DDB 60 DISABILITY LAW SERVICES
MEMO
TO: THE JOINT SCRUTINY COMMITTEE
FROM: DISABILITY LAW SERVICES
Re: SUBMISSION ON THE DRAFT DISABILITY
DISCRIMINATION BILL
__________________________________________________________
INTRODUCTION
1.1 The Disability Law Service (DLS)
is a registered national charity established since 1975. It
employs solicitors and legal advisers who, together with trained
volunteers, provide legal advice and a casework service for disabled
adults and children in 5 areas of public and social welfare law.
These are Community Care, Consumer and General Contract, Education,
Employment and Welfare Benefits. A significant proportion
of its work involves disability discrimination and it has been
providing legal advice and taking up cases on behalf of individuals
in this area of law since the Disability Discrimination Act 1995
came into force.
1.2 In the following submission DLS
draws upon 29 years experience tackling the legal problems of
individual disabled people, most of whom are seeking to gain the
education, employment, social care and benefits enabling them
to achieve independence and inclusion in the life of their community.
1.3 DLS welcomes the draft Disability
Discrimination Bill and the implementation of important recommendations
of the Disability Rights Task Force. The measures proposed
demonstrate a significant step towards tackling the inequality
and social exclusion experienced by disabled people in this country
and contributes to the implementation of the Government's 2001
manifesto commitment to extend basic rights and opportunities
for disabled people.
1.4 We hope that, following the implementation
of the recommendations from the Joint Committee, the Government
will introduce the Bill within a timeframe to ensure that the
provisions come into force before the Disability Rights Commission
is merged within the Commission for Equality and Human Rights.
1.5 DLS wishes to highlight a number
of issues it believes will clarify and strengthen the legislation,
avoiding costly legal cases to establish points of law.
ENFORCEMENT
2.1 49 (f) DLS seeks clarification
on how the county court order enforcing a compliance notice would
itself be enforced. Without guidelines from the legislation, there
is a risk that there may be an inconsistent approach throughout
the country.
Recommendation: DLS requests the
Committee to stipulate the consequence of such a breach.
DEFINITIONS
3.1 The Bill presumes that some frequently
used and significant terms are already defined. These terms should
be clarified in order to avoid the courts and tribunals becoming
clogged with cases disputing interpretation of the Regulations.
For Example:
DISCRIMINATORY ADVERTISEMENTS
3.2 Section 1 refers to 'publish' of
an advertisement. We understand there have been concerns as to
the scope of this term for those enforcing Race Legislation.
Clarification would assist on whether the term would apply to
the small cards displayed in newsagent's windows, flyers and the
Internet (where the author can be identified).
3.3 This has particular importance
for disabled people, many of whom live on benefits and wish to
take on casual part time work (indeed this is sometimes recommended
for therapeutic reasons). This type of work is often advertised
in the manner described above.
Recommendation: DLS requests
the Committee considers widening the definition of publish to
include the advertising of all employment opportunities in the
public domain.
DEFINITION OF DISABILITY
4.1 Schedule 1 section 8 of the Disability
Discrimination Act 1995 gives as examples of progressive conditions
Multiple Sclerosis, Cancer and HIV. The broader meaning of disabled
from the point of diagnosis apply only to these three progressive
conditions.
4.2 Whilst we welcome the extended
definition of disability to people affected by these conditions,
we are disappointed that the Bill does not afford the extended
protection to all progressive conditions. For example Schedule
1 makes reference to muscular dystrophy which although listed
with MS, Cancer and HIV within the Act, will be dealt with in
a different manner.
Recommendation: DLS requests the
Committee to consider applying the extended definition in respect
of progressive conditions.
4.3 DLS welcomes the call for further
consultation on the definition of mental impairment and hopes
that this will lead to greater inclusivity.
4.4 People with Autistic Spectrum Disorder
(ASD) have been encountering difficulties in employment law cases
in proving that they are disabled within the meaning of the Act.
This is because it is unclear in the guidance what 'understand'
means in the day to day activity 'memory/ability to concentrate,
learn or understand', in particular whether it includes ability
to understand social cues etc.
Recommendation: DLS requests the
Committee to consider an additional day to day activity in the
guidance namely "'ability to understand social cues'.
REASONABLE ADJUSTMENTS
5.1 DLS considers that the current
inconsistency in the triggers for reasonable adjustments is confusing
and leads to unnecessary distress for disabled people wishing
to assert their rights under disability discrimination legislation.
5.2 Furthermore inconsistencies leave
the legislation open to challenge through individual legal action
which can be costly to the individual and the public purse.
5.3 For example: S 24 G relies on specific
request for auxiliary aid by disabled tenant-to-be whereas in
s 21 E, no such request is necessary. No such request is required
by s 21(4) of the Act either.
Recommendation: DLS would wish
the Committee to consider applying a consistent approach to the
triggers for reasonable adjustments throughout the DDA.
GROUP INSURANCE
6.1 The Bill appears to give insurers
extra justification for discriminatory behaviour under Part III
of the Act than they previously had under Part II.
6.2 S 20 (1)(4) of the Act grants service
providers justification for adverse treatment, one of which includes
incapacity to enter into a contract. No such adjustment is available
to employers. Since capacity to enter into an employment contract
is not co-extensive with the capacity to enter into an insurance
contract, it could leave learning disabled employees with no redress,
no pension, and no health insurance.
Recommendation: DLS would ask the
Committee to consider the exclusion of the justification sub-section.
DISCRIMINATION BY PUBLIC AUTHORITIES
8.1 21B(3)
This section lists those organisations
that are excluded from the public duties obligation. Given the
implications for an organisation that comes within this category,
it is necessary that this section have no ambiguity regarding
organisations protected by section 21b(3). For example:
8.2 Section 21B(3)(c) refers to "Security
Service". Without further clarification various organisations
not intended to be excluded may try to rely on this exclusion
on the basis that they provide some form of a security service.
Recommendation: DLS would ask
the Committee to more clearly define the scope of Security Service
referred to.
8.3 21D(2)(a)
In order to ensure consistency and
fairness DLS would ask the Committee to replace the term "very
much less favourable" in this clause to "less favourable"
in line with other sections of the Act.
8.4 21D(4)(c)
DLS feels that this clause as it stands
would allow all public authorities not to comply as soon as any
extra costs are involved. This particular clause includes
"the extra costs" and "too great". However
we feel the intention of this clause would be strengthened by
the inclusion of the word "substantial" in relation
to "extra costs" mentioned earlier in the clause.
Recommendation: We would ask the
committee to consider clarifying the definition of extra costs
and inserting "substantial" to read " …treating
the disabled person equally favourable would in the particular
case involve substantial extra costs and, having
regard to resources, the extra costs in that particular case would
be too great"
PRIVATE CLUBS
9.1 21E(1)(b)
DLS welcomes the inclusion of private
clubs within the scope of the Act. However it feels that the
limitation to 25 members is arbitrary and open to challenge.
We would wish to see the removal of a limit on membership to
bring it into line with Section 7 of the DDA 1995 as amended from
October 2004.
DUTY TO MAKE ADJUSTMENTS
10.1 21G(3)
It appears that this clause allows
for any breach of duty to make reasonable adjustments to be not
actionable and therefore not enforceable. DLS feels that it
should be actionable to ensure compliance and act as a deterrent.
DISCRIMINATION IN RELATION TO LETTING
OF PREMISES
11.1 DLS has a general point to make
under this section which is to ask for clarity in the definition
of premises to include the common parts. As it stands the legislation
could be interpreted as "demised premises" which relates
to the premises occupied by the lessee (in this case disabled
person).
11.2 In DLS experience most problems
of access occur in the common parts of a domestic dwelling.
E.g. The main entrance; shared gardens; storage areas; etc.
Recommendation: That the term
"including the common parts" be included in relation
to mention of premises.
PROPOSALS FOR CHANGE OF FORUM FOR PART
3 CASES
12.1 DLS has been aware that for some
time of calls for Part 3 cases to be transferred from county courts
to employment tribunals. We recognise the attraction of the Tribunal
route includes a more straightforward procedure, few costs penalties,
no issue fees and higher damages rates for injury to feelings.
However:
12.2 For many disabled people bringing
part 3 cases, employment will never be an option and the employment
tribunal could be as off-putting as a county court.
12.3 Further, employment tribunal panels
will have little, if any, experience /understanding of issues
surrounding Part 3 cases.
12.4 Further, this raises the question
of what would happen to Part 4 Further Education and Higher Education
cases, which are currently heard in the county court; we consider
that the employment tribunal would not be an appropriate venue
for such cases.
12.5 We consider that an equalities
tribunal would be more appropriate. This is in line with the
Independent Review of the Enforcement of UK Anti-Discrimination
Legislation.
Recommendation: that provision be made
for an equality tribunal
EDUCATION LAW REFORM
13.1 DLS is aware that the bill as
its stand does not include changes to Part 4 of the Disability
Discrimination Act 1995, as amended by SENDA 2001. Although
Part 4 of the DDA has been in force for a relatively short time,
our experience of its impact on individual disabled learners has
given us some significant concerns about its workings. Accordingly
DLS would ask the Committee, if it is within their remit, to recommend
a review of Part 4 of the DDA within the next two years.
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