DDB 1 Disability Rights Commission
Disability Rights Commission
Memorandum to the Joint Committee on the
Draft Disability Discrimination Bill
By the Disability Rights Commission
5 FEBRUARY 2004
Contents
1. Executive Summary
2. Introduction
3. Transport.
4. Discrimination by public authorities
5. Private Clubs
6. Discrimination in relation to letting of premises
7. Duties of public authorities
8. Definition of Disability.
9. Councillors
10. Additional areas the Bill should cover.
11. The adequacy of the enforcement procedures.
12. Timetable for reform.
13. Conclusion and recommendations.
Contact:
Caroline Ellis, Parliamentary Affairs Manager,
Disability Rights Commission
7th Floor, 222 Grays Inn Road
London WC1X 8HL
Tel: 020 7211 4082.Mobile: 07881 540426.
Email: Caroline.Ellis@drc-gb.org
1. Executive Summary
1.1 The Disability Rights Commission warmly
welcomes the draft Disability Discrimination Bill which would
greatly enhance the life chances of disabled people, promoting
independence, safe mobility and employability.
1.2 We consider that the draft Bill provisions
are urgently needed to outlaw discrimination in key areas of daily
life and break down the institutional barriers which impede the
social inclusion of disabled people. They are also necessary to
fulfil the Government's manifesto commitment to create basic rights
for disabled people and implement outstanding recommendations
of the Disability Rights Task Force.
1.3 Certain provisions in the Bill require improvement
to be workable and effective. Moreover, in key areas there is
a need to include further provisions in order to meet the objective
of basic rights for disabled people and honour the manifesto commitment.
1.4 We are concerned that three key Task Force
recommendations, which the Government agreed in 2001 to implement,
should have been included in the draft Bill namely:
- Landlords should not be allowed to withhold consent
unreasonably from a disabled person to make changes to the physical
features of the premises, although the landlord should not have
to meet the costs.
- 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.
1.5 We also recommend that the Bill is amended
to include key recommendations from our recent review of the DDA,
which have been the subject of extensive consultation with stakeholders:
- The definition of disability should be improved
in connection with people with mental health problems who experience
a great deal of discrimination but have added difficulties claiming
protection under the DDA.
- 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.
1.6 We consider that the need for reform is now
urgent. We would urge the Government to introduce the Bill proper
before the end of this session with a view to achieving Royal
Assent before the next election and full implementation by the
end of 2006 at the latest.
2. Introduction
2.1 The Disability Rights Commission
(DRC) was created by the Disability Rights Commission Act (DRCA)
1999. Section II of the DRCA imposes the following duties on the
Commission:
- To work towards the elimination of discrimination
against disabled persons;
- To promote the equalisation of opportunities
for disabled persons;
- To take such steps as is considered appropriate
with a view to encouraging good practice in the treatment of disabled
persons; and
- To keep under review the workings of the Disability
Discrimination Act (DDA) 1995 and this Act.
2.2 We are delighted to welcome the draft Disability
Discrimination Bill which offers long awaited rights for Britain's
8.6 million disabled people.
2.3 The Bill implements many of the outstanding,
unanimous recommendations of the Disability Rights Task Force[1]
which brought together disabled people, business leaders, trade
unions and the public sector. In particular we strongly welcome:
-
- The extension of the definition of disability
to clearly include more people with HIV, cancer and multiple sclerosis.
- The extension of the DDA to cover discrimination
in relation to transport (at present only the transport infrastructure
is covered.)
- A duty to promote disability equality for the
public sector (this parallels the Race Relations Amendment Act).
A substantial move forward in terms of disability rights will
not occur as long as the only mechanism for enforcement is reliant
on individual disabled people taking cases.
- The extension of the DDA to cover most functions
of public authorities. There is presently a lack of clarity, for
example, relating to disabled prisoners, elections and access
to pavements and highways.
- The extension of the DDA's duties on landlords
and managers of premises to include a duty to make reasonable
adjustments to policies, practices and procedures and provide
auxiliary aids and services, where reasonable.
- Coverage of any club with 25 or more members.
- The promise of further clauses to prohibit local
authorities discriminating against disabled councillors and the
pledge that the full Bill will include an end-date for rail vehicle
accessibility (currently the subject of consultation).
2.4 These new rights would, in our view, greatly
enhance the life chances of disabled people, promoting independence,
safe mobility, and employability. We consider that the draft Bill
provisions are urgently needed to outlaw discrimination in key
areas of daily life and break down the institutional barriers
which impede the social inclusion of disabled people. They are
also necessary to fulfil the Government's manifesto commitment
to create basic rights for disabled people and implement outstanding
recommendations of the Disability Rights Task Force.
2.5 They would not result in over-burdensome
regulation for those private or public sector bodies affected,
as the Regulatory Impact Assessment makes clear. Increased investment
in access is in any case richly repaid in terms of an increase
in customers for business and reduction in costly expenditure
for the public sector in other areas. For example, better housing
options for disabled people, by maintaining independence will
mean reduced accidents, swifter hospital discharge, greater employability
and less recourse to costly residential care. All the Bill's provisions
have been the subject of extensive consultation with all stakeholders
over a number of years and we would re-emphasise that they stem
from unanimous recommendations from a Task Force in which all
interests were represented.
2.6 Certain provisions in the Bill require improvement
in order to be workable and effective. Moreover, in key areas
there is a need to include further provisions in order to meet
the objective of basic rights for disabled people and honour the
manifesto commitment. There are three key Task Force recommendations
omitted from the Bill even though the Government pledged to implement
them in its final response to the Task Force.[2]
2.7 The Task Force reported just over four years
ago. We now have 4 more years of experience with the difficulties
presented by certain aspects of the DDA. In May 2003 we published
a further set of proposals for legal reform in fulfilment of our
statutory duty to keep the DDA under review (Disability Equality:
Making it Happen)[3].
These proposals were based on a review of case law under the Act
and were subject to in-depth consultation with all stakeholders.
We welcome the fact that the Government has included two of
these proposals in the Bill: multiple sclerosis to be deemed to
be a disability and the introduction of questionnaires for Part
3 proceedings. However there are other key recommendations from
our First legislative review which we would wish to see taken
forward in the Bill proper, and we outline these at suitable points
in the paper below.
3. Transport
3.1 Clause 3 of the draft Bill provides for the
extension of the DDA to cover discrimination in relation to the
use of a means of transport. At present section 19(5) DDA excludes
anything consisting of the use of a means of transport from Part
III of the Act. This causes major problems for disabled people.
For example, a man who uses a wheelchair found that, despite the
availability of accessible buses, drivers refused to stop. On
one occasion when the bus did stop, the driver was abusive, pushed
his chair back off the footplate and drove away. He had no redress
under the DDA.
3.2 The Bill removes this blanket exclusion,
and replaces it with a flexible framework which allows regulations
to successively bring into coverage by Part 3 DDA all different
modes of transport, including but not limited to: taxis, private
hire vehicles, trams, private rental or car hire, buses, trains,
aviation and shipping. The rights not to be treated less favourably,
to reasonable adjustments to policies, practices and procedures,
to auxiliary aids and services, and to an alternative service
can all be applied to transport services by regulations.
3.3 These provisions are essential if disabled
people are to be able to travel with the same freedom as non-disabled
people. According to the Leonard Cheshire report 'Mind the Gap',
almost a quarter of those disabled people surveyed reported that
they had turned down jobs partly due to inaccessible transport.
60% of wheelchair users and as many as 90% of visually impaired
people are restricted in the jobs for which they apply for the
same reason. We consider that the Bill's provisions would play
a significant role in overcoming these barriers.
Timetable
3.4 However the impact of this provision will
depend entirely on the content and timing of regulations. The
Government should set out the intended timetable for regulations
to lift the Part 3 exemption from transport operators as soon
as possible.
3.5 Access to transport is such
a crucial part of daily life, and one that has been for so long
difficult or even denied completely to many disabled people, that
some real urgency is now needed to bring about these changes.
The DRC urges the Government to bring in these regulations
as soon as possible.
Extent of regulations
3.6 The Government
is not proposing to lift the exemption on aviation or shipping
yet, but to wait to assess the impact of voluntary Codes of Practice
before deciding whether to extend the DDA to cover these services
in line with Task Force recommendation 7.9. In relation to aviation,
a review will begin before the end of 2004 and be completed by
mid 2005. In the case of shipping, review work is due to be completed
by end 2004. We would urge the Joint Committee to press the
Government on: -
- The extent to which disabled people and their
organisations will be involved in shaping the remit for these
reviews and the extent to which their views and evidence will
be considered.
- When they would aim to respond to any recommendations
for legislative change stemming from the reviews.
3.7 There is already clear evidence of patterns of discrimination in both aviation and shipping, which requires firm action. In the case of Rimmer v British Airways PLC (Great Grimsby County Court, Case No. GG100921), a woman with a mobility impairment wanted to book seats with extra leg room which she needed as a result of her disability. British Airways refused and the woman had no redress since the court held that a British Airways policy regarding allocation of seats on the plane fell within the transport exemption. This is a common problem for disabled travellers, which we are disappointed to learn is not covered by the DDA. Easy Jet recently refused to fly a group of deaf people on 'safety grounds' and made them leave the aircraft. The company subsequently apologised but, again, there was no redress available under the DDA.
3.8 Meanwhile Brittany Ferries operates an entirely lawful guide-dog ban for foot passengers. Disabled passengers on ferry services in Scotland in the Highlands and Islands have reported problems because of a failure to provide accessible on-board ticketing arrangements. It is vital that this issue does not get put on the backburner.
An end-date for rail vehicle accessibility
3.9 The full 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. 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.
3.10 The Government has issued a
consultation on the end date and accessibility regulations for
the refurbishment of existing rolling stock. We are disappointed
to see that the Government is expressing a strong preference for
2025 as an end date when all rail vehicles must be accessible.
While acknowledging the difficulty of 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. We would urge the Joint Committee to
press for an end-date of 2017 or 2020 at the latest.
3.11 Of particular concern are the refurbishment
proposals, which provide no indication that substantial but important
changes, such as installing accessible toilets and visual signage,
will be required. This would present a situation where a disabled
person would continue to have to undergo the over 4-hour train
journey between Cardiff and Manchester without having access to
a toilet for the foreseeable future. We urge the Joint Committee
to press for refurbishment regulations to cover accessible toilets
and visual signage.
4. Discrimination by public authorities
4.1 Clause 4 of the draft Bill makes it unlawful
for a public authority to discriminate against a disabled person
in carrying out its functions. This is necessary to clearly apply
the DDA in key areas such as the overseeing of the highway, the
conduct of elections and electoral registration and the determining
of adoption applications.
4.2 Case law under the Race Relations Act 1976
determined that some public functions (such as immigration) did
not constitute a service to the public and hence were not covered.
In respect to race, the Race Relations Amendment Act has reversed
this.
4.3 In our view it is important that this clause provides the same level of protection and, so far as possible, mirrors the approach contained in the DDA sections relating to discrimination in relation to goods, facilities and services (ss19 -21). There will be many occasions in which aspects of the same service may be covered in some respects by the general services provision, and in other respects by this functions clause. In other instances it may be unclear, without expert legal advice, which provision applies.
4.4 We are concerned that on present drafting
the functions clause provides different, weaker, protection than
the services sections: in particular, it sets a very high threshold
for making reasonable adjustments, and fails to establish an anticipatory
duty. Under the Bill a reasonable adjustment is required where
an authority carries out a function and for a reason related to
the disabled person's disability the outcome of the carrying out
of the function is very much less favourable for him than it is
(or would be) for others to whom that reason does not (or would
not) apply. This creates a very high threshold (there must be
a "very much" less favourable outcome). The notes which
accompany the Bill state that this threshold is intended to be
broadly comparable to the one which applies to the delivery of
public services, i.e. that the service is "impossible or
unreasonably difficult" for a disabled person to use. In
our view "very much less favourable" is a higher threshold
than the "unreasonably difficult" one. If we were wrong,
this would cause us to have grave concerns about the efficacy
of the services provisions of Part 3 DDA. In any event, in Disability
Equality, Making it Happen the DRC recommended that the threshold
in Part 3 should parallel that which applies in relation to education
and employment: where there is a "substantial disadvantage".
This would be our preferred approach - amending the existing
section 21 and clause 4 to refer to "substantial disadvantage".
4.5 It is imperative that the wording of the reasonable adjustments duty is amended so that it is framed as an anticipatory duty owed to disabled persons. Service providers are already under such a duty under Part 3 of the DDA. The anticipatory duty on service providers under Part 3 has proved essential to effective promotion of disabled people's rights and is considered an invaluable lever for cultural change. Public authorities should not wait until a disabled person experiences barriers before they give consideration to their duty to make reasonable adjustments. The legislative framework should require them to think in advance about the accessibility of their functions to disabled people and to continually be reviewing and improving the situation. Making systems accessible at an early stage always proves more cost-effective than having to adapt them further down the line. Moreover failure to anticipate the need for adjustments well in advance will mean that often it will be too late to make an effective adjustment for a particular disabled person.
4.6 One area in which we consider it would be
appropriate to have a provision for public functions which is
distinct from that which applies to services more generally is
in relation to potential justifications. Proposed s. 21D 3 allows
less favourable treatment to be justified where in the reasonable
opinion of the public authority one of the specified conditions
applies. The DRC has questioned the appropriateness of a 'reasonable
opinion standard' generally in discrimination cases (Disability
Equality: Making it Happen DRC 2003). We are concerned that the
reason for discrimination can be based on wrongly held prejudices
and stereotypes of disabled people, and that, so long as such
beliefs were viewed by the judge as "reasonably" held,
they could justify discrimination. This 'subjective' standard
appears to be especially inappropriate in the carrying out of
public functions. Disabled people need to have confidence that
where a public authority treats them less favourably this is for
an objectively legitimate reason.
4.7 We call for this Clause to be amended
to:
- make it clear that public authorities have
a clearly stated anticipatory duty to make reasonable adjustments;
- have a more appropriate trigger for reasonable
adjustments which is consistent with other parts of the DDA -i.e.
the trigger of 'substantial disadvantage', which applies in both
employment and education; and
- ensure that justification for discrimination
is based on objective standards.
5. Private Clubs
5.1 Because the DDA only applies to
services to the general public, clubs, which are only open to
members, are not covered. Under Clause 5 of the draft Bill, any
club with 25 or more members will be covered by the Act. Discrimination
will be prohibited in the way in which membership is given or
benefits are afforded. We warmly welcome this Clause which is
necessary to ensure disabled people have equal access to leisure
and sporting opportunities, opportunities for social interaction
and equality within political parties.
5.2 There are no specific reasonable adjustment
provisions (changing policies, practices and procedures, providing
auxiliary aids and changing physical features) contained on the
face of the bill. These will be consulted on and implemented via
regulations which can also be used to extend the provisions to
guests if it is deemed necessary. We consider that it will
be useful for all those affected if the Government provides the
detail of what it proposes sooner rather than later. We would
expect many of the detailed provisions to mirror those already
applying under Part 3 DDA in respect of service providers.
5.3 There are powers
in the Bill to extend non-discrimination provisions to guests.
We believe it would be better to include guests from the outset
and note that no clear rationale is given for delay.
6. Discrimination in relation to letting of premises
6.1 We welcome provisions in Clause 6 of the
Bill which extends the DDA's duties on those disposing of premises
to include: -
- a duty to make reasonable adjustments to policies,
practices and procedures; and
- a duty to take reasonable steps to provide an
'auxiliary aid or service' which would enable or make it easier
for a disabled person to rent the property or to facilitate a
disabled tenant's enjoyment of the premises,
in line with key Task Force recommendations. These
provisions are necessary to combat current barriers for disabled
people in housing.
6.2 We note that a landlord would not have to
provide an aid or service which is not directly related to the
premises - for example a landlord would not have to provide a
mobility aid, such as a wheelchair, that a disabled person would
need for their general purposes. We would welcome clarification
of the Government's thinking as to what kinds of aids would be
covered. We would hope that essentials such as grab rails, and
visual doorbells would be covered where a disabled tenant requires
these.
Consent to make changes to physical features
6.3 However the effectiveness of these provisions
will be undermined without the inclusion in the Bill of the Task
Force's other key recommendation on letting of premises:
"Recommendation 6.27: There should be no duty
on those disposing of premises to make adjustments to the physical
features of the premises. However, in civil rights legislation,
they should not be allowed to withhold consent unreasonably for
a disabled person making changes to the physical features of the
premises. There should be a wide consultation on the factors in
determining when it would be reasonable and unreasonable for a
landlord to withhold consent, with the aim of achieving the right
balance between the rights of the owner of the premises and the
disabled person."
6.4 We are very disappointed that the draft Bill
does not include such a provision that landlords should not be
allowed to withhold consent unreasonably from a disabled person
seeking to make changes to the premises. 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 should they be allowed to escape this responsibility when
their tenant is a disabled person?
6.5 The Government's position is that the Landlord
and Tenant Act 1927 already covers this issue. But we have reviewed
the legal situation and concluded that the current general law
of landlord and tenant is not an adequate substitute for provision
in civil rights legislation.
6.6 Our understanding of the legal position in
England and Wales if the Disability Bill were passed in its current
form is as follows. Where there is a provision in a lease or tenancy
agreement that allows the making of "improvements" but
only with the consent of the landlord, then section 19(2) of Landlord
and Tenant Act of 1927 (LTA) implies a term within the lease that
such consent can not be unreasonably withheld and that consent
can be given subject to conditions e.g. reinstatement at the end
of the lease or tenancy. Where there is an absolute prohibition
on all adjustments the LTA 1927 would not apply. However, the
Explanatory Notes for the Draft Bill suggest that under the new
provisions requiring a landlord or manager to take reasonable
steps to change a policy, practice or procedure which makes it
impossible or unreasonably difficult for a disabled person to
enjoy the premises, a landlord or manager may be obliged (where
it is reasonable to do so) to change or waive a term of the letting
which forbids any alterations to the premises, so as to allow
a disabled tenant to make alterations needed by reason of his
disability with the consent of the landlord. If a term in the
letting prohibiting any alterations was replaced with one permitting
alterations with the landlord's consent in this way, then s 19(2)
of the 1927 Act would apply and would provide that such consent
should not be unreasonably withheld.
6.7 We do not consider this approach adequate
for a number of reasons. Firstly, the complexity of the proposed
provisions will make it extremely difficult to publicise, for
disabled tenants to invoke and indeed for courts to enforce.
6.8 Secondly, the strong reliance on the LTA
to address the problems experienced by disabled tenants in this
respect is unsatisfactory given its clear failure to date to provide
disabled tenants with redress. The Survey of English Housing (2001/2)
shows that 9% of disabled tenants (approximately 18,000 people)
living in unsuitable accommodation report that the necessary modifications
have not been made because the landlord refuses consent. There
have been no cases under existing legislation on behalf of disabled
tenants on this issue and it is by no means clear that judges
would apply an appropriate anti-discrimination framework in cases
under current law. What is "reasonable" will not necessarily
take into account the same considerations as under the DDA.
6.9 Thirdly DRC has no power to issue statutory
Codes of Practice or bring cases on behalf of disabled people
aggrieved under landlord and tenant law. Thus relying on the
LTA will not provide adequate protection for the rights of disabled
people.
6.10 There are further problems in seeking to
rely on the Landlord and Tenant Act 1927. This Act does not apply
to Scotland. Nor does it cover proposed improvements to parts
of premises not comprised in the lease. In many case the
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). Such areas
do not constitute part of the 'dwelling-house' leased to them.
We have prepared a detailed briefing on this matter which is
enclosed with our submission.
6.11 In addition, the majority of calls to the
DRC on the subject of permission to make housing adaptations concern
the common parts of privately owned flats which are jointly controlled
by a management committee. This issue was not considered by the
Taskforce, and is not addressed by the draft Bill. There
must be explicit provision to ensure management committees cannot
unreasonably refuse consent to make adjustments to common parts
of privately owned premises.
6.12 As the Disability Rights
Task Force[4]
said:
"Adaptations to housing are a matter of equal
opportunities in the most basic aspects of human life. In a well
adapted house, a disabled person can move about, cook, or go into
the garden, turn on lights, have a shower or bath or put a child
to bed - when and how they want to, with minimum help from other
people. Without adaptations, these people may be condemned to
isolation, frustration."
7. Duties of public authorities to promote disability
equality
7.1 The DRC applauds the government for including
a Disability Equality Duty for public authorities on the face
of the Bill in line with Task Force recommendations. This change
will bring enormous benefits to disabled people. All the evidence
tells us it is impossible to remove discrimination by relying
solely on individuals one by one taking legal cases to challenge
acts of discrimination. Such legal challenges almost always take
place after the harm is done, and preventing discrimination is
preferable to retrospective justice. This duty places the onus
on public services to ensure that any systematic bias is removed
from the way in which services are delivered, and from their employment
practices.
7.2 As under the Race Relations Amendment Act
2000 (RRAA) the Secretary of State has the power to impose specific
duties "for the purpose of ensuring the better performance
by that authority of its duty". The DRC will have the power
to issue compliance notices where it is satisfied that a public
authority has failed to comply with its specific duties under
the regulations, and can enforce the notices in the county or
sheriff court. It would be useful if the Government set out
its thinking on what specific duties it intends to apply to which
public bodies and confirm that there will be parity in this respect
with the RRAA, i.e.: -
- key public sector bodies will be required
to develop disability equality schemes (along
the lines of race equality schemes under the RRAA);
- a specific employment duty (again as in the
RRAA) will be placed on public authorities to monitor
the proportion of disabled people among their existing staff,
and applicants for jobs, promotion and training and publish the
results every year (authorities with at least 150 full-time staff
must also monitor: grievances; disciplinary action; performance
appraisals; training; dismissals); and
SPECIFIC DUTIES WILL BE APPLIED TO SCHOOLS AND FE
AND HE INSTITUTIONS IN LINE WITH RRAA REQUIREMENTS I.E. TO PUBLISH
A DISABILITY EQUALITY SCHEME; MONITOR AND ASSESS HOW THEIR POLICIES
AFFECT DISABLED PUPILS/STUDENTS AND STAFF WITH THE EMPHASIS ON
PUPILS'/STUDENTS' ACHIEVEMENTS
7.3 The equivalent duty in the Race Relations
Amendment Act (RRAA) includes an obligation to promote good relations
between persons of different ethnic, racial and national groups.
On the other hand the Disability Bill includes a duty to "have
due regard to eliminate harassment that is unlawful under the
Act", which the RRAA does not. (Presumably because until
regulations were passed last year to implement the Race and Framework
Directives neither the Race Relations Act nor the Disability Discrimination
Act listed harassment as a distinct form of discrimination).
7.4 The Task Force was silent on the issue of
whether public authorities should have a duty to promote good
relations. The DRC believes it would be useful, and that not to
include such a duty risks being interpreted by public authorities
as inappropriately signalling that the issues tackled in relation
to race have no relevance for disabled people.
7.5 It is possible to distinguish four strands
of activity which have been undertaken with a view to promoting
good race relations:
a. Work bringing communities together - 'building
community cohesion'.
b. Addressing issues of harassment and violence
outside the workplace.
c. The promotion of general understanding/awareness
in the community.
d. Improving civic participation, combating social
exclusion and deprivation.
7.6 We believe that a duty to promote good
community relations, applied to disability, would be useful in
respect of all these activities. It would certainly be helpful
in ensuring proactive strategies at local level to tackle hate
crime against disabled people - the subject of new provisions
in criminal justice legislation. The duty to eliminate harassment
currently in the Bill applies only to harassment unlawful under
the DDA not to wider hate crime which affects 1 in 5 disabled
people[5]
and 9 in 10 people with learning difficulties[6].
It could also assist in raising awareness and encouraging respect
for distinct communities such as the Deaf Community and it would
ensure that local disabled people and disability groups were fully
included in local community cohesion initiatives, rather than
being left on the sidelines as presently tends to happen.
8. Definition of Disability
8.1 The DDA's definition of disability was described
by the Disability Rights Task Force as having "significant
flaws". The Task Force asked the DRC and the Equality Commission
for Northern Ireland to monitor the definition of disability,
and determine whether further improvements could be made.
8.2 Research indicates that applicants lost in
16% of decided cases because tribunals ruled that they had not
met the statutory definition of disability[7].
This was the single most common reason for a claim to fail. The
Bill provides a vital opportunity to provide greater clarity in
the operation of the definition of disability, which persists
in proving one of the most contentious and confusing aspects of
the DDA.
Changes required in respect of people with mental
health problems
8.3 One of the key omissions from the Bill is
that it does not tackle the outstanding problems people with mental
health problems face in enforcing their rights under the DDA.
People with mental health problems face the biggest hurdles in
claiming their rights under the DDA because the definition of
discrimination inadequately captures the challenges they face.
MIND has found that in particular the conditions of depression,
eating disorders and schizophrenia are inadequately or inappropriately
covered by the Disability Discrimination Act definition. The
case law reviewed by the DRC reveals people with serious, in some
cases life threatening, mental conditions who have been excluded
from coverage by the definition.
8.4 Our Legislative Review, conducted last year,
concluded that reform was urgently needed and we urge the Joint
Committee to champion the following recommendations.
8.5 First, the Bill should amend Schedule
1 of the DDA to remove the requirement that a mental illness must
be "clinically well recognised" in order to be capable
of constituting a disability under the Act[8].
There is no such requirement for other forms of mental or physical
impairment.
8.6 The Task Force recommended that this provision
should be reviewed and consulted on. They commented: "We
appreciate the policy desire behind the inclusion of clinically
well recognised conditions - to prevent abuse through people claiming
non-existent or unproven conditions - but we received no evidence
that removal of the term would bring into coverage any such conditions."
8.7 There is no evidence from the case law that
this restriction has fulfilled its declared role of excluding
"obscure conditions unrecognised by reputable clinicians"
or "moods or minor eccentricities."[9]
Furthermore, reported cases and research show that the requirement
to prove that a condition is clinically well recognised is disadvantaging
some people with genuine mental health conditions. This was a
major concern for applicants' representatives interviewed in Monitoring
the Disability Discrimination Act[10].
A common problem was that "many people with quite severe
mental illnesses may not have a clear diagnosis, or may have different
diagnoses at different times, which will make it difficult to
satisfy this element of the definition"[11].
8.8 There was unanimous support amongst mental
health groups for this proposal put forward in our review. The
concerns of some employers focussed on the need for clinical evidence
to support mental health claims in order to deter "exploitation".
However, this misinterprets the proposal which would continue
to require employees to establish an impairment which has substantial,
long-term effects in order to bring a claim (as is the case for
physical impairments) but would merely remove an additional hurdle.
A person claiming a mental disability is no more likely to fabricate
his symptoms than an individual with an unexplained but disabling
physical condition. Tribunals are well experienced in assessing
the credibility of a person's evidence. If credibility is an issue,
it is open to an employer to instruct medical evidence to assist
in proving malingering or fabrication.
8.9 Second, the Task Force asked the DRC to review
the categories of day-to-day activities set out in Paragraph 4
to Schedule 1 of the DDA to see whether they needed extending
in order to ensure appropriate protection for people with mental
health conditions. We conducted this as part of our legislative
review and concluded that the list of normal day-to-day activities
should be revised to include "the ability to communicate
with others" and to ensure that self-harming behaviour is
covered.
8.10 The current list of categories of day-to-day
activities inadequately captures the effects of many mental illnesses.
People with severe depression may often lose the ability to communicate
with others, which has the same impact on their life as not being
able physically to speak, but it is not adequately covered by
the present law. The wording of the category "perception
of physical risk" must also be revised to ensure that it
covers people who self-harm, for example through cutting themselves,
or through anorexic or bulimic behaviour. At present the argument
can be successfully made that an individual who has a clear intellectual
perception of the risk of harm, but chooses to ignore this, is
not covered by the Act.
8.11 We see these proposals as a clarification
reflecting the original policy intention behind the legislation.
8.12 Third, we recommend that the Bill be
amended so that for individuals whose day-to-day activities are
substantially affected as a result of depression the requirement
that the effects last twelve months should be reduced to six months.
8.13 To qualify as a disability an impairment's
substantial adverse effects must either last at least twelve months
or, if the effect is shorter, must be shown to be likely to recur[12].
This requirement is proving a persistent problem for people with
depression and anxiety disorders. In a DRC case a man who had
attempted suicide and had his job offer withdrawn as a result
was held not to be disabled because he could not establish that
the substantial effects of his depression were likely to last
twelve months or more[13].
8.14 We recommend a reduction in the time limit
targeted at people with depression to six months. We do not propose
that the twelve-month requirement is reduced for everyone. Whilst
many cases are lost because the applicant fails to satisfy this
requirement, these are not usually conditions which have a substantial
impact on the applicant's life, or which attract significant social
stigma. (Typically, these conditions involve temporary back, neck
or shoulder difficulties). In contrast, experience of a substantial
depression, even one which is short lasting and is not likely
to recur, does attract considerable stigma.
8.15 Provisions along these lines were included
in Lord Ashley's Disability Discrimination Amendment Bill, passed
by the House of Lords with cross-party support in 2002 and in
Lord Lester's Equality Bill, passed by the House of Lords with
cross-party support in 2003.
Improved coverage of progressive conditions
8.16 The DRC welcomes the widening of the meaning
of disability in Clause 12 of the draft Bill. The Bill provides
that a person who has cancer, HIV infection or multiple sclerosis
is to be deemed to have a disability. The Task Force recommended
that HIV be covered from the point of diagnosis and cancer, from
when it has significant consequences on people's lives. Covering
multiple sclerosis from the point of diagnosis was a recommendation
of our recent Legislative Review.
8.17 Currently in order to be protected by DDA,
people with progressive conditions such as these must show:
- that their condition is more likely than not
in the future to substantially restrict their day to day functional
activities; and
- that at present their condition has an impact
on their day-to-day functional activities.
8.18 A number of cases have involved people who
have been denied protection despite having multiple sclerosis
or cancer. All of these conditions attract a great deal of stigma
from the point of diagnosis, and it is right that the DDA should
apply from this point.
8.19 However the Bill also includes regulations
which may prescribe circumstances in which this does not apply
to someone with cancer. It would allow the Government to adopt
the approach outlined in "Towards Inclusion" its final
response to the Task Force, which stated that those with cancer
which requires substantial treatment would be deemed to be disabled.
Our strong view is that this power to regulate to restrict
the protection offered to people with certain forms of cancer
should not be invoked unless there is clear evidence that protecting
everyone who has (or has had cancer) from discrimination on this
basis is proving problematic. Stigma and discrimination can
follow from the point of diagnosis of cancer, regardless of degree
of medical treatment. We also believe it will add an unwelcome
element of uncertainty to restrict coverage of people with cancer
in this way.
8.20 We would put forward a broader solution
to the way in which progressive conditions are brought into protection.
The proposed provisions will not help people with other types
of progressive condition such as motor neurone disease or rheumatoid
arthritis. If evidence emerged that the current DDA provisions
on progressive conditions particularly disadvantaged them, further
primary legislation would be required to remedy this. Rather than
tackle barriers piecemeal by impairment group, we recommend
that this part of the Bill be amended to ensure anyone who has
a progressive condition is deemed to be covered, rather than
(as at present) from the point at which the condition has an effect
on day-to-day activities. We consulted widely on this through
our Legislative Review and there was strong support for this approach
including from several business organisations.
Other measures to improve the definition
8.21 We have three other recommendations for
improving the definition of disability which all feature in our
First Legislative Review.
8.22 We urge the Joint Committee to recommend
that changes are made to the bill to ensure that receipt of
specified state disability benefits should automatically allow
applicants to be deemed to be disabled. This would spare many
disabled people who have already had to go through an often traumatic
and stressful process to 'prove their disability' from a further
round of stress and expense caused when an employer challenges
their status under the Act. It is not intended to expand the scope
of the definition but rather to introduce more clarity and certainty.
The Bill would need to expressly state that the converse would
not apply i.e. that failure to claim disability benefits would
not exclude someone from coverage.
8.23 There are a number of cases where individuals
experience discrimination either because they are falsely perceived
to be disabled (under the DDA's meaning) or because of an association
with a disabled person. A recent example involved a secretary
whose child has cerebral palsy and who felt pressurised into leaving
her job because of her employer's attitude.
8.24 We think that it is right that such people
should be protected by the DDA, and in any event we believe that
a change to the law is now required under the European Framework
Directive. Under the DDA only people who have or have had a disability
may claim protection from discrimination (with the sole exception
of the victimisation provisions). By contrast, the Directive extends
protection against any discrimination "on the grounds of"
disability. The DRC's view is that the Directive requires the
DDA to be extended to cover discrimination by association and
to cover perceived disability.
8.25 Carers UK strongly welcomed this proposal,
as in their experience carers frequently suffer discrimination
because of their association with a disabled person, and in their
view this recommendation would counter disability discrimination
in a much broader and more realistic sense.
9. Councillors
9.1 Unlike disabled council employees and disabled
people in the community, disabled councillors are not afforded
the protection of the Disability Discrimination Act. Thus local
authorities do not have to make reasonable adjustments to enable
them to undertake the duties of their post.
9.2 We have received calls to our helpline from
local councillors reporting difficulties regarding access to reasonable
adjustments such as communication support and materials in accessible
formats. One town councillor with a hearing impairment found
that after renovations to the council chambers, he could not hear
discussions properly. Currently we are not in a position
to advise and support disabled councillors in situations such
as this because the DDA does not apply.
9.3 We therefore welcome the Government's commitment
to bring forward clauses bringing disabled councillors under the
DDA, in fulfilment of the Task Force's recommendation that local
councils should be placed under a duty not to discriminate against
disabled councillors, including a duty to make reasonable adjustment
(recommendation 5.18).
10. Additional areas the Bill should cover.
10.1 In order to fulfil the goal of basic rights
for disabled people, we suggest that further provisions be included
in the Bill proper in line with the findings of our recent legislative
review.
10.2 Broadening remedies available from Employment
Tribunals
Employment - re-instatement or re-engagement
10.2.1 The Task Force recommended that
employment tribunals should be able to order re-instatement or
re-engagement under the employment provisions of the DDA. The
Government agreed but has failed to make provision in the draft
Bill.
10.2.2 In unfair dismissal cases, employment
tribunals can order re-instatement or re-engagement, whereas in
discrimination cases they can only recommend this. Such recommendations
are rarely made but allowing the tribunal to make an order may
slightly increase the chances of disabled people returning to
employment rather than only receiving compensation. We are aware
of cases in which disabled employees have succeeded in establishing
that their dismissal was discriminatory, winning their DDA claim
and wanting to return to work, but the tribunal lacked the power
to provide for this. Given the importance the Government rightly
attaches to improving job retention, we recommend that provisions
enabling tribunals to order re-instatement or re-engagement are
included in the full Bill.
Power to recommend changes to employers' practices
10.2.3 The Task Force further recommended that
tribunals should also have the power to recommend to employers
changes to their practices, where a case brought by an individual
reveals clear shortcomings. The Government rejected this but
we found support for the proposal in our Legislative Review and
are thus asking them to reconsider.
10.2.4 This proposal would mean that if a tribunal
reaches the conclusion that an employer needs to change particular
practices or policies, to ensure that disabled people will not
continue to experience discrimination, then, as well as dealing
with the individual who has brought the case, it should be able
to recommend that the employer make such changes. Tribunals are
not at present allowed to make policy recommendations to an employer
where there is no direct link to the complainant. For example,
if an applicant establishes that they were discriminated against
by being harassed because of their disability and they resigned
as a consequence, under the law as it stands a tribunal cannot
make a recommendation that the employer adopt an anti-harassment
policy because that would have no effect on the former employee.
10.2.5 At the moment, some tribunals have made
informal recommendations to this effect. But they have no formal
power to do so, nor to enforce any recommendations. The Task Force
proposed that where such a general recommendation for future
action had been made, the DRC should have a role in enforcing
such recommendations. The DRC would welcome such a role, and
would exercise it with due care. We call for the full Bill to
be amended accordingly.
10.3 Employment: Disability-related
enquiries
10.3.1 We recommend that the full Bill prohibits
disability-related enquiries before a job is offered except in
very limited circumstances.
10.3.2 The Task Force was concerned about employers
rejecting job applicants who disclosed their disability at the
application stage and before they had the chance to demonstrate
their suitability for jobs at the interview stage. They rejected
making all inquiries about disability before a job was offered
unlawful. They said disability inquiries should only be allowed:
- when inviting someone for interview or to take
a selection test - employers could ask if someone had a disability
that may require reasonable adjustments to the selection process;
and
- when interviewing, employers would be allowed
to ask job related questions, including if someone had a disability
which might mean a reasonable adjustment would be required.
- Confidential monitoring for equal opportunities.
10.3.3 The Government rejected this recommendation
but we found wide support for it in our Legislative Review and
have consequently urged the Government to reconsider its position.
We consider there is a clear and pressing need for this proposal.
The DDA is proving inadequate in addressing recruitment problems.
Many employers still ask medical questions about applicants' disabilities
prior to job interview and selection. This enables employers who
wish to discriminate to simply reject disabled applicants at an
early stage. It is extremely difficult to prove such discrimination.
In any event some disabled applicants are discouraged by questions
from even proceeding with their application. We believe that such
questions prior to job selection should be prohibited.
10.3.4 Like the Task Force, we are concerned
at the continued prevalence amongst disabled people of the view
that employers routinely discriminate in the recruitment process.
For example, 39% of mental health users in a MIND Survey felt
that they had been denied a job because of their psychiatric history[14].
The fear of discrimination acts as a deterrent to disabled people
applying for jobs. In the same survey, 69% of mental health users
had been put off applying for jobs for fear of unfair treatment.
10.4 Volunteers
10.4.1 Volunteering, as the Government recognises,
makes a hugely important contribution to the community. For many
disabled people voluntary work is a way to move closer to the
labour market by trying out work, gaining skills, confidence and
experience, building a CV and getting references. Discrimination
against disabled people needs to be prohibited in this key sector.
At present the law regarding when volunteers count as being covered
by discrimination laws is very complex. Extending the protection
of the law to volunteers would bring helpful clarification.
10.4.2 The Task Force recognised the importance
of volunteering to disabled people, both as an end in its own
right, and as a route into employment. Task Force Recommendation
5.21 stated: "In principle, voluntary workers should be covered
by civil rights legislation. However, in recognition of the diversity
of voluntary workers and organisations that engage them, a good
practice approach should be adopted. Organisations engaging volunteers
should be consulted on the preparation of guidance and a power
taken in civil rights legislation to bring volunteers into coverage
through regulations."
10.4.3 The Government accepted this recommendation
and we would have expected to see this reflected in the draft
Bill. Indeed our Legislative Review revealed wide support for
going further and extending the DDA to all volunteers via regulations.
10.4.4 Lord Ashley's Disability Discrimination
Bill in 2002 contained provisions on volunteers. It gave the Secretary
of State an order-making power to bring volunteers under Part
2 (with whatever modifications required) and required the Secretary
of State to undertake regular reviews into whether volunteers
should be fully covered under the DDA in consultation with disabled
people and voluntary organisations to ensure this provision did
not just sit on the shelf.
10.4.5 The Government is apparently reluctant
to include an enabling power in the new Bill on volunteers. The
DRC will urge the Government to reconsider because of the importance
of this issue, the need for clarity for those organisations, which
use volunteers, and because we believe that some volunteers are
within the scope of the Framework Directive on Employment. Covering
volunteers may indeed present a range of practical challenges
- in framing appropriate rights and duties in what is a very diverse
sector and in developing a pool of funding to support organisations
in financing reasonable adjustments. In our view these challenges
are not insurmountable.
10.4.6 We would strongly recommend that the
Bill be amended to include the enabling power to cover volunteers
as per the Task Force's recommendation along with an action plan
to develop good practice and review of the need to use the enabling
power. If funding were made available the DRC could draw
up and disseminate good practice guidance on avoiding discrimination
against disabled volunteers in consultation with all stakeholders.
The DRC could also be charged with gathering evidence on compliance
with a view to reporting to the Secretary of State on the necessity
or otherwise of using the enabling power to extend regulation
into this area. Then there would need to be consultation on the
shape of any proposed new duties, which we would be happy to undertake
in liaison with the Department for Work and Pensions.
10.4.7 It would be helpful if a pool of funding
were available to support work related adjustments for volunteers,
operating in a similar fashion to the Access to Work scheme.
We would urge the Joint Committee to recommend that the Department
for Work and Pensions consult on setting up such a fund.
10.5 Office-holders
10.5.1 There are certain occupations, not currently
covered by the DDA which it is desirable on public policy grounds
to have covered by disability discrimination law because of their
importance to securing equality for disabled people. We have identified
school (parent) governors, disabled governors of further and higher
education institutions and lay magistrates as coming within this
category. These groups are neither employees nor "statutory
officeholders", as defined by the DDA. The Disability Discrimination
Act 1995 (Amendment) Regulation 2003, due to come into force in
October 2004, extended the DDA to cover certain office holders
but only where they are either paid, or directed, or appointed
by the Secretary of State. None of these conditions apply in respect
of magistrates or Governors, who therefore remain unprotected
by the DDA. We consider that there is a compelling public policy
case for protection of these occupations under the DDA.
10.5.2 For example the Government has actively
sought to remove barriers for blind people to become lay magistrates
and Government policy is to encourage more disabled people to
join the lay magistracy. The Government is also strong on securing
access to justice for all groups including disabled people. It
is clearly vital to ensure that the lay magistracy reflects the
society from which it is drawn so that everyone has confidence
in the system. We would therefore argue that there is a pressing
need to ensure disabled magistrates and prospective disabled magistrates
are provided with enforceable rights not to be discriminated against
and to reasonable adjustments to enable them to fulfil their duties.
10.5.3 School governors who are likewise unprotected
by the DDA are another category where we would argue a strong
public interest in ensuring fair treatment. In view of the Government's
commitments to inclusive education and to increasing disabled
people's representation on public bodies, ensuring disabled people
are given every encouragement and support to contribute their
expertise to the running of schools would seem essential. Covering
school governors was a key recommendation of the DRC's First Legislative
Review. Similar arguments can be made in respect of governors
in further and higher education.
10.5.4 There may also be an issue in respect
of the Governors and non-executive Directors of NHS Foundation
Trusts. Governors are neither remunerated, directed nor appointed
by the Secretary of State. Non-Executive Directors may or may
not be remunerated depending on the constitution of the Foundation
Trust. Non-executive Directors of NHS Trusts, on the other hand,
are covered by the office-holder provisions. It would clearly
be undesireable to allow such variances across the health sector.
Given the importance the Government attaches to direct involvement
of disabled people in running the health service and the commitment
to widen representation and participation for disabled people
in public appointments we should legislate for consistency across
all health bodies.
10.6 Political office-holders
10.6.1 Our Legislative Review recommended that
the protection of the DDA should be extended not merely to
councillors but to all political office-holders i.e. MPs and
peers. We recommend that the Joint Committee give consideration
to this on grounds that increasing and supporting disabled people's
participation in public life - at every level - is a key public
policy goal.
10.7 Examining bodies and standard setting
agencies
10.7.1 The new Bill provides the opportunity
to ensure all examining bodies and standard setting agencies are
covered by the DDA (the exact parameters of coverage are at present
unclear) - we recommend that opportunity is taken.
Examining bodies
10.7.2 Whilst arrangements relating
to examinations which are under the control of schools, LEAs and
further or higher educational institution clearly fall within
the provisions of new Part IV of the DDA (introduced by the Special
Educational Needs and Disability Act 2001) examination bodies
do not. This is despite the Task Force's seemingly all encompassing
recommendation that "The 'provision of education' in the
new rights proposed should include assessment and examination
arrangements."[15]
10.7.3 In 2003, the Disability Discrimination
Act 1995 (Amendment) Regulations were made. These extend the provisions
of the DDA - in accordance with the requirements of the European
Employment Directive - to cover, amongst other things, qualifications
bodies. A Professional or trade qualification is defined as a
qualification which "is needed for or facilitates engagement
in a particular trade or profession". It is the DRC's view
that the definition of qualifications bodies contained in the
regulations is sufficiently broad to encompass examination boards
in certain situations.
10.7.4 The Government claimed, however, in the
House of Lords debate on the Regulations that: "GCSEs and
A-levels are not professional or trade qualifications
within the meaning of the regulations. The regulations are work-related
and employment focused. Examining bodies
will not be covered by the qualification
bodies
provision when awarding those qualifications.
Those qualifications
represent a general standard of achievement
in secondary education and do not themselves qualify for a particular
trade or profession."[16]
10.7.5 We would argue that it will not be possible
to qualify for most professions without appropriate GCSEs and
A'Levels and thus the distinction the Government is attempting
to draw is a false one. Even if the government accepted our view,
however, it would still leave those boards dealing with examinations
which do not fall within this sphere untouched by the legislation.
In order that this situation be clarified, the DRC is calling
for examination bodies to be explicity covered by the legislation
in the same way in which education providers and qualification
bodies are.
10.7.6 Moreover we consider current arrangements
to be inadequate in practice for safeguarding the rights of disabled
students. While there are Regulations and guidance on adjustments
for disabled students issued by the Joint Council for General
Qualifications Bodies and the Scottish Qualifications Authority
respectively, we would point out that this guidance is neither
legally binding, nor does it cover every eventuality.
10.7.7 The DRC has been approached by disabled
people whose education - and the ability to take and pass exams
- has been inhibited by the behaviour of examination boards which
cannot be challenged under the DDA. For example:
- A woman who is registered blind and is taking
a typing course at college had her request for an adjustment of
either a reader or audiotape for taking her speed test turned
down by the exam board.
- A teacher contacted us, as he was
concerned that a visually impaired student would not be able to
participate in an exam. The examination board had stated that
the student in question could have a person read the questions
for him but would not be able to have that person write the answers
down for him.
10.7.8 Skill has also gathered case studies which
clearly demonstrate that there are some disabled students who
have difficulties in getting their needs met in examinations and
who have no redress at present. Failure to clearly establish
coverage in respect of examinations could leave a substantial
gap in the legislation, put disabled students at an unfair disadvantage
and prevent them from progressing onto their chosen area of work
or study.
Standard-setting agencies
10.7.9 There are a number of bodies which, although
setting standards against which qualifications are awarded, do
not fall within the definition of qualifications bodies because
they do not award the qualifications themselves. They are thus
also excluded from the DDA, despite the fact that they are essentially
the "gatekeepers" to qualifications and that their setting
of standards may exclude disabled people from obtaining what are
often vocational qualifications. One example of a standard setting
body is HABIA (the Hair and Beauty Industry Association) which
appears to set the standards in hairdressing, but does not award
any of the qualifications.
10.7.10 It is the DRC's view that the European
Employment Directive - which covers not only employment but access
to occupation as well - requires standard setting bodies to be
the subject of anti-discrimination legislation. Regardless of
whether this is the case, however, there is clearly a gap in the
legislation in respect of these bodies which needs to be filled
if there is to be fully comprehensive anti-discrimination legislation
in respect of disabled people.
10.8 Changes required as a consequence of
new Scottish Education legislation
10.8.1 The special educational needs legislation
in Scotland is in the process of being radically overhauled.
The Additional Support for Learning Bill is presently going through
the Scottish Parliament. Among other things, it abolishes Records
of Needs and introduces Co-ordinated Support Plans (CPS). Very
importantly it creates for the first time, Education Tribunals
in Scotland. All CPS issues (appeals against refusal to provide
a CPS, disagreement with its contents etc.) will now be dealt
with in the Tribunal system. The Bill is likely to pass into
law in March or April 2004. It may obviously be some time thereafter
before the Tribunals are up and running.
10.8.2 Clearly it would be beneficial both to
young people and their parents, as well as to schools and education
authorities, if Educational Tribunals in Scotland also dealt
with DDA education claims in the same way as SENDIST currently
do in England and Wales. However to achieve this, the DDA
requires amendment as presently it states that Scottish education
cases must be dealt with through the Sheriff Court.
10.8.3 The draft Bill is clearly the appropriate
legislation to make any necessary amendment. The relevant section
could be passed now and brought into force in line with the new
Tribunals coming into being. If it not done now, there may obviously
be difficulty in finding a suitable vehicle at a later stage.
We understand that the Scottish Executive is not averse to the
Tribunals having this extra role.
10.8.4 Another issue thrown up by the new legislation
is that of residual duties. Presently the DDA section 28F states
that any act of an education authority carried out by them under
the Education (S) Act 1980 (among others) is subject to the DDA.
Since the new Additional Support for Learning Bill will now deal
with many of the local authorities duties previously carried out
under the 1980 Act, including most importantly the new SEN system,
it seems clear that this residual duty section needs to be
amended to include the new Bill.
10.9 Blue Badge enforcement
10.9.1 There is a burning issue affecting disabled
drivers which we would ask the Joint Committee to consider. One
of the biggest barriers disabled drivers face is the constant
abuse of parking bays for disabled people. Non-disabled people
parking in bays reserved for blue badge holders severely limits
disabled drivers mobility, independence and access to services.
The recent review of the Blue Badge scheme conducted by the Disabled
Persons Advisory Committee (DPTAC) concluded that "a general
lack of enforcement has allowed abuse of the scheme to grow and
is devaluing it". DPTAC recommended that to improve the
enforcement of the scheme, legislation
should be introduced at the earliest opportunity in England and
Wales to enable Badges to be checked by police officers, traffic
wardens and parking attendants. This
power already exists in Northern Ireland and in Scotland.
10.9.2 The Government accepted this recommendation
in December 2002. The DRC is currently pursuing an amendment
to the Traffic Management Bill to implement this commitment. However,
should the Government fail to take that opportunity we would seek
to include provision in the future Disability Discrimination Bill
(which would of course involve amending the long title).
10.9.3 We urge the Joint Committee to recommend
that the Government implements its commitment to reform enforcement
of the Blue Badge Scheme either by amending the Traffic Management
Bill (our preferred option since this would provide the earliest
opportunity for change) or by including appropriate provisions
in the full Disability Bill.
11. The adequacy of the enforcement procedures.
11.1 The DRC is pleased to note that the draft
Bill provides for us to prepare Codes of Practice for the new
public sector duty to promote disability equality and trusts that
adequate funding will be made available to enable us to develop
and consult on the Code in timely fashion. We are also happy
with the new powers we will have to enforce specific duties upon
public authorities.
11.2 However we are concerned that, in other
respects the draft Bill does not provide for adequate enforcement
procedures. Enforcement of the new rights of access to premises,
transport, private clubs and new provisions on public functions
will be through the county courts (in England and Wales) and sheriff
courts (in Scotland). Experience of enforcing rights of access
to goods and services has convinced us that the courts do not
provide an effective or accessible forum for enforcing disabled
people's rights.
11.3 We are aware from research conducted by
Income Data Services on the operation of the Disability Discrimination
Act 1995 that, compared to the number of employment cases brought
before the tribunal, the number involving the provision of goods,
facilities, services and premises brought to the county court
is very small - approximately 53 odd cases taken in the first
4 years of operation compared to 8,908 employment tribunal claims[17].
11.4 Yet it is apparent that disabled people
are widely discriminated against in the provision of services.
This is supported by surveys conducted by Scope (see their report
"Left Out") and other disability charities. In our first
three years, access to goods and services was the second most
common issue raised by callers to our Helpline. In 2002-2003,
the DRC handled 720 cases concerned with discrimination in relation
to goods and services cases (31 per cent of all cases). Thus non-occurrence
of discrimination cannot account for the low enforcement rates.
11.5 In the report "Monitoring the Disability
Discrimination Act 1995" (DfEE 1999), which looked at the
type and number of claims brought under the Act in the first few
years of its implementation, the reasons highlighted for such
a small number of Part III claims being brought under the Act
included: formality and complexity of the court system; judges'
inexperience with the Act and low awareness of discrimination
issues; little or no disability awareness; and accessibility and
facilities in courts.
11.6 The difficulties in enforcing Part III claims
in the county court is supported by the findings contained in
the RNIB report "The Price of Justice" (RNIB, 2000):
the cost and complexity of bringing proceedings in the county
court are deterring disabled people who have experienced discrimination
from pursuing their claim. This deterrent effect upon applicants
is of concern not only because individuals may be deprived of
justice, but also because an absence of case law leaves many areas
of the law untested and unclear.
11.7 Our Legislative Review recommended that
Part III DDA cases should be enforced through employment tribunals
rather than through the Courts. We would recommend that the draft
Bill be amended to ensure current goods and services provisions
and the proposed new access rights are enforced through the tribunals
rather than the courts. Employment tribunals do not charge
issuing fees; are more flexible and informal; and would be less
likely to deter potential claimants from pursuing their claim
than having to issue in the county or Sheriff court. The longer
we leave this vital issue in abeyance the longer disabled people
will be denied the effective protection of the law.
11.8 The issue of hearing such cases in the employment
tribunals was also raised in the Better Regulation Task Force
Review of Anti-Discrimination Legislation (May 1999, Cabinet
Office). In addition, it is something which the Report of the
Independent Review of the Enforcement of UK Anti-Discrimination
Legislation strongly supported.
12. Timetable for reform
12.1 The need for reform is now urgent. In that
context we applaud the Government's pledge to respond very swiftly
to the Joint Committee's report and to ensure the legislation
reaches the statute book before the next election. There have
also been very welcome assurances from the Government in the context
of moves to a Commission for Equality and Human Rights that it
will cater for the distinct needs of disabled people and that
the programme of disability legislative reform will continue unabated
through the transition. We also applaud recent statements by
the Opposition Parties on the necessity of speedy legislation
and the desire to cooperate to get the Bill proper on the statute
book.
12.2 We hope the Joint Committee will urge
the Government to introduce the Bill proper before the end of
this session - ideally before the summer recess, or failing that
in the spill-over period - and then use the new provisions for
carrying-over Bills. In this way the
risk of the Bill falling in the event of an early general election
can be minimised.
12.3 It would also be useful to have a draft
timetable from the Government setting out when they aim to implement
the new duties, which duties they would wish to bring into
effect shortly after Royal Assent and how long a lead in time
they anticipate for more complex provisions and those requiring
detailed regulations. We would argue that all provisions -
including the transport regulations - should be in force and fully
implemented by the end of 2006 at the latest.
13. Conclusion and recommendations
13.1 We recommend that the Government should
set out the intended timetable for regulations to lift the Part
3 exemption from transport operators as soon as possible and commit
to early implementation.
13.2 We would urge the Joint Committee
to press for the full Bill to include an end-date for rail vehicle
accessibility of 2017 or certainly no later than 2020. We also
urge the Joint Committee to press for refurbishment regulations
to cover accessible toilets and visual signage.
13.3 We recommend that, in relation to the planned
reviews of aviation and shipping, the Joint Committee presses
the Government on: -
- the extent to which disabled people and their
organisations will be involved in shaping the remit for these
reviews and the extent to which their views and evidence will
be considered and
- when they would aim to respond to
any recommendations for legislative change stemming from the reviews.
13.4 We recommend that Clause 4 be redrafted
to:
- make it clear that public authorities have an
anticipatory duty not to discriminate and to make reasonable adjustments;
- have a more appropriate trigger for reasonable
adjustments which is consistent with other parts of the DDA -i.e.
the trigger of "substantial disadvantage" which applies
in both employment and education; and
- ensure that justification for discrimination
is based on objective standards.
13.5 We further recommend that the full Bill
amends the trigger for reasonable adjustments under existing Section
21 of the DDA to that of "substantial disadvantage".
13.6 We would welcome early clarification of
the Government's detailed proposals in relation to reasonable
adjustments for private clubs.
13.7 We recommend that the non-discrimination
provisions in Clause 5 of the Bill should be applied to guests
from the outset since there is no rationale for delay.
13.8 We would welcome clarification of the Government's
thinking as to what kinds of aids would be covered under the auxiliary
aids and services duties of Clause 6 in relation to premises.
We would hope that essentials such as grab rails, and visual
doorbells would be covered where a disabled tenant requires these.
13.9 We recommend that the full Bill includes
a provision prohibiting landlords from withholding consent unreasonably
from a disabled person to make changes to the physical features
of the premises and explicit provision to ensure management committees
cannot unreasonably refuse consent to disabled tenants to make
adjustments to common parts.
13.10 In relation to the positive equality duty
for public authorities, we recommend that the Government sets
out its thinking on what specific duties it intends to apply to
which public bodies. We would seek parity with the RRA: i.e.
a duty on key public sector bodies to implement disability equality
schemes and carry out employment monitoring with specific duties
on schools, FE and HE institutions to monitor and assess how their
policies affect disabled pupils/students with the emphasis on
pupils'/students' achievements. We further recommend that a duty
to promote good community relations, tailored for the disability
rights context, be included in the full Bill.
13.11 The full Bill should improve the operation
of the definition of disability in respect of people with mental
health problems. Specifically it should: -
- amend Schedule 1 of the DDA to remove the requirement
that a mental illness must be "clinically well recognised"
in order to be capable of constituting a disability under the
Act;
- revise the list of normal day-to-day activities
to include "the ability to communicate with others"
and to ensure that self-harming behaviour is covered; and
- reduce the requirement that the
effects of a disability must last 12 months to 6 months for those
individuals whose day-to-day activities are substantially affected
as a result of depression.
13.12 We recommend that the full Bill provides
that anyone who has a progressive condition is deemed to be covered
with no further restriction in relation to people with certain
types of cancer to the point from which they would require substantial
treatment.
13.13 We recommend that those in receipt of specified
state disability benefits should also automatically be deemed
to be disabled under the DDA.
13.14 We remind the Government that
people who are discriminated against because they are perceived
to have a disability or because of their association with a disabled
person, will need to be covered under the DDA by the end of 2006
in order to comply with the European Directive on Equal Treatment
in Employment and Occupation.
13.15 We recommend that provisions enabling tribunals
to order re-instatement or re-engagement are included in the full
Bill along with the power to recommend to employers changes to
their practices, where a case brought by an individual reveals
clear shortcomings. Further, where tribunals make general recommendations
for future action by employers, the DRC should be empowered to
enforce these.
13.16 We recommend that the full Bill prohibits
disability-related enquiries before a job is offered except in
very limited circumstances.
13.17 We recommend that the Bill be amended to
include the enabling power to cover volunteers as per the Task
Force's recommendation along with an action plan to develop good
practice and provision for a formal review of the need to use
the enabling power. The Department of Work and Pensions should
also consider establishing a pool of funding to support work related
adjustments for disabled volunteers.
13.18 We recommend that the full Bill extends
DDA coverage to school (parent) governors, disabled governors
of further and higher education institutions, lay magistrates
and any NHS appointments which may not meet the definition of
"office-holder" under the revised DDA Part 2.
13.19 We recommend that the full Bill extends
DDA coverage not merely to councillors but to all political office-holders.
13.20 We recommend that the full Bill extends
DDA coverage to all examining bodies and standard setting agencies.
13.21 We recommend that the full Bill provides
for Scottish DDA education claims to be dealt with by Educational
Tribunals in Scotland and for an amendment to section 28F of the
DDA to reflect changes likely to be made to Scottish education
law through the Additional Support for Learning Bill.
13.22 We urge the Joint Committee to recommend
that the Government implements its commitments to reform enforcement
of the Blue Badge Scheme either by amending the Traffic Management
Bill (our preferred option since this would provide the earliest
opportunity for change) or by including appropriate provisions
in the full Disability Bill.
13.23 We recommend that the full Bill provides
for current goods and services provisions and the proposed new
access rights in relation to transport, housing, private clubs
and public functions to be enforced through the tribunals rather
than the courts.
13.24 We recommend that the Joint Committee urge
the Government to introduce the Bill proper before the end of
this session - ideally before the summer recess, or failing that
in the spillover period - and then use the new provisions for
carrying-over Bills. Further the Committee could request a draft
timetable from the Government setting out when they aim to implement
the new duties.
13.25 We recommend that all the Bill's provisions
- including the transport regulations - should be in force and
fully implemented by the end of 2006 at the latest.
13.26 We look forward to providing oral evidence
to the Joint Committee and any further information relating to
issues raised in our submission as may be required. We are determined
to play our part in facilitating smooth and speedy implementation
of the new duties and will take full heed of any recommendations
the Joint Commission makes in that regard.
1 Final Report
of the Disability Rights Task Force, "From Exclusion to Inclusion"
(1999), London: Department for Education and Employment Back
2 Towards Inclusion,
DFEE, 2001. Back
4 Chapter 8 'Environment
and Housing'. The quote is taken from F Heywood Managing
Adaptions (Joseph Rowntree Foundation, 1996). Back
5 DRC 2003 Attitudes
and Awareness Survey. Back
6 'Living in
Fear', Mencap (2000). Back
7
Leverton S. Monitoring the Disability Discrimination Act 1995
(Phase 2), London: Department for Work and Pensions (2002) Back
8 DDA schedule
1 paragraph 1 (1) Back
9 William Hague,
Minister for Disabled People Hansard HC Deb Standing Committee
E, col 71 Back
10
Meagre N., Doyle B., Evans C., Kersley B., Williams M., O'Regan
S. and lackey N (1998) Monitoring the Disability Discrimination
Act 1995, London Department for Education and Employment Back
11 lbid. pg.91. Back
12 DDA schedule
1 paragraphs 2 (1) and (2) Back
13 Compton v
Bolton Metropolitan Borough Council, Manchester, Case No 2400819/00 Back
14
Sticks and Stones 1996 MIND
Back
15 Paragraph
24 of From Exclusion to Inclusion, Final Report of the Disability
Rights Task Force, 1999. Back
16 Lords
Debates, 10 June 2003, Col.146.
Back
17
8,908 Part 2 cases were issued and/or decided from when Part 2
came into force up until 1st September 2000. 53 known
Part 3 cases were issued from when the DDA came into force up
until 1st February 2001. Figures from 'Monitoring the
Disability Discrimination Act 1995 (Phase 2)', Sarah Leverton,
Department for Work and Pensions, 2002. Back
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