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Is it Right to Buy a Right?

Author: James Elder-Woodward

Are we turning our market economy into a market society, where everything can be bought for a price, including privilege and rights?

This is the question set out in a new book by Michael Sandel, Professor of Philosophy at Harvard University: What money can’t buy; the moral limits of markets.

I believe such a question is valid to the development of health and social care policy here in Scotland.

Ever since the Second World War we have been advocating the moral virtue of queues. We used to queue for shopping when food was rationed both during and after the war. We now queue at the bus stop, at the theatre door; we queue for medical care in hospital and for social housing. But now we can jump queues at airports by buying a speedy boarding ticket; and we can go to a private hospital to get treatment quicker.

We can also treat fines as fees. In a study in Israel, a nursery school started to fine parents who were late picking up their children. Instead of decreasing, they found that the rate of late pick-ups actually increased, as most parents considered the fine as an extra fee for longer child care. Within my own experience, I was once talking to a rich disabled person, a land owner in Dumfries, who used to drive from his home to London to attend a meeting and drive back the very same day. He was caught for speeding in his Jaguar one day, but instead of bemoaning the fact, he thought it was just the price for speeding all the other days. His fine that day paid for his choice to break the morality of safe driving, avoiding harm to himself and others on the road.

Within the field of health and social care, we can see the increasing marketization of services. To some extent this has favoured the growth of independent living for disabled people, for it has allowed us to choose and control our own support. Instead of being at the mercy of state controlled services, we now have money from the state, to buy and control the type of support we want, from the people we want to provide it and at a time we want it.

However, for that privilege, we are being charged, often at a rate which maintains our poverty no matter how hard or how long we work; assuming of course we have the opportunity to work in the first place. Community care charges paid by disabled people only contribute 4% towards the total budget of local authority social care. However, that same community care charge can constitute up to 90% of an individual disabled person’s income. As one such person said:

“What you’re buying with your charge is a human right, and I don’t believe that anyone in our society should have to pay for a human right. No-one else pays to go to the toilet or to get out of bed in the morning.”

This person was right, independent living is a right under the United Nations Convention of Human Rights of Disabled People; and has been signed up to by the UK Government. But until it has been put into ‘domestic’ law, no-one can take any legal action to safeguard such a right.

However, despite disabled people working with the Convention of Scottish Local Authorities to re-write its guidelines on implementing community care charges, the legal basis to give local authorities the choice to charge or not is still on the statute books. Yes, local authorities can choose not to impose such oppressive taxes on disabled people, but only two in Scotland have made that sensible and correct choice.

Now that social care is being integrated with health care, there is a fear at large (justifiable or not) that rather than social care eventually becoming free at the point of delivery (as is the case for health care) more and more aspects of health care may well become chargeable.

However, as Michael Sandel points out, people can and have used ‘market forces’ to advance their philosophical and moral beliefs. In Paris, a group of citizens felt that having to pay to use the Metro (the underground railway system) barred their freedom of movement. They, therefore, created an insurance fund into which they paid £5 per month instead of £50 for a monthly rail ticket. This “mutuelle” would pay for any fine and legal expense if anyone were to get caught.

Several prominent disabled people have already refused to pay their community care charges, like Professor Michael Oliver. Mike was a professor of disability studies in London who refused to pay his community care charges and challenged his local authority to take him to court – which, of course, they didn’t.

But there has never been a concerted nationwide boycott of community care charges. Confidence and commitment are certainly major factors in such a boycott. There may well still be a fear among many of being taken to court; and of losing services. As stated above, an insurance fund, or “mutuelle”, might alleviate the former. Confidence may also be bolstered by understanding the fact that the local authority is still obliged to keep providing the services they have assessed, even when the person withholds payment. The only way they can withdraw the service is by re-assessing the person; and if there were to be a mass boycott, it seems unlikely they would want to do that

One other drawback is that for many on self-directed support, the local authority takes off the charge before they issue the direct payment; i.e. the direct payment given is minus the community care charge owed. But even here the local authority itself may be at jeopardy of the law, for it should treat all of their clients, whether receiving a direct payment or not, equally and fairly. And obviously they do not.

However, from a theoretical point of view, it would be interesting to speculate on how likely such civil disobedience of this type would be in the context of community care charges. For example, a nationwide six-month boycott of paying charges by disabled people would require the generating of a significant level of indignation and sense of social injustice at large. It would also require a great deal of leadership and organization by individuals, rather than organizations, within the independent living movement.

Certainly, compared to an issue such as ‘free public transport for all’ such a sense of social injustice does not seem to be in doubt. Many disabled people and their supporters believe they are being subjected to double-taxation. First they pay for local authority services through general community charges; then they are taxed again through community care charges, for one specific service.

But this feeling of social injustice is not shared by others who do not directly experience it; and whether it’s the price of tea, the poll tax, or the cost of petrol, we know there’s nothing more emotive than a widely held acknowledgement of unfair taxation to raise the hackles of a disgruntled general populace and stir up direct action. Indeed, one wonders if this issue could manage to re-ignite the fires of direct action which we haven’t seen since the DAN protests of the last century

Franklin D Roosevelt once said, “We have nothing to fear but fear, itself”, but he had two men each morning to get him out of bed. And there’s the iniquitous rub.


The text is a transcript from the author's blog

The publisher is James Elder-Woodward.

Is it Right to Buy a Right? © James Elder-Woodward 2012.

All Rights Reserved. No part of this paper may be reproduced in any form without permission from the publisher except for the quotation of brief passages in reviews.