The equality watchdog has again refused to apologise for failing disabled people, after suggesting publicly that people experiencing symptoms of long Covid should not be entitled to protection from the Equality Act.
The Equality and Human Rights Commission (EHRC) sparked outrage on Saturday when it stated on the social media platform Twitter that it “does not recommend that ‘long covid’ be treated as a disability”.
Although it said in a follow-up tweet that employers “should continue to follow existing reasonable adjustment guidance based on individual circumstances”, disabled campaigners said its statement suggested that those with long Covid should not be protected under the Equality Act.
The government says someone is described as disabled under the Equality Act 2010 if they have “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ [at least 12 months] negative effect on your ability to do normal daily activities”.
A person also automatically meets the disability definition under the Equality Act from the day they are diagnosed with HIV infection, cancer or multiple sclerosis.
Catherine Hale (pictured), founder and director of Chronic Illness Inclusion (CII), said the tweet was “inaccurate and misleading”.
She said: “Whether this was due to incompetence on the part of the staff member writing the tweet, or a deliberate message to undermine the rights of disabled people living with long Covid to support and protections under the law, is not clear. Either way it’s alarming.
“Activists have been alarmed by the tweet and suspicions have been raised about a government agenda to restrict access to disability benefits for people with long Covid.
“If there is an agenda to discredit long Covid as a disability it is completely wrong-headed because it will result in people with long Covid finding it harder to claim reasonable adjustments, facing disability discrimination, falling out of work and needing to claim benefits.”
Writer Sasha Saben Callaghan suggested on Twitter that EHRC should re-read the Equality Act, and said its tweet was “another reminder of how disastrously inadequate the pathetic, craven and inept @EHRC has been in upholding the rights of disabled people.”
Disabled artist-activist Jess Thom described the commission’s statement as “very wrong and deeply damaging” and “drenched in medical model thinking, exclusionary, dismissive and out of step”.
Another prominent disabled campaigner and consultant, James Lee, said it was “sad to see how the EHRC has become increasingly ineffective and irrelevant over the years”.
Others described the tweet as “extremely strange behaviour”, “nonsense”, “terrible advice” and “utterly, utterly shameful”.
A string of people with long Covid expressed their anger and confusion at the EHRC tweet, describing the substantial and long-term impact the condition has had on them.
One of them, paralegal Ruth Langford, tweeted: “Long covid has put me in a wheelchair as I can’t walk unaided, and no further than 20 yards.
“Please explain to me how I’m not disabled?”
The commission later issued a statement to clarify its position, which this time suggested that people with long Covid could be entitled to protection under the Equality Act.
But EHRC had still not apologised for its original tweet by noon today (Thursday).
The commission said in its statement: “There continues to be discussion of the various symptoms related to Covid-19 that are often referred to as ‘long Covid’ and whether they would constitute a disability under the Equality Act.
“Given that ‘long Covid’ is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of ‘long Covid’ will fall under the definition of disability in the Equality Act.
“This does not affect whether ‘long Covid’ might amount to a disability for any particular individual – it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
“This will be determined by the employment tribunal or court considering any claim of disability discrimination.
“To support workers affected by ‘long Covid’ and avoid the risk of inadvertent discrimination, we would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases.”
Asked to respond to the scores of critical responses to its original tweet, and concerns that it had again given the impression that it was not interested in fighting for disabled people’s rights against the government, an EHRC spokesperson said the commission had “issued a statement to provide clarity on our position and equality law” after receiving “enquiries regarding ‘long Covid’, disability and the Equality Act”.
He insisted that the commission had “a strong track record of protecting and advancing the rights of disabled people and this remains a key element of our work”.
Catherine Hale, from CII, said the “disbelief and invalidation” shown to people with long Covid and other energy limiting conditions was “systemic”.
She said: “Chronic Illness Inclusion’s research shows that people with energy limiting conditions and medically invisible disabilities like long Covid face additional barriers to employment, social care and social security because of disbelief of their symptoms and lack of understanding that chronic illness often constitutes a disability.”
She said there was evidence of certain psychiatrists and other medical professionals “acting as gatekeepers to disability rights and support”, for example by “advising the Department for Work and Pensions against considering ME/CFS [chronic fatigue syndrome] as a disability and making it harder for people with ME to access benefits”.
The controversy follows a series of public actions which have left disabled people questioning EHRC’s commitment to challenging government attacks on disability rights.
Only last week it declined to criticise the Treasury for refusing to release information that would show the impact on disabled people and other equality groups of the chancellor’s spending decisions in March’s spring statement.
Last month, EHRC confirmed that it was refusing to follow through on plans for an inquiry into multiple deaths linked to failings by the Department for Work and Pensions.
And in March, disabled people’s organisations and disabled activists wrote to the watchdog to express their deep concern over its decision to scrap its disability advisory committee.
In the letter to EHRC’s chair, Baroness Falkner, they raised concerns about its ability to continue to protect the human rights of disabled people.
Hale said this week: “This episode shows just how out of touch the EHRC is with the disability rights community and with the wide-ranging nature of disability and impairment.
“We call on EHRC to reinstate its disability advisory committee and to ensure that energy limiting conditions (ELCs) and medically invisible disabilities are represented on it.
“There is so much work to do to challenge the stigma of disbelief and promote disability rights for people with long Covid and other ELCs.
“The EHRC should be leading this work, not hampering it.”
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