DDB 85 Greater London Action on Disability
By Greater London Action on Disability
1. Contents
1. Contents page 1
2. About GLAD page 2
3. Introduction page 2 - 3
4. Clause 1 page 3
5. Clause 2 page 4
6. Clause 3 page 4
7. Clause 4 page 5
8. Clause 5 page 5 - 6
9. Clause 6 page 6
10. Clause 8 page 6 - 7
11. Clause 12 page 7
12. Summary page 8 - 9
13. Appendix A Disabled people's Rights and Freedom
Bill page 10-15
Contact
Reg McLaughlin Chief Executive
GLAD
336 Brixton Road
London SW9 7AA
Tel: o20 7346 5800 X25
Email: r.mclaughlin@glad.org.uk
2. About GLAD
GLAD is a pan London organisation of disabled people
that has been in existence since 1952. Our member groups include
borough based organisations of disabled people, groups of Black
and minority ethnic and lesbian, gay, bisexual and transgender
disabled people, women's groups, mental health system user/survivor
groups and organisations of people with learning difficulties,
as well as access groups and impairment specific groups. GLAD
also has individual members.
GLAD campaigns for the rights and choices of disabled
Londoners. We do this by:
- Providing information (the starting point to
gaining choices and rights)
- Campaigning and policy work on key issues of
importance to disabled people, such as transport and employment
- Supporting a network of representative local
organisations of disabled people across London
- Working to make the disability movement more
inclusive by working with black and minority ethnic disability
organisations and mental health system user/survivor groups and
organisations of people with learning difficulties and lesbian,
gay, bisexual and transgender people and women's groups
- Providing consultancy and training for individuals
and organisations on a wide range of disability issues
- Providing a range of publications on disability
issues, in particular, London Disability News (a monthly newsletter),
Update, a fortnightly collection of items on disability from a
range of publications, Common Agenda newsletter (on forging links
between mental health and disability) and Boadicea a newsletter
for disabled women
- Through the practice and promotion of use of
the social model of disability. This is looking at the barriers
(physical, sensory, legal and attitudinal) and discrimination
disabled people experience rather than looking at the person and
the impairment or medical condition and seeing that as a problem.
3. Introduction
GLAD welcomes the opportunity to respond to the draft
Disability Discrimination Bill. Although we welcome the changes
to the 1995 Disability Discrimination Act we believe that even
with the draft new clauses the act is still fundamentally flawed.
The disability movement has drafted its own Disability Discrimination
Bill called the Disabled People's Rights and Freedoms Bill. (see
appendix a) GLAD has been involved in the drafting of this Bill
and we fully support our Bill.
GLAD believes that all disabled people, regardless
of impairment, must have the choice and the resources to live
in the community. We want the government to act in a positive
way to create the structures and systems required so that everyone
has that choice. Disabled people have been locked away and segregated
in institutions for too long and it is time for this practice
to stop.
The government must adopt a social model approach,
and take the lead from Local Authorities who have seen the value
of adopting such an approach. This focuses on removing the physical
and systematic barriers to disabled people. However, the new draft
legislation fails to take this approach building on the medical/individual
model approach taken by previous governments. The DDA in 1995
used this approach (medical model). The reforms that the government
are proposing have not learnt from the mistakes that were made
in 1995. The government should sign up to "Nothing About
Us Without Us" most local authorities and individual MP's
see the value of doing so and have signed the pledge. The government
must listen to disabled people ourselves and adopt the Disabled
People's Rights and Freedoms Bill. There is little involvement
of organisations "of" disabled people and the government
continues to rely on the advice of major charities such as (say
RNID, RNIB, Mencap, Scope) which run the institutions that oppress
disabled people that we want to close. Organisations of disabled
want to work with the government however the government continues
to exclude us. The Government should see the strength of engaging
with disabled people ourselves and set up a working group which
includes organisations like ours which represent over 1 million
disabled Londoners.
We welcome the government's initiative in calling
the British Council of disabled people (BCODP) to give evidence
before the committee. However, there is little evidence of other
organisations of disabled people being called to give evidence.
We think that it would be useful to rethink on who the committee
it is going to call to give evidence and GLAD would be happy to
advise the committee of the organisations that it could call.
GLAD would also welcome the opportunity to give verbal evidence
itself as we represent over 1 million disabled Londoners which
is over 10% of the disabled population.
We are making comments on the 14 Clauses and they
are as follows.
4. Clause 1 amends the
DDA's new provision on discriminatory job advertisements to cover
a third party who publishes a discriminatory advertisement (for
example, a newspaper) as well as the person placing the advertisement;
GLAD welcomes the new provision to
legislate on discriminatory advertisements. This will help underpin
the government's intentions in many cases. However, we are unsure
of the need for section 2(A) and 2(B)
Within the proposed new legislation GLAD believes
that it is not enough to rely upon the ability of the person accepting
the advert for publication to be able to determine whether or
not the advert complies with the proposed legislation or not.
This does seem to be a fairly simple task, given the clarity
of the definition given in section (1). It may be simpler to
administer the legislation if we rely on the publisher to be aware
of the legislation rather than relying only on those placing the
advert being honest about their motivation in doing so.
5. Clause 2 amends the
DDA to make it clear that discrimination by an insurer in relation
to group insurance provided to the employees of a particular employer
is covered by sections 19 to 21 of the Act (which deal with the
provision of goods, facilities and services to the public);
GLAD welcomes the provisions for general
group insurance in extending protection to disabled employees.
6. Clause 3 clarifies
that the current exemption from sections 19 to 21 for transport
services extends only to transport vehicles themselves, and creates
a power to enable that exemption to be lifted for different vehicles
at different times;
GLAD welcomes the government's intention to provide
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 disabled mother who uses a wheelchair found
that, despite the availability of accessible buses, drivers refused
to stop. On one occasion when she was going to a school activity
in which her child was taking a leading role, she waited at a
bus stop for two and a half hours trying to get a bus. Each time
a bus did stop at the bus stop she was either told that the ramp
did not work or that the driver did not have time to put the ramp
down because he was running late. She was also told that the
wheelchair space was full although it was full with children's
buggies and there was no wheelchair user on the bus. After 15
buses had passed she decided that she was now far too late to
go to her daughter's school and she went home. When her daughter
came home she was distraught because her mother did not turn up
for the school play and she was the only child in the play that
had no parent there. The consequences of this was that a parent
had been denied her basic human rights to see her child's achievements
and her daughter denied her rights to have her parent see and
celebrate her achievement. She had no redress under the DDA.
The draft Bill removes this blanket exclusion and
replaces it with a flexible framework which allows regulations
to successfully 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.
These provisions are essential if disabled people
are to be able to travel with the same freedom as non-disabled
people. Access to transport is such a crucial part of daily life
and one that has been difficult for so long or even denied completely
to many disabled people that some real urgency is now needed to
bring about these changes. However, the impact of this provision
will depend entirely on the content and timing of regulations.
The Government should set out its intended timetable for regulations
to lift the Part 3 exemption from transport operators as soon
as possible.
7. Clause 4 ensures that, with some exceptions,
functions of public authorities not already covered by the DDA
are brought within its scope (so that it would be unlawful for
a public authority, without justification, to discriminate against
a disabled person when exercising its functions);
GLAD welcomes Clause 4 of the draft
Bill which makes it unlawful for a public authority to discriminate
against a disabled person in carrying out its functions. This
is something of a milestone in legislation on rights of disabled
people in recognising that the issue is discrimination rather
than disability itself. Disabled people have long wished for
legislation which outlaws discrimination and this section is an
extremely welcome first step in that direction. It is an opportunity
to more carefully define the areas where discrimination is illegal.
Experience with other rights legislation tends to show that it's
sometimes necessary to define where public authorities need to
eliminate discrimination more precisely to ensure the effectiveness
of the legislation. The McPherson and Morris reports are examples
of how this has been necessary in the area of institutional racism.
Similar work is now necessary in the area of discrimination against
disabled people. We believe that this is also necessary in key
areas such as the highways, the conduct of elections and electoral
registration and the determining of adoption applications.
GLAD notes the common approach between
this draft Bill and the provisions within the Race Relations (Amendment)
Act. The specific duty to produce a Race Equality Scheme undoubtedly
has had a positive impact in raising the profile and mainstreaming
race equality within the public sector organisations. Our view
is that 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.
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. The wording of reasonable adjustments duty must be amended
so that it makes it clear that public authorities have a clearly
stated anticipatory duty to make reasonable adjustments.
8. Clause 5 brings within
the scope of Part 3 of the DDA private clubs with 25 or more members;
GLAD welcomes the proposals to include private clubs
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. We welcome this proposal which makes discrimination
unlawful for private clubs. We further welcome that clubs 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. However, we fundamentally believe that
any discrimination on the grounds of an individual's impairment
must be eliminated so therefore we would argue that all clubs,
including clubs who have fewer than 25 members, must be included.
We are also concerned that 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.
Finally, GLAD believes that the government is missing
the chance to include guests from the outset. We understand that
costs are an issue. However, many private clubs may have considerable
resources of their own. For those where resources are an issue,
we will argue that Grants from the government through local authorities,
under their duties as public bodies, should set aside funding
for this purpose. Private clubs can then apply to their local
authority to get grant aid in order to ensure that disabled people
using their club as members or associate members will not be discriminated
against.
9. Clause 6 extends aspects
of the duty to provide reasonable adjustments to landlords and
others who manage rented premises;
GLAD welcome provisions in Clause 6 of the Bill which
places a duty on landlords 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. The
Government needs to clarify what kind of aids would be covered.
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:
We are concerned that the draft Bill does not include
a provision that landlords should not be allowed to withhold consent
unreasonably from a disabled person seeking to make changes to
the premises. We further believe that the cost of these adaptations
must lay with the landlord and not the disabled person themselves.
"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
and frustration."
10. Clause 8 introduces
a new duty on public authorities requiring them, when exercising
their functions, to have regard to the need to eliminate unlawful
discrimination against and harassment of disabled persons, and
to promote equality of opportunity for such persons;
GLAD welcomes the new duty on public authorities
to promote disability equality. All the evidence tells us it is
impossible to remove discrimination by relying solely on individuals
by challenging discrimination by taking legal cases through the
courts. Most legal challenges usually take place after discrimination
has occurred and preventing discrimination in the first place
is preferable to retrospective justice. The new duty places the
onus on public services to ensure that any systematic bias is
removed from the way in which services are delivered. This change
will bring enormous benefits to disabled people
GLAD notes the common approach between this draft
Bill and the provisions within the Race Relations (Amendment)
Act. The specific duty to produce a Race Equality Scheme undoubtedly
has had a positive impact in raising the profile and mainstreaming
race equality within the public sector organisations. However,
we should learn from the mistakes and build on the positive practices
on the implementation of this act.
Placing a duty on public bodies to promote disability
equality will have an impact on private, commercial and voluntary
sectors. Public bodies will have an impact by bringing communities
together, addressing issues of harassment and violence ensuring
proactive strategies at local level to tackle hate crime against
disabled people - the subject of new provisions in criminal justice
legislation and by promoting general understanding and awareness
in the community which would ensure that local disabled people
and disability groups were fully included in local community cohesion
initiatives, rather than being ignored or isolated as presently
tends to happen, thereby improving civic participation whilst
combating social exclusion and deprivation.
11. Clause 12 deems people
with HIV infection, multiple sclerosis or cancer to be disabled
for the purposes of the DDA;
The changes to the definition of disability originally
contained within the Disability Discrimination Act of 1995 are
entirely welcome in extending the range of the Act. However,
the inclusion of 6(A) (2) and 6(A) (3) in section 12, the meaning
of disability, is not at all welcome. There seems little reason
to provide for future regulations determining exactly which cancers
are to be included and which cancers are not to be included within
the definition of the Bill. We will want to argue that everyone
with cancer is likely to face discrimination as a result of their
condition and so should be provided with protection under the
Bill.
In the same way, we would point out that the disabled
community have long argued that the definition of disability needs
to be extended to cover users and survivors of the mental health
system and people with learning difficulties. These groups should
be included in the definition of disability, as they will also
experience discrimination because of their physical or mental
differences from others.
Given these last two groups are often among the most
vulnerable, there seems additional reasons why we should take
this opportunity to include more disabled people within the protection
of the Bill. If we are going to attempt to eradicate discrimination
completely then beginning with a more inclusive definition of
disability is important.
12. Summary
GLAD welcomes the changes proposed in the New Draft
Disability Discrimination Bill. However, we believe that the
proposed changes would still leave the DDA fundamentally flawed.
GLAD recommends that the Government communcate with
the disability movement on the Disabled Persons Rights and Freedoms
Bill which has been developed by disabled people ourselves.
GLAD recommends that more organisations of disabled
people are called to give verbal evidence to balance the views
of "for" organisations and individual organisations
not representing disabled people's views. GLAD would welcome the
opportunity to give evidence itself.
GLAD recommends the government adopt the social model
of disability (the model that the disabled people's movement want)
instead of the Medical model that it continues to use.
GLAD Welcomes Clause 1 however there are still
serious weeknesses in the proposals and we recommend that the
government takes notice of our concerns as well as the concerns
that the DRC have indicated.
GLAD welcomes Clause 2
GLAD welcomes Clause 3 as accessible transport
is very important for disabled Londoners and the timing of the
implementation of the duties is crucial therefore the government
should set out its intended timetable for regulations to lift
the Part 3 exemption from transport operators as soon as possible.
GLAD welcomes Clause 4. However, 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. The wording of reasonable
adjustments duty must be amended so that it makes it clear that
public authorities have a clearly stated anticipatory duty to
make reasonable adjustments.
GLAD welcome Clause 5 but we believe that
the provisions do not go far enough. We fundamentally believe
that any discrimination on the grounds of an individual's impairment
must be eliminated so therefore we would argue that all clubs,
including clubs who have fewer than 25 members, must be included.
We are also concerned that 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.
GLAD believes that the government is missing the
chance to include guests from the outset
GLAD welcomes Clause 6 however the Government
needs to clarify what kind of aids would be covered. Or the effectiveness
of these provisions will be undermined.
We are concerned that the draft Bill does not include
a provision that landlords should not be allowed to withhold consent
unreasonably from a disabled person seeking to make changes to
the premises.
We further believe that the cost of these adaptations
must lay with the landlord and not the disabled person themselves.
GLAD welcomes Clause 8 and notes the common
approach between this draft Bill and the provisions within the
Race Relations (Amendment) Act. The specific duty to produce
a Race Equality Scheme undoubtedly has had a positive impact in
raising the profile and mainstreaming race equality within the
public sector organisations. However, we should learn from the
mistakes and build on the positive practices on the implementation
of this act.
GLAD welcomes Clause 12 However the definition
does not go far enough and still excludes some disabled people
from the definition. We would argue that the definition of disability
needs to be extended to cover users and survivors of the mental
health system and people with learning difficulties. These groups
should be included in the definition of disability, as they will
also experience discrimination because of their physical or mental
differences from others.
February 25, 2004
12. Appendix A
DISABLED PEOPLE'S RIGHTS AND FREEDOMS BILL
A
BILL
To
Secure the full and equal human and civil rights
of disabled people in the United Kingdom
All protections against discrimination and promotion
of rights in this Bill must take account of the diversity of disabled
people and their diverse needs and not discriminate on any basis,
eg. on grounds of race, culture, religion, gender, sexuality,
age, immigration status or any other status.
All definitions and language should be based on the
Social Model of Disability, which recognises disability as the
discrimination faced by people with impairments of body or mind.
PART I
In this Act -
Definition of disability and disabled person - based
on the Social Model of Disability.
Both direct discrimination and indirect discrimination
should be covered. Indirect discrimination is where some barrier
is created which, although it does not directly relate to disability
or impairment, means that it is more of a barrier for disabled
people generally than for non-disabled people generally.
PART II
Areas to be covered:
It shall be unlawful for any person or body to discriminate
against a disabled person in respect of:
- Provision of all goods and services: both public
and private sector provision
- Employment: all employers, without exception,
including voluntary workers, councillors and all elected representatives,
statutory office holders;
- Education: pre-school, school, further and higher
education, adult education, professional education, vocational
and non-vocational training, work experience and work-related
training. Having to attend segregated educational provision or
a special school or college is discriminatory;
- Qualifications and examinations: for qualifications
of all types;
- Physical environments: all public physical environments,
built and natural, to be accessible to allow free and independent
movement, including access to all service providers, employment,
education and transport;
- Transport: air travel, sea travel, and all other
forms of travel to be fully accessible by a declared end-date;
- Health Care: there should be access to all primary
and secondary health care, treatments and interventions and access
to health information.
- Housing: all housing should be accessible, whether
or not occupied by a disabled person, and there should be a choice
including size and location. This should include the right to
own property and to have access to social housing;
- Communication: the provision of support to enable
written and oral communication. Also, to ensure the provision
of clear and accessible information in different appropriate formats
e.g large text, Braille, audiotape, videotape with British Sign
Language, floppy disk, CD-ROM etc, including accessible websites;
- Participation in social, leisure, citizenship
duties (eg jury service) and political activity;
- Voting: Voting, by whatever mechanism, should
be accessible within the same choices of place and time as everyone
else. Detention in hospitals or other institutional settings,
except prisons, should not deny a disabled person the right to
vote.
- Legal Services;
- Abortion: Grounds for abortion should not discriminate
in relation to disability. Potential parents should be free from
pressure to abort a disabled foetus.
- Or any other service
PART III
Over and above the right to protection from discrimination
as outlined in Part 11 and provisions for obtaining rights under
the Human Rights Act, Disabled people should have their rights
and freedoms protected through the following:
- Pre-birth Actions: Medical intervention, manipulation
and procedure which results in the elimination of a gene, embryo
or foetus should not discriminate on the grounds of disability.
- The Right to Live: The right to be recognised
as a human being, including the right not to be subject, at any
stage of life, to any form of euthanasia or withdrawal or failure
to provide social support, personal assistance, medical treatment,
pain relief, food, water or any other support necessary to seek
to maintain the best possible quality of life, including not to
be subject to any threat or pressure, on any basis, that such
a withdrawal or failure to provide may occur, including cost or
inconvenience to others;
- The Right to Freedom of Movement: which includes
the right not to be forced into an institution, either for education
or as an alternative to domicilary care, on any grounds.
- Independent living: this is the right of every
disabled person, regardless of age, to have choice and control
over how they live, including the right to personal assistance
based on self-assessment which should include a social life and
the right to adequate personal protection. No charge should be
made for this right;
- Benefits: These should be based on the real extra
costs of dealing with the barriers to having a full life (disability),
not on impairment. Benefits should fully reflect those costs,
and be flexible in operation to enable disabled people to exercise
their other rights without penalty;
- Genetic-counselling: this should be impartial
and external to the medical profession and there should be a clear
disciplinary offence to put pressure on a family who are being
counselled;
- The right to sexuality: including freedom of
sexual orientation, provision of sex education to young disabled
people, freedom from pressure to have sex or not to have sex,
and the right to help with sex including access to assistance,
therapy and drugs, the right to form close, meaningful and sexual
relationships, to get married or otherwise have a publicly recognised
relationship, to have children and be a parent, and to be a couple
or family living together. The right to have full choice over
birth control including the right not to be sterilised without
consent;
- The right to make choices and decisions: and
for those choices to be respected and implemented;
- The right to privacy and freedom from media intrusion;
- The right to be allowed to express an opinion:
and to be heard fairly and without prejudicial discrimination,
on any matter that affects the disabled person;
- The right to independent advocacy: the right
to have an independent appropriate advocate of the disabled person's
choice, who can help the disabled person to get their rights and
challenge the system including the right to a full range of properly
funded, well-publicised and resourced advocacy provision including
self-advocacy, peer advocacy, citizen advocacy, group advocacy,
legal advocacy and community advocacy, which is publicly recognised
by all public and statutory bodies, employers and service providers;
- The right to form and join organisations run
and controlled by disabled people as a basis for collective action
and activity;
- The Right to protection against torture or degrading
and inhuman treatment: including freedom from personal attack
from disablist language and behaviour (including disablist jokes),
inhuman and degrading treatment within the home or without and
that any crime which is aggravated by disablist behaviour should
be treated as a hate crime.
PART IV
- Positive actions: It should be the duty of all
public bodies to make appropriate arrangements so that they:-
(a) eliminate unlawful discrimination against disabled people
on grounds of disability; and
(b) promote equality of opportunity for disabled people.
- Disabled people should have the same access to
the same minimum standards of living as non-disabled people with
the additional costs of disability taken into account.
- BSL should be recognised as a national language
for all purposes and consequently appropriate resources should
be provided to put it into effect.
- There should be an Independent Living Centre
(ILC) in every district, unitary or metropolitan borough authority
area. (An ILC is an advocacy organisation controlled by disabled
people and providing services of their choice to disabled people).
These Independent Living Centres should act as technical assistance
centres for employers and providers under this Bill.
- Segregated educational provision should be ended
by 2020 and funding, training and support should be provided for
inclusive education and emotional literacy.
- All services to disabled people must follow the
individual and be provided at the same level of resources and
empowerment, wherever the individual moves to.
- All decisions made by public bodies at any level
must be discussed with organisations which represent, and are
run by, disabled people.
PART V - Enforcement
If there are costs of implementation regarding positive
actions these will fall to the public bodies concerned.
If there are costs of addressing discriminatory issues
and practices, then, within the concept of reasonableness they
will fall on:-
- Where it is employment it is the employer;
- Where it is regarding goods or services then
it is the provider;
- Where it is neither of these, public funding.
To the extent that the cost is not considered reasonable
for the employer or service provider to pay for, then the government
has a duty to make a grant to make the difference.
PART VI - Enforcement
The level of remedy should be similar to the amount
of discrimination and should be available through appropriate
tribunals, county courts or High Court.
The costs of enforcement should be fully covered
by legal aid, irrespective of income.
Disabled litigants should have all access costs covered
in all legal cases.
The Disability Rights Commission or any other organisation
may take a court case on behalf of a group of disabled people
(a class action). In keeping with the Human Rights Act, these
actions should be available with legal aid protection.
PART VII
This Bill should be more important than (take precedence
over) all other legislation, and ideally should form part of a
Bill of Rights within a written constitution for the United Kingdom.
Any person taking a case under this Bill is not stopped
from taking a case under the Human Rights Act.
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