DDB 131 Department of Work and Pensions
Supplementary
S
From the Parliamentary
Under Secretary of State
for Work and Pensions
Lord Carter
Chair
Joint Committee on the Draft Disability Discrimination
Bill
Committee Office
Milibank House
House of Lords
Westminster
SWiA OPW
Department for Work and Pensions
Richmond House
79 Whitehall
London
SWiA 21S
Telephone
020 7238 0800
Email ministers@dwp.gsi.gov.uk www. dwp gov.
uk
1 April 2004
I was very pleased to be invited to give evidence
to the Joint Committee yesterday on the Government's thinking
behind, and approach adopted in, the draft Disability Discrimination
Bill. The draft Bill is the next step toward comprehensive civil
rights for disabled people and it is
important to ensure its provisions, and how they interact with
those in the Disability Discrimination Act 1995 (DDA), are clearly
understood.
I said I would write on some further issues and there
are a few matters we discussed where you may find it helpful to
have my additional comments.
Public body duties
1 would like to clarify a few points from our discussion
on clauses 4 and 8 of the draft Bill.
First, we discussed the difference between a public
function and a service. All the activities of public authorities
are, in fact, functions of those authorities, but some of these
may relate to employment or be classified as services under Part
3 of the DDA. The Government believes that the relationships between
service providers and users, and between those exercising public
functions and people affected by the exercise of those functions,
are similar in nature. As a consequence we intend to impose the
same duty to make reasonable adjustment on both service providers
and public bodies exercising functions; that is
an anticipatory duty which bites when a trigger
equivalent to the 'impossible or unreasonably difficult' trigger
at s. 21 of the DDA is activated.
This avoids any confusion if it is unclear whether
a particular function (such as the maintenance of highways) constitutes
the provision of a service, as the same type of duty would apply
to all the activities of the authority.
I would also like to clarify a couple of points of
detail in our discussion:
- the exemption (at s. 21C(5) of the draft Bill)
for acts of allocating prisoners applies to the allocation both
to prisons and within prisons.
- a care home would not necessarily meet the definition
of a public authority in the draft Bill. Private sector bodies
can and do provide such homes with and without public funding
and therefore their provision is not a function of a public nature.
Finally, in relation to the duties imposed by s.
75 of the Northern Ireland Act 1998,I fear that the Committee
may be operating under a misapprehension. The duty to promote
good relations only applies in respect of racial origin, religious
and political belief, and does not extend over the remaining six
equality grounds (disability, gender, age, sexual orientation,
marital status and whether a person has dependents) which are
covered only by the duty to promote equality of opportunity imposed
by that section. Similarly, the positive equality duty imposed
by s. 404 of the Greater London Authority Act 1999 covers six
equality grounds (race, disability, gender, age, religious belief,
and sexual orientation), but imposes a duty of good relations
only in respect of race, religious belief and sexual orientation.
Our Bill would therefore follow the precedents set by other UK
legislation.
Mental health cases
I agreed to provide the Committee with details of
my analysis of tribunal cases relating to discrimination against
persons on the grounds of mental impairment.
The Department is routinely notified of cases submitted
to Employment Tribunals, including those involving a claim under
the DDA. My analysis is based on cases known to the Department
involving a preliminary or substantive hearing before an Employment
Tribunal during the six month period 1 September 2003 and 29 February
2004. This produced a sample of 100 cases. Of these, 31 concerned
a person who was pursuing a claim on the basis that their disability
arose from a mental impairment. In nearly 90% of these cases (i.e.
27 out of 31), the applicant was able to demonstrate that they
met the current definition of disability. This included people
whose impairments were described as depression, stress and anxiety.
Only four were unable to prove that they met the definition. This
was largely on the basis of lack of provision of adequate medical
evidence.
We also examined a number of cases that went to an
Employment Appeal Tribunal (EAT) between January and December
2003. We identified 42 cases in total, 13 of which concerned a
person with a mental impairment. In only 2 of these cases did
the person fail to meet the current definition of disability.
That was because they failed to provide sufficient medical evidence.
I am aware that the Committee have been provided
with details of a number of tribunal cases in which the applicant
has a mental impairment. I thought it might be helpful to provide
a summary of three particular cases of interest. This is attached
at Annex 1. The Committee will wish to note, in particular, that
EAT decisions in the cases of Goodwin and Morgan provide important
guidance for future interpretation in similar cases.
Research and monitoring
You asked me about the analysis of cases in the report
Monitoring the Disability Discrimination Act 1995 (Phase2), published
by my Department. This report was based on a statistical analysis
of claims brought under both Part 2 and Part 3 of the DDA. The
Part 2 cases analysed represented all known tribunal cases issued
and/or decided in the United Kingdom for the period 2 December
1996 to 1 September 2000, a total of 8,908 cases. The analysis
of Part 3 cases is based on cases issued and/or decided for the
period 2 December 1996 until 1 February 2001. Only 53 Part 3 cases
were identified.
lt should be noted, however, that the two figures
are not directly comparable. Those for the Part 2 cases cover
a period during which the full employment provisions were in force.
In contrast, the Part 3 duties were introduced in stages and,
in particular, the most important provision for disabled people
-the duty to make adjustments
- has been one that has
not been fully in place during the period. Service providers have
been under a duty not to refuse to serve a disabled person since
December 1996, but the duty to make reasonable adjustments to
policies, practices and procedures, or to provide auxiliary aids
only came into force in October 1999. Thus the main duties for
service providers had only been in force for 16 months by the
end of the period covered by the research. lndeed, a requirement
to make adjustments to physical features will only apply to service
providers from October this year and duties applying to transport
vehicles will, subject to the Bill becoming law, not be in place
until after Royal Assent.
You also asked for my views on the findings of further
research undertaken by the Institute for Employment Studies on
behalf of the DRC, in partnership with my Department and the Equality
Commission for Northern Ireland, monitoring the implementation
of the DDA. This is the
third phase of a series of studies in this area. The two previous
studies are already published: Monitoring the
Disability Discrimination Act (DDA) 1995, DfEE
Research Report RR119, May 1999, and Monitoring
the Disability Discrimination Act 1995 (Phase 2),
DWP In-house Report 91, 2002. If you do not already have them
I would be happy to arrange for you to receive copies of both
of these reports; the Clerk to the Committee can speak to the
Bill team about this. However, I understand that the Phase 3 Report
is still being finalised by the DRO and will not be published
by the Commission until around the end of April. I am unable to
comment, therefore, on its findings or to offer to provide a copy
to the Committee at this stage.
Office holders and lay members
I agreed to clarify the detail behind our discussion
on office holders.
The legislative framework protects office holders
from disability discrimination (including failure to make a reasonable
adjustment) in a number of separate provisions:
(1) The 2003 Amendment Regulations insert new sections
4C - 4F into the Disability
Discrimination Act 1995 (from 1 October 2004). This provides protection
where:
- the office or post holder is personally appointed
to perform functions under the direction of another person and
for which they are entitled to remuneration (remuneration excludes
expenses or payment for loss of other income); or
- the office or post is one to which appointments
are made, recommended by, or subject to the approval of a Minister
of the Crown, a Government department, the National Assembly for
Wales or any part of the Scottish Administration.
This protection is identical to that under the Race
Relations Act and the Regulations implementing the Employment
Directive provisions on sexual orientation and religion and belief.
(2) Clause 15 of the draft Bill provides protection
to councillors and members of the Greater London Authority when
carrying out official business.
(3) Clause 4 of the draft Bill provides protection
whenever a public authority exercises its public functions. This
may include the appointment to offices or posts, making arrangements
for such appointments or anything in relation
to office holders of a public nature.
This means that lay magistrates are covered (by new
sections 4C-4F) because their appointment is made either by the
Crown or the Chancellor of the Duchy of Lancaster on the recommendation
of the Lord Chancellor/Secretary of State for Constitutional Affairs.
While lay members of local authority standards committees
in England and Wales are not covered by sections 4C- 4F or by
clause 15, clause 4 would be likely to apply to their appointment
and their on-going relationship with the authority.
We also discussed school governors. In the context
of state schools, I can confirm that clause 4 would apply to the
arrangements for their election, or their appointment or co-option,
and to the ongoing relationship between the governing body and
the governors themselves.
This is a very comprehensive package of protection
for a wide range of offices and posts in which the Government
has set a clear lead for others to follow.
Private clubs
I explained to the Committee that the Government's
intention is to consult
widely on how and when the practical duties under the Bill would
come into force. To facilitate this, we intend that the reasonable
adjustment duties for private clubs will be set out in Regulations
made under the powers introduced by Clause 5 of the draft Bill.
They will not be set out on the face of the Bill.
Finally, I am grateful to you for you providing a
copy of the letter of 24 March from the Rt Hon. Jean Corston MP
concerning the meaning of public authority in the draft Bill.
We had a lengthy discussion on the definition of an authority
yesterday, but I would be happy to respond to any further specific
concerns the Committee may have.
I look forward to the Committee's final report. Please
let me know if I can be of any further assistance in
the meantime
MARIA EAGLE
ANNEX 1
Analysis of relevant case material for the Joint
Scrutiny on the draft
Disability Discrimination Bill
Goodwin v the Patent Office (1998)
Dr Goodwin was dismissed from his post as a patent
examiner after complaints from female staff of disturbing behaviour.
He is a paranoid schizophrenic. He brought a complaint under the
DDA.
Dr Goodwin gave evidence that he had auditory hallucinations
which interrupted his concentration. The employment tribunal held
that he failed to come within the definition of a 'disabled person'
and thus was not protected by the Act, because it
did not consider that the impairment had a
substantial adverse effect on his normal day-to-day activities.
Although the tribunal accepted that the hallucinations affected
Dr Goodwin's ability to concentrate on his work and reduced his
pleasure in watching television, it held that the effect on his
normal day-to-day activities was not substantial. The tribunal
found that he was able to 'perform his domestic activities without
the need for assistance, to get to work efficiently and to carry
out his work to a satisfactory standard.'
Dr Goodwin took his case to an Employment Appeal
Tribunal (EAT). The EAT held that the employment tribunal had
erred in law. They noted that Dr Goodwin was unable to carry on
a normal day-to-day conversation with work colleagues, which was
good evidence that his capacity to concentrate and communicate
had been adversely affected in a significant manner. The EAT added
that 'it seemed to us
most surprising that any tribunal could conclude that a person
admittedly diagnosed as suffering from paranoid schizophrenia
and who had been dismissed partly because of what one might call
bizarre behaviour, consistent with that diagnosis, fell outside
the definition..' The EAT upheld the appeal, substituted their
own finding that Dr Goodwin was a disabled person under the Act,
and sent the case back to a new tribunal so that the hearing could
proceed.
This case, as well as showing how a person with schizophrenia
clearly comes within the meaning of the definition of disability,
also provided useful guidelines for future tribunals to follow.
Samantha Morgan v Staffordshire University
(EAT 2001)
This concerned a woman with a mental impairment (described
as stress and anxiety, and clinical depression) which ultimately
led her to resign from her job and claim constructive dismissal.
The tribunal ruled that Ms Morgan did not have a clinically well-recognised
illness. Ms Morgan had produced GP notes
recording her symptoms, and confirming that she was
being treated with medication for depression. On appeal the decision
was upheld by the EAT.
Guidance given by the EAT (which now provides a standard
for other tribunals to follow) suggests the following ways in
which a person may prove their disability:
- proof of a mental illness specifically mentioned
as such in the World Health
Organisation's International Classification of Diseases
- (WHOICD);
- proof of a mental illness specifically mentioned
as such in a publication 'such as' the WHO classification;
- proof by other means of a medical illness recognised
by a respected body of medical opinion.
The tribunal said 'there is no good ground for expecting
the tribunal members (or Employment Appeal tribunal members) to
have anything more than a layman's rudimentary familiarity with
psychiatric classification. Things therefore need to be spelled
out.'
The EAT's decision was based on standards of evidence,
not an exclusion of people in Morgan's circumstances. It provides
useful guidelines for future hearings.
East Sussex County Council v Mr
D Hancock (November 2003)
This was an appeal against a preliminary hearing,
held to determine whether the Applicant was a disabled person.
Mr Hancock is a recently retired teacher formerly
employed by the Respondent, and citing disability discrimination
(the circumstances of which are as yet unknown). It is common
ground that he suffers from mixed anxiety and depression and this
was confirmed by a consultant psychiatrist as being clinically
well recognised. There was no dispute that it was long term.
Disagreement centred over whether the illness had
a substantial effect on day-to-day activities. A consultant psychiatrist
gave evidence to the Tribunal, (he had not examined Mr Hancock
for the purposes of the hearing, but for an entirely different
reason in connection with eligibility for a company pension scheme).Some
of his evidence did not support the Applicant's testimony, and
even though there was no other evidence in support of the Applicant,
the ET nevertheless found in the
Applicant's favour.
The Respondent appealed on the grounds that it was
not possible to know from the ET's written reasons, why the Applicant
had succeeded in his claim. The EAT agreed that the ET had not
given its reasons for coming to the conclusion that it had done.
They therefore remitted the case back to a new ET. The issues
that will have to be decided will be, whether at the material
times, such disorder led to or had a substantial effect on day-to-day
activities. The EAT decided that that matter will have to be decided
afresh but can be decided at the same time as the question as
to whether there was unfavourable treatment.
This case is purely a case about procedure and does
not in itself point to any conclusion on the definition of disability
in the DDA.
In this particular case it would not have made a
difference had the precise terms of the definition of disability
been worded any differently - the
case fell down on a technical point, namely the failure of the
ET to provide an adequate written explanation of their decision.
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