Memorandum submitted by Ecas Ltd

 

Summary:

 

Ecas, a long-established disability charity, experienced difficulty establishing local Council compliance with the disability equality duty (DED).

 

A primary means of complying with the DED is to undertake 'equality impact assessments' of key policies and budget decisions. We believe the Council is failing to undertake these assessments, or otherwise have 'due regard' for disability.

 

The only means of privately enforcing the DED is judicial review - even after instructing senior counsel, we have found this to be unworkable in practice:

 

Apart from the prohibitively high legal costs involved, we found that the Council refused to release information about its equality impact assessment;

 

To obtain evidence, we were forced to resort to the freedom of information appeal process - because this is a very lengthy process, by the time the evidence is available, enforcement via judicial review is time barred.

 

The new Equality Act should remedy this by providing:

 

o a) a specific duty, on the part of public authorities, to publish full information about initial screening and equality impact assessments undertaken;

 

o b) further specific duties allowing the public and organisations to be provided with documentary evidence that decision-makers (e.g. councillors) were informed of the predicted impact of their decision within a specified timescale (e.g. 10 working days) of the request being received;

 

o c) stronger mechanisms to require and enable the EHRC to enforce compliance with public authority equality schemes.

 

 

Introduction:

 

1. I am Chief Executive of Ecas, which is an Edinburgh-based charity, founded in 1902 to further the interests of disabled people. Ecas has a long pedigree of providing both services for clients and actively campaigning on a number of different issues which impact on the lives of disabled individuals and groups. I, and others at Ecas, continuously liaise, and work in partnership, with local government, although we are independently funded. Part of this partnership working involves ongoing consultation on various policy issues affecting disabled people - consultation which assists officials in part fulfilment of the statutory requirements of the DED.

 

Factual Information:

 

2. Earlier this year, our local council, City of Edinburgh Council, took the decision to cut the funding for an equality forum, on which we were represented, and which was listed as the Council's 'primary consultation mechanism' with disabled people. It was common ground that this budget cut would make the forum unworkable and that it would cease to exist. We were concerned that this budget decision had been taken without statutory due regard for the impact on disabled people, in breach of the DED. The decision also ran contrary to the Council's Multi Equality Scheme which, to date, lists a defunct body as its primary consultation mechanism. As part of our campaign to reverse this budget decision, we considered petitioning for judicial review, as the only means available to us for privately enforcing the DED (having first approached the Equality and Human Rights Commission - which stated it had insufficient resources to assist, and could not, in any event, enforce compliance with the Scheme).

 

3. In order to proceed with this action, we needed to be able to examine the extent to which council officers might have complied with the DED by undertaking any, or any adequate, impact assessment. However, this evidence was not forthcoming and, while it would likely have been released once legal proceedings had started, having taken advice from both junior and senior counsel, we were reluctant to litigate without first being able to establish the facts. We therefore turned to the freedom of information legislation and made a request for all relevant information about council officers' impact assessment of the budget cut decision. This request was refused and the result of our appeal to the Scottish Information Commissioner is pending. While we await the release of this information, some eight months have passed since the decision in question was taken. This means that, on grounds of time limitation, we would no longer be in a position to bring judicial review proceedings to enforce the DED.

 

4. Ecas' experiences, therefore, of attempting to hold a public authority to account in relation to the DED, have resulted in frustration. Without adequate means to obtain information with which to ascertain compliance with the DED, the private enforcement mechanism of judicial review is extremely limited and virtually unworkable. Enforcement by the Commission is ineffective as it cannot enforce a council policy committee to comply with an equality scheme. It is perhaps no surprise, therefore, that almost two years after its coming into effect there is only one reported case to date where this aspect of the legislation has been successfully enforced: R (on the application of Chavda and others) v Harrow London Borough Council [2007] EWHC 3064 (Admin).

 

5. I would be delighted to provide further details to the Committee about Ecas' experiences in utilising the current disability discrimination legislation, and how we feel these might help inform the proposals for the Equality Bill.

 

Recommendations:

 

6. The DED under the current provisions is extremely difficult to enforce for private individuals and organisations. The new Equality Act should remedy this by providing:

 

o a) a specific duty, on the part of public authorities, to publish full information about initial screening and equality impact assessments undertaken;

o b) further specific duties allowing the public and organisations to be provided with documentary evidence that decision-makers (e.g. councillors) were informed of the predicted impact of their decision within a specified timescale (e.g. 10 working days) of the request being received;

 

o c) stronger mechanisms to require and enable the EHRC to enforce compliance with public authority equality schemes.

 

 

4 November 2008