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.

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.

 

 

‘Counting the Costs? Resources, Austerity and Older LGBT People’

The ‘Minding the Knowledge Gap’ ESRC funded seminar series held its fourth seminar at the University of Surrey last week. This seminar, called ‘Counting the Costs? Resources, Austerity and Older LGBT People’ addressed the material, financial and social resource implications of lesbian, gay, bisexual and trans (LGBT) ageing, particularly in times of austerity. It was well-attended by participants from a range of backgrounds: LGBT individuals (in all their diversity, including some in older age); advocates and activists; academics; social policy makers; and the police. There were two speakers. Dr Noah Uhrig, from the Institute for Social & Economic Research, University of Essex, gave a fascinating talk on ‘Poverty and Material Well-being of LGBT elders’, somehow managing to make some very complicated statistic not only accessible but also enjoyable. Audience members gazed in avid fascinating and still wanted more at the end. The second speaker, Dr Martin Mitchell, NatCen Social Research presented on ‘Not just “a nice thing to do”: Marginalisation and hardship for LGBT older people in the context of austerity cuts.’

Noah spoke of recent research project on poverty and sexual orientation (constrained by the usual problems with representative sampling of a ‘hidden population’) which suggested significant material differences in later life for LGB individuals compared with heterosexual individuals, and between one another. A key feature was the suggestion that older lesbians were materially advantaged compared with both older heterosexual individuals and older gay men. Noah’s data – which he bravely presented, anticipating the response it would meet – were, not surprisingly, hotly contested by many of the lesbian members of the audience. They found the idea of older lesbian material advantage counter-intuitive. Discussions raised issues of: women’s relative lower earnings to men; women’s greater representation in (lower paid) public services work, especially care work; women (including lesbians!) taking time out of work to have children, and to perform other informal unpaid care work (including for parents and grandchildren); women being much more likely to be in part-time paid work (rather than full-time work) while also performing unpaid informal care work (1). Noah acknowledged the tensions provoked by the data, and plans on conducting further analyses. We look forward to hearing more!

Martin then spoke of the double-edged sword of austerity cuts. Older LGBT individuals are more likely to need support from those public and voluntary sector services (health and social care, informal and formal social support) which are currently subjected to drastic cuts in funding (2). Those cuts in services impose increased pressures on an already pressured cluster of minoritised individuals, meaning they have a greater need for services, at the very time when there are fewer services available. Lack of material and social resources have profound implications for the well-being of older LGBT individuals (3) (4).

Afternoon discussions returned to the issue of gender (again unsurprisingly) and to the need to continuously unpack the ‘LGBT’ acronym (5), to appreciate how older lesbians, gay men, bisexual women and men, and trans individuals are particularly affected by the material and social resource implications of later life. The plight of the Opening Doors London project, supporting 1,000 older LGBT individuals in the London area, and which has lost all of its funding, highlighted the lived realities of the implications of austerity cuts. Towards the end of the day two distinct responses to resourcing projects for older LGBT in later life: the neoliberal model of private and national state engagement; a more localist, communitarian approach involving local LGBT groups and local government. It was mentioned that in Australia and some parts of the USA, older LGBT have been designated a ‘special needs group’ (with all the complications of such a categorization) and as such are eligible for state funding for local projects.

Much food for thought, and much work to be done, but all-in-all, it was a stimulating and thought-provoking day, made so by the contributions of all who attended.

(1)    Arber, Sara (2006) ‘Gender and Later Life: Change, Choice and Constraints’. In J. Vincent, C. Phillipson and M. Downs (eds) The Futures of Old Age, pp. 54-61,London: Sage.

(2)     King, Andrew (2013) ‘Prepare for Impact? Reflecting on Knowledge Exchange Work to Improve Services for Older LGBT People in Times of Austerity.’ Social Policy and Society / FirstView Article / November 2013, pp 1 – 13 DOI: 10.1017/S1474746413000523, Published online: 19 November 2013

(3)    Fredriksen-Goldsen, et al (2013a) ‘Physical and Mental Health of Transgender Older Adults: An At-Risk and Underserved Population.’ The Gerontologist doi: 10.1093/geront/gnt021First published online: March 27, 2013

(4)    Fredriksen-Goldsen, Karen I., et al. (2013b). ‘The physical and mental health of lesbian, gay male, and bisexual (LGB) older adults: the role of key health indicators and risk and protective factors.’  The Gerontologist, 53(4):664-675.

(5)    Ward, Richard, Rivers, Ian. and Sutherland, Mike (eds) (2012). Lesbian, Gay, Bisexual and Transgender Ageing: Biographical Approaches for Inclusive Care and Support.  London: Jessica Kingsley

 

 

 

Paid Housework? Wages for, Wages Against.

Lawyer and ex parliamentarian Giulia Bongiorno is proposing the introduction of a salary for women who do housework as a way of “changing the direction” of the domestic violence debate in Italy. The original impetus behind the initiative is the acknowledgement that for many women lack of economic independence remains an important factor affecting their decision to leave an abusive relationship. “Obviously”, the proposal adds, “the salary cannot be guaranteed to women only as victims of domestic violence… The issue is another one: it is necessary to rethink the housewife’s role tout court: it is necessary to gratify and not humiliate the woman who chooses to be one”.[1] Hence the proposal for a salary to be provided either by the state or, in the case of very affluent households, by the well-off partner. Beyond domestic violence, Bongiorno’s hope is that the economic and social recognition bestowed on housework will in time enable it to be become “gender-free”.

There is much to be said about the link made here between domestic violence and women’s “invisible” labour but I’d like to briefly reflect on another aspect of the proposal, that is the fact that while referring to the normative, jurisprudential and administrative recognition that housework has received in Italy in the past three decades, the proposal is silent about an apparently similar initiative. This is the Wages for Housework campaign of the 1970s, which Italian feminists promoted for over a decade and was in turn linked to similar campaigns in Britain and the United States. I said apparently because these are very different initiatives in terms of both the premise on which they are based and the arguments they make. The common point is the recognition of domestic labour as work but this is where the similarity ends.

For the Wages for Housework campaigners, this work was certainly not a woman’s “choice”: it corresponded to a particular division of labour under capitalism which separated the sphere of production from that of reproduction, assigning (capitalist) value to the former while considering the latter unproductive. Hence, the point was to make domestic labour visible and show how crucial it was to capitalist accumulation rather than celebrating it as a woman’s choice. As Federici (1975) put it

“To say that we want wages for housework is to expose the fact that housework is already money for capital, that capital has made and makes money out of our cooking, smiling, fucking. At the same time, it shows that we have cooked, smiled, fucked throughout the years not because it was easier for us than for anybody else, but because we did not have any other choice”.

The title of her essay, Wages Against Housework, conveyed the struggle that recognising this labour as work comported, that is the need to valorise it while subverting the processes that made it “work”, thus starting to address the separation between production and reproduction. Examples of such provocations included, in addition to the demand of wages for housework, the demand that social services be organised at community level while paid by the state so to retain control and autonomy over their nature and quality (Dalla Costa and James, 1972). One such demand in England took the form of community-run nurseries, the same communities which are currently been dismantled under austerity (Barbagallo and Beuret, 2012).

Thirty years later both Dalla Costa and Federici have reflected on the limits of the wage struggle as conducive to “women’s liberation”, while also dispelling the myth that “due to increased women’s employment, unpaid domestic work and gender based hierarchies have vanished”, pointing instead to the need for self-valorization initiatives outside the logic of the market and capital (Federici and Barbagallo, 2012). This is not to say that domestic and care labour should no longer be considered work. Indeed, as Selma James has recently pointed out ‘The refusal of feminists toˇacknowledge that work enabled Tony Blair to call mothers “workless” and made way for welfare reform’s definition of aˇgoodˇmother: she goes out to a job, even below the minimum wage, with whatever childcare she can afford’ (The Guardian, 7 March 2014). The point is rather to show how problematic it is to argue for wages for housework without a political perspective that sees it as part of a system of capital accumulation which is based on the separation between the productive and reproductive spheres.

At a very basic level, providing wages without confronting the isolation, repetition and relentlessness this labour comports (and therefore without affecting the underlying social relations) is likely to reinforce the view of housework as women’s work. And the suggestion in the proposal that the wealthy spouse pays for the housework carried out by the less well-off certainly points in this direction, not in that of housework becoming “gender free”. But at a time when austerity is squeezing the costs of social reproduction to the bare minimum, it is even more important we look at the ways in which the social reproductive field is being re-configured, particularly at the new division of reproductive labour worldwide and its relationship to the productive sphere. To argue that domestic and care labour is work means to acknowledge and trace the multifarious ways in which it contributes to making (capitalist) value. Arguing for the remuneration of such labour without challenging the basis on which it contributes to capitalist processes of valorisation is a very different kind of politics from that envisaged and practiced by Wages for Housework activists.

1 http://www.doppiadifesa.it/wp-content/uploads/2010/02/Proposta-_Stipendio-antiviolenza_.pdf

Why dignity can’t be ‘delivered’.

By Liz Lloyd

For many years, dignity in care has been a core policy aim as well as the focus of commissions and working parties. In 2012 the UK’s Commission on Dignity in Care for Older People pointed out the breadth and depth of cultural change that would be required to secure dignified care for older people and argued that deep-seated age discrimination and stereotyping of older people were major barriers. The Commission took the view that to shift stereotypical views of old age it is necessary to show that not all older people are frail and dependent and, moreover, that older people evidently make a positive contribution to society through unpaid work and community activities. These are important points but do not add up to an adequate basis for shifting attitudes towards those who are frail and dependent. True, a cross-section of people aged over 70 will show varying levels of health and capacity for self-care but it is also true that everybody aged over 70 will at some point need care. Indeed, the same applies to all age groups although the need for care is increasingly postponed until old age. Thus, we need a different way of conceptualising dignity so that we do not always associate it with self-reliance but acknowledge its relevance in the context of dependency on others, because dependency is part of what it is to be human.

Dignity is a personal concept, involving individual identity and self-respect. The potential for a loss of personal dignity increases with age, as health declines and people live with and eventually die with or from a range of conditions. Falls, continence problems and loss of mobility, for example, affect individual self-respect in profound ways. But dignity is also a social concept, involving social and cultural practices, institutional systems and interpersonal behaviour. Personal and social meanings of dignity are strongly entwined. Importantly, in both personal and social meanings, dignity is relevant to those who provide care as well as those who receive it. The dignity of the care worker is enhanced when their job is done well and diminished when it is not, such as when a worker has insufficient time to attend to anything other than the older person’s basic functional needs. The economic and political contexts that prioritise constraints on public spending make it harder to overcome barriers to dignity in care for both the care worker and the older person.

To overcome the loss of dignity associated with declining health, older people typically make strenuous efforts to avoid becoming a burden on others.  But, at the same time, they need to adjust to their changing circumstances and learn to accept help. Striking the right balance between these twin obligations is a complex and deeply personal matter. People’s perceptions of how they wish to be supported are influenced by family ties, social and cultural background, migration experience and individual life histories. What might appear insignificant to a care provider might be deeply significant to the older person.

We should not underestimate the importance to personal dignity of the style of communication between front-line staff and older people. However, the complex issues faced by older people when health declines requires those in health and care services not simply to check their actions against a list of standards but to engage with the complexities of individual people’s lives. Understanding the impact of loss and change and helping people make the difficult decisions that follow can be an important basis for care that maintains dignity. Above all, this needs to be done not because we should behave well towards them but because frailty and dependency are part of us all.

Liz Lloyd

10th March 2014

 

 

Rethinking Age in the Context of Care

Age- and stage-based assumptions are deeply embedded in care models and across care practices (Grenier, 2012). Whether care is used to refer broadly to a concept, institutional and organisational practices, or to denote relationships between families and older people, age and care are intricately intertwined. This entry focuses on care provision as a site from which to consider the intersections of age and care, and whether current models are in line with older people’s needs, and the new realities of ageing. Care is often linked with discourses of dependence, and paradoxically associated with potential in youth, and decline in age (see Irwin, 1995; Gullette, 2004). In late life, care tends to be delivered based on age eligibility. Yet, with age and what it ‘means to grow old’ an increasingly contested terrain, it is time to reconsider how age is enacted or sustained through care practices, and consider whether age-based models of care are suitable in the contemporary context.

 

A number of complexities exist when we begin to unpick age and the organisation of care. Formal care provision tends to be delivered through age-based segments of youth and old age. Few formal care services are life-long. Yet, the separation of the life course into age- and stage-based periods, age as an organising principle, and former notions of ageing as decline have been called into question (Featherstone and Hepworth, 1991; Hockey and James, 2003). At the level of personal experience, older people voice that ‘they are not old’ – that the age they are assigned contrasts with their experience and sense of self (see Kaufman, 1986; Bytheway, 2011). This has created a disjuncture where suggested models and expectations are concerned, as well as an alignment with new forms of ageing that emphasise success, health and well-being (see Katz, 2005). And while universal understandings of age are quickly being unravelled, undeniable needs for care amongst older people continue to exist. Older people may need care at various points across their life course as a result of disability or chronic illness, ‘frailty’ or end of life issues, and/or at particular marginalised locations (e.g., poverty, older homelessness). Yet, are such needs for care age-based?

 

We are at a crossroads where the age-based provision of care is concerned. Although reconfigurations of policy based on chronological age are underway (e.g., public pension), current examples focus on age adjustments, rather than on differing needs or alternate arrangements. Perhaps the retention of age is prudent considering the realities of ageism, reconfiguring age to reduce social expenditure, and the structured inequities in late life (see Gee and Gutman, 2000). However, the contemporary context calls for reflection at minimum. How do we catch up with emerging realities of aging and adjust the organisation of care accordingly? Should age be used to organise care services? If so, in what circumstances? If not, how can we assure that those in need are not further marginalised? Such questions represent a starting point from which to reconsider age-based models of care, question underlying assumptions, and reconfigure care practices so that they are more aligned with changing notions of age and contemporary care needs.

 

Amanda Grenier, PhD, Associate Professor, McMaster University

email: amanda.grenier@mcmaster.ca

twitter: @amanda__grenier

 

References:

Bytheway, B. (2011). Unmasking age: the significance of age for social research. Bristol: The Policy Press.

Featherstone, M., and Hepworth, M. (1991). ‘The mask of ageing and the postmodern lifecourse’ In M. Featherstone, M. Hepworth and A. Wernick (eds) Images of ageing, London: Routledge.

Gee, E. M., and Gutman, G. M. (2000). The overselling of population aging: apocalyptic demography, intergenerational challenges, and social policy, New York: Oxford University Press.

Grenier, A. (2012). Transitions and the lifecourse: challenging the constructions of ‘growing old‘. Bristol: Policy Press.

Gullette, M. M. (2004). Aged by culture, Chicago: University of Chicago Press.

Hockey, J., and James, A. (2003). Social identities across the lifecourse, Houndmills: Palgrave MacMillan.

Irwin, S. (1995). Rights of passage: social change and the transition from youth to adulthood,  London and Bristol: UCL Press.

Katz, S. (2005). Cultural aging: life course, lifestyle, and senior worlds, Peterborough, ON: Broadview Press.

Kaufman, S. (1986). The ageless self: sources of meaning in late life, Madison: University of Wisconsin Press.

 

‘Care and Technology’ by Helen Carr

Last month I attended the 4S conference in San Diego, (the Society for Social Studies of Science in case you were wondering) along with about 1000 others.  Whilst I heard some good papers – I particularly enjoyed the panel on Calculating City Life: A Socio-Material Perspective to Low-Budget Urbanity which included papers on ride sharing and ecosan communities – I was struck, and disappointed, by the very limited focus on gender, sexuality and caring. The title (and what a great title) No Space for Old Women: Transformations in Healthcare Work was promising, but the presentation concerned women who had become nurses in the 70’s and who now felt edged out of the profession by the increasingly technological nature of their work. Interesting stuff, but, as far as I could tell, the feminism that was promised in the introduction to the paper, lay in the fact that the research subjects were women. This is perhaps unfair; when I read the full paper (and I promise I will) it may be more developed. I was amused though, when I asked the presenter to expand upon her feminist perspective, I was answered by a young man in the audience who told me it was self evident.  Women who entered work in the 1970s were all feminist pioneers apparently, since most women stayed at home and looked after their families.  It was hard to restrain myself from replying, ‘young man, I don’t think you are in a position to lecture me about feminism in the 1970s’ but I just about managed!

Many papers were concerned with surveillance, and the consequences of technology on our freedoms. Whilst these are important and topical concerns, there was a tendency to rehearse traditional liberal arguments, treating the state as one homogenous entity and technology as irredeemably bad. There was little deviation from this perspective, and I got the feeling that if someone said, well perhaps some communities want more surveillance, or technology can be a force for good, they would have been shouted down.  Moreover the panels were very gendered.  Young men, strutting their stuff, and congratulating themselves and each other on their (very similar) insights.  What a pleasure it was to hear Evelyn Ruppert from Goldsmiths introduce her empirical work on statisticians in the European Union and explain how people and institutions deploy ‘technologies of trust’ to give legitimacy to unstable and contested political projects such as the notion of Europe. Her ideas felt very productive to me.

Of course this is just a snap shot of the panels I went to.  It could just be that I made really poor choices (although I did comb the programme for references to care).  And I should probably have gone to ‘Feminist Postcolonial Science Studies: What are the Issues?’, chaired by Sandra Harding and Banu Subramaniam, but how could I resist a paper on baboons apparently making pets out of kidnapped feral dogs (for those of you interested here is the Youtube link http://www.youtube.com/watch?v=U2lSZPTa3ho – one million hits and rising!) which was on at the same time.  Just in case there is any doubt, as a result of that choice, as to my academic engagement, I would point out that I chose the paper on no-flush toilets over and above ‘Scotch Malt Whisky Tasting and Subjectivity Science in the Making: A Participatory Experiment’ where apparently the first 60 delegates got a whisky sample!

I reached two conclusions following the conference.  First, and this is a bit self-congratulatory, how much more productive was our workshop in Adelaide, when a wide range of papers were delivered, across our themes, and where the discussion was critical, constructive and engaged.  The workshop format really seems to work to develop shared intellectual capital in a positive and enjoyable way.

The second is to reflect on the contemporary importance of the relationship between care and technology which seems to be undertheorised.  I would suggest that once we start thinking about technology from the perspective of care, then the ambivalence of technology becomes apparent. Whilst I was in Adelaide, I had dinner with a woman who was originally from London. Her father was in a home in London and had a tendency to wander.  He was given a walking stick with a GPS tracing device, and she was able to follow his wanderings round London on her computer. Is technology in this instance increasing or decreasing her father’s autonomy, well being, dignity and privacy? What does it do to our understanding of family, and of rights and obligations? The invention of super-absorbent sheeting can be liberating, but can also be undignified and lead to a life isolated from human contact. Is it caring to be able to provide them to someone who is functionally, although not medically incontinent? Is technology absolving us of our responsibility to care? There is a huge amount to think about so it may be that the 4S conference would be a great place for our Revaluing Care network to squat, or at least to make its presence felt. So is anyone up for a panel or two in Buenos Aires August next year? Or perhaps more realistically at the European Association for the Study of Science and Technology in Torun Poland in September 2014?

Helen Carr, Reader in Law,

Kent Law School: http://www.kent.ac.uk/law/people/academic/Carr,_Helen.html