What does it mean to be a carer?

Professor Ann Stewart, University of Warwick, UK.

Book Cover for ReValuing Care in Theory, Law and Policy

ReValuing Care in Theory, Law and Policy: Cycles and Connections

Why would anyone want to call themselves a carer?  Are not all of us carers in one way or another?  As feminists have long argued we all give and receive care to a greater or lesser extent throughout our lives, as friends, lovers, family or community members. Privileging ‘a carer’ is to isolate a particular form of autonomous actor when we need to recognise that all are involved in relationships that are fundamental to the functioning of any society (Herring 2013).

Yet caring is often not recognised, as a number of international organisations, academics and activists have argued in the debates over the Sustainable Development Goals (SDG) (Razavi 2007, Sepuldeva 2014, Budlender and Moussié 2013). They have called for policy development to take account of the 3 Rs – recognise, reduce and redistribute the burden of care (Elson 2008), with some success.  Target 5: 4 of the SDG equality goal requires all to: recognize and value unpaid care and domestic work through the provision of public services, infrastructure and social protection policies, and the promotion of shared responsibility within the household and the family as nationally appropriate.

While raising the political profile of unpaid care is important, framing the ‘problem’ in this way can obscure the wider implications of what feminist political economists term social reproduction (SR). Rai and Hoskyns describe it as:

biological reproduction; unpaid production in the home (both goods and services); social provisioning (by this we mean voluntary work directed at meeting needs in the community); the reproduction of culture and ideology; and the provision of sexual, emotional and affective services (such as are required to maintain family and intimate relationships) (2007, p. 300).

SR captures the crucial relationship with ‘productive’ activities while recognising the range of ‘tasks’ involved. It encourages us not to focus only on specific groups who are seen as in need of care or who provide particular forms of care.  It avoids the language of ‘burden’ while requiring us to address what feminist political economists call ‘depletion’.  Rai, Hoskyns and Thomas define depletion in SR as ‘the gap between the outflows – domestic, affective and reproductive – and the inflows that sustain health and well-being’ (2014, p. 86). Depleted social reproduction (DSR) is the level at which ‘the resource outflows exceed resource inflows in carrying out social reproductive work over a threshold of sustainability, making it harmful for those engaged in this unvalued work’ (ibid., p. 88–9). They argue that there are ‘three strategies to reverse DSR – mitigation, replenishment and trans-formation’ (ibid., p. 98). DSR is mitigated ‘when individuals attempt to lessen the consequences by, for example, paying for help’. It is replenished when ‘states or private bodies contribute to inflows’ ….). Restructuring of gender relations and the recognition and valuation of SR are necessary for its transformation (ibid., 2014, p. 99).

Thus for policy makers to recognise SR it is essential to develop appropriate ways of measuring the net cost of SR. It has to be quantified in some way.  In legal terms it has to be ‘claimable’ but on what remedial basis?  Is an individual being ‘compensated’, ‘rewarded’ or ‘remunerated’ (Sloan 2013: 24)? Each remedy points to a different way of valuing the activities associated with caring and mitigating the consequences. Compensation focuses ‘on the loss or detriment suffered by the carer as a result of taking on caring responsibilities’ (ibid.). Or is ‘the true value of the services performed by the carer as a benefit conferred on the care recipient […] recognised only if we are prepared to speak of “remuneration” or “reward”’ (ibid.)?

My chapter in the ReValuing Care edited collection (Stewart 2017) focuses on the way in which carers in the UK are understood in the domain of paid work, within recent social welfare legislation, notably the Care Act 2014 and in private law. What do we learn from the way in which carers appear in these different areas of law? What form of value is associated with these different locations? Is there any coherence in the way in which carers are valued for their activities? If so, is carer status associated with a reward for altruism, compensation for the social and economic costs associated with caring, or recompense for labour expended? Are carers valued as workers, as citizens, or as community or family members? Are they valued for doing something ‘out of the ordinary’? Through the development of this legal identity are we seeing a value being given to caring as a form of socially reproductive labour more generally?

I am presently developing these ideas further with the benefit of a Leverhulme Fellowship. My focus shifts to Kenya where I am considering the contribution of community-based ‘woman to woman’ marriage practices to the provision of care, particularly for the elderly, when there is little social protection available for the elderly. Ojwang and Kinama describe the practice:

‘Woman-to-woman marriage is the traditionally recognised union between two women, one of whom pays the dowry in order to marry the other woman. ….. [I]t is usually a union aimed at promoting the social or economic status of the women who participate in it. … The purpose of the union is the continuation of the family line and the enjoyment of a family life’. (2014, p 416)

The research seeks to explore the extent to which and the way in which such arrangements provide support and/or security for the parties involved and their dependants.  The aim is to understand whether the everyday practices of caring for older people particularly women, traditionally woven into communal relations, are changing in the socio-economic and political circumstances of contemporary Kenya. Are woman to woman marriages evolving into a way of recognising and ‘rewarding’ caring labour undertaken by younger woman for some older women who have access to some assets? How are claims for recognition particularly made by the younger woman understood in the ‘formal’ courts and within community dispute resolution practices?

References

Budlender Deborah and Moussié Rachel (2013) Making care visible Women’s unpaid care work in Nepal, Nigeria, Uganda and Kenya Action Aid Available: http://www.actionaid.org/sites/files/actionaid/making_care_visible.pdf

Elson, Diane 2008 ‘The Three R’s of Unpaid Work: Recognition, Reduction and Redistribution’, Expert Group Meeting on Unpaid Work, Economic Development and Human Well-Being, UNDP, New York, November

Herring, Jonathan (2013) Caring and the Law Oxford and Portland, Oregon: Hart Publishing

Hoskyns, Catherine and Rai, Shirin M. (2007) ‘Recasting the Global Political Economy: Counting Women’s Unpaid Work’, New Political Economy, 12(3): 297–317.

Ojwang, Jackton, B and Kinama, Emily, N (2014) ‘Woman-to-Woman Marriage: A Cultural Paradox in Contemporary Africa’s Constitutional Profile’ Verfassung und Recht in Übersee VRÜ 47: 412-433.

Rai, Shirin M, Hoskyns Catherine and Thomas Dania (2014) ‘Depletion’ International Feminist Journal of Politics 16(1): 86–105.

Razavi, S. 2007. ‘The Political and Social Economy of Care in a Development Context’. United Nations Research Institute for Social Development, Gender and Development Programme, Paper Number 3.

Sepulveda Magdalena Carmona (2014) Report of the Special Rapporteur on Extreme Poverty and Human Rights A/HRC/26/28 Geneva: United Nations

Sloan, Brian (2013) Informal Carers and Private Law Oxford and Portland, Oregon: Hart Publishing

Stewart, Ann (2017) ‘Carers as Legal Subjects’ in eds Rosie Harding, Ruth Fletcher, Chris Beasley ReValuing Care in Theory, Law and Policy: Cycles and Connections 148-164.

Caring for a Parent living with Dementia and changes in Family Relationships

Prof Elizabeth Peel, Loughborough University, UK

Elizabeth Peel is a Professor of Communication and Social Interaction in the Department of Social Sciences, Loughborough University, UK @profpeel

Book Cover for ReValuing Care in Theory, Law and Policy

ReValuing Care in Theory, Law and Policy: Cycles and Connections

Caring for a parent living with dementia is a stressful thing to do. We know quite a lot about spouses or partners who are cast in a caring role because their loved one develops dementia, but we know much less about the experiences of adult children of parents with dementia. Recent Australian research [1] has found that sixteen per cent of their sample of over 500 family carers had contemplated suicide in the previous year. We also know that dementia care disproportionately impacts women [2].

In my book chapter called ‘“It has had quite a lot of reverberations through the family”: Reconfiguring relationships through parent with dementia care’ in the Revaluing Care edited collection, I consider parent care by examining the accounts of eleven people who had cared for their mother or father. These people participated in the focus groups in the ‘Duties to Care’ project or the interviews in the ‘Dementia Talking’ project (see http://www.dementiaproject.net/).

Some of the behaviour changes in their parent had a big impact on these participants. For example Derek* said ‘it’s terrible to think your own mother doesn’t know you’, and he found it very difficult to cope when his mother thought that he was his father. Another man, James, pretended to be his father in order to keep his mother calm and content. These two examples show how parent dementia care can change how relationships in families usually are – those normative ‘rules’ about roles in families – into something new and reconfigured by the illness.

These participants also talked about how disagreement between themselves and their brothers or sisters also made parent care difficult. All but one of the people I interviewed emphasised conflicts with their sibling rather than a more collaborative approach – working in partnership to care for, and support their parent. Victoria was the lone voice, in this study, who said about her sister, ‘we keep each other sane’.

The tensions that they discussed with their siblings included having different views about the state of their parent’s health, money, and how they communicated with their parent. For instance, as Jan said ‘the worst thing was trying to communicate to my siblings how bad mum was’. In some cases, like Jan’s, relationships between siblings had ‘totally broken down’. In other cases, families had divided roles between them as a way of managing potential disagreement as well as the tasks and responsibilities involved in caring for a parent living with dementia. For example, Sue said that her sister has ‘the cash card but I keep my eye on the bank account’.

Caring for a parent living with dementia can include managing and coping with behavioural and psychological symptoms, managing finances, dealing with health and welfare decisions, incontinence, and making difficult decisions towards the end of life.  Understanding the perspectives of those providing care to a parent with dementia – a relatively common, if not anticipated experience – may offer a lens on families and the business of caring more broadly. Damien Riggs and I have written a book about kinship that further examines these, and other, issues [3]. Our book Critical Kinship Studies was recently published by Palgrave Macmillan.

* These are not participants’ real names.

References

[1] O’Dwyer, S.T., Moyle, W., Zimmer-Gembeck, M. et al. (2016) Suicidal ideation in family carers of people with dementia. Aging & Mental Health, 20(2), 222-230.

[2] Erol, R., Brooker, D. & Peel, E.  (2016) The impact of dementia on women internationally: An integrative review. Health Care for Women International, 37(12), 1320-1341. Available: http://www.tandfonline.com/doi/full/10.1080/07399332.2016.1219357

[3] Riggs, D.W. & Peel, E. (2016) Critical Kinship Studies: An introduction to the field. London: Palgrave Macmillan. Available: http://www.palgrave.com/it/book/9781137505040

ReValuing Care Through Law: Challenging the Bedroom Tax and Benefit Cap on Care

Professor Rosie Harding
Birmingham Law School | email: r.j.harding@bham.ac.uk

It has been an interesting week for news about care giving and receiving in English Law. Two stories have made the news that reflect challenges to the value placed on care in our society: first, the Government’s announcement that recipients of Carers Allowance are to be exempted from the benefit cap; second, news about the Court of Appeal’s decision that the ‘bedroom tax’ (or, as the Government would prefer it to be called, the ‘Removal of Spare Room Subsidy’) is unlawfully discriminatory on grounds of disability and sex.

The news that carers in receipt of Carers Allowance are to be exempt from the Benefit Cap came during debate on an amendment to the Welfare Reform and Work Bill on 25 January 2016. Lest anyone be deceived into thinking that the current Conservative Government is suddenly going soft on benefit recipients, it is important to remember that the impetus for this change came from a judicial review decision of the High Court in October 2015. In Hurley & Others v Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin), Mr Justice Collins held that the benefit cap regulations, whilst not unlawful in their entirety (considering the very high standard of unreasonableness that is required at judicial review) were nonetheless indirectly discriminatory on the basis of disability in a way that was not objectively justifiable. A government amendment is expected during the forthcoming House of Lords Third Reading debate that fully exempts those in receipt of Carers Allowance from the benefit cap. The change will bring those in receipt of carers allowance into line with others exempted from the cap.

The Court of Appeal decision in R (On the Application Of Rutherford & Ors) v Secretary of State for Work & Pensions [2016] EWCA Civ 29 has not met with the same level of agreement from the Government. In that case, the Court of Appeal found that the ‘bedroom tax’ regulations were unjustifiably discriminatory on the grounds of disability (in the case of the grandparents of a severely disabled teenager), and on the grounds of sex (in the case of a woman at serious risk of violence from an abusive ex-partner). In both of these cases, the claimants had been in receipt of Discretionary Housing Payments (DHPs) to mitigate the effects of their deduction under the bedroom tax rules. Importantly, others in similar positions may not be in receipt of DHPs, as the nature of the scheme, and the discretionary basis of it, means that provision varies across local authorities.

Since this decision, the Government has announced its intention to appeal to the Supreme Court, and a hearing on this case is to be joined with the appeal in R (MA and others) v the Secretary of State for Work & Pensions [2014] EWCA Civ 13, another case concerning the discriminatory nature of the ‘bedroom tax’ which is due to be heard by the Supreme Court in early March 2016. In the meantime, the Government have issued a bulletin to staff responsible for Housing benefit advising that “no action needs to be taken by local authorities following this judgment.” [1]

Leaving aside the legal issues that will be considered by the Supreme Court in a few weeks’ time, the news this week about regulating care and caring raises more general issues of interest. It reminds us of the necessity of a strong system of judicial review, with access to legal aid to support vulnerable claimants. While some of the more negative aspects of changes to the legal aid system for judicial review were undone following a challenge by solicitors, the policy of ‘no permission, no fee’ remains in place. The former Justice Minister, Chris Grayling was open about his desire to curb judicial review, which he berated “left-wing campaigners” for using as a “promotional tool” and to “to try to disrupt Government policies.” [2]

Given the rise in the use (and attempted use) of statutory instruments (which can be passed without democratic debate) rather than Acts of Parliament (which require full Parliamentary debate and the approval of both Houses) for controversial issues like tax credit cuts, or fox hunting, since the Conservatives came to power in 2010,[3] any attempts to restrict judicial review need to be taken very seriously indeed.

These cases also remind us of the importance of the Human Rights Act 1998 in defending the most vulnerable in our society. Both of these cases concerned challenges to the legislation on the basis of discrimination outlawed by Article 14 of the European Convention on Human Rights. In both cases it was the fundamental human right not to be discriminated against on the basis of a protected characteristic that was the reason for the decision (in these cases it was disability and sex) .

This Government wants to repeal our Human Rights Act. We still await the detail on proposals on a Bill of Rights which we have been told might be fast tracked into law by this summer [4]. These cases where Convention Rights safeguard the rights of vulnerable people with disabilities, their carers, and other whom the State has an obligation to protect from violence and harm remind us of the value of our Human Rights Act, and the high cost that repeal of it could place on vulnerable people.

I look forward to seeing the exemption from the benefit cap for carers come into law without delay. I also await the Supreme Court’s decision in the forthcoming appeal on the bedroom tax cases with interest. We must not, however, be complacent. The law’s ability to ensure that an appropriate value is placed on caring is dependent both on fair access to judicial review, and on the effective domestic protection of our Human Rights. We must safeguard both.

[1] From HB-U1-2006, downloaded from http://www.disabilityrightsuk.org/news/2016/january/bedroom-tax-no-change-dwp-appeals-court-case-and-issues-guidance.
[2] http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html
[3] http://www.independent.co.uk/news/uk/politics/government-accused-of-waging-war-on-parliament-by-forcing-through-key-legal-changes-without-debate-a6820176.html
[4] http://www.independent.co.uk/news/uk/politics/british-bill-of-rights-to-be-fast-tracked-into-law-by-next-summer-a6698261.html

Residence Rights for Carers of Union Citizen Children before the Court of Justice of the European Union

Residence Rights for Carers of Union Citizen Children before the Court of Justice of the European Union: Some Reflections on the Pending Case of Chavez-Vilchez and Others

by Dr. Fulvia Staiano
Postdoctoral Researcher, School of Law, UCC Cork
fulvia.staiano@ucc.ie

In the currently pending case of Chavez-Vilchez and Others [1] , the Court of Justice of the European Union (CJEU) was presented with two questions on the limits and scope of the principles established in its landmark Zambrano [2] judgment. These question, in particular, aimed to ascertain the scope of the principle established in Zambrano (and subsequently clarified in Dereci [3] ), whereby a third-country national parent of a child who is a citizen of a Member State enjoys a right of residence on its territory only when it can be said that the child would be forced to leave the Union in case of expulsion of the parent.

The Chavez-Vilchez case concerns a group of third-country national mothers who are the primary carers of their Dutch citizen children. The involved women opposed the Dutch authorities’ refusal to grant them with residence rights, motivated by the view that in case of their expulsion, the Dutch fathers of their children could still provide them with the necessary care. They submitted that they have sole parental authority and custody over their children, while the respective fathers are unwilling or unable to take care of them. In this light, the referring court has asked the CJEU to assess two main issues, both related to the interpretation of Art. 20 TFEU. First, it seeks to determine whether a Member State must grant the right to reside on its territory to a third-country national parent who carries out the primary care of his or her minor child, when the latter is a citizen of that Member State. Second, it asks whether for this purpose it is relevant that the legal, financial and/or emotional burdens do not weigh entirely on the primary carer, and whether it must be proved that the other parent is unable to assume responsibility for the care of the child.

These questions offer the CJEU with an opportunity to provide important insights into its understanding of care, particularly in relation to the quality and intensity of the carers’ involvement in their children’s upbringing for the purpose of qualifying them as indispensable. As is known, the CJEU has consistently granted residence rights to third-country national parents of Union citizen children on the grounds of the care provided by the former to the latter. In a first group of cases, this recognition was linked to the possibility for Union citizen family members to exercise their freedom of movement within the territory of the Union . Starting from the Zambrano judgment, residence rights for carers were also detached from the exercise of free movement and linked to the enjoyment of the substance of the rights attached to EU citizenship.

With the sole exception of its Carpenter judgment, in this case law the CJEU has so far consistently used the expression “primary carer” in respect to third-country national women involved. It was precisely this role of primary carer that prompted the conclusion that such care was essential for their children’s enjoyment of the rights either connected to their own Union citizenship or stemming from their father’s Union citizenship. The CJEU has not so far clarified the meaning of the notion of primary carer . However, this expression has arguably been used to refer to the essential and indispensable character of the care provided by a parent, and to the consequent dependence of Union citizen children from said parent.

On the other hand, in more recent judgments concerning third-country national fathers, i.e. in Zambrano and Dereci, the expression “primary carer” cannot be found. In the case of Zambrano, the dependence of the involved children from their father’s right to reside in Belgium was not assessed in terms of care at all, but rather inferred from the fact that both Mr. and Mrs. Zambrano – being irregularly resident third-country nationals – would be forced to leave the Union territory in case of denial of residence rights. In Dereci, the CJEU also overlooked the degree of involvement of Mr. Dereci in his children’s care, since his wife’s Austrian citizenship – and related right to reside in Austria – meant that their children would not be forced to leave the Union territory in case of his expulsion.

In this light, parental care does not appear to play a crucial role in the test carried out by the CJEU concerning the possibility for Union citizen children to fully enjoy the substance of the rights recognised by virtue of their status. The citizenship of both of their parents, in particular, can play an overriding role in this assessment.

Precisely for this reason, the outcome of the Chavez-Vilchez case will deserve specific attention. The presence of Union citizen fathers in the present case may indeed not be considered as a decisive factor to determine that the involved children would still be able to enjoy the substance of rights related to their Union citizenship in case of expulsion of their mothers. The lack of involvement of such fathers in their children’s care and upbringing, and their unwillingness or inability to ensure such an involvement in the future, will necessarily play a role in the CJEU’s assessment. This case, therefore, has the potential to foster key judicial clarifications on the meaning of primary care, on the degree and type of involvement necessary to consider parental care as indispensable and irreplaceable, as well as on the type and degree of fatherly involvement in childcare that may be reasonably expected and required in this context. A finding of the CJEU in the sense of recognising third-country national parents with residence rights on the grounds of the primary character of the care provided to their children would constitute a crucial development, bringing reproductive work to the fore and opening new perspectives for those devoted to it.

[1] C-133/15, Chavez-Vilchez and Others v. Raad van bestuur van de Sociale verzekeringsbank (Svb) and Others, lodged on 18 march 2015 [pending]. For an account of the factual grounds of the case, see Anouk Biesteker, Lukasz Dziedzic, Lorena Navia-Rodriguez, Gareth T. Davies and Janneke De Lange, Expert Opinion on Issues arising from the Pending Case of Chavez-Vilchez and Others (C-133/15), 30 June 2015, summary in English available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641773 [last accessed on 28 October 2015].

[2] C-34/09, Gerardo Ruiz Zambrano v. Office National de l’Emploi, judgment of 8 March 2011.

[3] C-256/11, Murat Dereci and Others v. Bundesministerium für Inneres, judgment of15 November 2011.

Caring about P in the Court of Protection: the Re X scenario

by Jaime Lindsey, PhD Candidate and Teaching Associate at the University of Birmingham ( j.t.lindsey@bham.ac.uk)

In the recent Court of Appeal case, Re X [1], the judges’ obiter comments were certainly timely. The case concerned Deprivation of Liberty Safeguards (DOLS) cases under the Mental Capacity Act 2005 (MCA). The case itself turned on the question of whether P (the subject of the court proceedings) had to be a party to the proceedings in which they would potentially be deprived of their liberty. Whilst the Court of Appeal held that they did not have jurisdiction to hear the appeal, they made their feelings clear that P should always be a party to DOLS proceedings.[2]

Under the MCA, individuals can, in certain circumstances, be deprived of their liberty in a care home or hospital for the purpose of being given care or treatment.[3] Further, a person who may be deprived of their liberty outside of a hospital or care home, but still with sufficient degree of State involvement, would also require Court authorisation for the deprivation of liberty.[4] Many of us would expect that depriving a person of something so fundamental as their liberty should, at the very least, require them to have some input into the discussion. In fact, the ECtHR jurisprudence requires that a person who is to be deprived of their liberty should have access to a court and the opportunity to be heard.[5] This is not only important on an academic level; if a person who does not wish to be deprived of their liberty forcefully resists it, then the measures which need to be taken against them are surely an important factor for any court to consider before making an authorisation.

Yet this should not only be the case for removing somebody’s liberty. In my view, a more compassionate and inclusive approach should apply more broadly to the Court of Protection’s entire jurisdiction. In fact, new Court of Protection rules require the court to, at the very least, consider whether P should be required to participate in the proceedings and this is certainly a step in the right direction.

Involving P in the capacity question

As of 1st July 2015, the new Court of Protection (Amendment) Rules 2015 came into force. They require, amongst other things, that the Court considers whether it should make one of a number of directions relating to P’s participation in the proceedings (new Rule 3A Court of Protection Rules 2007). The possible directions it can make include: (1) joining P as a party (2) appointing a legal (or otherwise) representative for P (3) requiring P to address the judge (4) any alternative direction meeting the overriding objective. Whilst these rules certainly could have gone further, they show the Court’s increasing awareness of the greater need for P’s involvement.

Rule 3A is certainly an important step forward. It should ensure that judges and the parties are alive to the question of P’s involvement. Actually, involving P should be seen as a positive way to assist the Court in deciding whether he or she has capacity; a large part of the Court’s jurisdiction in health and welfare cases is about determining whether or not a person has the capacity to make a decision in the first place and this should not be forgotten. Clearly there will be cases where the capacity question is clear from the outset, for example consider the brain damaged adult on life support, but many more cases will be borderline and sometimes will involve adults who have no mental or learning disability at all.[6] Either way, to the extent that it is possible to do so and for capacity determinations at least, P should always be involved with proceedings.

A more inclusive approach?

The new rules should certainly go some way in achieving a more inclusive approach to decision making in the Court of Protection and are to be welcomed. However, the extent to which, and in what way, the options open to the Court will be used will need to be examined following implementation. A major factor in the increased involvement of P in proceedings will be the lawyers, social workers and carers who are involved in the case; if they see the benefit of involving P and argue in favour of this in court then is a judge really likely to refuse? Particularly in light of the obiter comments of the Court of Appeal in Re X, albeit that was in a slightly different context. In fact, the onus is not only on the judge in the case to consider this but it is also on the parties who can make an application to request such a direction. Those who know and work with P, and the lawyers on all sides, should be encouraged and feel empowered by recent developments to request P’s involvement.

The power of the Court of Protection in affecting the lives of individuals who fall under the MCA regime, both for the positive and negative, is enormous. In some ways, whether or not the outcome of the cases is any different as a result of the involvement of P is not the measure of success; what is vital is that people feel that their voice is heard, particularly in relation to decisions affecting their own lives. This empowers people to “buy in” to the ultimate decision that might be made on their behalf. That said, involving P in the decision making process will hopefully lead to better and more context sensitive decisions being made and the new rule 3A is a first step in achieving this.

[1] Re X [2015] EWCA Civ 599

[2]Ibid per Black LJ at para 108

[3] Pt1 s.1(2) MCA

[4]Under s.16(2)(a) MCA

[5]Winterwerp v The Netherlands [1979] 2 EHRR 387

[6] See for example IM v LM and AB [2014] EWCA Civ 37

Inheritance System and Care – Part 2

by Dr Antu Sorainen, Title of Docent, Academy of Finland Research Fellow, University of Helsinki, Gender Studies (antu.sorainen@helsinki.fi)

“It’s almost more important for a gay person to write a will than almost any other group in society. When writing a will, an LGBT person will have been able to give consideration to people and organisations that have had a positive effect on their life: they are not simply choosing their blood relatives to inherit with no regard to whether they deserve it”, responded the UK lawyer Siôn Hudson – who regularly drafts wills for people from all around Cambridge – to my first blog from 31 May.[1]

In this second blog I am discussing why it matters for queer people how governments seek to reform inheritance tax laws. In my view, sexuality is deeply implicated in the distribution of wealth through inheritance system. Inheritance taxation is under scrutiny in Europe: and an urgent matter when we think about inheritance from the point of view of queer relationships. The trend to abolish inheritance taxes has direct bearings on the organization of queer care, both structurally and at personal level, as the decline of public welfare puts more ideological, political and managerial stress on private care.

If queers do not write wills to support financially their friends, lovers and community (a fact derived from by my research data and practicing lawyers’ experiences), the queer community will depend more than before on the co-incidences of blood ties and will be exposed to familial and social homophobia.

***

My case study is the Nordic welfare countries where finance economics and political populism are currently feeding on social injustice in terms of inheritance taxation. Sweden abolished inheritance tax in 2005 in favour of capital gains tax, meaning that property is taxed not when inherited but only when realized.[2] Norway abolished inheritance tax in 2014, though it remains in Denmark and Finland. The latter country, however, seeks to follow the lead of Sweden and Norway; a new government has declared that intergenerational transmission in family firms will be advanced through reducing inheritance tax, and that capital gains tax and “other options” will be evaluated.

Finland risks a lot. Even in the equality “paradise” of Sweden, family background (status, education level, surname) correlates with the individual’s wealth path in society. This social factor arguably only heightened when capital gains tax was introduced. As one consequence of the cutting of inheritance tax, flats now circulate within families even for generations because the capital gains tax is rather high (30%) in Sweden. Rich families do not sell their flats but pass them on as tax-free legacies. This influences on the gentrification process in the biggest cities, and also the continuing difficulty of class travel in society.

As an example of how capital gains tax leads to socio-economic stagnation and creates a class glass ceiling for queers, we might take the example of Finnish immigrants to Sweden. Many Finns moved to Stockholm, Gothenburg or Norrköping suburbs in the 1960s to live on factory jobs. This mass migration was one consequence of the rapid urbanization of the Finnish society, which left small farmers without a future in their own country. These rural migrants were accompanied by a significant number of Finnish lesbians and gays who moved to Sweden in the 1970s as the sexual atmosphere was much more liberal there.[3] These immigration generational cohorts are now getting elderly, and if they had children these are now properly ‘swedizised’. Even if some of them are economically well-off, they are often without any hope of ever buying a flat in city centres since valuable flats are circulated through the inheritance system in a number of wealthy Swedish families.

Marriage would open a route to this circle of inherited flats – but marriage was not a legal option when Finnish queer immigrants were younger. These flats are not on the open market for other immigrants or Sweden’s own nouveau rich, either. It is clear that this does not help to overcome social inequalities or to maintain big Swedish cities as a buzz of trade and liberal life supported by mobility and difference.

***

Capital gains tax thus impacts on social minorities in negative ways. It will lead to increasing accumulation of wealth in the hands of a few. This “weather forecast” could be given to all societies with a big ratio of social inequalities, such as the UK.

John Stuart Mill advocated, for one, high inheritance taxes. For Keynes, inheritance was inherently unequal and not to be defended albeit he valued the right for economic gain – but the conservative agenda thrives and we lack critical voices based on proper socio-legal impact analysis. A shift in the direction of capital gains tax would result in an increase in socio-economic homogamy, the effects of which would impact the stability of minorities in society – those whose intimate relations, reproductive choices and support relations do not accord with the law’s categorizations. Queer sexualities have relevance for the inheritance institution’s categories in that the inheritance system distributes wealth mainly in small heterosexual family circles and potentially neglects “other” relationship categories than those based on blood and heterosexual marriage.

Adopting the capital gains tax may benefit some lucky queers born in wealthy and liberal families but keeping the inheritance tax and adjusting the system of inheritance taxation could benefit many if not all. What I would suggest is to have a better look at inheritance tax categories to make them sensitive to difference outside of conjugal norm and to better hinder tax avoidance of the rich through family firms.

[1] http://www.millersands.com/the-importance-of-having-a-will-the-lgbt-perspective/

[2] Magnus Henrekson and Daniel Waldenström. 2014. ”Inheritance Taxation in Sweden, 1885–2004: The Role of Ideology, Family Firms and Tax Avoidance.” http://www.ifn.se/wfiles/wp/wp1032.pdf

[3]Sorainen, Antu. 2014. “Two Cities of Helsinki: One Practically Queer and One Liberally Gay.” In Matt Cook and Jennifer Evans (eds.) Queer Cities, Queer Cultures: Europe Post 1945. London: Bloomsbury, 211-239.

Inheritance System and Care: Queer will-writing

by Dr Antu Sorainen, Title of Docent, Academy of Finland Research Fellow, University of Helsinki, Gender Studies (antu.sorainen@helsinki.fi)

Laurie Anderson, in a recent interview with the Guardian, was asked: “What song would you like played at your funeral?”
Answer:
“Not my problem.” [1] [2]

Even though it is a witty remark, I beg to disagree. Arranging one’s after-life could be of a great benefit for those one cares about. Kinship, care and inheritance belong to the same package. The wealthy always knew this and took care of their economic interests through marriage and bloodline based inheritance arrangements. Not many of those at the margins of the society think that they need to write wills, seek to arrange their financial aftermaths, or indeed, funeral rituals to make sure that their kinship tradition lives. However, those few queer funerals that I have attended, carefully following the wishes of the deceased person, have been really important for the queer community, including at a symbolic and performative level, building and passing on the tradition, history, encouragement and memories of many important aspects of the past and present queer struggles.

In my view, we should actively advocate will-writing among those social groups who traditionally have not “owned” this tradition as theirs, especially under the current neoliberal and conservative political and economic currencies targeting the inheritance system that I will discuss in my next blog post. Activists in the legal field should encourage people to take care of their inheritance arrangements as far as they can, as an important and oft-neglected form of care; in particular, queer care. By this, I mean that inheritance could be conceptualised and re-imagined as not only transformation of property but also as taking care of those who actually matter in one’s life: directed towards friends, lovers, and community. Will-writing offers a pathway to new identifications: we could re-imagine new concepts for care practices that the society tries to hide from the people who do not follow its dominant norms.

Daniel Monk (2013) [3] argues that will-writing potentially offers a site for queer acts. He suggested that they as well as being the scene for an ultimate declaration of one’s final will, provide possibilities for not only to pass on property but also for passing of other kinds of “goods” such as coming-outs, supporting the queer community and/or the chosen family, friends or lovers, disinheriting the possibly homophobic blood relatives, or publicly recognising the “real” care and support relations in one’s life.

Will-writing is a reflection of an ideal of autonomity of the modern individual. If sexually or otherwise marginalised people would look at will-writing as their right to define the posthumous destiny of not only their wealth but also of the well-being of people who they really care for, also outside of the blood relatives circle, they might more often come to think to write wills for supporting their lovers, friends, community, and other real life-carers. In this way, as a mechanism for transmitting property from one person to another, and from one generation to another over time, lesbian and gay wills could have a considerable social and economic significance.

There is a particular purchase to bringing in legal thinking in the study on inheritance and socially marginalised groups since as a discipline and practice it has to deal with different kinds of relationships. The law is the classic locus for situations where categorical and interpersonal relations confront each other: the law deals with persons in relation to categories [4] . When it comes to inheritance, often even a small inheritance has made it possible for many ordinary as well as many famous people to create uncommon, radical, world-changing lives outside the pressure of the normative legal and social understanding of parenting and relationships (Sorainen 2015). [5]

Coming up  in my second blog post:
“I worry about putting my friends in a difficult economic position if I’ll add them into my will”, one of my lesbian interviewees told me. This is a legitimate concern because, in her country, Finland, her queer care and support network members would be subjected for a much higher inheritance tax than her emotionally distant siblings would be.

My next blog-post will consider how, in this way, legal categorizations privileging bloodline and/or marriage often fail to recognize the actualities of non-normative personal lives and the ”chosen heirs”. This is especially prudent as on 27 May 2015, Finland decided to seek to change its inheritance laws. At the moment, if a close blood relative or a friend inherits property in Finland, the inheritance tax is from 8- 36%. But in case of inter-generational family business inheritance, the tax is, on average, only 2,8% of the market value of the company. I discuss the effect of this on the queer community and on the dissemination of wealth throughout society.

References:

[1] http://www.theguardian.com/lifeandstyle/2015/may/16/laurie-anderson-interview

[2] When I told the anecdote at the opening of this blog to one of my gay male interviewees, he said: “In my funeral, they should play Laurie Anderson’s song Same Time Tomorrow.” The song goes like this: “And so when they say things like “We’re gonna do this by the book”, you have to ask “What book?”, because it would make a big difference if it was Dostoyevsky or just, you know, Ivanhoe.” – https://www.youtube.com/watch?v=ePMwwa436ug

[3] Monk, Daniel. 2013. “EM Forster’s will: an overlooked posthumous publication.” Legal Studies, Volume 33, Issue 4 December 2013, 572–597.

[4] Strathern, Marilyn (2005). Kinship, law and the unexpected: Relatives are always a surprise. Cambridge: Cambridge University Press

[5] Sorainen, Antu. 2015. “Queer Personal Lives, Inheritance Perspectives, and Small Places.” Nordic Journal for Queer Studies – Lambda Nordica, a special volume on Kinship and Reproduction, 3-4/2015 vol. 19.

Care Paid and Unpaid: Social, Economic and Human Rights Concerns

by Dr Joan Garvanwww.maternalhealthandwellbeing.com

Attempts to achieve gender equity have reached a new high water mark and the recognition and redistribution of care, both paid and unpaid, stands at the centre of this arena. The Australian secretariat – Economic Security 4 Women – have produced landmark reports, both scoping and quantifying the value of the ‘care economy’ and, more recently, Professor Marilyn Waring addressed the topic of care and dignity in the annual Pamela Denoon Lecture Series. Here below are key points from these papers and central messages made by Waring.

Two significant Australian reports on the care economy have been produced over recent years: Scoping the Australian Care Economy A Gender Perspective (2010) and Counting on Care Work in Australia (2012). These projects are concerned with the lifelong economic well-being of women. Though they are particular to Australia and reference local government policies, programs and strategies, they draw from an international body of research and deal with common concerns.

The first report references the importance of data collection and brings attention to landmark work in the Massachusetts case study that used United States Census and Time Use data to measure both paid and unpaid care work [1]. The author Valerie Adams notes tensions between unpaid work, voluntary work and paid work. She draws attention to the ‘relational’ nature of care work, and references the concept of ‘provisioning’ for human need. The report used the notion of ‘care work’ to depict both the paid and unpaid sectors. Adams considers definitions and current issues in the Australian care economy. She surveys relevant government policy and makes numerous recommendations for further research and data collection.

Counting on Care Work in Australia (2012) further develops this arena by quantifying the value of the paid and unpaid care sectors to the Australian economy. In 2009-10 twenty per cent of all paid employment in Australia was in the care sector. Care workers receive 96 cents for every dollar earned by the average Australian worker, and female workers earn on average 84 cents in the dollar to male care workers. The report valued the unpaid care sector at $650 billion with sixty per cent of this contribution being made by women aged 25 to 64. The report furthermore outlined and quantified government investment in the care sector. The authors make recommendations for further work in light of: demographic change; inter-generational concerns; and the continuing economic and life course implications for women.

Marilyn Waring prefaced her recent lecture Care and Dignity: Major challenges to economics and human rights (transcript and video available online: http://pameladenoonlecture.net/) with the proposition that over millennia care has been the primary responsibility of women. She has changed her emphasis since the publication of Counting for Nothing: What men value and what women are worth (1988) [2] and now frames these concerns within a Human Rights perspective.

Waring raised problems for the use of ‘care’ as an analytical category, arguing that most often carers are responsible for a myriad of associated tasks that could be lost through a continuing association with unpaid work. Nevertheless, drawing from studies from British Colombia, New Zealand, Papua New Guinea and the United Kingdom, she sets out a strident case whereby the human rights of care givers are being flouted. She and others set up a questionnaire for a Commonwealth report drawing from Amartya Sen’s capability approach to human rights which references choice, rest, health, meals, work and political involvement, and found multiple breeches.

With governments around the world withdrawing from social and welfare programs these kind of arguments are critical if we aren’t going to ‘throw the baby out with the bathwater’. Care, both paid and unpaid, are clearly significant to the health and well-being of the community, but further to this gender equality will remain allusive if we don’t see transformational change. Unfortunately the issues are complex and though there is increasing reference to the work of unpaid care in terms of achieving gender equity, there is a need to bolster and popularize the debates.

References

[1] Albelda, R., Duffy, M., Folbre, N. (2009), Counting on Care Work: Human Infrastructure in Massachusetts, University of Massachusetts, MA, Massachusetts

[2] In a recent anthology, Counting on Marilyn Waring: New Advances in Feminist Economics, edited by Margunn Bjornholt and Ailsa McKay, 31 authors from nine countries outline the wide ranging impact and resonance of Professor Waring’s work as well as the current frontiers of feminist economics.

 

 

What’s Wrong With Best Interests?

For the last while, I (along with many others working in this area)[1] have been struggling with the question of how to reconcile the Mental Capacity Act 2005 (MCA), with Article 12 of the UN Convention on the Rights of Persons with Disability (CRPD). As many readers of this blog will know, section 1(5) of the MCA requires that any decision made for or on behalf of a person who lacks capacity needs to be made in their ‘best interests’. In contrast, Article 12 CRPD requires that disabled people’s rights to equal treatment under the law are respected. This right includes the right to “enjoy legal capacity on an equal basis with others in all aspects of life” (Article 12(2)). In their clarificatory General Comment No 1 on the scope and interpretation of Article 12, the Committee on the Rights of Persons with Disabilities made clear that “The ‘best interests’ principle is not a safeguard which complies with article 12 in relation to adults” (paragraph 21).

Given the centrality of best interests decision making in contemporary English mental capacity law[2], we need to give serious consideration to how these two, seemingly opposing, positions can be reconciled. In order to get to that point, it will be helpful to think through the critiques of best interests.  Five substantive critiques of best interests have been put forward in the academic literature on this topic. Firstly, best interests decision making can be “vague, uncertain and unpredictable.”[3]  Because of this, it is very difficult to predict what the outcome of a best interests determination will be. There is usually no single, logical, best outcome in the difficult cases where best interests are to be addressed. Courts, healthcare professionals, social workers and carers instead select from any number of possible outcomes.

Best interests decision making is often paternalistic, and imbued with the beliefs and values of the decision-maker, rather than those of the person who is at the centre of the decision.[4]  A third critique of best interests, originally put forward in the context of family law,[5]  is that it may be incompatible with Article 8 rights to respect for private life, family life and home. This may become especially troublesome when considering things like residential placements,[6] whether or not these amount to a Deprivation of Liberty under the legislation (another big issue in contemporary mental capacity law).

The CommitteeRPD raise two further issues with best interests decision making. They argue that ‘best interests’ denies legal capacity on the basis of disability. This can take three forms, where legal capacity is denied because of: the status of the individual as having a particular diagnosis or impairment; the outcome of a particular decision is perceived to have negative consequences; or on functional grounds the person is not considered capable of making a decision. This functional approach is very close to the MCA understanding of capacity. Under the MCA, whenever a person is determined to lack capacity under the functional test set out in section 3, another person makes the decision instead, taking into consideration the views of that person, their family carers and the professionals involved in their care. The CommitteeRPD’s criticism of the functional approach is enlightening:

“This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right — the right to equal recognition before the law. In all of those approaches, a person’s disability and/or decision making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law.”  (Committee RPD, General Comment no 1, para 15)

A final critique of best interests is that it substitutes someone else’s decision (whether a health care professional, a judge, a social worker, a carer, or a family member) for that of the person with a cognitive impairment. Article 12 of the Convention on the Rights of Persons with Disabilities, by contrast, requires that people are supported to make their own decisions. Only when all practicable means to support the person to make their own decision have been exhausted would a decision be made on their behalf, in accordance with the best interpretation of their will and preferences, following Article 12(4).

Could this mean the end of best interests in our mental capacity law? Perhaps. If we take these criticisms of best interests seriously, it may well be that we need to re-think best interests under the MCA to ensure our compliance with the rights of persons with disabilities under the CRPD. There appears to be little appetite for a change to the language of best interests under the MCA. Instead, the focus of the House of Lords Select Committee was on better implementation of the empowering ethos of the legislation. But a key problem, as I see it, with the implementation of the MCA is the way that MCA best interests are routinely conflated with clinical understandings of ‘best interests’ despite the different normative content of the two approaches. As a result, it seems clear that we do need to find a new lexicon for decision making by, with and for people with intellectual disabilities, one that doesn’t rely on the words ‘best interests’, to ensure that supported decision making is the reality in all but the most difficult of cases. And when a person truly can’t make a decision for themselves, it must be their own preferences and values that guide the decisions made on their behalf. The task ahead is to find that lexicon, and to use it to build a new approach to empowering individuals with intellectual disabilities to shape their lives according to their own values, wishes and preferences.

[1] Flynn E & Arstein-Kerslake A ‘Legislating personhood: realising the right to support in exercising legal capacity’ (2014) 10 International Journal of Law in Context 81; Richardson, G ‘Mental Disabilities and the Law: From substituted to supported decision-making?’ (2012) 65 Current Legal Problems 333; House of Lords Select Committee on the Mental Capacity Act (2014) Mental Capacity Act 2005: Post-Legislative Scrutiny (London: TSO).
[2] Donnelly, M (2009) ‘Best Interests, Patient Participation and the Mental Capacity Act 2005’ Medical law Review 17: 1-19.
[3] Choudhury, S (2008) ‘Best Interest in the MCA 2005 – What can Healthcare Law Learn from Family Law?’ Health Care Analysis 16: 240-251.
[4] Fennell, P (2008) ‘Best Interests and Treatment for Mental Disorder’ Health Care Analysis 16: 255-267.
[5] Eekelaar, J (2002) ‘Beyond the welfare principle’ Child and Family Law Quarterly 11: 387.
[6] Harding, R (2012) ‘Legal Constructions of Dementia: Discourses of autonomy at the margins of capacity’ Journal of Social Welfare and Family Law 34(4): 425-442.

Happy New Year – Welcome to 2015 and introduction to Ceri Durham our new administrator

It is perhaps too late to wish you all a HAPPY NEW YEAR given that we are now almost at the end of January, but as the beginning of 2015 is marking a new involvement for me as the administrator for the Revaluing Care Network, I feel it is appropriate to wish everyone a healthy and peaceful 2015 full of lively debate and interesting conversations. I look forward to being in touch with many of you as the year progresses. Particular thanks go to Sue Westwood from whom I am taking over the role, and who I already know will be of assistance in helping me build on her excellent work to date.

I was lucky enough to meet some of you at the ‘Cycles of Care‘ seminar at the end of November, but for those of you who I didn’t, I will tell you a little about me. I am Ceri Durham, a mother of three young children, living in Bow in London’s East End. I am currently undertaking my LLM (Masters in Law) in Medical Law at Queen Mary, University of London. Until October, I was working as a solicitor predominantly doing commercial and private client work for so-called “ultra-high-net worth individuals”. However, in October I took the plunge and left my (paid) work to follow the passion of my voluntary work role as a campaigner for improvements in maternity services (and to do my LLM, of course).

As a maternity rights campaigner, my role splits into two – the complaining activist and the compassionate supporter. I spend much of my time telling anyone who will listen about the perilous issue of women’s choice and birth autonomy in the UK today. I also have the joy of running various birth-groups supporting women as they make their choices and plans for their birth, in particular assisting women who are contemplating giving birth at home and who are finding it difficult to access the information and advice they need to make the decision that is right for them. In my view, even where autonomy and human rights are protected in theory, the women I support tell a different story. Thankfully, even where there have been difficulties, surgery or undesired outcomes, the wonderful birth stories I hear full of joy and laughter from women who have had empowering and life-affirming births, make me know that this is a campaign worth fighting for.

Whilst I believe – and am very grateful – that maternity services in this country are ‘safe’ and will usually result in a mother and baby who are both alive at the end of birth, I feel the emphasis that this is ‘all that matters’ manifests by denying women real choice about their body and the care of their children. Too often there seems to be a tension between consultant (clinical) care and genuine woman-centred midwifery care, and whilst some advances have been made in this area, the fact that an event as natural and as every-day as birth should result in thousands of women each year suffering from avoidable post-traumatic stress disorder, anxiety, depression and social exclusion is something which I feel the need to keep speaking about. That this is all taking place in the midst of NHS cuts and increasing privatisation of the NHS adds further issues to the mix, especially because we know that the models of maternity care which most benefit women, especially those who may be described as ‘vulnerable’, bear little relation to what is offered in practice. Needless to say, if you know anyone who is pregnant or if you would like further information on the campaigns I am involved in, please get in touch. I would love to hear from you.

Ceri.