DDB 84 Citizens Advice Bureau
115-123 Pentonville Road
London
N1 9LZ
Telephone 020
7833 2181
Fax 020 7833 4371
Draft Disability Discrimination Bill
- Comments for Joint Scrutiny Committee.
Citizens Advice welcomes the opportunity
to comment on this Bill in draft form; the Citizens Advice service
is a network of community-based advice agencies providing free,
impartial, confidential and independent advice and information
from over 2000 service outlets across England Wales and Northern
Ireland. CABx deal with deal with some 6 million problems raised
by the people who contact them each year - these include consumer,
employment and public service disputes where disability discrimination
is an issue.
1. Whether the draft bill's proposals
are necessary, workable and sufficient.
We welcome the fact that the bill extends
the scope of protection afforded by the DDA to cover discriminatory
advertising and publicity, use of public transport services, and
public authority actions. However, we question they are sufficient
in respect of enforcement and the definition of disability.
2. When the bill's provisions should
come into force.
3. What should be in the regulations,
orders and codes of practice proposed in the draft bill.
It appears that the result of this legislation
will be the Disability Discrimination Act 1995 as amended by the
Disability Rights Commission Act 1998, DDA 1995 (Amendment) Regulations
2003 and The DDA 1995 (Pensions) Regulations 2003 and further
amended by the Disability Discrimination Bill 2004. The committee
may want to consider whether the new legislation should be processed
with a codification of existing law relating to disability discrimination
protection. Another further issue is the Bill's relationship with
the DTI's Single Equalities Body proposals, and the extent to
which further integration of disability discrimination law may
be required with the body of legislation dealing with unfair discrimination,
including the EU's Equal Treatment Directive.
However, for the purposes of the as
Bill amending legislation, it come into force as soon as possible
so that the Bill's provisions can be integrated into the DDA timescale.
As regards the regulations, orders and codes of practice proposed
in the draft bill we would like to see a greater focus on
- Use of order making powers to facilitate
the Commission's role with respect of requiring service providers
to implement notices and action plans
- Greater Awareness training
Our reasons are evident from our response
to question 5.
4. The adequacy of the enforcement
procedures.
One of the deficiencies
of the DDA regime has been the lack of direct enforcement powers,
placing the burden of action and proof on individual disabled
people. The Institute of Employment Studies have undertaken successive
surveys of cases under the Disability Discrimination Act; and
found that main reason why so many cases are withdrawn is that
disabled people find it difficult to gain access to justice because
of the stress and difficulty of pursuing cases through the courts.
Amendments to the Disability Rights Commission Act to improve
the their situation by allowing the Commission to act as guardian,
or to independently bring proceedings concerning a discriminatory
practice, have been repeatedly rejected.
The Draft Bill is an improvement
in that the DRC may serve a compliance notice on a public authority
where it is satisfied that a public authority is not complying
with a specific duty imposed by the Secretary of State under clause
49, to require compliance and inform the DRC of the steps it has
taken (or is taking) to do so. It enables the DRC to apply directly
to the court for an order to supply information, and complements
existing powers with respect of formal investigations, action
plans and non-discrimination notices.
However, this does not
in Citizens Advice view significantly expand the DRC's powers
to take appropriate legal action where there are clear breaches
of the Act, or enhance the Commission's conciliation function,
and the power not extend to the private sector. We would urge
the Government to look again at the scope of powers available
to the DRC.
5. Whether the draft bill achieves
the right balance between securing the rights of disabled people
and imposing duties and costs on the private and public sectors.
It is wholly appropriate
that the duties of reasonable adjustments should apply to all
service providers. The range of providers to whom this legislation
applies is comprehensive and, in the area of goods and services
and facilities, includes everything from advice agencies, to hospitals,
banking services, professions and trades such as solicitors and
builders, courts and local authority and government. However,
CABx evidence shows a gap in the knowledge and attitudes of a
range of these providers that requires the attention of trade
associations, regulators, providers and consumers.
Some service providers
remain still appear unaware of the requirement that since 1996
it has not been lawful for service providers to treat disabled
people less favourably for a reason related to their disability
A CAB client in the South
found the local taxi firm doubled its fares because his wife was
a wheelchair user.
A CAB in the Southwest reported a client
facing discrimination about his appearance. He had been told
by his local library to wear gloves to use their IT facilities.
The client has psoriasis and looses scales of skin. Someone
had complained when he used the facilities before. The librarian
was not influenced by his explanation that there was no risk of
cross infection and that gloves would not stop skin flaking from
his beard. When he pointed out that there were plenty of other
local people who could be carrying diseases the reply was, "But
it doesn't show." He did not want to complain about the library
in case it jeopardised his benefit claim with the local Council.
Since 1 October 1999,
service providers have had to make 'reasonable adjustments' for
disabled people, such as providing extra help or making changes
to the way they provide services
A West-Midlands CAB client
was refused a sign language interpreter for a home visit arranged
by the council, to check gas appliances in her home. The bureau
found the company completely unaware of DDA requirements and of
the view that deaf people didn't need access to information about
work being carried out in their home.
A CAB in the North-West
was appalled at the attitude of a local trader to a client with
visual and hearing disabilities. The client had bought a cooker
with a one-inch sticker on it saying that the ignition was faulty.
He was not informed of how this fault would affect the product.
The shop's response to Bureau was that people like that shouldn't
be allowed out to shop.
A seriously disabled CAB
client in the South reported he had to travel miles to find a
petrol station who were prepared to help refill the petrol in
his car.
A client in Wales owed
£78.56 on his fuel bill. He was told his only option was
to have a pre-payment meter fitted. His disability made the proposed
site for the meter impossible for him and he was told it would
cost him £200 to change the site. The CAB commented that
if he had £200 he would pay off the arrears.
A CAB client in London
had taken out a student loan and had made the company aware that
he was blind. The company had been writing to him and expecting
written replies. When he came to the bureau he had a county court
judgement for over £4000 with £108 cost. The bureau
helped him have the judgement set aside but found the court also
expected him to sign documents.
A CAB client in the Southwest
was disappointed by a failure to provide reliable access, via
the lift, for her disabled daughter's access to leisure centre
facilities for which she had paid a £300 yearly subscription.
A CAB in Wales reported
their client had specifically checked the suitability of a holiday
destination because her husband uses a wheelchair. On arrival
the hotel had steps to the entrance and the area was all hills
so they refused to leave the coach and returned home.
Some service providers have policies
and procedures to align their provision with the DDA that are
not delivering the intended outcome. People with disabilities
who choose these services because of the promise of considerate
and effective treatment are disappointed. The DDA was intended
to prevent the exclusion of people with disabilities from access
to goods and services. Some disabilities are not obvious and
services providers should be more willing to be responsive to
requests for alternative delivery mechanism, learning from best
practice. Citizens Advice evidence shows that there is a need
for greater awareness on the part of service providers about the
needs of disabled customers and their legal obligations, and for
strengthening the enforcement machinery.
6. The proposed change to the definition
of disability.
This remains unchanged
from the DDA and we are concerned that it continues to exclude
a significant proportion of mental health problems. A substantial
number of enquiries to CABx are from people with mental health
problems; indeed some bureaux observe that in 2002 over half the
clients seen had or had had a mental health problem. In the summer
of 2003, Citizens Advice gathered evidence, from bureaux and from
a survey of the 100 or more special projects that CABx run for
people with mental health problems, for a submission to the Social
Exclusion Unit's consultation on Mental Health and Social Exclusion.
This evidence highlighted the very extreme difficulties people
with mental health problems face trying to hold on to their job
during a phase of illness and having lost their job, trying to
get back into employment. Workplace experience, in particular,
stigma, prejudice and discrimination were near universally cited
as the main reason why people with mental health problems give
up work and their main hurdle when trying to get a job.
People with mental health
problems are also excluded from insurance protection when member
organisations of the Association of British Insurers translate
guidelines on the Disability Discrimination Act into policies
of not recognising mental health problems as grounds for payment,
unless the illness is clinically well recognised. For example,
a loan protection plan typically says 'We will not pay benefit
if … your disability arises from stress, anxiety, or depression
or any mental or nervous disorder, unless a specialist certifies
that the condition prevents you from working.'
People with mental health
problems who lose their jobs through illness are hit again with
loss of cover to protect their income at crucial times in the
management of their health. It is vital that people should be
able to rely on insurance products to give them this protection.
If insurance guidelines rely heavily on the terms and definitions
of the Disability Discrimination Act, it becomes of paramount
importance to recognise the real impairment that many forms mental
illness incur and to have this recognition incorporated into the
Act.
For these reasons Citizens
Advice recommend the definition of mental impairment in the Disability
Discrimination Act should be broadened to take account of the
range of mental illness and to reflect the effect of mental disability
on people's lives to help people with mental health problems challenge
unacceptable discrimination.
Problems facing people
who consider taking action under the Act are several. The 'clinically
well-recognised' requirement doesn't apply to physical impairments
and it is unclear why should it be a requirement for people with
mental health problems; it would seem sufficient to accept GP
diagnoses of incapacity. The Goodwin case illustrates the difficulty
of proving mental impairment. In this case the Employment Tribunal
would not recognise schizophrenia under the definition because
the client's medication allowed him to carry out normal day activities
as described in the Act.
There are also problems
with the definition of 'normal day activities'. As defined, 'normal
day activities' fail to take sufficient note of the kinds of difficulties
people with mental health problems face, namely in the behaviour
and everyday activities that are affected when they are not well
and the periodic and recurrent nature of their illness.
7. Whether the range of "triggers"
in the draft bill for requiring reasonable adjustments are appropriate.
We welcome the introduction of a pro
active duty and the notion indirect discrimination (by outcome)
as set out in new section 21D(2), which mitigates the problem
of always needing a 'trigger event' to make legislation effective.
However, these only relate to public authorities; it should be
made clear in the drafting that the duty on employer and service
providers to make reasonable adjustments is a proactive, anticipatory
and continuing duty.
8. How the draft bill reflects the
Government's 2001 manifesto commitment to extend basic rights
and opportunities for disabled people.
The Committee should consider
how far the Bill moves towards implementing all the remaining
recommendations of the Disability Rights Task Force in its final
report to Government: "From Exclusion to Inclusion".
Richard Timm
Department or Work and
Pensions
Disability and Carers
Directorate
Disability Unit, Level
6
The Adelphi
1-11John Adam Street
London WC2N 6HT
Dear
DRAFT DISABILITY DISCRIMINATION
BILL
Citizens Advice, the coordinating
body for Citizens Advice Bureaux in England and Wales, welcomes
the opportunity to comment on this draft legislation. CABx deal
with almost 6 million problems each year, related to benefits,
debt, consumer affairs, employment, housing and legal rights.
The CAB service is the largest independent network of free advice
centres in Europe with advice given from over 2000 outlets.
1. Public Sector Duty
The provision for a public
sector duty to promote disability equality similar to that under
race equality legislation, should have beneficial implications
in reforming practices and policies across a wide range of activities
bringing about system-wide progress for all disabled people.
2. Scope of Bill
We welcome the fact that
the bill extends the scope of protection afforded by the DDA to
cover discriminatory advertising and publicity, use of public
transport services, and public authority actions.
3. Reasonable Adjustments and access to
services
Requirements of reasonable
adjustments will apply to all service providers. The range of
providers to whom this legislation applies is comprehensive and,
in the area of goods and services and facilities, includes everything
from advice agencies, to hospitals, banking services, professions
and trades such as solicitors and builders, courts and local authority
and government However, CABx evidence shows a gap in the knowledge
and attitudes of a range of these providers that requires the
attention of trade associations, regulators, providers and consumers.
Some service providers
remain still appear unaware of the requirement that since 1996
it has not been lawful for service providers to treat disabled
people less favourably for a reason related to their disability
A CAB client in the South
found the local taxi firm doubled its fares because his wife was
a wheelchair user.
A CAB in the Southwest
reported a client facing discrimination about his appearance.
He had been told by his local library to wear gloves to use their
IT facilities. The client has psoriasis and looses scales of
skin. Someone had complained when he used the facilities before.
The librarian was not influenced by his explanation that there
was no risk of cross infection and that gloves would not stop
skin flaking from his beard. When he pointed out that there were
plenty of other local people who could be carrying diseases the
reply was, "But it doesn't show." He did not want to
complain about the library in case it jeopardised his benefit
claim with the local Council.
Since 1 October 1999,
service providers have had to make 'reasonable adjustments' for
disabled people, such as providing extra help or making changes
to the way they provide services
A West-Midlands CAB client
was refused a sign language interpreter for a home visit arranged
by the council, to check gas appliances in her home. The bureau
found the company completely unaware of DDA requirements and of
the view that deaf people didn't need access to information about
work being carried out in their home.
A CAB in the North-West
was appalled at the attitude of a local trader to a client with
visual and hearing disabilities. The client had bought a cooker
with a one-inch sticker on it saying that the ignition was faulty.
He was not informed of how this fault would affect the product.
The shop's response to Bureau was that people like that shouldn't
be allowed out to shop.
A seriously disabled CAB
client in the South reported he had to travel miles to find a
petrol station who were prepared to help refill the petrol in
his car.
A client in Wales owed
£78.56 on his fuel bill. He was told his only option was
to have a pre-payment meter fitted. His disability made the proposed
site for the meter impossible for him and he was told it would
cost him £200 to change the site. The CAB commented that
if he had £200 he would pay off the arrears.
A CAB client in London
had taken out a student loan and had made the company aware that
he was blind. The company had been writing to him and expecting
written replies. When he came to the bureau he had a county court
judgement for over £4000 with £108 cost. The bureau
helped him have the judgement set aside but found the court also
expected him to sign documents.
A CAB client in the Southwest
was disappointed by a failure to provide reliable access, via
the lift, for her disabled daughter's access to leisure centre
facilities for which she had paid a £300 yearly subscription.
A CAB in Wales reported
their client had specifically checked the suitability of a holiday
destination because her husband uses a wheelchair. On arrival
the hotel had steps to the entrance and the area was all hills
so they refused to leave the coach and returned home.
Some service providers
have policies and procedures to align their provision with the
DDA that are not delivering the intended outcome. People with
disabilities who choose these services because of the promise
of considerate and effective treatment are disappointed. The DDA
is intended to prevent the exclusion of people with disabilities
from access to goods and services. Some disabilities are not
obvious and services providers should be more willing to be responsive
to requests for alternative delivery mechanism, learning from
best practice. Citizens Advice evidence shows that there is a
need for greater awareness on the part of service providers about
the needs of disabled customers and their legal obligations, and
for strengthening the enforcement machinery.
4. Enforcement Powers
One of the deficiencies
of the DDA regime has been the lack of direct enforcement powers,
placing the burden of action and proof on individual disabled
people. The Institute of Employment Studies have undertaken successive
surveys of cases under the Disability Discrimination Act; and
found that main reason why so many cases are withdrawn is that
disabled people find it difficult to gain access to justice because
of the stress and difficulty of pursuing cases through the courts.
Amendments to the Disability Rights Commission Act to improve
the their situation by allowing the Commission to act as guardian,
or to independently bring proceedings concerning a discriminatory
practice, have been repeatedly rejected.
The Draft Bill is an improvement
in that the DRC may serve a compliance notice on a public authority
where it is satisfied that a public authority is not complying
with a specific duty imposed by the Secretary of State under clause
49, to require compliance and inform the DRC of the steps it has
taken (or is taking) to do so. It enables the DRC to apply directly
to the court for an order to supply information, and complements
existing powers with respect of formal investigations, action
plans and non-discrimination notices.
However, this does not
in Citizens Advice view significantly expand the DRC's powers
to take appropriate legal action where there are clear breaches
of the Act, or enhance the Commission's conciliation function,
and the power not extend to the private sector. We would urge
the Government to look again at the scope of powers available
to the DRC.
5. Exclusion of Mental Health
A substantial number of
enquiries are from people with mental health problems; indeed
some bureaux observe that in 2002 over half the clients seen had
or had had a mental health problem. In the summer of 2003, Citizens
Advice gathered evidence, from bureaux and from a survey of the
100 or more special projects that CABx run for people with mental
health problems, for a submission to the Social Exclusion Unit's
consultation on Mental Health and Social Exclusion. This evidence
highlighted the very extreme difficulties people with mental health
problems face trying to hold on to their job during a phase of
illness and having lost their job, trying to get back into employment.
Workplace experience, in particular, stigma, prejudice and discrimination
were near universally cited as the main reason why people with
mental health problems give up work and their main hurdle when
trying to get a job.
People with mental health
problems are also excluded from insurance protection when member
organisations of the Association of British Insurers translate
guidelines on the Disability Discrimination Act into policies
of not recognising mental health problems as grounds for payment,
unless the illness is clinically well recognised. For example,
a loan protection plan typically says 'We will not pay benefit
if … your disability arises from stress, anxiety, or depression
or any mental or nervous disorder, unless a specialist certifies
that the condition prevents you from working.'
People with mental health
problems who lose their jobs through illness are hit again with
loss of cover to protect their income at crucial times in the
management of their health. It is vital that people should be
able to rely on insurance products to give them this protection.
If insurance guidelines rely heavily on the terms and definitions
of the Disability Discrimination Act, it becomes of paramount
importance to recognise the real impairment that many forms mental
illness incur and to have this recognition incorporated into the
Act.
For these reasons Citizens
Advice recommend the definition of mental impairment in the Disability
Discrimination Act should be broadened to take account of the
range of mental illness and to reflect the effect of mental disability
on people's lives to help people with mental health problems challenge
unacceptable discrimination.
Problems facing people
who consider taking action under the Act are several. The 'clinically
well-recognised' requirement doesn't apply to physical impairments
and it is unclear why should it be a requirement for people with
mental health problems; it would seem sufficient to accept GP
diagnoses of incapacity. The Goodwin case illustrates the difficulty
of proving mental impairment. In this case the Employment Tribunal
would not recognise schizophrenia under the definition because
the client's medication allowed him to carry out normal day activities
as described in the Act.
There are also problems
with the definition of 'normal day activities'. As defined, 'normal
day activities' fail to take sufficient note of the kinds of difficulties
people with mental health problems face, namely in the behaviour
and everyday activities that are affected when they are not well
and the periodic and recurrent nature of their illness.
I hope these comments
are helpful
Yours sincerely
James Sandbach
Social Policy Officer
Council of Mortgage Lenders, Mortgage Payment
Protection Insurance Baseline Cover Specification, para. 15
Goodwin v The Patent Office [1999] IRLR 4,
Employment Tribunal Appeals
Council of Mortgage Lenders, Mortgage Payment Protection
Insurance Baseline Cover Specification, para. 15
Goodwin v The Patent Office [1999] IRLR 4,
Employment Tribunal Appeals
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