39 per cent of disabled people in Wales were in poverty compared with 22 per cent of non-disabled people and the poverty rate amongst disabled people in Wales was the highest in all of the UK. There was lower mental wellbeing among disabled adults, disabled people faced significant barriers in accessing healthcare, including access to health checks, suitably trained staff and rehabilitation services.

Although not its authors, the Welsh Government recognised that austerity law and policy, reserved to the UK Parliament, had “blighted the lives of disabled people in Wales and had a devastating impact on thousands of individuals, carers and families”.

In terms of using human rights approaches to comprehend what occurred in the relationship between the state and disabled people during Covid we ask you to note that the approach to disability and related rights in Wales is different to the law and policy of the UK Government in four ways:

First, the Welsh Government produced a framework for action on independent living in 2013 and updated it in 2019, which sets out how it plans to fulfil its obligations under the United Nations Convention on the Rights of Persons with Disabilities, the UNCRPD. You know something similar has been done in Scotland.

However, Wales is the only part of the UK where codes of practice issued under the Social Services and Well-Being (Wales) Act 2014 require local authorities to have due regard to the UNCRPD when exercising their functions in relation to disabled people and their carers. Secondly, the obligations under the Convention that disabled people must be included in law and policy making to collaborate in their co-design and co-production was accepted by the Government of Wales prior to the pandemic.

It also finds statutory expression in the Well-Being of Future Generations (Wales) Act 2015, that requires public bodies to adopt an integrated, inclusive and collaborative approach to service delivery. The Welsh Government sees this as an obligation to focus on giving people and communities a voice in how their services are provided.

Thirdly, the Welsh Government, like the Scottish Government, but not yet the UK Government or Northern Irish Government, has formally supported the social model approach since 2002 and reaffirmed its commitment to it in December 2022. In the words of the Disability Rights Task Force it seeks:

“… solutions to challenge the structural, physical and attitudinal barriers that disabled people face. Structural discrimination is therefore taken as a given and its recognition an essential condition for change. Likewise, intersectional understanding is accepted as a necessary discipline by the Welsh Government declaring in terms that it is very important that disability action policy is closely linked to other aspects of equality, including other protected characteristics, as defined by the Equality Act …”

It goes on to add:

“… and perhaps most importantly issues relating to income and poverty.”

Fourthly, the mitigation of inequalities has been fashioned into legal duty prior to the pandemic. The future generations’ wellbeing Act of 2015 placed on a statutory footing a set of wellbeing goals that includes developing a more equal Wales, defined in section 4 of the Act as a society that enables for people to fulfil their potential no matter what their background or circumstances, including their socioeconomic background and circumstances.

Since March 2021, Wales has brought into force section 1 of the Equality Act 2010 that mandates public authority attention to the desirability of an exercise in relevant functions in a way that reduces inequalities of outcome resulting from socioeconomic disadvantage.

Drawing these four features together, my Lady, we provisionally suggest to the Inquiry that there are lessons from and for Wales. There is a body of law and policy concerning human rights, equality and wellbeing in Wales that distinguishes it from the other four nations, including that it not only recognises the value of disabled people’s lives but it is mindful of some aspect of asset redistribution to enable those lives to better.

We will urge the Inquiry to ask what difference this made and how it might make more of a difference if scaled up into a UK-wide integrated focus on securing the resilience of disabled people in future emergencies.

For its part, Disability Wales recognises the efforts of its government but equally draws attention to the gap between rhetoric of national policies and what happens on the ground. The deficiencies of engagement, planning, data collection and austerity economics, especially at the local level all played their part in Welsh disabled people’s triple Covid jeopardy.

We commend to the Inquiry what is said in the Welsh Government Commission report, Locked out: liberating disabled people’s lives and rights in Wales beyond Covid-19. Despite the official recognition of the social model, the report identified a resurgence of medical and vulnerability models that informed the response to Covid. When non-disabled people’s experience of normal life came under threat by a pandemic, government and administrative decision making rapidly became thoughtless about the implications of Covid response measures on disabled people’s lives. As the Locked out report puts it, this kind of thoughtlessness helps to illustrate a much more pervasive problem, the way taken-for-granted, ableist assumptions dominating decision making that can have life limiting consequences for disabled people.

My Lady, we have addressed you in Module 2 and 2A hearings on how expertise and experts might be viewed from the point of view of disabled people’s organisations. For Wales, we therefore add the following five points:

First, on present disclosure it appears that there was no expertise regarding disability present at the Welsh Technical Advisory Group which advised its Government in parallel with SAGE. You have heard that the response to the Rule 9 requests from members are awaited. However, unlike in the other four nations and more generally for the UK Government, the Deputy Minister in Wales convened a Disability Equality Forum which met five times in the four months following the lockdown and which disability Wales participated in. The disabled people’s organisations were also enrolled into a Covid-19 Moral and Ethical Advisory Group.

Second, we contend that part of the gap in real-time expertise can now be filled with disabled people’s organisations. As the updated framework for independent living in Wales puts it, “Engaging with people is the only way of knowing that services are providing what people need and want and can generate better ideas and more innovative approaches”. Disability Wales has taken a key role in that process in its country and it should be enabled to do the same in this Inquiry.

Third, we support what other CPs have said, Ms Harris and Mr Jacobs this morning, as to whether the forthcoming reports on devolution will need to be supplemented by devolved power experts for Wales as a discrete nation. We welcome Mr Poole’s indication this morning that this will be kept under consideration and that may need to be considered for other submodules.

Fourth, we also endorse what has been said by Ms Harris on behalf of Bereaved Families for Justice as to the need for in-depth focus on older people.

Fifth, following the Module 2 ruling on expert evidence and structural discrimination and as my Lady moves towards assembling a small group of experts and thinking about how inequalities impacted on the pandemic response, it may help to bear in mind that in civil contingency theory of the UK Government, there is a key principle of resilience. We apprehend that it will feature considerably in Government disclosure.

We are not against the principle, we just urge you to be wary of how its application can fall victim to ableist and other discriminatory assumptions. That is especially so when it is applied without appreciating the resources, arrangements and web of social and economic relationships that provide resilience to some but not other parts of society. Your experts and other lines of Inquiry will be helped by seeking to illuminate the distinction between resilience as a concept and reality.

As my Lady knows, we have dealt with various process matters in our written submissions and in previous hearings, such that I do not repeat them here. Because time is short and the endeavours of the Inquiry are justifiably ambitious, it has been important to highlight some key ideas and documents early. We share them with you and your counsel because, parallel to establishing the mechanics of the Inquiry’s process, must be some understanding of subject matter, particularly so in our clients’ case, namely, the disabling barriers and attitudes that were detrimentally unaccounted for by the non-disabled part of state and society in real time.

In that respect, the Inquiry process-related decisions we contend for are those which are made and if necessarily altered along the way with the situation of disabled people in mind.

My Lady, those are our submissions.

Baroness Hallett: Thank you very much indeed, Mr Friedman. As ever, you make some very important points and, as I think you know, I will very much bear them in mind and keep everything under review. So thank you indeed for your constructive suggestions.

Lastly, we turn to Ruth Henke KC for the Welsh Government.