DDB 52 DISABILITY AGENDA SCOTLAND
DISABILITY AGENDA SCOTLAND -
SUBMISSION TO THE JOINT COMMITTEE ON
THE DRAFT DISABILITY DISCRIMINATION BILL
Disability Agenda Scotland (DAS)
is an alliance of Scotland's leading disability organisations,
founded in 1998. Together our experience, expertise and interests
cover physical disability, sensory impairment, learning disability
and mental health problems.
Draft Disability Discrimination
Bill
1. DAS broadly welcomes the publication
of this draft Bill and is pleased that it implements a number
of the outstanding recommendations made by the Disability Rights
taskforce in their report, From Inclusion to Exclusion.
We particularly welcome the extension to cover transport and
the new duty on the public authorities to promote disability equality.
However, we have a number of concerns which are outlined below.
Regulation making powers
2. The Bill contains significant regulation-making
powers. We urge the Joint Committee to give careful consideration
to this as we are concerned that matters left to be specified
in regulations are unlikely to attract the same level of consultation
and scrutiny as the Bill. It appears that many of the regulation-making
powers will be subject to 'negative' procedure, rather than 'affirmative'.
We would question the extent to which this is appropriate. In
particular, we believe that regulations in relation to key issues
such as transport should be subject to affirmative procedure.
Definition of "disability"
3. The definition of 'disability' within
the DDA operates to unfairly exclude many people with mental health
problems. This has been highlighted by the Disability Rights
Commission (DRC) in its report Disability Equality: Making
it Happen, and by mental health organisations such as the
Scottish Association for Mental Health (SAMH). We consider it
a serious omission that this issue is not addressed in the draft
Bill.
4. There are a number of ways in which
the definition could be amended in order to help address this:
(a) The requirement in schedule 1 of
the DDA that a mental illness must be "clinically well recognised"
should be removed. This requirement does not apply to physical
impairments. Why should those with mental health problems face
an extra hurdle? This seems rather incongruous in legislation
which aims to protect vulnerable people from discrimination.
This requirement has caused difficulties
in practice. Psychiatry is not an exact science. People may
not be given a diagnosis, there may be disagreements between professionals
as to diagnosis or there may be changes in diagnoses over relatively
short time periods.
(b) The list of "normal day to
day activities" in schedule 1 should be revised. This list
is intended to be exhaustive and seems to have been framed largely
with physical and sensory disabilities in mind. Whilst two of
these activities would relate to mental health problems, they
do not adequately cover the range of debilitating effects that
users of mental health services may experience eg impairments
of thinking, feeling or social interaction, voice hearing, self-harm,
panic attacks, insomnia, agoraphobia etc.
The list should cover: "ability
to communicate and interact with other people", "ability
to care for oneself" and "the ability to perceive reality".
We understand that the list of 'life
activities' (the equivalent of our 'normal day-to-day activities')
in the Americans with Disabilities Act 1990 includes sleeping.
We believe that this should also be incorporated.
The category of "perception of
physical risk" should be revised so that "self-harming
behaviour is clearly included.
(c) An impairment's substantial adverse
effects must either last for 12 months or be shown to be likely
to recur, to qualify as a "disability" in terms of the
Act. The DRC has highlighted that this is proving to be a persistent
barrier for people with depression and anxiety disorders. We
agree with their view that the qualifying period should be reduced
from 12 to 6 months for people with depression.
Disability-related enquiries before
a job is offered
5. We would like to see the Bill amended
to ensure that disability-related enquiries before a job is offered
are permitted only in very limited circumstances eg to enquire
as to whether someone requires reasonable adjustments to selection
procedures.
Discrimination by public authorities
- We are concerned about the term
"very much less favourable" as it appears in the new
section 21D(2) inserted by clause 4. In addition to being very
clumsily worded, this sets a higher threshold than other parts
of the Act. We can see no justification for this and believe
that the appropriate threshold would be "substantial disadvantage",
which would mirror the threshold in relation to education and
employment.
DAS members: Capability Scotland,
Enable,
RNIB Scotland,
RNID Scotland,
Scottish Association for Mental
Health (SAMH) and Sense Scotland.
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