JOINT
WRITTEN EVIDENCE
SUBMITTED BY
THE DISABILITY
CHARITIES CONSORTIUM
KEY POINTS
(a) The Government has stated publicly that they
are committed to equality. However, recent announcements threaten
to weaken protection against disability discrimination and to
halt progress towards disability equality as the Government fails
to fully implement the Equality Act 2010 and sends out negative
messages about equality as a burden on businesses.
(b) The "Plan for Growth" contains
proposals to remove or not to implement certain provisions in
the Equality Act; to exempt micro-businesses and start-up businesses
from new regulations; and to remove regulations when these are
considered burdensome following a review. As well as creating
a false impression that equality harms the economy, instead of
strengthening it, this approach reduces the protection of disabled
people and increases the complexity of equality law.
(c) As well as protecting disabled people against
discrimination, the Equality Act 2010, and in particular the public
sector equality duty, provides a lever for change in a society
that is still ridden with institutional discrimination against
and persistent disadvantage for disabled people.
(d) Whilst the public sector equality general
duty starts on 5 April 2011, the delay in the introduction of
specific duties and associated guidance means that there is a
high level of uncertainty amongst public authorities and disabled
people about the new duty and how it should be applied in practice.
In order to avoid a lapse in the compliance of public authorities
with the public sector equality duty it is vital that the Government
launches a strong and positive communications campaign, co-produced
with disabled people.
(e) The Government has launched a policy review
on further revisions to the specific duties, despite an extensive
consultation in autumn 2010 and the publication in January of
draft regulations reflecting many of the concerns expressed during
the consultation. We are very concerned that the Government has
suddenly rejected the outcome of that consultation process, expressed
in the draft regulations, and, by wavering, is not showing the
leadership that is required to help drive a real change in culture
that will benefit disabled people and the wider public.
(f) The policy review of specific duties regulations
proposes to remove requirements to publish information about engagement
and equality impact assessments as well as requirements in relation
to equality objective setting. The weakening of the specific duties
will create confusion for public authorities who may not realise
that they still have to comply with the general duty. Also, the
reduction in transparency will substantially undermine the ability
of disabled people to hold public authorities to account without
going to court. We call on the Government to restore the specific
duties and to implement these as soon as parliamentary time allows—in
order to limit the damage caused by prolonged uncertainty.
(g) Involvement of disabled people is vital for
the effective performance of a public authority of their public
sector equality duty. It is only through involving a range of
disabled people, in advance of decision-making, that a public
body can ensure that their organisation's work delivers positive
outcomes for the public and prevents discrimination against disabled
people. Yet the views and experiences of disabled people are often
excluded from decision-making. This is why involvement must be
made explicit in the specific duties.
(h) The Government has launched a review of the
Equality and Human Rights Commission (EHRC). They propose to limit
the EHRC's duties and powers and to significantly reduce their
budget. We are concerned that restricting the duties and powers
will weaken the machinery for protection and promotion of equality
and human rights. We call on the Government to make sure that
the EHRC will still have the authority needed to protect and promote
equality and human rights for people in Britain.
INTRODUCTION
Key point
The Government has stated publicly that they are
committed to equality. However, recent announcements threaten
to weaken protection against disability discrimination and to
halt progress towards disability equality as the Government fails
to fully implement the Equality Act 2010 and sends out negative
messages about equality as a burden on businesses.
We welcome the opportunity to submit evidence to
the Home Affairs Select Committee regarding the Government's direction
on equalities. We would be happy to give further evidence if required.
We are very concerned about the mixed messages coming
from Government about equality. Whilst the Coalition Government
has repeatedly expressed their commitment to equality, recent
developments have led us to believe that there is a gap between
rhetoric and reality. We are worried that equality is being side-lined
by treating it as an area of minor concern and a major burden.
In the introduction to the Equality Strategy,[86]
published in December 2010, the Home Secretary, the Rt. Hon. Theresa
May, writes:
Equality is at the heart of this Coalition Government.
It is fundamental to building a strong economy and a fair society;
and in these difficult economic times equality is even more important.
As we rebuild our economy it is essential that we make sure we
benefit from the talents of everyone in the UK.
Whilst we welcome this recognition of the value of
equality, the subsequent reluctance to implement the Equality
Act in full and apparent eagerness to remove requirements have
cast doubt over the Government's commitment to equality in practical
terms.
In our submission, we address the "Plan for
Growth"[87]
and the policy review on specific duties regulations.[88]
Furthermore we express concerns about the review of the Equality
and Human Rights Commission.[89]
PLAN FOR
GROWTH
Key point
The "Plan for Growth" contains proposals
to remove or not to implement certain provisions in the Equality
Act; to exempt micro-businesses and start-up businesses from new
regulations; and to remove regulations when these are considered
burdensome following a review.
As well as creating a false impression that equality
harms the economy, instead of strengthening it, this approach
reduces the protection of disabled people and increases the complexity
of equality law.
On 23 March 2011, the Chancellor of the Exchequer
made a statement about the Budget in which he railed against the
burden of equality duties on businesses. In the "Plan for
Growth" the HM Treasury details the steps that they plan
to take in order to boost the economy.
We are very concerned by the messages that the Chancellor
of the Exchequer has sent out—namely that equality is a
costly measure and that regulations in this area are an unnecessary
burden for business.
The DCC is concerned about a number of proposals
that will put progress towards disability equality at risk: failure
to implement dual discrimination; removal of third-party harassment;
exemption of micro-businesses and start-ups from new regulation;
and review of existing regulations.
DUAL DDISCRIMINATION
Disabled people can experience discrimination on
a combination of protected characteristics; they face considerable
stigma not only because of their disability, but also because
of negative stereotypes linked to other protected characteristics.
The dual discrimination clause recognised this in part, and would
have given people who are discriminated against because of a combination
of two protected characteristics effective recourse to challenge
this treatment. Without this provision, they are now forced to
claim discrimination on each separate protected characteristic
even though this can be very difficult and lead to complicated
and costly litigation (for all parties involved).
Furthermore, there's a significant gap in protection
at present, because in each separate claim a respondent may be
able to show that they are not discriminating against another
person with the same, single protected characteristic. For instance,
if a disabled woman challenges an employer about less favourable
treatment because she is a disabled woman, then the employer might
argue successfully that they do not treat other disabled employees
or other women less favourably (whereas the point is that in comparison
with a non-disabled man the disabled woman is treated less favourably).
The anti-discrimination programme Time to Change
(of which Mind is a partner) found that multiple discrimination
against people with mental health problems is widespread both
within healthcare settings and in wider society. For example,
a survey confirmed that stigma and discrimination based on mental
health is all-pervasive, with close to nine out of ten people
with mental health problems (87%) reporting its negative impact
on their lives. The research found these proportions were significantly
higher for women, people who are gay, lesbian or bi-sexual, those
with additional disabilities and middle aged people who use mental
health services.[90]
Mind can provide other extensive evidence of multiple discrimination
which shows, for instance, that men from certain black and minority
ethnic (BME) groups are more likely to experience disproportionately
aggressive and intrusive treatment by the police and by mental
health services.
We believe it is misleading to claim that the cost
of the dual discrimination rules would have cost £3 million
per year. It is likely that—whilst a longer-term increase
of 4% in the case load is anticipated—a good proportion
of the estimated cost will still arise without the dual discrimination
clause, because cases will be brought as single characteristic
claims.[91]
A proportion of the cost arises from settlement and compensation;
this is an entirely preventable cost as long as businesses and
public bodies understand the law and abide by it.
The "dual discrimination" provision, whilst
not going as far as we would have liked, would have provided a
simplification of the law and gone part way to closing the gap
in protection for people who have suffered dual discrimination.
Furthermore, guidance from the EHRC and caselaw would have provided
clarification of the provision.
REMOVAL OF
THIRD-PARTY
HARASSMENT
The Government has announced it will consult to remove
the third-party harassment requirements. They call it "unworkable"
as employers have "no direct control over it" and argue
that removal would save £300,000. The DCC will respond to
the consultation as this is an important protection for disabled
people. Very often disabled people will be told by employers that
they cannot work on the frontline because customers would object
(for example due to a facial disfigurement). Similarly some jobs
require being in regular or intensive contact with suppliers,
and disabled employees in those jobs should also be protected
from third-party harassment of this nature.
The duty is not designed to be onerous, but in practice
could mean, for example, that an employer asks a supplier or (business)
customer to deliver disability equality training to their staff.
Removing the requirement would leave disabled employees
at the mercy of their employer's goodwill to take steps to prevent
or challenge harassment by third parties.
EXEMPTION OF
MICRO-BUSINESSES
AND START-UPS
We are very concerned by the proposal to make micro-businesses
and start-ups exempt from new regulations. When the Disability
Discrimination Act 1995 commenced, small employers, specifically
businesses with fewer than 20 employees, were exempted. It was
only in 2003 that this exemption was removed, because of EC law.[92]
The impact on small businesses has been minimal whilst disabled
people's enjoyment of basic civil rights has increased. Small
businesses are often very flexible and supportive by their nature,
so can find it relatively easy to take simple steps to comply
with equality duties and respond to individual employees' needs.
Equality law is grounded in proportionality. It would
be perverse to reduce the protection against unlawful discrimination,
and remove the incentives to take proactive steps to make businesses
accessible. Equality regulations are an important safeguard for
people who are treated poorly and act as a reminder to employer
that they have duties to make workplaces fair, accessible and
safe for everyone.
REVIEW OF
REGULATIONS
In the "Plan for Growth", the Government
also announces a public thematic review to reduce the stock of
regulations. Whilst we would not defend regulations for their
own sake, it is undeniable that many regulations exist to provide
the level of detail that would not be appropriate on the face
of an Act and that they help to provide clarity and certainty
to businesses as well as to employees and customers.
We are concerned that the Government is using the
burden on businesses as the overriding criterion for removing
regulations (or keeping them, if they are not deemed too burdensome).
At the very minimum, we would expect the Government to assess
regulations against a clear definition of what a "burden"
is; the benefits when these exist; and, in particular, how they
protect the interests of groups who tend to be disadvantaged in
society, including disabled people.
POLICY REVIEW
OF SPECIFIC
DUTIES
As well as protecting disabled people against discrimination,
the Equality Act 2010, and in particular the public sector equality
duty, provides a lever for change in a society that is still ridden
with institutional discrimination against and persistent disadvantage
for disabled people.
The Equality and Human Rights Commission's 2010 Triennial
Review "How fair is Britain"[93]
highlights how far disabled people lag behind non-disabled peers
in life chances. For example, only half of disabled people are
in employment compared to over three quarters of non-disabled
people, with even lower rates of employment for people with mental
health conditions or learning disabilities. Of those that are
in work, a disproportionate number are in low-skill jobs with
low job security.
Until 2005, the only way disabled people could secure
equality and poor treatment was to take legal action against public
authorities after a discriminatory act had taken place. In contrast,
the specific duties under the Disability Equality Duty (DED) have
empowered disabled people to work collaboratively with public
authorities in delivering equality and tackling discrimination.
The DED has given public authorities the tools and framework to
be proactive, and to involve disabled people in the design and
the delivery of policies and practices.
Research shows the very positive outcomes of the
DED, driving change within organisations, improving services to
local people, providing transparency, and facilitating joined-up
working between authorities.[94]
IMPLEMENTATION OF
PUBLIC SECTOR
EQUALITY DUTY
Key point
Whilst the public sector equality general duty starts
on 5 April 2011, the delay in the introduction of specific duties
and associated guidance means that there is a high level of uncertainty
amongst public authorities and disabled people about the new duty
and how it should be applied in practice. In order to avoid a
lapse in the compliance of public authorities with the public
sector equality duty it is vital that the Government launches
a strong and positive communications campaign, co-produced with
disabled people.
We welcome the public sector equality duty in the
Equality Act 2010 which is as good as, if not stronger and clearer
than, the current Disability Equality Duty. The public sector
equality duty will require public authorities to have due regard
to the need to: eliminate unlawful discrimination, harassment
and victimisation; advance equality of opportunity; and foster
good relations. Currently, the specific duties exist to assist
public authorities in meeting the Equality Duty. Case law in relation
to existing Equality Duties shows that a public authority needs
to proactively involve disabled people effectively,[95]
and assess the impact of their plans properly.
Therefore it is vital that public authorities remain
fully committed to the public sector equality duty—through
leadership and resource allocation. However, the delay in the
publication of the specific duties, coupled with the mixed messages
that the Government are sending out with regards to the weight
that they accord to equality, means that the effective implementation
of the public sector equality duty is at risk.
For this reason, the DCC calls on the Government
to launch a strong and positive communications campaign, co-produced
with disabled people, to ensure public bodies are aware of their
duties and disabled people know their rights.
RATIONALE FOR
POLICY REVIEW
Key point
The Government has launched a policy review on further
revisions to the specific duties, despite an extensive consultation
in autumn 2010 and the publication in January of draft regulations
reflecting many of the concerns expressed during the consultation.
We are very concerned that the Government has suddenly rejected
the outcome of that consultation process, expressed in the draft
regulations, and, by wavering, is not showing the leadership that
is required to help drive a real change in culture that will benefit
disabled people and the wider public.
The DCC was very surprised by the policy review,
following publication of draft regulations in January, which we
welcomed. We have not seen new evidence that explains the Government's
change of direction and we do not understand what new information
the Government is expecting to glean from the policy review that
justifies their view that the duties are burdensome.
We are very concerned that the Government is being
led by an overriding desire to reduce regulations rather than
paying heed to the views and experiences of disabled people and
their representative organisations and a significant number of
public authorities who have expressed support for strong specific
duties.
Given the amount of preparation that has so far gone
into the public sector equality duty (consultation, guidance,
training), a further review is a waste of public resources that
should only be justified through compelling evidence. We have
not been made aware of any such evidence.
PROPOSED CHANGES
TO DUTIES
Key point
The policy review of specific duties regulations
proposes to remove requirements to publish information about engagement
and equality impact assessments as well as requirements in relation
to equality objective setting. The weakening of the specific duties
will create confusion for public authorities who may not realise
that they still have to comply with the general duty. Also, the
reduction in transparency will substantially undermine the ability
of disabled people to hold public authorities to account without
going to court. We call on the Government to restore the specific
duties and to implement these as soon as parliamentary time allows—in
order to limit the damage caused by prolonged uncertainty.
One very positive outcome of the Disability Equality
Duty, and in particular the involvement duty, has been the proactive
collaboration between the public sector, the voluntary sector
and the private sector (who have an interest through procurement).
Rather than being a burden, the specific duties under
the Disability Equality Duty have helped public bodies to deliver
better outcomes, by involving disabled people, assessing impact
and action planning. Research shows the very positive outcomes
of the DED, driving change within organisations, improving services
to local people, providing transparency, and facilitating joined-up
working between authorities.[96]
In particular, Schneider Ross's research[97]
for the Government showed that of 174 respondents, more than half
rated the specific duties "very effective" or "effective"
(ranging from 51% to 81%). More than two-thirds of these respondents
were local authorities, health bodies and schools.
The draft regulations published last January help
towards fulfilling the Government's stated aim of improving transparency,
to ensure individuals and organisations have access to the right
information to be able to hold public bodies to account effectively.
Losing the requirement to publish evidence of engagement and equality
impact assessments would undermine this principle.
The Disability Equality Duty has encouraged co-production
between public authorities and disabled people. The reduced specific
duties may shift the collaborative nature of the existing Duty
towards one of confrontation, as disabled people have to take
public bodies to court more often in order to hold them to account
and ensure the duty is being complied with. This will be exacerbated
by the reduced transparency of what a public body is doing to
meet their general duty.
The DCC wants to avoid a situation where disabled
people have to resort to judicial review in order to challenge
a public authority over its failure to meet the general duty.
This is not realistic for many groups who lack the capacity or
expertise to pursue legal means. Challenging public authorities
through judicial review also requires a high level of resources
(including public money) on the part of the public authority.
Moreover, case law shows that in a successful judicial review,
the need for that review would have been avoided if the public
authority had proactively involved disabled people effectively,
and assessed the impact of their plans properly.
We are also deeply concerned by the Government's
belief that it will be sufficient for public authorities to set
just one equality objective, across all their functions and all
equality groups, in a four year period. This underestimates the
scale of inequality that persists in society and the need to take
specific action to reduce that inequality.
Further delay is creating uncertainty for public
authorities as to what they have to do, and amongst disabled people
as to what they can reasonably expect from a public authority.
Removing the requirements, as proposed in the policy review, will
deprive public bodies of a clear and compelling direction to comply
with the public sector equality duty in a way that minimises risk
of discrimination and maximises performance of the public authority.
We call on the Government to restore the specific duties and to
implement them as soon as parliamentary time allows—in order
to limit the damage caused by prolonged uncertainty.
INVOLVEMENT OF
DISABLED PEOPLE
Key point
Involvement of disabled people is vital for the effective
performance of a public authority of their public sector equality
duty. It is only through involving a range of disabled people,
in advance of decision-making, that a public body can ensure that
their organisation's work delivers positive outcomes for the public
and prevents discrimination against disabled people. Yet the views
and experiences of disabled people are often excluded from decision-making.
This is why involvement must be made explicit in the specific
duties.
Involvement of disabled people is vital for the effective
performance by a public authority of their public sector equality
duty. Living with a disability or health condition can have a
vastly different impact on different individuals, and the way
they experience barriers through policies and practices. Furthermore
many impairments and conditions are often misunderstood, for example
mental health issues and fluctuating conditions.
It is only through involving a range of disabled
people, right from the start, that policy and decision-makers
can ensure that their organisation's work delivers positive outcomes
for the public and prevents discrimination against disabled people.
It is always more difficult and costly (if not impossible) to
change decisions after they have been taken or implemented as
opposed to building equality into the design and operation of
public functions. For example, Skill, the National Bureau for
Students with Disabilities, reports that universities and colleges
have started to understand students' needs better which in turn
has led to creating an inclusive curriculum and culture where
students can achieve their potential.
However, there is still a limited understanding amongst
public authorities of the need to involve disabled people, and
in particular a reluctance to put scarce resources towards meaningful
involvement activities and reach out to marginalised groups. This
is why involvement must be made explicit in the duties.
In this context we would like to highlight the Government's
response to the previous consultation about the specific duties:
Unprompted by any question on the issue, around a
third of respondents raised a concern about the lack of any requirement
for public authorities to engage with or involve relevant groups.
The consultation document made clear that engaging with the public
and being responsive to their views are at the heart of its approach
to reforming public services. The consultation document said that
"Engaging with people from the protected groups is something
that most public bodies should do from time to time in order to
carry out the general duty". However, the consultation responses
highlighted a widespread belief that, without a specific requirement
on public authorities to engage with relevant groups (as is contained
to various degrees in the existing duties), such engagement on
equality issues would not happen.[98]
Disabled people are marginalised in society and often
find it difficult to make their voices heard. The democratic process
fails disadvantaged groups facing discrimination. Disabled people
are severely under-represented in public and political life, as
evidenced in the Speaker's Conference on parliamentary representation,[99]
whilst in a poll by Scope and ComRes last year a very high proportion
of disabled people (88%) felt that their voices are not heard
by elected representatives.[100]
We welcome the Government's commitment to improving
access for disabled people to elected office but it will take
a long time before representation at national and local level
can be said to be truly diverse and representative of disabled
people.
There is a real danger that public bodies attach
more weight to the wider public opinion than to the views and
experiences of disabled people. For example, it is unlikely that
unpopular groups like people with mental health needs (or indeed
other stigmatised or badly misunderstood conditions) will be those
the public shout loudest for in the Government's proposed regime.
This is why it is vital that public authorities are proactive
in involving equality groups in assessing impact and setting priorities
and designing policies and services.
Needs of disabled people can often be misunderstood
and assumptions made about what policies public authorities should
implement to address them. Involvement has therefore enabled public
authorities to make informed decisions about policies and services
that meet real need rather than perceived need, and therefore
present value for money. Involvement should not be a goal in itself
but must underpin the journey to successful outcomes. This is
even more important in the current fiscal climate, to ensure public
bodies can prioritise resources effectively and that disabled
people do not lose out in resource allocation decisions.
Involvement must be a requirement not an optional
extra—disabled people often do not have the choice to join
in the public debate.
REFORM OF
THE EQUALITY
AND HUMAN
RIGHTS COMMISSION
Key point
The Government has launched a review of the Equality
and Human Rights Commission (EHRC). They propose to limit the
EHRC's duties and powers and to significantly reduce their budget.
We are concerned that restricting the duties and powers will weaken
the machinery for protection and promotion of equality and human
rights. We call on the Government to make sure that the EHRC will
still have the authority needed to protect and promote equality
and human rights for people in Britain.
The Government has launched a review of the Equality
and Human Rights Commission (EHRC). The DCC will respond to this
review. Our starting principle is that there must be an institutional
framework that helps disabled people enjoy full protection of
their equality and human rights.
When the Disability Discrimination Act 1995 was implemented,
it took four years before an independent authority with duties
and powers to protect and promote equality was established, namely
the Disability Rights Commission (DRC). The DRC and its successor,
the EHRC, have proved vital in accelerating the process towards
disability equality.
Furthermore, article 33.2 of the UN Convention on
the Rights of People with Disabilities requires States Parties
to have a framework with one or more independent mechanisms to
promote, protect and monitor implementation of the Convention.[101]
In England and Wales this role is carried out by the EHRC. If
the Government reduces the duties and powers, then this may be
in breach of the Convention.
We are concerned that restricting the duties and
powers will weaken the machinery for protection and promotion
of equality and human rights. Additionally, the funding is being
reduced from £70 million (in 2007) to a planned £22
million in 2015. This is a 69% reduction which is another ground
for concern as it is likely to harm the effective use of EHRC's
core duties and powers. This also compounds the message from Government
in the "Plan for Growth" that equality is of only minor
concern.
We call on the Government to confirm that the EHRC
will still have the authority needed to protect and promote equality
and human rights for people in Britain, particularly marginalised
and stigmatised groups like disabled people.
March 2011
86 www.equalities.gov.uk/pdf/Equality%20Strategy%20tagged%20version.pdf Back
87
www.hm-treasury.gov.uk/ukecon_growth_index.htm Back
88
www.equalities.gov.uk/pdf/110317%20Public%20sector%20Equality%20Duty%20-%20Policy%20review%20paper.pdf Back
89
www.equalities.gov.uk/what_we_do/ehrc_reform.aspx Back
90
Time to Change, 2008 Stigma Shout: Service user and carer experiences
of stigma and discrimination. Rethink, Mind and Mental Health
Media Back
91
www.equalities.gov.uk/pdf/Equality%20Act%20Impact.pdf, Annex V,
page 207 Back
92
Equal Treatment in Employment and Occupation, EC Directive 2000/78/EC
of 27 November 2000 Back
93
www.equalityhumanrights.com/key-projects/how-fair-is-britain/ Back
94
OPM, 2007 Capturing the value of the Disability Equality Duty:
Early impact, benefits and lessons learnt across five central
government departments-Report for the Disability Rights Commission;
EHRC, 2009 Making practice happen: Praciitioners' views on the
most effective specific equality duties; RADAR, 2009 Lights, Camera,
Action: Promoting Disability Equality in the Public Sector Back
95
For example, www.lvsc.org.uk/files/103673/FileName/supplementaryjmentHajrula1.doc Back
96
OPM, 2007 Capturing the value of the Disability Equality Duty:
Early impact, benefits and lessons learnt across five central
government departments-Report for the Disability Rights Commission;
EHRC, 2009 Making practice happen: Practitioners' views on the
most effective specific equality duties; RADAR, 2009 Lights, Camera,
Action: Promoting Disability Equality in the Public Sector Back
97
Schneider Ross, June 2009 Equality Duties: Assessing the Cost
& Cost Effectiveness of the Specific Duties. Available at
www.schneider-ross.com/resources.pubs.php Back
98
Government Equalities Office, January 2011 Equality Act 2010:
The public sector Equality Duty. Promoting equality through transparency.
Summary of responses to the consultation. Available at
www.equalities.gov.uk/pdf/110114%20Promoting%20equality%20through%20transparency%20-%20Summary%20of%20responses.pdf Back
99
www.parliament.uk/about/mps-and-lords/principal/speaker/speakers-conference/speakers-conference/;
the report
http://www.publications.parliament.uk/pa/spconf/239/239i.pdf is
available here: www.publications.parliament.uk/pa/spconf/239/239i.pdf
, in particular chapter 6 illustrates the barriers for disabled
people. Back
100
Scope/ComRes, 2010 National Disabled People's Poll on politics Back
101
www.un.org/disabilities/default.asp?id=293 Back
| 
