Memorandum submitted by Disability Charities Consortium

 

1. We are the Disability Charities Consortium (DCC), an informal coalition of seven disability charities: Leonard Cheshire Disability, Mencap, Mind, RNIB, RNID, RADAR, and Scope. We offer information, support and advice to over ten million disabled people in the UK. The DCC comes together to work on issues of shared concern, including disability discrimination legislation. For the Equality Bill we are working with Sense and Guide Dogs, and this paper is a joint submission from our nine organisations.

 

2. We welcome the opportunity to comment on the effectiveness of current equality legislation, the role of DWP in achieving disability equality, and how the Equality Act can facilitate greater progress towards substantive equality for disabled people.

 

Key issues

 

The Equality Bill provides an opportunity to make it easier to address structural disadvantage of disabled people.

We welcome the proposal for an EC Equality Directive which should set comprehensive and enforceable minimum standards for protection of disabled people against discrimination in non-employment areas across Europe. The Government needs to anticipate the new obligations in the Equality Bill.

The Government needs to ratify the UN Disability Convention without undue delay and without reservations or interpretative declarations.

Our priorities for the Equality Act are:

o A comprehensive definition of discrimination that effectively addresses inequality and structural disadvantage of disabled people.

o Extension of protection across the scope of the Equality Act to people who experience discrimination and/or harassment because of association with a disabled person.

o Preserve existing rights of disabled children in education.

o Retain the key principles of the disability equality duty which includes the ability to treat a disabled person more favourably, mainstreaming and involvement of disabled people.

o Strengthen a pro-active approach to equality and encourage transparency across the private and voluntary sector through using public procurement as a lever, as well as through measures directly aimed at the independent sector.

o Strengthen the enforcement of the legislation by making it easier for disabled people to challenge unlawful discrimination, including multiple discrimination, and giving tribunals and courts more powers.

Support programmes such as Access to Work are vital for the creation of a level-playing field for disabled people in employment.

Monitoring the implementation of the Equality Act will provide information about its effectiveness and assist development of strategies and policies to achieve equality for disabled people.

 

 

 

 

The need for an Equality Bill

 

3. The enactment of the Disability Discrimination Act 1995 heralded a significant change for the estimated 10 million disabled people in society. It gave disabled people enforceable civil rights, which have been strengthened through the years. Alongside the DDA, the Government established the Disability Rights Commission (now Equality and Human Rights Commission), and they have been developing policies and strategies to create a level-playing field for disabled people, for instance through their Life Chances strategy, and more specifically through initiatives such as Access to Work, direct payment, and awareness raising activities.

 

4. However 12 years of the DDA have not been enough to address prejudice against, eliminate discrimination of, and promote equality for disabled people.

 

5. Currently only half of disabled people are in work compared with over four-fifths of the non-disabled population.[1] 15% of disabled 18 years olds are not in education, employment or training (NEET) compared to 8% of non-disabled 18 years olds. This figure conceals the gender divide in that 20% of males with a disability are NEET compared to less than one in eight females with a disability.[2] It is not surprising, then, that disabled people are twice as likely to live in poverty as non-disabled people. This figure does not take into account the extra costs associated with living with a disability.[3]

 

6. Partly this is because of the complexity of the legislation, recently significantly weakened by the 'Malcolm' judgment in the House of Lords, and partly because it is difficult for disabled people to challenge discrimination. The Disability Equality Duty has been very important in that it introduced a pro-active approach to substantial equality but this has not been enough to eliminate discrimination against and exclusion of disabled people who are faced with systematic barriers to full and equal inclusion every day of their life.

 

7. We welcome the Equality Bill as an opportunity to:

streamline disability discrimination legislation;

ensure comprehensive rights;

remove disparity between strands;

strengthen enforcement.

 

8. Anti-discrimination legislation needs to go hand-in-hand with social policy measures to enable a disabled person to live independently, have full opportunities and choices to improve their quality of life, and be respected and included as equal members of society.

 

 

 

The International Context

 

9. The need to promote equality for and to combat discrimination and harassment against disabled people is mirrored internationally: in the UN Disability Convention, the EC Employment Equality Directive, and the proposal for an EC Equality Directive outside employment.

 

10. The UN Disability Convention provides a framework to achieve equality for disabled people. We call upon the Government to ratify the UN Convention as well as sign and ratify the Optional protocol without undue delay and without reservations.

 

11. We welcome the European Commission's proposal for a Directive on discrimination outside the field of employment. We strongly believe that such a framework is needed for the EU to fulfil its commitment to protect and promote fundamental rights and to deal with disability discrimination where it has not been addressed. Indeed, although EC law already covers disability discrimination in the field of employment, disabled people face discrimination in other areas of life, such as education, access to goods and services, public transport, all of which directly affect their employment potential.

 

12. It is likely that the definitive text of the Equality Directive will be adapted after the Equality Bill has made its passage through Parliament. If the new obligations are not reflected in the Equality Bill, this will lead to amendments through regulations. This carries the risk that the aim of the Equality Bill (to simplify and harmonise anti-discrimination legislation) will be undermined. For this reason the Government needs to anticipate the EC Equality Directive in the Equality Bill, for example through extending the protection of the Equality Bill in goods, facilities, and services to people who have experienced discrimination or harassment because of association with a disabled person.

 

Priorities for the Equality Bill

 

13. Below we have outlined our priorities for the Equality Bill. They have been informed by our experiences, the Government's proposals, and recent developments in case-law.

 

Definition of discrimination

 

14. Until recently, the Disability Discrimination Act 1995 as amended (DDA), had four broad concepts of discrimination:

direct discrimination;

disability-related discrimination;

harassment;

failure of duty to make reasonable adjustment.

 

15. The concept of disability-related discrimination is unique compared to other strands in that it recognises that same treatment can work out unfairly for a disabled person because of the additional needs of that person or because society is not geared towards accommodating disabled people (universal design is still far off from being reality). It is not appropriate to compare with a non-disabled person in the same situation.

 

16. However, in June 2008, the House of Lords effectively reduced the definition of discrimination to three concepts and excluded disability-related discrimination. So in an example given by the House of Lords:

 

A blind person with a guide dog enters a restaurant. The restaurant has a no-dogs policy, and the owner refuses to make an exception for the guide dog.

 

Before Malcolm: the blind person is compared to a person without a dog. The person without a dog would not have been barred from the restaurant. Therefore less favourable treatment has taken place.

 

After Malcolm: the blind person is compared to another person with a dog (not a guide dog). That person would also have been barred. Therefore no less favourable treatment has taken place (although there may still be failure of duty to make reasonable adjustment).

 

17. The decision has drastically diminished the rights of disabled people. As a consequence of the decision,

disabled people have fewer remedies against unfair treatment (or none where the duty to make reasonable adjustment is restricted);

organisations have less incentive to prevent barriers in policy development and implementation as well as in service design and delivery; and

it will potentially marginalise human rights values of dignity and respect for the disabled person.

 

18. In addition, the current text of the draft EC Equality Directive requires member states to protect disabled people against indirect discrimination. On 18 November, Jonathan Shaw MP, the Minister for Disabled People, mentioned to the Joint Committee for Human Rights that the Government is considering using the introduction of indirect discrimination to challenge the Malcolm judgment.

19. Indirect discrimination would indeed be a powerful additional tool for combating practices which disproportionately disadvantage particular groups of people. However it relies on a like-for-like comparison between disabled people and others and is therefore not capable of resolving the gap left by Malcolm.

 

20. As Lord Brown states in the Malcolm judgment, the situations addressed by disability-related discrimination are highly individualised and a group comparison will often be difficult if not impossible to construct.

 

21. The only solution to Malcolm is to remove the requirement for a comparator and provide that:

 

" a person discriminates against a disabled person where he carries out an act which disadvantages that person for a reason connected with their particular disability and which cannot be justified as being a proportionate means of achieving a legitimate aim".

 

Before this justification could apply the employer/service provider/landlord must have complied with the reasonable adjustment duty.

 

22. Further the Bill must make it clear that to establish disadvantageous treatment there is no need to show that the alleged discriminator knew about the individual's disability - although this issue might be relevant to the issue of justification.

 

23. We welcome the Government's proposals around the use of substantial disadvantage as a trigger for the duty to make reasonable adjustment and to introduce an objective justification for disability-related discrimination (and not have one for direct discrimination, harassment or reasonable adjustment duty)

 

Association with a disabled person

 

24. The DDA does not protect people who experience discrimination or harassment because they are associated with a disabled person (for example, relatives, friends, carers). However, on 17 July the European Court of Justice decided that the EC Employment Equality Directive does cover these people and as a consequence the Government will now have to take steps to reflect this in national legislation.

 

25. We call upon the Government to use the Equality Bill to extend this protection across the full scope of disability discrimination legislation, and not to confine it to employment only.

 

26. There are pressing reasons for this. If the proposed EC Equality Directive is adapted, then it is likely that the ECJ will take the same approach to non-employment areas. Also there is evidence that people suffer discrimination and harassment because of association with a disabled person. While the disabled person may, in some cases, have a remedy, the other person will not (except for cases of victimisation).

 

27. We also ask that the Government revisits their decision not to cover 'perceived disability' which is not explained in their response of July 2008.

 

28. It is imperative that volunteers are protected against unfair treatment especially in the light of the Government's proposals for 'community service' and requirements for British Citizenship.

 

Education

 

29. When the DDA was introduced in 1995, education was a glaring omission from its scope. This was rectified in 2001 through the Special Education Needs and Disability Act (SENDA) 2001. There is evidence of a continuing need for protection of disabled children against discrimination in education. For instance, figures from 2006 show that disabled children are more likely to leave school with no qualifications (18% of disabled children compared with 4% of children who are not disabled).[4]

 

30. The Government has been silent about the protection of disabled children under the DDA (apart from their proposal to transfer disability discrimination school education cases in Scotland to the Additional Support Needs Tribunals for Scotland).

 

31. We are seeking clarification about what will happen to existing rights that specifically relate to disabled children, in the SENDA as well as in the DDA, but also the impact of the changes on, for example, admissions and exclusions. Once we have a better understanding of the plans, we would like to discuss our position with you.

Public Sector Equality Duty

 

32. The introduction of the Disability Equality Duty has stepped up the challenge for public authorities to eliminate discrimination and promote equality for disabled people. Not only should public authorities have due regard to the need to promote equality and to eliminate discrimination and harassment; they should also promote positive attitudes towards disabled people and encourage participation in public life. This is paramount for visibility and participation of disabled people in society and contributes to social cohesion.

 

33. We welcome a single public sector equality duty and we believe that it is possible as well as desirable to retain strand-specific duties, for instance the need to take into account disabled people's disabilities, even where that involves treating disabled people more favourably.

 

34. We have insisted that the new equality duty must be as effective (if not more) as the existing disability equality duties. We are encouraged that the Government in their response declares that the strengths of the existing general duties should be retained and built upon, however we do not see this reassurance reflected with regards to the specific duties.

 

35. We believe that there are five characteristics which contribute to the success of the Disability Equality Duty, and we urge the Government to retain these:

mainstreaming of equality;

proactive approach;

transparency;

accountability; and

involvement of disabled people.

 

36. The disability equality duty extends to public authorities (and organisations carrying out public functions) only. However, inequality persists in the private and voluntary sector. Also in the light of the Malcolm decision, it may be easier for employers and housing providers (and perhaps others) to have discriminatory policies (regardless of whether a reasonable adjustment can or cannot be made). Hence, the need for a proactive approach to avoid barriers or to build in adjustments has become more pressing. This can be achieved in two ways:

public procurement

anticipatory duty to make adjustments across the scope of DDA

 

37. A specific duty around public procurement would send out a clear and unequivocal message that public authorities can be held accountable if they have not taken steps to ensure that contracted services or publicly funded services are compliant with disability equality. This goes further than the Government's proposals which outline a light-touch approach through encouraging greater transparency and improving use of purchase power. We also believe it would benefit transparency of employment practices if it was made unlawful for employers to find out about disability in recruitment and selection where that is not relevant (similar to pregnancy-related questions).

 

38. The provisions with regards to the provision of goods, facilities and services, the exercise of a public function, the use of transport vehicles, private clubs and education, already contain an 'anticipatory' duty to make adjustments which requires service providers and others to anticipate the needs of disabled persons. It would considerably advance disability equality if an anticipatory duty to make adjustments was introduced in relation to employment and occupation, qualifications bodies, and providers of housing.

 

Enforcement

 

39. Effective legislation requires effective enforcement. This will help it to act as a deterrent for (further) discriminatory acts. We want claims to be dealt with swiftly and with a minimum of stress and costs for all parties. So far, effective enforcement of the DDA has been limited because of the difficulties of bringing a case (particularly in non-employment areas) and because of the limited powers of courts and tribunals.

 

40. In fact, the very small number of discrimination claims brought when set-off against the substantial anecdotal evidence of discrimination in goods, facilities and services demonstrates that disabled people are not getting a fair deal in combating discrimination and not enough is being done to prevent discrimination.

 

41. We welcome the Government's proposals to improve enforcement, including raising awareness amongst the judiciary, an additional power for employment tribunals to order changes to policies, procedures and practice, and to make judgments accessible for the wider public.

 

42. However they do little to address the need for radical measures so that victims of disability discrimination can effectively challenge alleged acts of unlawful discrimination. The Government's rejection of the recommendation of the former equality commissions, the UK Review of Anti-Discrimination Legislation and the Parliamentary Scrutiny Committee on the Disability Discrimination Act 2005 for equality tribunals to hear services and education cases is deeply unfortunate and will hinder effective enforcement and redress.

 

43. We urge the Government to carry out a review of access to justice for disabled people, including legal aid and access to information and advice.

 

44. In addition, tribunals should be given the power to order reinstatement, children should be able to take cases in their own right (and not rely on their parent or even corporate parent which may be the alleged discriminator!), and the EHRC should be given a power to enforce SENDIST orders made by tribunals.

 

Department of Work and Pensions

 

45. The Department for Work and Pensions helps to overcome systematic barriers to social and economic inclusion, for instance through Access to Work, benefits, and tailored support. However, they will only succeed if they take full account of the barriers that exist for disabled people. For instance, people with learning disabilities remain the most excluded group of disabled people from the UK work force, with an estimated employment rate of 17%[5] compared with 49% of disabled people as a whole. However, 65% of people with a learning disability would like to work.[6] The level of discrimination that exists, and which is beyond the control of the disabled person, needs to be reflected in the Welfare to Work strategy.

 

46. There is no doubt that the DDA has brought about a shift in the attitudes of some employers, and that they are making genuine efforts to build a diverse workforce that also includes disabled people as well as serving a broad customer base. However, too few employers have shown to actively engage with the equality issues, and we would like the government to take action to encourage employers to employ and to retain disabled people.

 

47. Access to Work is an important programme in that it helps to realise equality of opportunity for disabled people in employment. We welcome the announcement that the budget will be doubled by 2013 and that more people will be eligible for support. This needs to go hand-in-hand with an awareness raising campaign run by DWP, amongst disabled people as well as amongst employers, particularly smaller businesses.

 

48. Access to Work needs to be expanded to include support for people with fluctuating conditions. It should also be able to provide support in the form of temporary staff cover, for instance for someone with a fluctuating mental health condition who needs time off. This would reduce the employer's anxiety about taking on someone who might require above-average sickness leave - just as support to install a lift removes an employer's anxiety about the costs of employing someone requiring major access improvements.

 

49. We would welcome a stronger entitlement to Access to Work. The introduction of the Employment Support Allowance allows for the opportunity at an early stage for all claimants to have a basic Access to Work assessment as part of their Action Plan, say at the point of the first mandatory Work-Focused Interview.

 

50. We believe that Access to Work could be extended to support disabled people's access to work experience and to volunteering - both vital tools to increase employment chances as well as encourage social inclusion and cohesion.

 

51. We are concerned about the withdrawal of Access to Work funding from the public sector as this may put support for disabled people at risk. This would undermine the equality objective of creating a level-playing field. Access to Work provides disabled people with an independent assessment of their needs, and with choice and control of their support (as far as the budget allows). It obviates the need for budget considerations by an employer in terms of making reasonable adjustments. Anecdotal evidence suggests that the overall impact of the policy is detrimental. The Institute of Employment Studies is currently evaluating the Access to Work programme, and in particular the impact of the withdrawal of Access to Work from central government departments. It would be premature to anticipate the findings; however we look forward to an opportunity to discuss the impact of the policy in more detail at a future time.

 

Monitoring

 

52. We believe that monitoring the implementation of the DDA (in future the Equality Act) is an important tool to inform strategies and policies. We would say that this is a key function for the Equality and Human Rights Commission (EHRC) and the Office for Disability Issues (ODI). In this context we urge the EHRC to engage more with the disability community. For instance they need to improve their approachability as the numbers of calls to their Helpline compared to the DRC's helpline have dropped significantly.

 

53. The 'Monitoring the Disability Discrimination Act' research[7] provided a strong evidence base to help identify barriers around the implementation of the Disability Discrimination Act, and to inform action to make it easier for disabled people to challenge discrimination. We would like the ODI and the EHRC to continue this type of research.



[1] Disability Rights Commission (2007) Disability Briefing May 2007

[2] Youth Cohort Study & Longitudinal Study of Young People in England: The activities and experiences of 16 year olds: England and Wales 2007, Department for Education and Skills, http://www.dcsf.gov.uk/rsgateway/DB/SBU/b000795/YCS_LSYPE_Bulletin_final.pdf

[3] Guy Parckar (2008) Disability Poverty in the UK, Leonard Cheshire Disability

[4] Youth Cohort Study & Longitudinal Study of Young People in England: The activities and experiences of 16 year olds: England and Wales 2007, Department for Education and Skills, http://www.dcsf.gov.uk/rsgateway/DB/SBU/b000795/YCS_LSYPE_Bulletin_final.pdf

[5] Eric Emerson and Chris Hatton (May 2008) People with a learning disabilities in England, Centre for Disability Research

[6] Eric Emerson (2005) Adults with learning difficulties In England, Lancaster University

[7] Meager N, Doyle B, Evans C, Kersley B, Williams M, O'Regan S, Tackey ND (May 1999) Monitoring the Disability Discrimination Act (DDA) 1995, DfEE Research Report RR119; Sarah Leverton (February 2002) Monitoring the Disability Discrimination Act (DDA) 1995, Phase II, DWP In-house Report 91; Hurstfield J, Meager N, Aston J, Davies J, Mann K, Mitchell H, O'Regan S, Sinclair A (February 2004) Monitoring the Disability Discrimination Act (DDA) 1995: Phase 3, Department for Work and Pensions and Disability Rights Commission.

 

 

November 2008