DDB 67 RADAR
Submission to the
Joint Scrutiny Committee
on the Draft Disability Discrimination Bill
February 2004
1. INTRODUCTION
1.1 RADAR is a national
disability non-government organisation working on behalf of disabled
people, from the broadest range of cultural, racial and social
backgrounds, irrespective of their impairment.
1.2 RADAR's vision is
of a society where human difference is routinely anticipated,
expertly accommodated and positively celebrated:
- where the dignity of the individual is
paramount;
- where people are valued as individuals;
- where their different needs, ambitions, choices and abilities
are recognised and encouraged (not assumed).
1.3 RADAR's mission is
to promote change by empowering disabled people to achieve their
rights and expectations and by influencing the way that disabled
people are viewed as members of society.
The organisation's primary functions are:
- To provide high-quality
campaigning tools and services to organisations of and for disabled
people; RADAR has over 450 autonomous disability organisations
as members whose interests we seek to represent in all aspects
of our work.
- To comment on all
major social policy areas affecting disabled people: anti-discrimination
legislation, health, education, employment, social security, community
care, independent living, mobility, transport and access to the
build environment.
- To provide support,
training and development to networks of disability organisations
e.g. we co-ordinate a network of over 400 Access Groups throughout
the country. These are voluntary organisations, largely comprising
of disabled people, who come together to work to improve access
to the built environment locally.
1.4 Although RADAR works
with organisations of all types (of and for disabled people) RADAR
itself is an organisation of disabled people. Constitutionally
the majority of our governing board of trustees must be disabled
people. Currently, 70% of our trustees are disabled.
1.5 This submission is
based on continued dialogue with our members and reflects the
views of a broad spectrum of disability organisations covering
most impairment groups.
2. THE BILL
2.1 RADAR welcomes
the principles behind the draft Disability Discrimination Bill
that seeks to implement important recommendations of the Disability
Rights Task Force (DRTF). The measures proposed by the Government
are a significant step towards tackling inequality and discrimination
faced by millions of disabled people in Britain today.
2.2 In particular, RADAR
welcomes the inclusion of a statutory duty on public authorities
to promote equality and eliminate discrimination, the inclusion
of HIV, cancer and MS and from the point of diagnosis, and the
power to extend the scope of the DDA to transport services and
vehicles.
2.3 How far the Bill goes
in improving the everyday lives of disabled people will largely
depend on its detail rather than the principles set out in the
current draft. RADAR feels that in many areas of the Bill - most
notably transport - the Government has not gone far enough. Other
vital issues, such as the inclusion of mental illness within the
definition of disability, are currently not on the face of the
Bill despite overwhelming evidence in support of such a move.
We ask the Joint Committee to rectify these omissions in its recommendations.
2.4 RADAR is concerned
that it is being asked to comment on what is, in many places,
essentially a skeleton Bill. It is only by considering the draft
Bill with draft regulations and timescales included, that RADAR
can engage in proper debate about the merits of the draft Bill
and provide proper scrutiny through the legislative process.
We do recognise that some regulatory powers are necessary and
there are obvious merits in the flexibility they offer. However,
regulations must not be used as a delaying tactic or as a tool
to escape democratic scrutiny.
2.5 RADAR is concerned
at the absence of any commitment to a timescale for the implementation
of the bill. RADAR urges the publication of a government timetable
setting out its implementation strategy.
2.6 Most importantly RADAR
hopes the Government will respond swiftly to the Joint
Committee's recommendations by introducing a full Disability Discrimination
Bill before the summer recess. We believe this is necessary in
order to ensure that the Bill becomes law before the next General
Election and that the provisions enter into force before the
Commission for Equality and Human Rights supersedes the Disability
Rights Commission (DRC).
2.7 RADAR is aware of
the detailed submissions made by the DRC in relation to all aspects
of the Bill. For the sake of expediency and avoiding duplication
RADAR has limited its detailed response to the following areas:
- Definition of Disability
- Transport
- Housing
3. DEFINITION OF DISABILITY
3.1 RADAR does welcome
the extension of the definition disability to include people with
MS, cancer and HIV from the point of diagnosis. RADAR does have
some concerns about the less than coherent approach to
the definition of disability
RADAR believes that,
where possible, there should be a comprehensive definition of
disability that will cover all relevant conditions.
3.2 There is evidence
to show that those who suffer discrimination on the grounds of
their mental health are prevented from bringing cases to Employment
Tribunals or the courts under Parts 3 and 4 of the Disability
Discrimination Act (the 'Act').
It is
very likely that this group of people make up the biggest category
of people for whom the DDA is not working because their impairment
does not meet the current very strict definition laid down in
the 1995 Act.
3.3 This is particularly
troubling given the persistence of discrimination against people
with mental health difficulties in the workplace.
In a recent case a young woman who
had worked in a dentists surgery was dismissed from her post as
she had suffered from periods of depression resulting in an eating
disorder and periods of self-harm. Her case did not fall in the
current S1(1) definition, as it is not considered a 'long term'
condition.
3.4 The difficulties of
fitting depression in the current definition of disability is
that there may be several episodes over a relatively short period,
but no episode lasts for 12 months.
3.5 Depressive illnesses
also have a strong tendency to reoccur:
- at least 50% of people
following their first episode of major depression will go on to
have at least one more episode; and
- those experiencing their first
episode of depression before the age of 20 are particularly susceptible
to relapse.
3.6 The social stigma
surrounding depression also has significant an effect on whether
those with mental health issues fall within the definition. It
is clear that those who experience depression often do not seek
medical advice at the point at which their symptoms first manifest.
This often means that whilst applicants at a tribunal may well
have been depressed for the requisite period, there will be no
medical record to establish this.
A recent case brought to our attention
highlights the above: A 46 year old Company Secretary was dismissed
due to incidents relating to his mental illness. He did not wish
to reveal details of his health as he felt it would significantly
reduce his chances of gaining further employment in his field.
3.7 The current definition of disability
requires that a mental illness be clinically well recognised,
however by doing so this creates inequality between people with
mental illness and all other disabled people. This runs entirely
counter to the anti-discrimination principle, which underpins
the Act. This extra legal burden can be difficult to overcome
because of disagreements between medical experts. It also distracts
from the real issue of whether day-to-day activities have been
substantially limited.
3.8 The current definition places a considerable
burden on disabled people during in tribunals and in court hearings
to prove their disability. This is often complex and time consuming
and open to subjective interpretations. RADAR believes that a
shift in emphasis from the disabled person 'proving' the disability
to a focus on actual discrimination from employers and service
providers would considerably improve the everyday lives of thousands
of disabled people who fear having to 'prove' their disability.
3.9 RADAR Recommendations
on Definition
We ask the Government
to:
- correct the indirect
discriminatory effect of the 12-month test by including an explicit
regulation reducing the length of time an impairment must have
an effect to six months in the case of depression.
- ensure through regulations
or guidance that recurrent episodes of depression are not excluded
from the definition of disability.
- remove the requirement
that mental impairment illness needs to be 'clinically well recognised',
and bring this in line with physical impairments, where such a
requirement does not apply.
- regulate that receipt
of disability-related benefits, such as the Disability Living
Allowance (DLA), is conclusive proof of a disability.
4. TRANSPORT
4.1 Inaccessible transport
has a major impact on disabled people's independence, social participation
and employability. For example
- 60% of households
with a disabled member do not have access to a car, so access
to the public transport system is a crucial part of many disabled
people's lives.
- Findings from recent
research show that 23% of disabled people actively seeking employment
have had to turn down a job offer because of inaccessible transport.
- 62% of wheelchair
users and 86% of people with a visual impairment said inaccessible
transport had restricted their choice of jobs.
4.2 RADAR welcomes Government
initiatives on employment, education and health to improve access
for disabled people. However access to employment and access to
healthcare depend on an accessible transport system. Without
significant improvements on access to public transport initiatives
in other areas will simply be wasted opportunities.
4.3 RADAR is inundated
with reports from disabled people angry about their lack of access
to transport systems. With a membership of 450 disability organisations
of and for disabled people and as organisation of
disabled people we can rely heavily on the authenticity of the
outcry for change. During the recent Newspirit consultation access
to transport was cited as the most significant concern
of disable people.
4.4 The points set out
below reflect the significant concerns that disabled people have
in relation to transport:
- We have received examples
of bus drivers refusing to stop for wheelchair users or refusing
to operate functioning ramps. Considerable problems exist because
even where buses are accessible some bus drivers continue discriminating
against disabled people.
- Members have informed
us of occasions where bus drivers have shouted ' I know I don't
have to stop for you'.
- Some drivers/staff
refuse to alert people with learning disabilities or visual and/or
hearing impairments off the correct stop
- Members often inform
us of taxi drivers refusing to take passengers with assistance
dogs.
- Members have informed
us "Any blind person who tries to use the bus services will
tell of being put off at the wrong stop" ….For too many
blind people, though, the problem is access to services and particularly
to guidance and way finding"
- Member in the Dover
area state there are no accessible buses at all. People are imprisoned
in their villages once they lose the ability to drive a car.
Some individual cases
illustrate clearly the problems that disabled people face:
- It took a young visually
impaired man up to 4 hours to get home because the driver had
not indicated that the bus had already passed the stop requested.
At the start of his journey the disabled man was only 4 miles
from home.
- A disabled person
has informed us that he often asks a passer-by to hail down a
taxi for him, while he hides nearby - as in his experience
taxi drivers will not stop if they can see his disability.
4.5 These examples of
discrimination against disabled people must be put into the context
of the overall debate on equality. Such forms of discrimination
would, and rightly so, be unacceptable for any other minority
group. We have much to celebrate from the fact that there are
no longer parts of the world where people are separated into different
carriages because of the colour of their skin. The Government
must be applauded for moving to outlaw discrimination on the basis
of age, religion and sexual orientation. Furthermore the adoption
of the European Convention on Human Rights into British law has
added another dimension to the debate on rights and discrimination.
Disabled people cannot continue to face daily discrimination
and humiliation as the discriminators hide under the umbrella
of 'reasonableness'.
4.6 For disabled people
to be able to travel with confidence all aspects of the transport
chain must be fully accessible. The benefits of new vehicles and
systems will be minimised, or lost altogether, if disabled people
find that they cannot move easily and safely between transport
modes.
4.7 Though RADAR welcomes
the provisions within the draft Disability Discrimination Bill
that allows for the extension of the DDA to transport services
we believe that our members, and the disabled constituency at
large, feel extremely frustrated with the decision not
to remove fully the blanket exclusion.
Removing the exemption
from all modes of transport would give disabled people significant
confidence that the government is serious about giving people
full and enforceable civil rights.
4.8 Unfortunately the
transport provisions of the draft Bill rely heavily on regulation-making
powers. The timing and content of the regulations are unknown
which makes it difficult for us to assess the overall effectiveness
of this part of the Bill.
4.9 RADAR urges the Government
to set out its intended timetable of regulations to lift the Part
3 exemption from transport operators before the bill is
introduced to the House.
4.10 RADAR believes that
regulations are urgently required to bring into the scope of the
Disability Discrimination Act 1995 services such car hire, private
rental, tourism and breakdown recovery.
4.11 The Bill will give
the Government the power to place duties to make reasonable adjustments
on transport service providers. This will include reasonable changes
to practice, policies and procedures. RADAR is disappointed
that it will not include changes to physical features. At present
it is not clear whether transport providers will be required to
consider providing a reasonable alternative means of accessing
the service.
4.12The prospect of further
consultation is viewed with much scepticism and widely seen as
a further delaying tactic. The 'Enforcement and Sanctions'
section of the RIA suggests that regulations will not be introduced
immediately after Royal Assent for the Disability Discrimination
Bill and that further consultation would be required. RADAR considers
that further consultation in this area is unnecessary,
as this issue has now been consulted on three times over a period
of five years.
4.13 The impact of the
Bill provisions will depend entirely on the content and timing
of regulations. The Government must set out the intended timetable
for regulations to lift the Part 3 exemption from transport operators
as soon as possible.
4.14 An end-date for rail vehicle accessibility
4.14.1 Despite the introduction
of the RVAR, in 1999, many RADAR members feel that the majority
of the rail industry has still to demonstrate a sincere commitment
to meeting the reasonable requirements of disabled people.
'I travel to work from
Folkestone three times a week. I have written to my train operating
company 57 times. Why I am I still travelling in a guards van?
4.14.2 The Bill is to
include an 'end date' by which all passenger rail vehicles should
comply with rail accessibility regulations in line with Task Force
recommendation 7.1. At present trains brought into service since
1 January 1999 must comply with the detailed technical standards
set out in the DDA Rail Passenger Accessibility Regulations 1998.
There is however no requirement on any train brought into
use before that time to be accessible, even when it is refurbished.
4.14.3 The Government
has issued a consultation on the end date and accessibility regulations
for the refurbishment of existing rolling stock. RADAR is extremely
disappointed to see that the Government is expressing a strong
preference for 2025 as an end date when all rail vehicles
must be accessible. Though there may be some difficulties in
replacing significant numbers of trains ahead of schedule, this
date means that trains will remain inaccessible long after other
modes of public transport, thereby leaving a crucial link in the
transport chain broken for disabled travellers. RADAR strongly
urges the committee to recommend 2017 as the latest enddate.
Any further delay would risk profound disappointment with disabled
people as well giving transport providers the green light to
continue discriminating against disabled people.
4.14.4 Just because a
station has been made accessible or a train operator has RVAR
compliant rolling stock does not automatically mean that access
for disabled people has been 'solved'. RADAR is aware of many
examples of disabled people being left stranded on a station or
a train because the required assistance, booked at least 24 hours
in advance (as the majority of operators require) has not materialised.
The government must force, by regulation if necessary, the
rail industry to develop robust systems for providing assistance
to disabled passengers. Otherwise, even with 100% RVAR compliance
a large percentage of disabled people might choose to avoid rail
travel because they believe the system will let them down, leaving
them stranded and possibly vulnerable in terms of their personal
security.
One member informed us 'on several
occasions I have found myself having to jam a train's doors open
with my wheelchair to prevent it leaving the station until either
the requested assistance is provided or a helpful member of the
public gets me off the train'.
4.14.5 2017 would be in
line with the PSVAR for buses and would provide disabled people
with freedom to move across the country, having the full choice
of transport modes.
4.15 Aviation and Shipping
4.15.1 It is suggested
in the RIA that aviation and shipping will only be brought under
the legislation if they are failing to comply with existing voluntary
Codes of Practice. For example, in EasyJet refused to carry
a group of deaf people and, on another occasion refused to board
a group of footballers with learning disabilities. In addition,
RyanAir had a negative reaction to the verdict that forbids
airlines to charge for wheelchair use that they cannot charge.
These stories prove that the aviation industry is failing to
comply with this voluntary code.
4.15.2 The European Commission,
in their working paper on 'rights of persons with reduced mobility
when travelling by air', is considering legislation that entitles
disabled passengers to equal opportunities for air travel, and
that clarifies the responsibilities resting on airlines and airports.
4.15.3 RADAR agrees with
the RIA that that relying on voluntary compliance from the transport
sector: does not provide disabled people with confidence in the
transport network.
4.16.1 Prioritising audio-visual information
in transport vehicles
4.16.2 Under the current
draft Bill, the physical features of vehicles would remain under
Part 5 regulations and it could be many years, perhaps even decades,
before certain transport operators would need to introduce or
alter audio-visual features to ensure they provided accessible
information for disabled passengers. Buses, for example, would
not have to carry information systems to provide visual information,
such as where the bus is stopping next or provide information
in case of diversions and delays, even though this is when disabled
people most need such information.
4.16.3 RADAR believes
this lack of progress on accessible information onboard public
transport vehicles is unacceptable.
4.17 RADAR Transport
Recommendations
We ask the Government
to:
- Ensure that Part 5
regulations are amended to prioritise accessible audio-visual
information in refurbishment programmes across the transport sector.
- Bring aviation and
shipping immediately within the remit of legislation.
- Regulate for 2017
as an end date for all rail vehicles to be compliant with the
RVAR.
- Set out an intended
timetable for regulations to the lift the Part 3 exemption.
5.HOUSING
5.1 In order for disabled
people to live an independent and fulfilling life, it is essential
that they have the right to accessible and affordable housing.
Many do not. The 2001 census estimated that over 18% of the population
have a long term limiting illness or disability. Also there are
more people living into their late 70s and 80s when the incidence
of disability rises sharply.
5.2 We welcome the introduction
of the reasonable adjustment duty for landlords when renting to
disabled tenants. Landlords and managers may need to change their
policies, practices and procedures or provide auxiliary aids or
services, where reasonable. This would mean that, where reasonable,
for example a landlord might be obliged to:
- Allow a tenant with
mobility difficulties to leave her rubbish in another place if
she cannot access the designated place.
- Change or waive a
term of the letting to allow a tenant to keep an assistance dog
on the premises.
- Change or waive a
term of the letting that forbids alterations to the premises so
that a disabled tenant could make necessary access alterations
with the consent of the landlord.
- A landlord might need
to read out a tenancy agreement to a visually impaired person.
5.3 RADAR is very concerned
that the draft Disability Discrimination Bill does not extend
to an obligation not to unreasonably withhold consent for physical
alterations to their premises. This was a recommendation of the
DRTF, and accepted by the Government in 'Towards Inclusion'. Instead,
the Government is saying that the 1927 Landlord and Tenant Act
makes provision for this situation. However, the use of the 1927
Landlord and Tenant Act ('1927 Act') to plug this gap in civil
rights legislation is insufficient in the rights it affords.
The difficulties of obtaining permission are illustrated by a
recent case brought to RADAR's attention. The case concerns a
man who lives in sheltered accommodation, has chronic emphysema,
is increasingly housebound, and is unable to climb stairs. He
asked for a stairlift and offered to pay for the installation
and maintenance of it. His neighbour objected and the management
committee stated that they could overrule the objection. The work
could only take place if all four people in the block agreed.
5.4 The 1927 Act only
covers current lettings, providing no right for reasonable adjustments
to be made in prospective lettings accommodation. It also does
not cover the common parts of a building: in many cases a disabled
occupier needs alterations to the exterior of the building (such
as the installation of a grab rail) or to its approach (such as
the installation of a ramp or additional lighting). Furthermore
the DRC has no power to take cases under the 1927 Act, and therefore
disabled people are left without representation. It is also a
matter of serious concern that such an important issue of civil
rights (independent living) for disabled people is left to an
area of land law.
A further case highlights
the difficulties of that disabled tenants face. ' I live in a
block of flats. Though I own the flat it is on a leasehold basis.
I am a wheelchair user and would like a ramp to be put in. The
management company has consistently refused my requests, and
I cannot afford to bring action against because the terms of
my grant state that I cannot start work until all necessary consents
are obtained.
5.5 The new proposals
apply only to landlords, and do not cover wardens and management
committees. For example, a warden who provides services to occupiers
of individual leasehold properties in a block, would not be obligated
to make reasonable adjustments for the owner of one of those flats
if he was a deaf BSL-user. Management committees who run communal
areas in privately owned blocks, can lawfully refuse adjustments
to communal areas.
RADAR has been made
aware of a case where a resident of a block of flats acquired
a disability following an accident. Through a management company
he owned his flat in same way as the other residents. He put
forward proposals for a lift to be installed to enable him to
gain access to his flat but two members of the management board
refused it. A ballot of all the residents in his block of flats
, and those of the surrounding blocks, took place to decide whether
the permission should be granted. Two members of the board refused
to give permission, stating that the lift would restrict access
and bring down property values. Some residents of the block of
flats next door objected on the grounds that it would make all
the flats look like an old people's home!
5.6 Failure to amend the
DDA along the lines suggested by the Disability Rights Task Force
would perpetuate inconsistency within the Act itself. Under it
landlords are already prevented from unreasonably withholding
consent to physical alterations designed to facilitate access
by disabled people when their tenants are employers, service providers
or educational establishments. Why not when their tenant is a
disabled person?
5.7 RADAR Housing Recommendations
We ask the Government
to:
- bring Management Committees
and wardens into the scope of the new Housing provisions.
- make it clear that
landlords should not unreasonably withhold consent to disabled
tenants to carry out physical alterations
6. OTHER IMPORTANT
RECOMMENDATIONS ON THE DRAFT BILL
- Employment tribunals
should be able to order re-instatement or re-engagement under
the employment provisions of the DDA.
- A power should be
taken in the DDA to bring volunteers into coverage through regulations.
- All examining bodies
and standard setting agencies should be covered (the exact parameters
of coverage are at present unclear).
- School governors should
be covered
- Disability-related
enquiries before a job is offered should be permitted only in
very limited circumstances.
- Part 3 DDA (relating
to discrimination in service delivery) along with the new provisions
relating to transport, housing, private clubs and public functions,
should be enforced through employment tribunals rather than through
the Courts.
- Most of the recommendations
of the DRTF have been consulted upon widely. We consider that
the need for reform is now urgent.
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