the impact of covid-19 on groups and individuals · web viewkenny stewart created date 05/15/2020...
TRANSCRIPT
Inquiry response
The impact of Covid-19 on groups and individualsMay 2020
Kenny Stewart, Laura Pasternak and Martin Hayward
equalityhumanrights.com
The impact of Covid-19 on groups and individuals
ContentsIntroduction.........................................................................................................3
About the Equality and Human Rights Commission.........................................3
How we have approached this inquiry..............................................................3
Recommendations..............................................................................................5
The legal context...............................................................................................13
The Equality Act 2010.....................................................................................13
The Coronavirus (Scotland) Act 2020.............................................................16
The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020................................................................................................................17
Advancing equality and non-discrimination...................................................18
Equality in a time of crisis...............................................................................18
Data, reporting and scrutiny............................................................................19
Supporting civil society...................................................................................20
Health and social care......................................................................................21
Scale of the challenge.....................................................................................21
Impact of Coronavirus on particular groups....................................................21
Access to treatment........................................................................................23
Impact on non-Covid-19 healthcare................................................................24
Social care......................................................................................................26
Work...................................................................................................................28
Reasonable adjustments by employers..........................................................28
Self-employed, gig economy and precarious workers....................................29
Pregnancy and maternity................................................................................29
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The impact of Covid-19 on groups and individuals
Gender inequality............................................................................................30
Access to justice...............................................................................................32
Use of video and phone in courts and tribunals..............................................32
Domestic abuse and violence against women and girls.................................33
Hate crime......................................................................................................35
Institutions.........................................................................................................36
Prisons and prisoners.....................................................................................36
Detention under the Mental Health (Care and Treatment) (Scotland) Act......37
Transport...........................................................................................................39
Accessible information....................................................................................39
Mobility support...............................................................................................39
Education...........................................................................................................40
Alternative certification model.........................................................................40
Support for vulnerable children and children with ASN...................................41
Digital exclusion..............................................................................................42
Free school meals...........................................................................................43
Living standards...............................................................................................44
Access to food and other essentials...............................................................44
Housing and homelessness............................................................................45
Recovery............................................................................................................46
Contacts.............................................................................................................48
EASS..............................................................................................................48
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The impact of Covid-19 on groups and individuals
Introduction
About the Equality and Human Rights CommissionThe Equality and Human Rights Commission is the National Equality Body (NEB) for Scotland, England and Wales. We work to eliminate discrimination and promote equality across the nine protected characteristics set out in the Equality Act (EA) 2010: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
We are an “A Status” National Human Rights Institution (NHRI) and share our mandate to promote and protect human rights in Scotland with the Scottish Human Rights Commission (SHRC).
How we have approached this inquiryOur response covers a wide range of issues and topics, many of which feature in our Strategic Plan. However, given the context of Coronavirus, we have broadened our perspective beyond the priority aims identified in our Strategic Plan for the purposes of this response. We would not ordinarily submit a response of this length to the Committee, but felt that on this occasion it is necessary in order to demonstrate the scale of the impact of Coronavirus on equality in Scotland. Our response is generally focused on equality and discrimination issues, in the knowledge that colleagues at the SHRC will address the human rights dimensions of devolved policy.
Our response is informed by emerging Scottish evidence, and data and information from England and Wales and elsewhere where we consider that to be relevant. It is also informed by direct engagement with a number of stakeholders, including representatives of groups sharing protected characteristics. The nature of the evidence we are citing is indicated throughout the response.
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The impact of Covid-19 on groups and individuals
We have submitted our response on Friday 15 May. We acknowledge that some of the detail and many of the statistics cited will be out of date almost immediately, although the issues raised are likely to remain relevant.
Although the response is wide-ranging, we anticipate that – given the fluidity and rapidly-changing nature of the current context – we may need to raise additional issues, as well as provide updates on the issues raised here, to the Committee in due course.
TerminologyIn this response, we use the terms ‘Coronavirus’ and ‘pandemic’ to refer to the broader public health context, and ‘Covid-19’ to refer specifically to the disease.
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The impact of Covid-19 on groups and individuals
Recommendations
The legal context1. The Scottish Government and relevant public bodies must continue to be
aware of their obligations under the Equality Act 2010, including through the Public Sector Equality Duty and the Fairer Scotland Duty. We believe that compliance with these duties will enable the Scottish Government and relevant public bodies to develop fairer and more inclusive responses to issues arising in relation to Coronavirus.
2. Public bodies, service providers and employers must all be aware of their obligations under the EA 2010 and seek to avoid discrimination of any form in the course of their work or business.
The Coronavirus (Scotland) Act 20203. The Scottish Government and Scottish Parliament should operate on the
basis that any powers which cannot be shown to be making a meaningful impact on efforts to restrict the spread of Covid-19, or which impact in a disproportionately negative way on a group or groups sharing protected characteristics, should be expired as soon as possible.
4. In order to fully understand the impact of these powers on people experiencing disadvantage and groups sharing protected characteristics, it is essential that the data that informs reporting on the use of powers to the Scottish Parliament is collected and disaggregated by protected characteristics and socio-economic status or background wherever appropriate and possible.
The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 20205. Changes to, or replacement of, these regulations should be lawful,
proportionate, necessary and time-bound, and take into account the Scottish Government’s equality obligations and the needs of, and potential impacts on, different groups.
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Equality in a time of crisis6. Having taken the welcome step of publishing the Framework for Decision-
Making, the Scottish Government must ensure that it is used consistently to support and inform its future decision-making. In undertaking its scrutiny role, the Scottish Parliament and its committees, including the Equalities and Human Rights Committee, should consider whether the actions of the Scottish Government and other public bodies are in line with the Framework’s principles and observations on equality and human rights.
Data, reporting and scrutiny7. The Scottish Government and other public bodies (including regulators,
inspectorates and ombudsmen seeking to comply with the PSED in undertaking their scrutiny roles) involved in the collection of data relevant to Coronavirus should seek to fill data gaps with respect to protected characteristics. Data should be gender-sensitive and, wherever possible, should include information on different categories of ethnicity or disability (going beyond White/Non-White and Disabled/Non-Disabled). Where normal data-gathering methods are disrupted or inadequate, they should use new sources or alternative methods to gain insight into potential impacts on groups sharing protected characteristics. Methods chosen should recognise the risk of missing the voices of those who are digitally excluded.
8. The Scottish Government and other public bodies should ensure that equality impact assessments of new or changed policies or processes are undertaken, which will improve the design and inclusiveness of policies and processes and reduce the risk of discrimination.
Supporting civil society9. The Scottish Government should continue to monitor the financial wellbeing
of civil society organisations and consider whether further funding or other support is needed.
10. The Scottish Government should ensure that civil society organisations are included and heard in the development of actions to contain and mitigate the impact of Coronavirus and in recovery planning, in line with the principles articulated in the Framework for Decision-Making.
Impact of Coronavirus on particular groups11. The Scottish Government should ensure that the operation of the Public
Health England review of ethnicity and Covid-19 as it applies to Scotland is transparent, and that relevant Scottish data is available and as robust as possible. This might include the commissioning of alternative data sources.
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The impact of Covid-19 on groups and individuals
12. The Scottish Government and NHS Scotland (including Health Boards and Integration Joint Boards) must work together to collect and publish relevant equality information about people with Covid-19, disaggregated in line with the recommendation above on data. This will:� Ensure a better understanding of how the virus is affecting our
communities� Enable rapid review of existing policies; and
� Inform equality impact assessment of new policies relating to both mitigation of the spread and treatment of the virus, in order to respond to the needs of particularly impacted groups.
13. The Scottish Government, NHS Scotland and the care sector must also ensure that an adequate supply of PPE, suitable for different needs and body types, is available to the health and social care workforce.
Access to treatment14. The Scottish Government, Health Boards (including Special Health Boards)
and NHS and local authority Integration Joint Boards (Health and Social Care Partnerships) must ensure that their policies and practices do not inadvertently discriminate against any groups sharing protected characteristics.
Impact on non-Covid-19 healthcare15. The Scottish Government and NHS Scotland should continue to encourage
those with non-Covid-19 health concerns, including groups sharing protected characteristics who may be more vulnerable to certain conditions and those with existing conditions, to seek medical help.
16. The Scottish Government and NHS Scotland should monitor demand for health services from groups sharing protected characteristics during the pandemic and seek to make resources available to meet these needs.
Social care17. The Scottish Government and the Care Inspectorate should ensure they
listen to and take into account the experiences of unpaid carers and disabled people to ensure they carry out effective, ongoing scrutiny and oversight of the provision of care.
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The impact of Covid-19 on groups and individuals
18. Decisions on how to allocate resources for social care locally must be compliant with the PSED. This means consideration of non-discrimination, the advancement of equality and promotion of good relations must be integrated into decision-making processes. The ‘Coronavirus (COVID 19): guidance on changes to social care assessments’ should be updated to reflect that local authorities are still bound by the PSED, and embed the principles of equality and non-discrimination.
19. Health and social care providers must proactively consider the need for, and how they can make, reasonable adjustments in their pandemic responses, including in relation to their communications.
Reasonable adjustments by employers20. Employers must ensure they take equality obligations into account when
supporting their employees, including making reasonable adjustments for disabled employees, and in making staffing and other employment decisions.
Self-employed, gig economy and precarious workers21. The Scottish Government should monitor the uptake and impact of support
for small and medium-sized businesses and newly self-employed people, to ensure that it reaches those experiencing financial hardship. This should include self-employed, gig economy and precarious workers who are more likely to be younger, female and/or from ethnic minorities.
Pregnancy and maternity22. While the Scottish Government has built the Fair Work Principles into its
guidance on support for businesses during the Coronavirus pandemic, it should also embed the principles of non-discrimination and equality to highlight to employers the need to adequately support pregnant women and ensure they are not treated less favourably than other workers.
Gender inequality at work23. The Scottish Government should ensure women’s experiences of work
during the pandemic are understood and applied to shape policy and decision-making, which will also assist them to meet their PSED obligations.
Use of video and phone in courts and tribunals24. The Scottish Government, the Scottish Courts and Tribunals Service, and
other relevant bodies should:
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The impact of Covid-19 on groups and individuals
� Take note of our interim report on challenges relating to communication and participation for some disabled people when video links or phones are used
� Monitor the use of video and phone hearings for potential unlawful discrimination
� Assess their decisions and any proposed changes in approach or policy for impact on equality issues; and
� Consider and promote the need to make reasonable adjustments for disabled people in order to alleviate the risk of damaging their ability to participate in proceedings.
Domestic abuse and violence against women and girls25. The Scottish Government and local authorities should continue to consider
how they can support domestic abuse services, both in the context of the Coronavirus emergency and in the aftermath, and further promote the fact that it remains lawful to seek safety if there is a risk of abuse or violence at home through channels accessible to all communities.
26. Local authorities should monitor the impact of school closures and restrictions to social work services on support for women and children experiencing domestic abuse, and provide housing, refuge and alternative safeguarding measures in line with demand. Responses should be accessible to and inclusive of women from ethnic minorities, women with no recourse to public funds, disabled women, women from religious backgrounds, and LGBT women.
27. In certain circumstances there may be a need for Police Scotland to consider intervention where children have not been returned, in bad faith, after court-ordered contact.
28. The Scottish Government should undertake a full equality impact assessment of the options for progressing serious criminal trials.
29. The Scottish Courts and Tribunals Service should also ensure equality considerations are taken into account when making changes to hearings for criminal trials, child welfare hearings and interdicts relating to domestic abuse. This will inform measures to minimise the differential impact of any alternative proceedings and make sure any changes meet the needs of particularly impacted groups.
Hate crime30. Police Scotland should engage with communities – utilising alternative
means of communication where necessary – to understand their experience of this issue and make clear that hate crime is unacceptable, that preventing and responding to hate crime remains a priority, and that victims are supported.
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The impact of Covid-19 on groups and individuals
Prisons and prisoners31. HMIPS should consider how best it can check that prisons understand,
monitor and mitigate any disproportionately negative impacts of pandemic-related restrictions on particularly vulnerable groups, including disabled people, pregnant women and young people.
32. The Scottish Prison Service should monitor the incidence of vulnerable prisoners whose circumstances (for example age, ill health, disability or pregnancy) give rise to specific concern but who do not fall within the parameters for release in the early release regulations. The Scottish Government should consider the use of the compassionate release process where relevant.
33. The Scottish Government must ensure that third sector organisations and local authorities are adequately resourced and prepared to support prisoners who are released early. This should include testing prisoners released early to ensure that they are not bringing Covid-19 into the family home.
Detention under the Mental Health (Care and Treatment) (Scotland) Act34. The Scottish Government should not implement emergency provisions in
the Coronavirus Act relating to the Mental Health (Care and Treatment) (Scotland) Act, unless strictly necessary and only for as long as is essential.
35. If the new powers are triggered, the Mental Health Tribunal for Scotland should ensure that Chairs of tribunals are recording the justification for their use to support the Mental Welfare Commission’s scrutiny.
Accessible transport information36. Transport providers should consult with disabled people’s organisations
when making decisions about the provision of information and ensure alternative means of accessing information are available, including phone lines and text services.
Mobility support37. Transport providers should review their passenger assistance
arrangements to ensure that staff are supported to safely provide passenger assistance, consistent with social distancing measures, and that this is communicated to passengers who may require assistance to travel.
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Alternative certification model38. The SQA must assess the potential impact of the alternative certification
model on equality, take the results of their assessment into account when finalising each of the steps in the new model, and publish their assessment as soon as possible.
39. The SQA should also monitor the actual impact of the alternative certification model on students, broken down by protected characteristics, to identify any disproportionate impact and to inform further investigation and possible mitigating action.
Support for vulnerable children and children with ASN40. Local authorities should collect equalities evidence to monitor both the
adequacy and uptake of their learning provision at educational hubs to ensure it meets the specific needs of pupils with ASN and vulnerable children and young people. They must also take a multi-agency approach to ensure the necessary safeguards are in place to minimise the risk of ‘hidden harm’ to vulnerable children and young people.
41. Local authorities must provide accessible information on the support available to pupils with ASN and pupils who may be disproportionately affected by school closures and their families, and ensure they are taking effective action to meet their needs during the pandemic.
Digital exclusion42. All local authorities should seek to understand the incidence of digital
exclusion of pupils facing socio-economic disadvantage in their areas and make urgent plans to support these pupils, including pupils formally or informally excluded from school prior to the introduction of social distancing measures.
Free school meals43. The Scottish Government, COSLA and local authorities should work
together to monitor uptake of provision of free school meals and identify and share good practice, taking account of advice from the CYPCS, to ensure that pupils and families receive their entitlement.
Access to food and other essentials44. It is essential that retailers discharge their legal obligation to make
reasonable adjustments for disabled people under the EA 2010 and in line with the rights of disabled people to live independently.
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Housing and homelessness45. Local authorities should monitor the effectiveness of actions taken in line
with the guidance on supporting Scottish Gypsy Travellers and ensure communities are receiving the necessary support throughout this period.
46. Local authorities and other providers of temporary accommodation should review Homeless Network Scotland’s ‘equality impact assessment’ of homelessness and Coronavirus and incorporate the mitigating actions identified into their own responses where appropriate.
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The impact of Covid-19 on groups and individuals
The legal context
The Equality Act 2010The Equality Act (EA) 2010 came into force in October 2010 and provides a single legal framework to tackle disadvantage and discrimination. The EA 2010 includes a number of provisions intended to protect individuals from unfair treatment and promote a fairer and more equal society.
The Public Sector Equality DutyThe purpose of the public sector equality duty (PSED) is to ensure that public authorities consider how they can positively contribute to a more equal society and ensure they eliminate discrimination. The public sector equality duty consists of a general equality duty and specific equality duties.
The general equality duty is a duty to have due regard to the need to:� Eliminate unlawful discrimination, harassment and victimisation and
other prohibited conduct� Advance equality of opportunity between people who share a relevant
protected characteristic and those who do not� Foster good relations between people who share a protected
characteristic and those who do not.
The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 place additional obligations on listed public authorities to support their compliance with the general duty.
The Fairer Scotland DutyThe socio-economic duty was introduced into legislation as Section 1 of the EA 2010, with the aim of ensuring that public bodies have to take socio-economic disadvantage into account when making strategic decisions. The power to implement the duty was devolved as part of the Scotland Act 2016, and the
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The impact of Covid-19 on groups and individuals
socio-economic duty, known as the Fairer Scotland Duty (FSD), came into force in Scotland in April 2018.1
The FSD requires certain listed public bodies to consider how they can reduce inequalities of outcome caused by socio-economic disadvantage when making strategic decisions. The Scottish Government’s interim guidance explains that:
“To fulfil their obligations under the Duty, public bodies must be able to meet […] the key requirement in each case:
� to actively consider how they could reduce inequalities of outcome in any major strategic decision they make; and
� to publish a written assessment, showing how they've done this.”
Actions to protect people that include and enhance equality and rights will maximise public consent and compliance, and so ultimately best safeguard public health.
The Scottish Government and relevant public bodies must continue to be aware of their obligations under the EA 2010, including through the PSED and FSD. We believe that compliance with these duties will enable the Scottish Government and relevant public bodies to develop fairer and more inclusive responses to issues arising in relation to Coronavirus.
Discrimination The EA 2010 identifies four forms of discrimination:2
� Direct discrimination. This occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic. Direct discrimination cannot be justified except in the case of age discrimination.
� Indirect discrimination. This occurs when an apparently neutral policy3 is applied that puts people sharing a protected characteristic at a particular disadvantage, and that puts an individual at that disadvantage. Indirect discrimination can be justified if it is ‘a proportionate means of achieving a legitimate aim’.
1 The socio-economic duty is not yet in force in England or Wales. The Welsh Government intends to commence the duty later in 2020. We have previously called on the UK Government to commence the duty in England too.2 This is a brief summary of the forms of discrimination and does not cover all the steps necessary to identify discrimination. See our Handbook for Advisers for more information on discrimination and on the EA 2010 generally.3 ‘Policy’ is broadly defined as a “provision, criterion or practice”.
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� Discrimination arising from disability. This occurs where a disabled person is treated unfavourably, where this treatment is because of something arising in consequence of the disabled person’s disability, and where it cannot be shown that this treatment is a proportionate means of achieving a legitimate aim. There is no discrimination if it can be shown that the employer/service provider did not know and could not be expected to know that the disabled person had the disability.
� Failure to make reasonable adjustments. The duty to make reasonable adjustments can comprise three requirements:
i Where a provision, criterion or practice puts disabled people at a substantial disadvantage compared to those who are not disabled, to take reasonable steps to avoid the disadvantage.
ii Where a physical feature puts disabled people at a substantial disadvantage, compared with people who are not disabled, to avoid that disadvantage.
iii Where not providing an auxiliary aid puts disabled people at a substantial disadvantage compared with people who are not disabled, to provide that auxiliary aid.
We appreciate that it will rarely be the case that a policy-maker, service provider or employer will seek to deliberately discriminate. However, if they do not adequately consider equality issues in their decision-making, there is a risk that discrimination could still take place inadvertently.
Public bodies, service providers and employers must all be aware of their obligations under the EA 2010 and seek to avoid discrimination of any form in the course of their work or business.
The Coronavirus (Scotland) Act 20204
The purpose of the Coronavirus (Scotland) Act 2020 is to “respond to the emergency situation caused by the Covid-19 pandemic”, supplementing the Coronavirus Act 2020 as passed by the UK Parliament and to which the Scottish Parliament gave legislative consent.
4 The Coronavirus (Scotland) Act 2020 allows public authorities to postpone statutory reporting, including with respect to the PSED, if it would disrupt effective action to reduce the spread of Covid-19. The requirements of the general duty remain in force and are critically important to ensure that public authorities consider the needs and disadvantages faced by people with different protected characteristics as they respond to the pandemic. We have published an update on our approach to PSED reporting obligations.
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Section 9 of the Coronavirus (Scotland) Act requires the Scottish Government to “have regard to opportunities to advance equality and non-discrimination” when exercising powers in the Act. This requirement broadly aligns with the PSED.
Under section 12, the powers in the Act will expire on 30 September 2020, unless they are extended by the Scottish Parliament for a period of six months. Two such possible extensions are provided for, meaning the powers in the Act must expire by 30 September 2021 at the latest. There is also provision in the Act to enable the early expiry of individual powers where the Scottish Government and Scottish Parliament believe they are no longer appropriate or proportionate.
We recognise that to keep people safe, restrictions on our rights and freedoms may be required. However, any restrictions must be lawful, necessary, proportionate and time-bound, and receive adequate and regular public and parliamentary scrutiny. The Scottish Government and Scottish Parliament should operate on the basis that any powers which cannot be shown to be making a meaningful impact on efforts to restrict the spread of Covid-19, or which impact in a disproportionately negative way on a group or groups sharing protected characteristics, should be expired as soon as possible.
Section 15 of the Act requires the Scottish Government to report to the Scottish Parliament on both the necessity of the powers and their use every two months. Michael Russell, Cabinet Secretary for the Constitution, Europe and External Affairs, told the Scottish Parliament’s Covid-19 Committee that it is the Scottish Government’s intention to report on its use of powers under both the Coronavirus (Scotland) Act and the Coronavirus Act in a combined report. This comprehensive approach is welcome.
In order to fully understand the impact of these powers on people experiencing disadvantage and groups sharing protected characteristics, it is essential that the data that informs reporting on the use of powers to the Scottish Parliament is collected and disaggregated by protected characteristics and socio-economic status or background wherever appropriate and possible.
Reporting in this way will enable the Scottish Government to identify disproportionate impacts on groups sharing protected characteristics and amend policies or actions to advance equality and non-discrimination in line with the section 9 requirement, and support compliance with the PSED and FSD.
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The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 were made by the Scottish Government under the Coronavirus Act 2020. These regulations were made without scrutiny by, or approval of, the Scottish Parliament, and no equality impact assessment was undertaken.
The regulations make “provision for the purpose of enabling a number of emergency public health measures to be taken to reduce the public health risks” related to Coronavirus. This is intended to ensure “action to implement social distancing and impose restrictions on gatherings, events and operation of business activity can be enforced”. This is in effect the statutory underpinning for what we now understand as “social distancing” measures.
These regulations will need to be amended or replaced when changes to social distancing measures are necessary and cannot be achieved through changes to guidance. Changes to, or replacement of, these regulations should be lawful, proportionate, necessary and time-bound, and take into account the Scottish Government’s equality obligations and the needs of, and potential impacts on, different groups.
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Advancing equality and non-discrimination
Equality in a time of crisisIn late April, the Scottish Government published its Framework for Decision-Making, which was supplemented with further information in early May.5 The Framework “outlines the approach and principles that will guide [the Scottish Government] as [it] make[s] decisions about transitioning out of the current lockdown arrangements”.
We support the principles identified by the Scottish Government. That these include ‘lawful’, ‘evidence-based’, and ‘fair and ethical’ is welcome. ‘Fair and ethical’ is described as meaning to “uphold the principles of human dignity, autonomy, respect and equality”.
The framework further recognises that:� Harms caused by Coronavirus do not impact everyone equally
� The response to the pandemic must recognise these unequal impacts
� The Scottish Government must seek to advance equality and protect human rights in everything [it does]
� Options for action must be assessed to see whether they promote equality
� In re-building Scotland’s economy, we must seek to overcome inequality and advance human wellbeing.
5 We wrote to the First Minister to offer our services, resources, expertise and knowledge both in relation to the immediate response to Coronavirus and in relation to wider socio-economic recovery planning. This offer is reflected in the ‘further information’ document.
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We agree with each of these observations. Having taken the welcome step of publishing the Framework, the Scottish Government must ensure that it is used consistently to support and inform its future decision-making. In undertaking its scrutiny role, the Scottish Parliament and its committees, including the Equalities and Human Rights Committee, should consider whether the actions of the Scottish Government and other public bodies are in line with these principles and observations.
Data, reporting and scrutinyIt is essential that good quality data, disaggregated by protected characteristics, is available to enable effective monitoring and understanding of the impacts of Coronavirus and associated actions. This is true with respect to the Scottish Government’s reporting on use of powers in the Coronavirus (Scotland) Act and the Coronavirus Act, as discussed above, but it also applies to other forms of decision-making and action related to the pandemic but not premised on emergency legislation. The pandemic has shown that where there is a lack of protected characteristic data or where data is not robust – for example, ethnicity in mortality data – there can be a delay in awareness of impacts on different groups.
Social distancing measures are impacting on some forms of data collection, particularly face to face. The publication of routine datasets may also be delayed or under pressure as resources are diverted elsewhere.
The Scottish Government and other public bodies (including regulators, inspectorates and ombudsmen seeking to comply with the PSED in undertaking their scrutiny roles) involved in the collection of data relevant to Coronavirus should seek to fill data gaps with respect to protected characteristics. Data should be gender-sensitive and, wherever possible, should include information on different categories of ethnicity or disability (going beyond White/Non-White and Disabled/Non-Disabled). Where normal data-gathering methods are disrupted or inadequate, they should use new sources or alternative methods to gain insight into potential impacts on groups sharing protected characteristics. Methods chosen should recognise the risk of missing the voices of those who are digitally excluded.
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Disaggregated data will also support the Scottish Parliament and its committees, including the Equalities and Human Rights Committee, in its scrutiny role. So too will the publication of equality impact assessments alongside the introduction of new or changed policies or processes wherever possible. The Scottish Government and other public bodies should ensure that equality impact assessments of new or changed policies or processes are undertaken, which will improve the design and inclusiveness of policies and processes and reduce the risk of discrimination.
We welcome the Scottish Police Authority Independent Advisory Group on Police Use of Emergency Powers, on which we are represented. We will continue to highlight the need for robust data collection on use of these powers, to understand the impact on groups sharing protected characteristics.
Supporting civil societyCoronavirus and related measures have impacted on the capacities of civil society organisations throughout Scotland who are often simultaneously seeking to support, inform and hold the Scottish Government to account through advocacy and policy influencing, and support disadvantaged or vulnerable groups as they cope with the pandemic.
We welcomed the Scottish Government’s announcement of support for many such organisations, including domestic abuse organisations, and the announcement of the Third Sector Resilience Fund and the Wellbeing Fund. We also welcome the decision to extend relevant funding that was due to expire this summer. The Scottish Government should continue to monitor the financial wellbeing of civil society organisations and consider whether further funding or other support is needed.
The experience of civil society organisations in advocating for and supporting disadvantaged or vulnerable groups before, during and after the Coronavirus pandemic is and will be invaluable. The Scottish Government should ensure that civil society organisations are included and heard in the development of actions to contain and mitigate the impact of Coronavirus and in recovery planning, in line with the principles articulated in the Framework for Decision-Making.
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Health and social care
Scale of the challengeThe Coronavirus pandemic is putting unprecedented pressure on Scotland’s integrated health and social care system. Financial pressures identified by Audit Scotland prior to the pandemic are being exacerbated as staff and funding are diverted to address the needs of those critically ill with Covid-19.
In order to ensure equity of access to healthcare and eradicate, or at least minimise, disadvantage caused by differential impacts, it is essential that health and social care is provided in compliance with the PSED and the FSD.
We have already offered our support to the Chief Medical Officer and will continue to seek opportunities to contribute our expertise.
Impact of Coronavirus on particular groupsWe are concerned by the apparent disproportionate impact of Covid-19 on health outcomes for certain groups. At the time of writing, the most recent statistics from the National Records of Scotland (NRS) showed that three-quarters (76%) of all deaths involving Covid-19 were of people aged 75 or over, and more than two-fifths (45%) were in care homes.
NRS data also shows that people in Scotland’s most-deprived areas were 2.3 times as likely to die with Covid-19 as people from the least-deprived areas, based on deaths in March and April. 91% of deaths with Covid-19 in April involved one or more pre-existing conditions. Age-standardised death rates (adjusting for the age-structure of the population) with Covid-19 in April were almost 50% higher for men than women.
The groups identified by the NHS as being at high or very high risk include older people, pregnant women, and people with various conditions including heart disease, diabetes and sickle cell disease.
The Coalition for Racial and Equality and Rights have drawn together research that shows that many of the conditions associated with being vulnerable to Covid-19 are prevalent in ethnic minorities.
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However, there is limited evidence on the impact of Covid-19 on ethnic minorities in Scotland. A note by the National Records of Scotland explains that when a death is registered, information about the deceased person’s ethnicity is collected on a voluntary basis.6 The note shows that of deaths registered involving Covid-19 in Scotland up to 26 April, 90% are categorised as ‘White’, 9% are unknown, and just 1% are from an ethnic minority (with most of these categorised as ‘Asian’). The large proportion of ‘unknowns’ means that the data must be treated with caution. Indeed the note advises that “quality of death registration ethnicity has previously been assessed […] and it was concluded that the data were not yet suitable for calculating reliable mortality rates for most ethnic groups”. Broadly comparable data published by the Office of National Statistics shows that in England and Wales the “risk of death involving [Covid-19] among some ethnic groups is significantly higher than that of those of White ethnicity”. The lack of robust data in Scotland means it is not clear to us whether this is also the situation in Scotland.
We welcome confirmation from the Scottish Government’s Chief Medical Officer’s Directorate to the Commission that they will be participating in a formal review of this issue by NHS and Public Health England. The Scottish Government should ensure that the operation of this review as it applies to Scotland is transparent, and that relevant Scottish data is available and as robust as possible. This might include the commissioning of alternative data sources.
Further data is also required on the differential impact of Coronavirus on women. Data from NHS Scotland and the Scottish Social Services Council shows that women make up a majority of health (77%) and social care (85%) staff and who may therefore have increased exposure to the disease, in particular where reports have indicated shortages of and other issues related to personal protective equipment (PPE) and testing. The UK Women’s Budget Group note that such shortages in turn put women, older people, and disabled people at heightened risk of Covid-19 exposure. Furthermore, one-size-fits-all PPE puts certain groups, including female workers and those from certain ethnic minorities, at heightened risk.
6 This involves the registrar asking the ‘informant’ – the relative or other person registering the death – whether they are willing to provide ethnicity information. If they are, the informant picks the most appropriate group from a list.
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The impact of Covid-19 on groups and individuals
Disabled people and people with long-term conditions, many of whom are most at risk from Covid-19, are concerned about discriminatory treatment in health and social care responses, including perceived pressure to agree to Do Not Attempt CPR (DNA-CPR) notices, or reportedly being told they won’t be eligible for hospital treatment should they fall ill. The Scottish Commission for Learning Disabilities has raised concerns that people with learning disabilities could be disproportionately affected by Covid-19 as respiratory infections are the most common cause of death in this community.
The Scottish Government and NHS Scotland (including Health Boards and Integration Joint Boards) must work together to collect and publish relevant equality information about people with Covid-19, disaggregated in line with the recommendation above on data. This will:
� Ensure a better understanding of how the virus is affecting our communities
� Enable rapid review of existing policies; and� Inform equality impact assessment of new policies relating to both
mitigation of the spread and treatment of the virus, in order to respond to the needs of particularly impacted groups.
The Scottish Government, NHS Scotland and the care sector must also ensure that an adequate supply of PPE, suitable for different needs and body types, is available to the health and social care workforce.
Access to treatmentLast month, we submitted feedback to the Scottish Government’s Chief Medical Officer’s (CMO’s) Directorate to inform their ongoing review of the Coronavirus (COVID-19) Guidance: Clinical Advice, and Ethical Advice and Support Framework. Our feedback was informed by the work of the Centre for Mental Health and Capacity Law, the ALLIANCE, the Mental Welfare Commission for Scotland , and the SHRC.
We continue to provide advisory support to the CMO, alongside other equality and human rights organisations, to inform the review of the Clinical Advice and Ethical Advice and Support Framework.
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The impact of Covid-19 on groups and individuals
We highlighted the need for obligations under the EA 2010 to be incorporated into the guidance to support frontline staff when making challenging healthcare decisions while fulfilling their legal duties. We advised that the guidance explicitly state that blanket decision-making – for example, around prioritisation of treatment – which could have a negative impact on groups sharing protected characteristics, such as disabled people or older people, must not be permitted.
In relation to the use of the Clinical Frailty Scale (CFS), we understand that the severe health risks associated with Covid-19 mean that there may be benefit in assessing the frailty of some adults who are admitted to hospital and that there are a variety of ways of making this assessment. However, it is essential that any such assessment tool must not be used to make decisions about access to critical care in a way which results in unlawful discrimination.
We have advised that it is essential that any assessment tool, including the use of the CFS or another factor-based frailty score, must be closely scrutinised to consider whether placing weight on particular factors or criteria, such as ‘support needs’, may unintentionally disadvantage people with protected characteristics including age and disability. In order to avoid discrimination, such an assessment should take into account the individual clinical circumstances of the patient and avoid generalisations or assumptions based on protected characteristics, including age and disability.
The Scottish Government, Health Boards (including Special Health Boards) and NHS and local authority Integration Joint Boards (Health and Social Care Partnerships) must ensure that their policies and practices do not inadvertently discriminate against any groups sharing protected characteristics.
Impact on non-Covid-19 healthcareIn addition to the concerns highlighted above from disabled people’s organisations around access to general healthcare, Engender have highlighted concerns about access to non-Covid-19 healthcare for women. There are risks to supply chains of medicines and contraceptives, and concerns about the staffing and resourcing of maternity and reproductive health units and maternal mental healthcare provision.
LGBT representative organisations have advised us that trans people are facing issues accessing medical treatments, and are experiencing distress due to the
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The impact of Covid-19 on groups and individuals
closure of gender identity clinics and being unable to join already-long waiting lists.7
It is now generally accepted that the Coronavirus pandemic is having a profound effect on mental health as well as physical health. For those already experiencing poor mental health prior to the pandemic, Coronavirus and related actions may be a particular challenge as this group was already more likely to live in isolation and experience poor health. Almost a quarter of adults living under lockdown in Scotland have felt loneliness, according to the Mental Health Foundation. A Children’s Parliament survey found that children are reporting an impact on both physical and mental health as a consequence of social distancing measures. And two-fifths of young people in Scotland who responded to the ‘Lockdown Lowdown’ survey revealed they are concerned about their mental wellbeing.
We have previously raised concerns about unmet demand with respect to mental health services. Access to, and outcomes from, mental health services are therefore likely to worsen during the pandemic. We welcome the new mental health support announced by the Scottish Government. Support for research to understand the impacts of Coronavirus, including mental health impacts, is also welcome.
The Scottish Government has warned the public against ignoring signs of serious illness after Accident and Emergency attendance rates declined significantly in the early weeks of social distancing measures. We welcome this kind of public reassurance, as well as the new remote prescribing and medical abortion healthcare provision at home.
The Scottish Government and NHS Scotland should continue to encourage those with non-Covid-19 health concerns, including groups sharing protected characteristics who may be more vulnerable to certain conditions and those with existing conditions, to seek medical help.
The Scottish Government and NHS Scotland should monitor demand for health services from groups sharing protected characteristics during the pandemic and seek to make resources available to meet these needs.
7 Additionally, LGBT representative organisations have told us that there is concern about the delay to gender recognition law reform.
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The impact of Covid-19 on groups and individuals
Social careThe Coronavirus Act 2020 provisions removing the duty to assess social care needs in Scotland were commenced by the Coronavirus Act 2020 (Commencement No. 1) (Scotland) Regulations 2020/121 on 5 April. Although the duty to undertake a needs assessment has been relaxed, the duty to provide support remains in place.
We are concerned to hear reports of reductions and removal of social care packages, and of local authorities increasing eligibility criteria which is not permitted under the UK Coronavirus Act 2020. Data supplied by Health and Social Care Partnerships to the BBC shows significant reductions in the number of social care clients, packages, or visits in several parts of Scotland between January and April.
Disabled people and people living with long-term conditions are affected particularly severely by reductions in care. Glasgow Disability Alliance report that 1,600 people in Glasgow had their social care support withdrawn, often without notice, from 19 March to 28 April, with a lack of information as to when their care would be reinstated. This has left them reliant on their children, neighbours, relatives, or coping on their own.
According to a survey by Carers Scotland, 39% of those providing more unpaid care were doing so because care and support services have been reduced or closed. 53% reported feeling overwhelmed managing caring responsibilities.
However, we understand that some withdrawal of provision has been due to staff sickness or through choice on the part of the recipient or their family because of concerns about infection.
We welcome a commitment to provide additional resources from the Scottish Government for social care during the pandemic, and agree with the Cabinet Secretary for Health and Sport’s statement that cuts in care packages are ‘not acceptable’. We further welcome the additional £19.2 million investment in Carer's Allowance Supplement proposed by the Scottish Government. However, the Scottish Government should continue to monitor the uptake of, and satisfaction with, carers’ benefits among some groups sharing protected characteristics, including some ethnic minority groups and Scottish Gypsy Travellers.
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The impact of Covid-19 on groups and individuals
Given the lived reality of withdrawal of social care and resulting disproportionate impact on disabled people and unpaid carers in particular, the Scottish Government and the Care Inspectorate should ensure they listen to and take into account unpaid carers’ and disabled people’s experiences and carry out effective, ongoing scrutiny and oversight of the provision of care. We have written jointly with the SHRC to offer our support to the Care Inspectorate.
We welcome the Scottish Government’s announcement of additional funding for social care. Decisions on how to allocate resources for social care locally must be compliant with the PSED.8 This means consideration of non-discrimination, the advancement of equality and promotion of good relations must be integrated into decision-making processes. The ‘Coronavirus (COVID 19): guidance on changes to social care assessments’ should be updated to reflect that local authorities are still bound by the PSED, and embed the principles of equality and non-discrimination.
The EA 2010 sets out the need for organisations to make reasonable adjustments and take positive steps to remove barriers that disabled people face. The duty is particularly relevant to organisations that communicate and use technology to make their services accessible during the pandemic, including the use of remote care assessments. Disabled and older people may lack access to internet provision or lack the skills or confidence to use digital technologies. We are pleased that this has been recognised by the Scottish Government and welcome new support to help get clinically high-risk people online. Nevertheless, health and social care providers must proactively consider the need for, and how they can make, reasonable adjustments in their pandemic responses, including in relation to their communications.
8 For example, the UK Government’s guidance for local authorities on Care Act easements stipulates that duties imposed under the Equality Act 2010 remain, and that these should underpin any decisions made with regard to care and support someone receives during this period. See Department of Health & Social Care, Care Act easements: guidance for local authorities.
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The impact of Covid-19 on groups and individuals
Work
Reasonable adjustments by employersThe Equality Advisory and Support Service (EASS) advises and assists individuals on issues relating to equality and human rights, across Scotland, England and Wales. The EASS has seen an increase in calls to its helpline, which is attributed largely to calls related to Coronavirus and associated measures. Around half of calls from Scotland to the EASS between mid-March and the end of April were about Coronavirus employment issues related to health or disability.
The Commission has published new guidance for employers,9 reminding them of their legal responsibilities towards their employees during the coronavirus pandemic. The guidance will help employers to make the right, and lawful, decisions and provides examples of what action they should take to avoid discrimination in the current climate, including working from home, furlough and redundancy decisions.
The Coronavirus (COVID-19) guidance for employers: Reasonable adjustments for employees is aimed at supporting employers to remove or reduce any substantial disadvantage faced by disabled workers which would not be faced by a non-disabled worker. This can include changing policies and practices, changes to overcome barriers to the physical features of a workplace and the provision of extra equipment to help disabled people do their job.
Employers must ensure they take equality obligations into account when supporting their employees, including making reasonable adjustments for disabled employees, and in making staffing and other employment decisions.
9 We will also shortly be publishing guidance to support employers in relation to domestic abuse in the context of Coronavirus.
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The impact of Covid-19 on groups and individuals
Self-employed, gig economy and precarious workersWe welcome the financial measures the UK and Scottish Governments have put in place for many employees and employers; however, there has been confusion over eligibility for self-employed and gig economy workers. This unprecedented situation has drawn attention to the lack of basic employment rights – such as sick pay – that mean many gig economy workers have no choice but to continue working. This type of work is often low-paid and precarious, with an overrepresentation at the UK level of young workers and ethnic minorities. 55% of workers on zero-hour contracts in Scotland are women.
The Poverty Alliance notes that 60% of adults living in poverty in Scotland are in working households, and that the pandemic has likely seen a further cut in income for many of them due to cuts in hours or furloughing. The Fraser of Allander Institute reports that only 42% of Scottish households in the bottom income decile would be able to cover one month of their regular income from savings.
We note the Scottish Government’s £100 million package of additional grant support for small and medium sized businesses (SMEs) and newly self-employed people. The Scottish Government should monitor the uptake and impact of this grant to ensure that it reaches those experiencing financial hardship, including self-employed, gig economy and precarious workers who are more likely to be younger, female and/or from ethnic minorities.
Pregnancy and maternityPregnant women should not be disadvantaged financially, or in their careers, by following advice to protect their health and that of their families.
Current advice from NHS Scotland says that pregnant women may be at increased risk of severe illness from Covid-19 and that they “should strictly follow physical distancing measures”. Pregnant women with significant heart disease have been advised to follow shielding measures as part of the ‘highest risk group’.
We are aware of concerns relating to pregnant workers and those on maternity leave, including through calls to the EASS. These include potentially
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The impact of Covid-19 on groups and individuals
discriminatory decisions by employers related to pay, redundancy, furloughing and home-working.10
The Commission’s Coronavirus (COVID-19) guidance for employers: Your duties on pregnancy and maternity aims to support employers to reduce the impact on pregnant workers or those on maternity leave to ensure they do not face discrimination. Unless a pregnant employee needs adjustments to her working conditions for health and safety or pregnancy-related reasons, she should be treated in the same way as any other employee.
Employers should be aware that if they cannot ensure the health and safety of pregnant employees by making workplace adjustments, these employees should be furloughed or placed on full paid leave.
While the Scottish Government has built the Fair Work Principles into its guidance on support for businesses during the Coronavirus pandemic, it should also embed the principles of non-discrimination and equality into this guidance to highlight to employers the need to adequately support pregnant women and ensure they are not treated less favourably than other workers. It could also signpost the Commission’s new guidance to remind employers in Scotland of the need to comply with equality law during this period of great uncertainty for employers and employees alike.
Gender inequalityAll workplaces and employees will be affected by Coronavirus. However, this pandemic is gendered in nature. While noting that men comprise the majority of critical care cases, the UK Women’s Budget Group has highlighted how women are disproportionately affected, for example through comprising the majority of health and care workers and of low paid workers. Younger and older workers, ethnic minority employees, and disabled people also face disproportionate disadvantage and discrimination due to coronavirus, in terms of their current roles and longer-term participation in the labour market.
As discussed above, the reported scarcity of PPE and testing disproportionately affects women and those they care for. Furthermore, one-size-fits-all PPE also puts certain groups, particularly female workers, at heightened risk.
10 Working Families also report a number of enquiries to their UK-wide helpline regarding pregnancy and maternity Coronavirus-related issues.
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The impact of Covid-19 on groups and individuals
Women are likely to face additional childcare responsibilities as a result of the gendered allocation of childcare and have reportedly had to use annual leave, sick leave and unpaid leave in order to care for children. Single parents, of whom 90% are female, are particularly impacted by additional caring responsibilities and school closures. Inflexible workplace cultures disproportionately impact women.
Domestic abuse is also a significant issue, which we discuss further below, but it is worth noting here that we will shortly be publishing new guidance for employers in relation to domestic abuse and Coronavirus.
The Scottish Government should ensure women’s experiences of work during the pandemic are understood and applied to shape policy and decision-making, which will also assist them to meet their PSED obligations. Protected characteristic data collection is a key way to ensure this, and Engender’s briefing provides more information on gender-sensitive sex-disaggregated data.
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The impact of Covid-19 on groups and individuals
Access to justice
Use of video and phone in courts and tribunalsWe recently completed an inquiry looking at access to justice for disabled accused in the criminal justice systems in Scotland and in England and Wales. We have decided to delay publication of the full report of the inquiry given disruption to criminal justice in the Coronavirus context.
That disruption has seen a rapid expansion in the use of video links across courts and tribunals in England and Wales in order to reduce the need for face to face hearings. This is an understandable response, but our inquiry found concerns about the ability of some people – particularly those with certain impairments or conditions, such as a learning disability, autism spectrum disorders and mental health conditions – to participate fully in proceedings where video and phone links are used, because of challenges around communication and understanding.
We have therefore published an interim report on this issue. Although use of video links has historically been less common in Scottish courts and tribunals, we are aware of some increased use in response to the pandemic (and the option remains for further expansion). There has also been substantial use of phone hearings, which also cause particular difficulties for disabled court users. We believe that the English and Welsh experience includes useful learning for the Scottish context.
The Scottish Government, the Scottish Courts and Tribunals Service, and other relevant bodies should:
� Take note of our interim report on challenges relating to communication and participation for some disabled people when video links or phones are used
� Monitor the use of video and phone hearings for potential unlawful discrimination
� Assess their decisions and any proposed changes in approach or policy for impact on equality issues; and
� Consider and promote the need to make reasonable adjustments for disabled people in order to alleviate the risk of damaging their ability to participate in proceedings.
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The impact of Covid-19 on groups and individuals
Domestic abuse and violence against women and girlsWe are concerned about the increased risk of domestic abuse and violence against women and girls as a significant related impact of the Coronavirus pandemic.
Evidence from Safe Lives suggests that workers in the domestic abuse sector are experiencing a rise in caseload at the same time as reductions in service delivery at a UK level. In Scotland, domestic abuse organisations reported an initial reduction in calls in the early stages of social distancing, before appearing to return to typical levels in mid-April.
Additionally, inquiries to Police Scotland’s domestic abuse disclosure scheme have risen by 18% since social distancing measures came into force. We are aware of anecdotal evidence of increased anxiety among women at risk of domestic abuse, because of isolation and – where parties are not currently living together – potential abusers’ knowledge that women will be at home. We are also aware of reports that police response to new domestic abuse legislation has been mixed, and that some local authorities are struggling to offer refuge to women and children.
As of last month, thousands of children reporting physical, sexual, emotional abuse or neglect across the UK had contacted ChildLine for counselling services, including a 13% rise from young people who are disabled or who have additional support needs. The heightened risk of abuse during this period of social distancing could be compounded by online grooming and the aforementioned reductions and removal of social care packages in some local authorities.
As above, we welcome the additional support provided to domestic abuse services by the Scottish Government. We also welcome provision in the Health Protection regulations that makes clear it is not an offence to flee the risk of harm, and recent guidance to highlight this. The Scottish Government and local authorities should continue to consider how they can support domestic abuse services, both in the context of the Coronavirus emergency and in the aftermath, and further promote the fact that it remains lawful to seek safety if there is a risk of abuse or violence at home through channels accessible to all communities.
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The impact of Covid-19 on groups and individuals
We are represented on the Independent Advisory Group on Police Use of Emergency Powers and have raised the issue of domestic abuse, recommending that the Scottish Government and Police Scotland continue to give public assurances that these crimes will continue to be addressed at both national and local level. We welcome Police Scotland’s new campaign to tackle the consequences of online child abuse.
Local authorities should monitor the impact of school closures and restrictions to social work services on support for women and children experiencing domestic abuse, and provide housing, refuge and alternative safeguarding measures in line with demand. Responses should be accessible to and inclusive of women from ethnic minorities, women with no recourse to public funds, disabled women, women from religious backgrounds, and LGBT women.
We have also been alerted to issues related to court-ordered contact with children, where children may not be returned (principally by men, to women) after contact, citing supposed concerns about infection. The Lord President's Guidance on Compliance with Court Orders Relating to Parental Responsibilities and Rights advises that “communication between all parties is key” in this context, but this may not always be possible or desirable. In certain circumstances there may be a need for Police Scotland to consider intervention.
We know that many survivors are waiting for jury trials which are currently delayed until further notice. The Scottish Government should undertake a full equality impact assessment of the options for progressing serious criminal trials.11
The Scottish Courts and Tribunals Service should also ensure equality considerations are taken into account when making changes to hearings for criminal trials, child welfare hearings and interdicts relating to domestic abuse. This will inform measures to minimise the differential impact of any alternative proceedings and make sure any changes meet the needs of particularly impacted groups.
11 The issues raised above around the use of video links and phones in courts are relevant to this and the following recommendation.
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The impact of Covid-19 on groups and individuals
Hate crime12 Some calls to the EASS have highlighted abuse against people of certain nationalities or from certain ethnic minorities (including Chinese and Italian people), in which they were blamed for the onset or spread of Covid-19. A reported study of racist attacks on people of Chinese heritage across the UK provides further evidence of this issue and Police Scotland are investigating at least one incident in Glasgow. It has also been reported that members of Glasgow’s Roma community have been targeted after being unfairly accused of ignoring social distancing measures.
Police Scotland should engage with communities – utilising alternative means of communication where necessary – to understand their experience of this issue and make clear that hate crime is unacceptable, that preventing and responding to hate crime remains a priority, and that victims are supported.
12 We note the introduction of the Scottish Government’s Hate Crime and Public Order (Scotland) Bill and look forward to engaging with the Justice Committee’s call for views in due course.
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The impact of Covid-19 on groups and individuals
Institutions
Prisons and prisonersHM Inspectorate of Prisons for Scotland (HMIPS) , the World Health Organization and others (including the Scottish Centre for Crime and Justice Research and Engender) have highlighted particular risks for prisoners in the context of Coronavirus. These include overcrowding, limited access to healthcare and exercise, a population with a disproportionate incidence of existing health concerns when compared with the broader population, the needs of particularly vulnerable prisoners (including women with young children and people with disabilities), and variable standards of sanitation in prison environments.
We acknowledge that HMIPS has suspended routine visits to prisons as a consequence of Coronavirus. However, HMIPS should consider how best it can check that prisons understand, monitor and mitigate any disproportionately negative impacts of pandemic-related restrictions on particularly vulnerable groups, including disabled people, pregnant women and young people.
The Scottish Government has made regulations to enable the early release of some prisoners in to order to reduce the prison population and thus the risk of greater spread of Covid-19 in prisons. This is welcome and the use and effectiveness of these regulations, which are envisaged to be a short-term measure in the first instance, should be kept under review.
The equality impact assessment published alongside the regulations notes that the regulations do not make provision for the release of prisoners whose circumstances may give rise to particular concern for their wellbeing, but that there is an existing process for compassionate release in such circumstances. The Scottish Prison Service should monitor the incidence of vulnerable prisoners whose circumstances (for example age, ill health, disability or pregnancy) give rise to specific concern but who do not fall within the parameters for release in the regulations, and the Scottish Government should consider the use of the compassionate release process where relevant.
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The impact of Covid-19 on groups and individuals
The early release of prisoners will require appropriate community support to be put in place to enable them to live safely in the context of Coronavirus. There is also a need to consider the impact on families, particularly women, who will be affected by the early return of family members to the family home. The Scottish Government must ensure that third sector organisations and local authorities are adequately resourced and prepared to undertake this work. This should include testing prisoners released early to ensure that they are not bringing Covid-19 into the family home.
Detention under the Mental Health (Care and Treatment) (Scotland) Act The Coronavirus Act includes provisions which significantly weaken the safeguards for people detained under the Mental Health (Care and Treatment) (Scotland) Act 2003, including:
� Extending the maximum duration of emergency detention and the power of nurses to detain patients pending a medical examination
� Allowing doctors to authorise and extend short-term detention without the approval of a mental health officer
� Reducing from two to one the number of doctors’ reports required to apply for long-term measures
� Suspending the requirement to review an order before renewing it after six months
� Reducing the number of members of a Mental Health Tribunal.
The equality impacts of triggering these provisions on people with a mental illness, autism, or a learning disability should be carefully considered as being admitted inappropriately to secure inpatient units, being denied access to hospital treatment, or receiving a lack of community support could result in discrimination and harm to disabled people’s wellbeing.
The Scottish Government should not implement emergency provisions in the Coronavirus Act relating to the Mental Health (Care and Treatment) (Scotland) Act, unless strictly necessary and only for as long as is essential.
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The impact of Covid-19 on groups and individuals
We welcome the Mental Welfare Commission’s role in scrutinising any future use of these provisions, and call on the Scottish Parliament to scrutinise the operation of existing safeguards and impact of reductions in services closely.13 If the new powers are triggered, the Mental Health Tribunal for Scotland should ensure that Chairs of tribunals are recording the justification for their use to support the Mental Welfare Commission’s scrutiny.
The Mental Health Tribunal for Scotland should also be aware of our findings in relation to video and phone hearings and challenges in participation and communication for some people, described above.
13 The Scottish Government’s Scottish Mental Health Law Review is an opportunity to review the existing safeguards in Scotland, and we will be submitting a response in due course.
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The impact of Covid-19 on groups and individuals
Transport
Accessible informationFor people who rely on public transport, including disabled people or people with other mobility needs, significantly reduced services represent an additional challenge. This also means that accurate and accessible information regarding what services are running is critical.
Providers (including ScotRail and First Bus) have indicated that printed materials including leaflets or signage may no longer be accurate and are increasingly relying on the provision of service information through digital means. This excludes those, such as some disabled or older people, who may be less likely to have access to or the skills and confidence to use digital technology.
Transport providers should consult with disabled people’s organisations when making decisions about the provision of information and ensure alternative means of accessing information are available, including phone lines and text services.
Mobility supportIn a (relatively small) members’ survey shared with us, Disability Equality Scotland found that respondents reported incidences of being refused assistance. For example, respondents were told that no physical contact, such as pushing of wheelchairs or arm-holding for visually impaired passengers, would be available. In some cases passengers were advised to travel with a companion, as transport staff would be unable to assist them, or advised that disabled people should not be travelling at all.
Many people, including disabled people, are reliant on public transport to obtain food and other essentials, or to travel to and from their jobs as key workers. Transport providers should review their passenger assistance arrangements to ensure that staff are supported to safely provide passenger assistance, consistent with social distancing measures, and that this is communicated to passengers who may require assistance to travel.
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The impact of Covid-19 on groups and individuals
Education
Alternative certification modelWith the cancellation of exam diets in schools and colleges across the UK, students’ grades will instead be informed in part by assessments made by teachers. This has seen concerns about unconscious bias raised, including by the Runnymede Trust.
In Scotland, we have raised concerns with the Scottish Qualifications Authority (SQA) about the potential for bias in the estimating process and the need to consider the specific needs of pupils with protected characteristics in the development of alternative arrangements. We have informed them of our expectations about the action required to ensure they meet their PSED and other equality obligations so the process for deciding grades minimises the risk of bias and is non-discriminatory.
The SQA must assess the potential impact of the alternative certification model on equality, take the results of their assessment into account when finalising each of the steps in the new model, and publish their assessment as soon as possible. Not only is this a statutory requirement under equality law, but it demonstrates to students, parents, teachers and lecturers that the SQA has understood the potential impact of these changes on different groups and taken effective action.
The SQA should also monitor the actual impact of the alternative certificate model on students, broken down by protected characteristics, to identify any disproportionate impact and to inform further investigation and possible mitigating action.
Our offer of advisory support to the SQA remains open.
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The impact of Covid-19 on groups and individuals
Support for vulnerable children and children with ASNWith schools and nurseries closed, the Scottish Government has set out its expectations in terms of childcare and learning provision for the children of key workers and workers and vulnerable children and young people. The guidance makes clear that its definition of vulnerable children and young people is “not exhaustive” and that decision-making for this group is best done by those working directly with them.14
In evidence to the Scottish Parliament’s Education and Skills Committee, Barnardo’s Scotland have highlighted barriers to the use of school hubs and a need for clarity over what support is available for pupils who are not eligible to attend hubs. They also note that children and young people are at risk of ‘hidden harm’ during the pandemic, and call for “statutory and third sector bodies [to] continue to work together to ensure no child or young person slips through the net.”
In the same evidence, the Educational Institute of Scotland (EIS) cite concerns that there is a relatively low level of uptake of hub provision by families with vulnerable children, and challenges related to social distancing in hubs for pupils with particular additional support needs (ASN).
There are groups of pupils with particular protected characteristics, including disabled pupils and pupils from minority ethnic communities, such as Scottish Gypsy Travellers and Roma pupils, who need support to overcome barriers to learning and to meet their specific needs. Tailored support for these pupils, whether it is at home or when attending the hubs, is vital to allow them to continue to access education.
At the end of April, we reviewed the information on local authority websites about ASN provision during the pandemic and found eighteen local authorities had not published any information. From our meetings with organisations representing children and young people, we also understand that the level of provision of support varies widely across local authorities. This is leaving many pupils and families with no or limited access to educational support during the pandemic.
14 The Children and Young People’s Commissioner for Scotland published a briefing for MSPs outlining the need to make decisions relating to children and young people and Coronavirus law, policy and guidance that respect and are informed by human rights considerations.
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The impact of Covid-19 on groups and individuals
Local authorities should collect equalities evidence to monitor both the adequacy and uptake of their learning provision at educational hubs to ensure it meets the specific needs of pupils with ASN and vulnerable children and young people. They must also take a multi-agency approach to ensure the necessary safeguards are in place to minimise the risk of ‘hidden harm’ to vulnerable children and young people.
Local authorities must provide accessible information on the support available to pupils with ASN and pupils who may be disproportionately affected by school closures and their families, and ensure they are taking effective action to meet their needs during the pandemic.
Digital exclusionThe closure of schools has seen a shift to other forms of learning, including online or otherwise digitally-enabled learning at home. This provides flexibility for some pupils but excludes those who do not have the necessary technology or internet connection available at home. Barnardo’s, the EIS and Kinship Carers Coalition all highlight issues related to digital exclusion in their evidence to the Education and Skills Committee.
We have reviewed information on provision of support for pupils facing digital exclusion through socio-economic disadvantage on local authority websites. This review found that examples of good practice exist, including loans of tablets and laptops and the provision of dongles for connectivity purposes. However, it is not clear how the risk of digital exclusion of pupils facing socio-economic disadvantage is being addressed by several local authorities.
All local authorities should seek to understand the incidence of digital exclusion of pupils facing socio-economic disadvantage in their areas and make urgent plans to support these pupils, including pupils formally or informally excluded from school prior to the introduction of social distancing measures.
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The impact of Covid-19 on groups and individuals
Free school mealsThere is wide variation in how free school meals are being distributed across Scotland and this may also have a direct impact on pupils with ASN and those facing socio-economic disadvantage. Different approaches, including direct payments, distribution of vouchers, delivery of meals and provision at school, are being taken by different Local Authorities.
The Children and Young People’s Commissioner for Scotland (CYPCS) has argued that the “safest and most dignified” way to support families facing food insecurity is to offer direct payments, while recognising that this may not be the best option for all families.
The Scottish Government, COSLA and local authorities should work together to monitor uptake of provision and identify and share good practice, taking account of advice from the CYPCS, to ensure that pupils and families receive their entitlement.
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The impact of Covid-19 on groups and individuals
Living standards
Access to food and other essentialsCoronavirus is exacerbating levels of food insecurity: the number of food insecure adults in Great Britain is estimated to have quadrupled since social distancing measures commenced, with 1.5 million people having gone a day without eating.15
� The Trussell Trust has reported an 81% increase for emergency food parcels from food banks in its network across the UK during the last two weeks of March 2020 when compared with the same period in 2019.
� Social Bite are providing 4,500 emergency food parcels each weekday to people in Scotland experiencing food poverty, including families affected by homelessness, those previously depending on free school meals, and those who have lost work due to the pandemic.
� Food Train supports older people in Scotland and provides a shopping service with additional, practical, emotional, and social support to older people. It has seen a 51% increase in demand from older people looking for food deliveries, at the same time as volunteer numbers have fallen.
Disabled and older people, and those with health conditions, are already at heightened risk of food insecurity, with social distancing measures creating new challenges. The Disability Equality Scotland members’ survey referenced above found that a majority of respondents had encountered a wide variety of problems accessing supermarket stores and/or booking online delivery slots.
We have contacted the British Retail Consortium regarding our concerns that disabled people are struggling to access food and other essentials in supermarkets. It is essential that retailers discharge their legal obligation to make reasonable adjustments for disabled people under the EA 2010 and in line with the rights of disabled people to live independently.
15 The SHRC has published a briefing on the experiences of the Adequate Standard of Living Reference Group, which it supports, during the first weeks of the Coronavirus pandemic. The briefing covers access to food and other issues.
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The impact of Covid-19 on groups and individuals
Parenting organisations and the Children and Young People’s Commissioner for Scotland have also written to supermarkets to urge them to provide guidance and training to staff on the legitimate reasons why parents and carers may have to shop with their children during Coronavirus restrictions.
We are also aware of some concerns that people from religious backgrounds may be facing challenges accessing kosher or halal food, or to service other specific dietary requirements.
Housing and homelessnessWe welcome Scottish Government guidance on supporting Scottish Gypsy Traveller communities during the pandemic. Local authorities should monitor the effectiveness of actions taken in line with the guidance and whether communities are receiving the necessary support throughout this period.
We note the Scottish Government’s guidance for organisations dealing with homelessness. We welcome support for people experiencing homelessness with no recourse to public funds.
It has been reported that some asylum seekers in Glasgow have been removed from homes by a Home Office contractor and put in hotels where social distancing is more challenging, and where they no longer receive small daily allowances as everything is provided by the hotel. We are aware of the death of a Syrian man in a Glasgow guesthouse.
We have received evidence from LGBT Youth Scotland highlighting the heightened risk for LGBT people of domestic abuse as a result of social distancing measures exacerbating homophobia, biphobia, transphobia in the family home, which in turn increases the risk of homelessness among LGBT people.
Homeless Network Scotland and a specialist group of expert reviewers have considered the additional impact of Coronavirus on homelessness and the protected characteristics of people who experience it in Scotland, and outlined priorities and mitigating actions to be taken forward. Local authorities and other providers of temporary accommodation should review these actions and incorporate them into their own response where appropriate.
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The impact of Covid-19 on groups and individuals
Recovery
Although it is clear that Coronavirus and its effects will be part of our lives and social distancing measures will be in place for some time to come, we also need to consider what comes next. The Scottish Government’s Framework for Decision-Making rightly notes the need to learn lessons from how we have reacted to Coronavirus and what we have seen and heard during this period.
The Coronavirus pandemic has highlighted existing inequalities in our society and in our economy. It has clearly demonstrated the challenges of precarious work and short-term or zero-hour contracts, and the disproportionate concentration of these forms of work among people from some ethnic minority groups, young people and women. It has shown some of the barriers that disabled people can face in everyday life, and challenges in securing reasonable adjustments and adequate support. There is perhaps a better understanding of the risk of domestic abuse, and the digital exclusion of many people, including some school pupils and older and disabled people, is apparent.
As well as highlighting these inequalities, it is likely that Coronavirus has made many of them worse. But in order to have a clear understanding of the pandemic’s impact on these and other inequalities, we have to have robust information. This neatly demonstrates the importance of good equality data collection and impact assessment not just during a pandemic, but generally.
We have seen challenges and inequality writ large throughout the pandemic, but we have also seen the best of our communities. Nurses, doctors, paramedics, pharmacists, police officers, postal workers, refuse collectors, retail assistants, and those working in social care, logistics, education, transport and many other essential sectors have always been key workers, but our understanding of and appreciation for what they do on a daily basis has never been higher. Stories of countless acts of kindness and social solidarity – checking on and shopping for our elderly or vulnerable neighbours, fundraising and volunteering to help in our local communities, former healthcare workers coming back to work in the NHS – have provided small pockets of light in otherwise dark news bulletins.
Governments and other public bodies have shown that they can move quickly and address difficult issues when the situation – and the public – demands it. Support for people whose jobs are at risk or facing homelessness, for businesses facing collapse, for the NHS, for civil society organisations and other charities providing essential services has been produced or enhanced in short order.
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The impact of Covid-19 on groups and individuals
As we turn to consider social and economic recovery, we must consider all of these factors. Any talk of a ‘return to normal’ is misplaced; that ‘normal’ facilitated the inequalities discussed above. Instead, we must ensure that equality and rights considerations are the basis on which we approach decisions about what comes next. Understanding the impact of a policy or decision on people is not a burden, additional to the work at hand; it is the work.
The Scottish Government has created a new advisory group on economic recovery, and we have offered our expertise and experience to that group. We expect that it will need to consider questions on:
� The role of the state in providing economic security for citizens
� How to address structural issues in our economy – such as patterns of employment or care, including child care and social care – that exclude, fail to properly serve, or weigh more heavily on certain groups in our society
� How to appropriately reward those newly-recognised key workers, who are disproportionately women or from ethnic minorities
� What we can learn from how we have worked and done business during the pandemic, which might serve to better include those who have previously been excluded in the future
� What an increasingly digital economy will mean for those who might lack the technology or skills to participate, and for those for whom it could mean improved services and greater accessibility; and
� How to harness the goodwill and compassion we know is prevalent throughout our communities, not for profit, but to enhance our collective wellbeing.
These may also be questions on which the Equalities and Human Rights Committee will wish to reflect.
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The impact of Covid-19 on groups and individuals
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© 2020 Equality and Human Rights Commission
Published May 2020
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