DDB 15 Law Society
Evidence to the Joint Committee on the
Draft Disability Bill
February 2004
The Law Society welcomes the publication of the
Draft Disability Discrimination Bill for pre-legislative scrutiny.
We recognise that persons with a disability often face discrimination
and marginalisation and we welcome the advancement of civil rights
in the Draft Bill.
The Law Society is pleased that the Draft Disability
Discrimination Bill includes most of the proposals put forward
by the Disability Rights Task Force in their 1999 report 'From
Exclusion to Inclusion'. The Government is urged to consider
implementing all the recommendations put forward by the Task Force.
1. The meaning of 'Disability'
Section 1(1) of the Disability Discrimination
Act 1995 (DDA) states that a person has
a disability for the purposes of this Act if he/she has a physical
or mental impairment which has a substantial and long-term adverse
effect on his/her ability to carry out normal day-to-day activities.
I. Progressive Conditions
Paragraph 8 of Schedule 1 of the DDA
provides that a person with a progressive condition is to be treated
as disabled where the impairment has an effect on his/her ability
to carry out normal day-to-day activities, even where it is less
than substantial, provided that the effects are likely to become
substantial in the future.
We have long been concerned that under the DDA people
with a progressive condition and facing discrimination are not
protected until they become symptomatic. For example, someone
who is HIV+ would not be coveredunder the DDA until they develop
symptoms. We therefore welcome the Government's proposal in the
Draft Bill to extend the definition of disability to include people
who have HIV, MS and cancer from the point of diagnosis.
However, we remain concerned that the new provisions
are limited to people with HIV, MS and cancer and recommend that
they should be applied to all people with progressive conditions,
for example Motor Neurone Disease, Huntingdon's Disease and Parkinson's
Disease.
We suggest that under Paragraph 8 of Schedule
1 of the DDA the requirement that the effect of the progressive
condition may be less than substantial provided that the effects
are likely to become substantial in the future should be removed.
This would mean that all people with a progressive condition
would be covered from the point of diagnosis
II. Day-to-day Activities
Paragraph 4 of Schedule 1 of the DDA provides
a list of broad categories of day-to-day activities which are
applicable to the definition of 'disability' provided in section
1(1). These are:
- mobility;
- manual dexterity;
- physical co-ordination;
- continence;
- ability to lift, carry or otherwise move everyday
objects;
- speech, hearing or eyesight;
- memory or ability to concentrate, learn or understand;
or
- perception of the risk of physical danger
We believe that there is a need for greater clarity
about what is covered by 'ability to concentrate, learn or
understand'. In particular there are some disabled people,
for example on the autistic spectrum, who do not understand social
cues and the Guidance does not make it clear whether 'understand'
covers this. We therefore seek further clarity in the Guidance
about the meaning of 'understand'.
We are also concerned that the Draft Bill does not
attempt to amend the list of day-to-day activities. Many disabled
people experiencing discrimination are currently excluded from
the DDA because the difficulties they experience in carrying out
normal day-to-day activities are not covered by the list.
We are particularly concerned that the current list
of day-to-day activities excludes a significant number of people
with mental health problems from protection against discrimination.
The main categories for people with mental health problems are
'memory or ability to concentrate, learn or understand'
or 'perception of the risk of physical danger'. However,
these categories often fail to reflect the difficulties people
with mental health problems experience. For example, many people
diagnosed with a mental illness such as schizophrenia experience
a distorted perception of reality and someone with anorexia nervosa
may have difficulties caring for themselves. In addition, people
on the autistic spectrum may experience communication difficulties.
These difficulties are not currently included in the list.
We suggest that Paragraph 4 of Schedule 1 be amended
to include the following day-to-day activities:
- ability to communicate
- ability to care for oneself
- perception of reality
III. Clinically Well Recognised
Schedule 1 Paragraph 1 of the DDA
defines the term 'mental impairment' as an impairment resulting
from or consisting of a mental illness only if the illness is
clinically well recognised.
We are concerned that this provision is discriminatory
because it is only applied to people with a mental disability.
People with physical impairments are not required to prove that
their disability is 'clinically well recognised'.
We also share the concern of the Disability Rights
Commission (DRC) that it fails to cover situations where there
is a disagreement or uncertainty over the specific clinical diagnosis.
We therefore recommend further consultation on removing the requirement
that a mental illness must be clinically well recognised.
IV. Substantial and Long-term Adverse Effect
Depression is a major reason for discrimination and
is often not covered by the DDA. Section 1 of the DDA
requires that a disability must have a substantial and long-term
adverse effect on a person's ability to carry out normal day-to-day
activities. Schedule 1 Paragraph 2 defines 'long term'
as an impairment that has lasted at least 12 months or where the
total period for which it lasts is likely to be at least 12 months.
We are concerned that people with depression often
fail to meet this requirement because depression is usually a
severe but also time limited disorder lasting up to 6 months[43].
The Law Society believes that consideration should
be given to adjusting the meaning of 'disability' to take
into account the particular needs of people with depression.
A past or current period of depression can lead to discrimination,
for example in obtaining insurance or applying for employment.
People with depression face particular problems in
relation to discrimination which need to be addressed. However
we do recognise the concern that a reduction in the 12 months
requirement might lead to abuse through people claiming on the
basis of short-term conditions We would welcome further consultation
on the recommendation that this requirement is reduced to 6 months
for people with depression.
2. Public Sector Discrimination
We welcome Clause 4, which inserts new sections
21B to 21D into the DDA and extends the scope of the prohibition
against discrimination to all functions of public authorities.
This will make it unlawful for a public authority to discriminate
against a disabled person in carrying out its functions, other
than those of legislation, prosecution, judicial acts, state security
and allocation of prisoners to accommodation. It brings the DDA
into line with section 19B of the Race Relations Act 1976 (RRA).
This clause defines two forms of discrimination:
a) The unjustifiable less favourable treatment
of a disabled person for a reason related to his/her disability.
b) The public authority carries out a function
and the outcome is 'very much less favourable' for a disabled
person than it is or would be for others to whom that reason does
not or would not apply. This applies only where a public authority
could have prevented that outcome by exercising its function in
a different way or by supplementing it with another act and it
would have been reasonable in all circumstances of the case for
it to have done so.
We are concerned that the threshold for a reasonable
adjustment, where the outcome is 'very much less favourable'
to the disabled person, is inconsistent with other thresholds
in the DDA (see discussion on reasonable adjustments below).
3. Duties of Public Authorities
Clause 8 of the Draft Bill inserts a new Part
5A into the DDA and imposes new positive duties on public authorities
in relation to disabled people. These resemble, but are not identical
to, those imposed by section 71 of the RRA. The duties are in
two parts: a general duty to promote equality, and specific duties
which are to be specified by the Secretary of State and applied
to designated public authorities.
The Draft Bill imposes a general duty on public authorities
in carrying out their functions to have due regard to the need
to eliminate unlawful discrimination against disabled people,
eliminate unlawful harassment of disabled people and promote equality
of opportunity for disabled people.
The Law Society welcomes the new public sector duty.
We believe it is right to place the onus on public authorities
to remove systematic bias and empower disabled service users,
without requiring individuals taking cases after the harm has
been done.
4. A Public Authority
The Draft Bill defines a 'public authority' as "any
person certain of whose functions are functions of a public nature".
This is the same definition used in section 6(3)(b) of the Human
Rights Act 1998 (HRA).
The Law Society is concerned about the lack of
consistency in the legal definition of a public authority across
the DDA, HRA and RRA. A different approach is taken in the RRA
where those authorities to be subject to positive duties are designated
as such by the Secretary of State and listed in a Schedule to
the Act (schedule 1A). This list can be amended by order.
The explanatory notes on the Draft Bill state (paragraph
77):
'The list of bodies subject to the equivalent
race duties … was compiled with regard to the Human Rights
Act definition of "public authority", and so it is expected
that the range of bodies covered by the definition in new section
49B will be similar.'
The implication is that using the same wording will
ensure the same bodies are caught by the HRA, RRA and DDA.
However, this may not be the case. Public authorities
under the HRA are to be identified by reference to the UK's international
treaty obligations under the European Convention on Human Rights
("ECHR"). A public authority for the purposes of the
HRA is one for whose actions the Government is answerable under
the Convention[44].
By contrast, the RRA and DDA are domestic legislation
and the scope of application of the positive duties under both
is a matter for Parliament alone. The case law under the HRA
may not be conclusive in determining what is a public authority
or a public function for the purposes of the RRA or DDA.
We are also concerned that the definition of a public
authority in the Draft Bill would create legal uncertainty. There
has been some difficulty under the HRA in determining what is
a core public authority and what constitutes a public function.
In Aston Cantlow v. Wallbank [2003] UKHL 37
their Lordships differed on whether the Parochial Church Council
was a core public authority and, among the majority who held that
it was not, whether the powers it was exercising in the instant
case were of a public or a private nature. We consider there
is an imperative need for certainty as to who is and is not subject
to the new positive duties. We do not believe such certainty
is to be found in the Draft Bill.
The Law Society is also concerned that the definition
proposed by the Draft Bill could enable the courts to adopt a
restrictive approach in determining who is a public authority.
When considering this definition of a public authority under
the HRA, the courts have been cautious in their interpretation.
Accordingly a large charitable provider of residential accommodation
for older people was found not to be a public authority for the
purposes of the HRA and therefore not bound by its provisions[45].
We therefore recommend that public authorities be
defined in the Draft Bill by the provision of a list. This would
provide for greater legal certainty and be consistent with Schedule
1A of the RRA.
We further recommend that the principles which determine
who is included on the list should be made explicit in the Draft
Bill to encourage transparent decision-making. The Minister should
be required to review this list annually to decide whether new
bodies need to be added and report to Parliament.
5. Landlords
The DDA makes it unlawful for those selling or letting
premises to discriminate against a disabled person in the way
they dispose of the premises, operate any waiting list, permit
the use of any benefits or facilities or by evicting the person
or subjecting them to any other detriment.
Clause 6
of the Draft Bill extends this to include a duty to provide a
reasonable adjustment to policies, practices and procedures and
to provide auxiliary aids and services, to enable a disabled person
to rent a property and facilitate their enjoyment of the premises.
The Law Society welcomes this approach.
There is however no requirement on landlords to change
the physical features of the property. The DRC has recommended
that landlords should not be able to withhold consent unreasonably
from a disabled person making changes to physical features of
premises. The government has argued that this provision is unnecessary
because section 19(2) of the Landlord and Tenant Act 1927, which
provides that consent to make improvements cannot be unreasonably
withheld by the landlord, already covers this.
However, the Law Society believes that in practice
section 19(2) of the Landlord and Tenant Act 1927 favours the
landlord. It is the tenant who must show that the landlord has
unreasonably withheld consent and in many cases it has proved
difficult to get legal evidence of this. The other main issue
is that the requirement not to refuse consent unreasonably is
general and not specifically related to disabled people.
We therefore recommend that the Draft Bill should
include a provision to prevent landlords from withholding consent
unreasonably for a disabled person making changes to the physical
features of premises.
6. Transport
Clause 3
of the Draft Bill provides for the extension of the DDA to cover
discrimination in relation to transport. At present the DDA only
covers transport infrastructure and excludes the means of transport.
The Draft Bill allows regulations to enable services
(such as taxis, private hire vehicles, trams, hire cars, buses
and trains) to be brought within Part III of the DDA which make
it unlawful to discriminate against a disabled person in the provision
of goods, facilities and services.
This is a flexible power to enable those sections
to apply in whole or in part and for different vehicles to be
covered at different times. In general the Society welcomes
this approach.
7. Clubs
Under Clause 5 of the Draft Bill, all private
member clubs of 25 or more members are brought within the scope
of Part III of DDA. This covers the provision to the public of
goods, services and facilities and requires service providers
not to treat disabled people less favourably and to make reasonable
adjustments to help eliminate discrimination against disabled
people.
This would give a disabled person who believes a
club has unlawfully discriminated against him/her the right to
bring civil proceedings against the club. If successful the disabled
person could receive damages for any financial loss or injury
to feelings.
We welcome this proposal which would significantly
extend the scope of the DDA by bringing within its scope clubs
which are genuinely private. This is also likely to have an impact
upon political parties, making it easier for disabled people to
participate in the political process.
8. Reasonable Adjustment
The Law Society is concerned that the DDA and the
Draft Bill include several different tests for making a reasonable
adjustment.
The DDA contains 2 different triggers for reasonable
adjustment. In Part II (employment) the duty of the employer
to make reasonable adjustments to any arrangements or physical
features of premises, is triggered when the disabled person is
placed at a 'substantial disadvantage' in comparison with
persons who are not disabled (s6).
In Part III (service providers) the duty to make
reasonable adjustment is where a practice, policy or procedure,
or a physical feature (for example, one arising from the design
or construction of a building or the approach or access to premises)
makes it 'impossible or unreasonably difficult' for disabled persons
to make use of such a service.
In the Draft Bill there are two additional tests
proposed. In clause 6, new section 21G(1)(a) the duty
to make adjustments by private clubs may be made by regulation
for a purpose relating to a policy, practice or procedure, or
physical feature, which 'adversely affects' disabled persons.
In clause 4, new section 21D a public authority
discriminates against a disabled person if the outcome of the
exercise of a function is 'very much less favourable' for
a disabled person and the authority could have prevented it by
acting in another way.
The Law Society is concerned that having several
tests for a reasonable adjustment creates confusion in the law.
We recommend a single test to be applied throughout the DDA which
requires a reasonable adjustment to be made when a disabled person
has been placed at a 'substantial disadvantage' in comparison
with persons who are not disabled.
9. Adverts and Group Insurance
The Draft Bill extends regulations issued in 2003[46]
to cover a third party, such as a newspaper which publishes a
discriminatory advert as well as the person placing the advert.
There are defences if the publisher could not reasonably have
known the advertisement was discriminatory or relied upon a false
statement.
Clause 2 amends the DDA
to make it clear that discrimination against employees (including
prospective employees) by an insurer in relation to group insurance
is unlawful. It also provides for claims to be dealt with by
employment tribunals as claims under Part II and not by county
courts as claims under Part III.
The Society welcomes both these proposals.
10. Discrimination Against Local Councillors
The Law Society welcomes the intention of the Government
to publish clauses prohibiting local authorities from discriminating
against councillors. We suggest this be extended to other statutory
office holders such as magistrates, registrars, school governors
and judges.
11. OTHER PROVISIONS
The Law Society has also considered the DRC recommendations
on additional changes to the Draft Bill.
- We support the recommendation that employment
tribunals should be able to order re-instatement or re-engagement
under the employment provisions of the DDA. However, for consistency,
this should be applied to all strands of discrimination law and
not to disability alone.
- The DRC recommend that a power should be taken
in the DDA to bring volunteers into coverage through regulations.
The Law Society is concerned that volunteers are still not covered
by the DDA and recognises the importance of voluntary work in
helping disabled people enter or return to employment or as a
way of providing structured daytime activities. We also believe
that this change would have major implications for other areas
of the law and therefore recommend further consultation to explore
this issue fully.
- The DRC recommends that Part III of the DDA (discrimination
in service delivery) should be enforced in employment tribunals
rather than through the courts. We agree that the tribunal system
is a more appropriate forum for Part III cases. However, it is
recognised that employment tribunals may be an intimidating arena
for some disabled people for whom work is not an option and we
therefore recommend that further discussion is needed on this
issue.
We also feel that Part IV (Further and Higher Education)
cases, which are currently dealt with in the County Court, should
also be brought within the tribunal system. It is recommended
that further consultation is required on this issue and that consideration
should be given to the development of 'equality tribunals' in
all discrimination cases[47].
CONCLUSION
The Society welcomes the Government's Draft Disability
Discrimination Bill and believes that it represents an important
step forward in the provision of civil rights for disabled people.
We particularly welcome the proposals to expand the definition
of 'disability', to place positive duties on public authorities
and extend the DDA to cover means of transport and private clubs.
We would urge the Government to consider implementing
all the recommendations put forward by the Disability Rights Task
Force. In addition, we recommend further changes should be made
to expand the definition of disability, to define a public authority
by the provision of a list, to provide a consistent reasonable
adjustment test; and to widen the definition of statutory office
holders.
For further information please contact:
Shona Ferrier, Parliamentary Adviser, Tel: 020 7320 9546, email,
shona.ferrier@lawsociety.org.uk
43 NICE:
Draft Guidance on the Management of Depression p.13. Back
44 see Aston
Cantlow v. Wallbank [2003] UKHL 37. Back
45 R v Leonard
Cheshire Foundation and HM Attorney General ex parte Heather and
Callin (2002) CA [2001] 4 All ER 604; [2001] 3 WLR 183. Back
46 DDA (Amendment)
Regulations 2003 (S.I. 2003/1673) Back
47 Recommendation
41 of 'Equality: A New Framework. Report of the Independent Review
of the Enforcement of UK Anti-discrimination Legislation'. 2000:
Hart: Oxford. Back
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