The Work of the Home Office - Equalities - Home Affairs Committee Contents



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


 
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