Care Experience, a Protected Characteristic? To Be or Not To Be, That is the Question
To answer the question in the title of this blog, it is first important to understand what is a Protected Characteristic, the purpose and the function of law by which it was introduced and whether this law will bring about the protection sought by the Care Experienced.
On the 1st October 2010, the Equality Act came into being.
Before it’s introduction there were a number of separate laws, each addressing a single type of discrimination.
The Laws included:
Equal Pay Act 1970
Sex Discrimination Act 1975
Race Relations Act 1976
Disability Discrimination Act 1995
Employment Equality (Religion or Belief) Regulations 2003
Employment Equality (Sexual Orientation) Regulations 2003
Employment Equality (Age) Regulations 2006
Equality Act 2006
Equality Act (Sexual Orientation) Regulations 2007
The Equality Act eliminated inconsistencies between these different statutes and merged them into a single comprehensive piece of Equality legislation that states it is unlawful to discriminate against anyone because of:
Age
Gender Reassignment
Being Married or in a Civil Partnership
Being Pregnant or on Maternity Leave
Disability
Race including colour, nationality, ethnic or national origin
Religion or Belief
Sex
Sexual Orientation
These are called the Protected Characteristics.
Now to ‘discriminate’ is described as treating a person or a particular group of people differently, especially in a worse way from the way in which you treat other people, because of their race, gender, sexuality, etc…
With that in mind, the Equality Act 2010 states that discrimination can come in one of the following forms:
direct discrimination - treating someone with a protected characteristic less favourably than others
indirect discrimination - putting rules or arrangements in place that apply to everyone, but puts someone with a protected characteristic at an unfair disadvantage
harassment - unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for them
victimisation - treating someone unfairly because they’ve complained about discrimination or harassment
The Equality Act 2010 goes on to state, you are legally protected from discrimination
at work
in education
as a consumer
when using public services
when buying or renting property
as a member or guest of a private club or association
if you’re associated with someone who has a protected characteristic, for example a family member or friend
if you’ve complained about discrimination or supported someone else’s claim
The Law also provides guidance on what to do if you believe that you have been discriminated against. You can
Complain directly to the person or organisation
Use someone else to help you sort it out (mediation or alternative dispute resolution)
Make a claim in a Court or Tribunal
You can also contact the Equality Advisory Support Service for advice about discrimination and human rights issues across England, Scotland and Wales.
Public Sector Equality Duty and Equality Impact Assessments
On the 5th April 2011, the Public Sector Equality Duty came into force as Section 149 of The Equality Act 2010 stating that Public Sector Bodies such Ministers of the Crown and government departments, armed forces, the National Health Service, local government (local authority), educational bodies and emergency services must ‘have due regard to the need to’:
eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Act
advance equality of opportunity between persons who share a relevant protected characteristic and persons who don’t
foster good relations between persons who share a relevant protected characteristic and persons who don’t
The then Solicitor General, Vera Baird, described the new duty as:
“Putting the onus firmly on public authorities to consider how to prevent and protect against that discrimination in the first place”.
However, it must be noted that the Public Sector Equality Duty is not applicable to individuals or Private Sector Organisations, it is only applicable to Public Sector Bodies and organisations that carry out public functions.
Now to evidence that they have prevented and protected persons with protected characteristics against discrimination, it’s important for Public Sector Bodies to record the steps they have taken to adhere to this Duty. This documentation is crucial should they be challenged in Court for failing to comply with the Duty and one way (but not the only way) to demonstrate compliance is by carrying out an Equality Impact Assessment.
What is an Equality Impact Assessment?
An Equality Impact Assessment is an analysis of a Public Sector Bodies policy, or a change to an existing one, which assesses whether the policy has a disparate impact on persons with protected characteristics.
Now whilst an Equality Impact Assessment is a positive opportunity for Public Sector Bodies to gather evidence to ensure they make better decisions for persons with protected characteristics, the Equality Act 2010 does not require Public Sector Bodies to carry out Equality Impact Assessments, which could negatively impact persons seeking protection against discrimination.
Now What Does This Mean for the ‘Care Experienced?’
Separate to the Experts by Experience Board for the Independent Review of Children’s Social Care, a subgroup was put together to make a case for Care Experience to become the 10th Protected Characteristic.
In the Reviews Final Report, it reads:
‘….to tackle the stigma and discrimination many Care Leavers face in their day to day lives, the UK should be the first country in the world to recognise the care experience as a legally protected characteristic in equalities legislation’.
In relation to stigma and discrimination the Care Experienced Young People shared:
“The labels of being in care piss me off – people assume I am bad or certain things about me just because I am care experienced”.
“Making the care experience a protected characteristic is a good idea, it would help shed a spotlight on care leavers. When the public do find out about us, it is often negative due to it being driven by the media”.
Testimonies shared by the Care Experienced revealed that they had experienced discrimination from a very young age – whilst in the care system.
The Reviews Final Report reads, ‘This stigma and discrimination can be explicit and often comes with assumptions about the likely characteristics of children and adults that have care experience. They can also be implicit and are evidenced in the way care experience is discussed in schools, workplaces and the media. At its worst this can lead to care experienced people being refused employment, failing to succeed in education or facing unfair judgements about their ability to parent when they have children and families of their own’.
In the light of the above, it is true that those with care experience, can experience stigma and discrimination because of the negative assumptions held by some members of our society.
With that in mind, would making Care Experience the 10th Protected Characteristic of the Equality Act 2010 prevent and protect the care experienced against discrimination?
To bring our answer to life, we must first consider that here the discrimination stems from a person or an organisation that has knowledge of an individual being care experienced.
Now with many care experienced Children, Young People and Adults choosing not to divulge this information, we would need to understand, outside the confines of the Care System and its commissioned Partners, under what circumstances would this information be required.
Once this is understood, the next step is to prove that you’ve been subject to a form of discrimination (described by the Equality Act 2010) because of your care experience and seek justice by:
Complaining directly to the person or organisation, with support from (for example) the Citizens Advice Bureau
Enlisting the help of a Mediator to help you resolve the dispute
Making a claim in a Court or Tribunal with the help of a qualified Solicitor or Barrister
As a Care Leaver, the onerous steps to seek justice may seem heavy and burdensome, especially if they’ve struggled to have their voice heard throughout their care journey.
As a Child or Young Person in Care, seeking justice may evoke a trauma response, placing them in flight, fight, freeze, flop or fawn mode in the midst of their care journey, which may have a detrimental impact on their outcomes and life chances if the services are not in place to support their mental health and emotional wellbeing as they journey through this process.
As a Public Sector Body, Local Authorities that house Children’s Social Care Departments and Leaving Care Departments – the Corporate Parents – are subject to the Public Sector Equality Duty to prevent and protect against discrimination by conducting assessments to gather evidence to ensure they make better decisions for persons with protected characteristics; but the Law does not require them to carry out Equality Impact Assessments, which could negatively impact the care experienced persons seeking protection against discrimination.
And overall, the process of seeking justice by way of making Care Experience a Protected Characteristic has the potential to open the floodgates to an increase in stigma being projected at the Care Experienced Community; and it also has the potential to open the doors giving access to those who are actively seeking to exploit our most vulnerable.
In the light of the above, I am not in favour of Care Experience becoming the 10th Protected Characteristic of the Equalities Act 2010.
With that in mind, if making Care Experience the 10th Protected Characteristic of The Equality Act 2010 is not the way forward to protect the care experienced against discrimination, is there another way?
Let’s talk Discrimination, Root Cause and Symptoms
‘Discriminate’ is defined as treating a person or a particular group of people differently, especially in a worse way from the way in which you treat other people, because of their race, gender, sexuality, etc…
Now we understand that discrimination exists because some people have preconceived opinions rooted in false beliefs (stigma) about a person or a particular group of people.
We also understand that these preconceived opinions have the propensity to produce negative attitudes and behaviours towards a person or a particular group of people because of their race, gender, sexuality, etc…
With this in mind, what is the reason (the root cause) why the care experienced are subject to discrimination (the symptoms), for being care experienced?
Could the root cause be that the mindset and language by some Social Workers, Foster Carers, Leaving Care Advisors, Residential Children’s Home Staff, Children’s Social Care Researchers, Designated Teachers and anyone else who works within Children's Social Care, have unintentionally helped to shape the stigma that leads to the discrimination of care experienced people, in the care system and in the wider world?
Could the root cause be that some News outlets have used language in their reports that have unintentionally helped to shape the stigma that leads to the discrimination of care experienced people, in the care system and in the wider world?
Could the root cause be that some TV Shows and non-care experienced Authors have unintentionally helped to shape the stigma by creating negative stereotypes and themes that has led to the discrimination of care experienced people, in the care system and in the wider world?
If these are the root causes, there is then an urgent need to address each one and put in place solutions to intentionally change this narrative and start to protect the care experienced against discrimination.
Addressing The Root Causes
Shifting Mindsets in Child in Care Reviews and Personal Education Planning Meetings
From personal experience of attending Child in Care Reviews and Personal Education Planning Meetings, it has become very rare to hear Professionals use language that hold the care experienced in a positive light. The repeated accounts of the child’s or young person’s misdemeanours can give an indication of the thoughts and beliefs held by the Professionals about the child or young person’s past, present and future. These repeated accounts also have the ability to overshadow the progress the one in care has made and change the course of their trajectory, if left unchallenged.
Extend The Corporate Parenting Responsibility to all Public Bodies
The Children and Social Work Act 2017 Corporate Parenting Principles states EVERYONE from the Chief Executive (of a Local Authority/Council) down to front line staff, as well as elected council members, are (to be) concerned about those children and care leavers as if they were their own (and) do all that is reasonably possible to ensure the Council is the ‘best parent’ it can be to the child or young person.
The Act provides guidance on the Corporate Parent Responsibilities as follows:
Act in their best interests and promote their physical and mental health and wellbeing
Encourage expression of their views, wishes and feelings
Take into account their views, wishes and feelings
Promote high aspirations and seek to secure the best outcomes
Help them to gain access to the best services provided by the Local Authority and their Partners
Safety and Stability, ensure that they are safe and have stability in their home lives, relationships, education and work
Prepare them for Adulthood and Independence
Extending the Corporate Parenting Responsibility to all Public Bodies would see the creation of a wider community of corporate parents, more hands-on deck with a focus on highlighting and meeting the needs of children and young people in care and care leavers.
It is here that the community of corporate parents must receive training on how to implement and apply the Corporate Parenting Principles across their policies, systems, and practices. This training should be designed to help this community adapt their mindsets and develop appropriate language, preparing them to take on the shared responsibility for caring for care experienced people in their area.
The training must also equip and empower the community of corporate parents with the ability to take a stand against any internal or external discriminatory words or actions directed towards their care experienced children, young people and care leavers.
Feel free to check out our training course The BluePrint to Transforming Lives in The Care System.
Validate News Reports, Themes and Characters
“…When the public do find out about us, it is often negative due to it being driven by the media”.
The question to ask here, is what source is providing the media with this information?
To enable the various media outlets to report and convey stories about the care experienced, it would be wise for them to first consult those with the lived experience. A small focus group would provide non care experienced script writers and authors with a balanced view and help to shape themes and characters to carry our stories and reporters would also do well validate their findings before releasing the information to the public.
Feel free to check our Blog ‘Sharing Our Stories’ for more insight.
To summarise, tackling the root cause of discrimination to help to protect the care experience against discrimination is the place to start.
Transforming minds that are open to learning will positively impact the outlook, language and actions of the one learning.
But, where minds are not open to learning, the explicit or implicit discrimination will continue.
How do I know this? As one who is Care Experienced and the Founder of the Black Care Experience, it is well known that discrimination in the form of racism is experienced by the Black Community even with Race being a Protected Characteristic.
However, through the workings of the Black Care Experience, we’re shifting mindsets with people who are open to learn and do better for our Black Children and Young People in Care and we’re seeing our black care experienced supported to make strides to move forward in their lives in the face of discrimination.
Now to conclude, you may not agree with my views as to why Care Experience shouldn’t be the 10th Protected Characteristic, you may have other views as to why it shouldn’t be and you may have views as to why it should be.
And that is ok.
Whatever your view is, make sure you research and ask questions to help give you peace of mind, the confidence to make an informed choice and the courage to share your views where you believe your voice is required.
And finally, if you are reading this and you are Care Experienced, whatever you choose to believe, I implore you to believe this one thing “Your Care Experience is your lived experience, it is not your identity. It’s a Chapter in your story, and not your final. Keep living and being open to learning and receiving the right support, from the right people in the right environment at the right time, because (as one who knows) this is the ingredient to see change become possible in your life! It won’t be easy, but it will be doable”.
Now if you’ve found this Blog helpful or you want to have your say, feel free to do so in the comments below or send us an email.
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