2. would be so made but
for any provision made by or under this Act.
In the remaining parts
of the draft bill, there are many more welcome additions to legislation.
NCIL is pleased to see progress being made in these areas, but
has some reservations in the way these changes have been proposed.
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 the protection
of 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
1. Discriminatory advertisments.
The new provision to legislate on
discriminatory advertisements is very welcome. This provision
will help underpin the governments intentions in many cases.
However, we are unsure of the need for section 2(A) and 2(B)
Within the proposed new legislation.
Is it 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.
2. General group insurance.
The provisions for general group
insurance are welcome in extending protection to employees.
3. Public Authorities
The new section on public authorities
is especially welcome. 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 define the
areas where discrimination is illegal more carefully. 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 the Morris reports are examples
of how this has been necessary in the area of institutional racism.
Similar work may now be necessary in the area of discrimination
against disabled people.
We would like to see the introduction
of a Right to Independent Living, which will
guarantee a disabled persons right to the basic requirements of
living and participating within his/her own community. When disabled
people first began to set up Centres for Independent Living, they
agreed on seven pillars of independent living, which, they argued,
formed the base upon which genuine independent living for disabled
people could be built. We will argue for duties to be given to
public bodies to ensure these basic rights are available and that
we have the ground on which we can build a more equal community.
We have already refered to this in our ammendment sugested above.
Here we outline some of the traditional views of the disabled
peoples movement relating to these questions. These include:
(A) Housing. The right to fully
accessible housing within their own community. Local housing
authorities should be required to ensure that 100% of newly built
housing is to the "Lifetime Homes" standard. By doing
this, the proportion of accommodation within the community which
has minimum disabled access requirements met will gradually increase
over time. The objective should be that all accommodation meets
this minimum standard. The reason for aiming for such a goal
is that disabled people don't just want to have access to their
own homes. Disabled people have families and friendship networks,
as well as contacts through employment and voluntary activities.
They want and need to be able to visit the homes of the people
in their social circles as well as having access to their own
homes, if they are to be given equal opportunity to live within
their different communities.
(B) Education.
this new bill offers the opportunity
to go beyond SENDA, and look at, not just access to adult education
and colleges and local universities for disabled people wishing
to use them, but also what day-service provision is made available
by local authorities. Usually such provision doesn't include
education leading to qualifications, job opportunities or further
education opportunities. Promoting non-discrimination should
include making sure day-services contain genuine career and self
development opportunities in education.
(C) Advocacy.
The recent evidence taken by the
Joint Select Committee on the Mental Incapacity Bill shows that
there is an urgent need for advocacy support for disabled people.
In the Joint Select Committee recommendations, there is an acknowledgement
that advocacy support is an essential ingredient in guaranteeing
that disabled people can get support to make good choices and
to get their voices heard in the decision making process.
No recommendations were made about
making finances available, but we believe the figures involved
in this are not that great and that once reasonable levels of
advocacy support are provided, the overall cost will not be prohibitive.
Therefore, we would want to see a duty on local authorities to
provide advocacy support to disabled people who request that service,
as part of the provisions under public bodies.
(D) Employment
Once again, this is an excellent
opportunity to lay the basis for beginning the process of ending
discrimination against disabled Peoplle in another key area of
independent living. We would like to see every local authority
required to provide training to assist disabled people prepare
for employment, seek suitable employment, secure and develop their
career in employment, including assistance in accessing and using
the Access to Work scheme.
(E) Independence
The right to live independently
in your own home in the community of your choice. The principal
behind this right is that no-one should be forced to live in residential
accommodation against their wishes. We would like to see the
standard form of support for disabled people being support to
live independently within their own community of choice. We would
like to see a programme of review of every residential establishment,
with the intention of encouraging and supporting residents to
move to independent living within their own communities of choice.
Previous programme similar to this carried out by companies running
residential institutions have proved successful in resettling
disabled people into the community. We would like to see a commitment
to reduce the number of disabled people in residential institutions
by half in the next 5 years, with a longer term objective to close
all residential institutions by the year 2020.
To complement this commitment, we
believe that it is necessary to strengthen this commitment with
a strengthening of the existing government commitment to see community
care as the principal way in which support services are offered
to disabled people. We would like to see new legislation complementing
the National Health Service and Community Care Act of 1996 by
emphasising that every community care assessment must take account
of a disabled persons need for support in the following areas:
(a) personal care, including support
getting out of bed, dressing, washing, preparing, eating and
clearing away after meals, and all other personal care tasks.
(b) Domestic
care, including all tasks involved in maintenaning the home.
(c) Social
activity, including visiting friends, family, other social activity,
such as following religious belief.
(d) Voluntary
activity involving local community groups.
(e) Political
activity through local political parties and structures of the
disabled persons choice.
(f) Educational
activity through adult education, evening classes, local colleges
and universities, lifetime learning schemes, etc.
(F) Information/ communication
Continuing the theme of using this
opportunity to create specific duties on public bodies, we will
argue for a right to access to information and support in communication.
This should cover access to information through using different
formats, for example, large print, cd rom, floppy disk, tape,
braille, BSL, plain english, easy read and picture format. Support
needs to be available to all disabled people who need it to assist
them in clearly communicating their views, wishes and needs.
(G) Welfare benefits
Every disabled person needs to have
a basic income whioch is sufficient to sustain them and meet their
basic needs. We will ask for a further review of the welfare benefit
system to ensure that the genuine additional costs of being a
disabled person are reflected in the way that the benefits system
opperates.
More detailed comments on text.
1. Transport Vehicles.
The new provisions appear to exclude
the services where a vehicle is provided by the service to a disabled
person from the general defination of discrimination in providing
services. We will ask for more information about the government
consultation last year into the possibility of including private
hire vehicles into the DDA. We will also ask about the Disability
Rights Taask Force Final Report, which contains many recommedations
about includding transport into the DDA, including fixing end
dates to provision of transport by rail, air or sea.
2. The meaning of discrimination
in public bodies.
In the section on conditions
under which treatment or outcomes are to be regarded as justified,
in (4) 1, we will ask that this paragraph should refer to the
debate currently going on in relation to the Mental Incapacity
Bill, where proposals are being advanced by some groups representing
disabled people that there should be a right for every disabled
person to be able to make their own decisions and a right to supported
descision making for disabled people, who want or need this. The
esame principals needs to apply here.
3. Health and Safety
There are well known
examples of Health and Safety aspects clashing with the needs
of a disabled person to receive support. This has been a problem
with the regulations on moving and handling, where disabled people
have argued that the priority has to be supporting and enabling
a disabled person when interpreting the health and safety guidelines.
NCIL have written some useful information about this.
4. Paying for the
end of discrimination
While the question
of resources is important, we will argue that it will be better
if an execise can be carried out to estimate the overall cost
of providing equal services, so that a discusion can take place
about how best to make available additional resources for public
bodies, so that they can carry out it's duties not to diccriminate
against disabled people. The eradication of discrimination will
benefit the whole community and not just disabled people. There
is a strong case to invest in equality and make available government
resources which can be used by public bodies if they need it.
However we would also hope that public bodies will take in to
account the cost of carrying out their responsobilities in promoting
equality.
We will argue that
it is riskey to discribe a treatment or outcome as justified on
the grounds that they are a proportionat means of atchieving a
legimate aim. The problem with this wording is that it is far
to general and could be used to cover a wide range of sucumstances,
some of which definitely need to be within the powers of the act.
We will argue that the Bill must make it clear that the pirmary
duty of any public body must be not to discriminate. Any actions
or policy which contradicts this aim must be unlawful under the
Bill. It should be possible to achieve the legitimate aims of
the public body without the need to discriminate against disabled
people.
5, The meaning of
discrimination in private clubs.
In paragraph 3, where
the exclusions from the general provision not to discriminate
are writen, under 1 and 2, the same reservations apply as did
under the meaning of discrimination for public bodies. In the
case of point 3 and 4, we will argue that it should be possible
to provide services and benefits to all members of the club without
discrimination against disabled people. In the case of point 5,
we understand that costs are an issue. However, many private clubs
may have considerable resources of their own. For those where
resources is an issue, we will argue that 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.
6. Let premises.
These new provisions
are very welcome in providing protection to disabled people living
in privately rented accomodation. The concepts introduced do assist
to provide a useful regal frame work for establishing the rights
of disabled people in this new area. We will argue that th eexeptions
to section 19 of the original DDA may not be necessary to achieve
what the government intends in this case.
There are provisions
in the law already about health and safety and it may be posible
in most circumstances to find ways of meeting disabled peoples
access needs without having to create any dificulties under health
and safety regulations. Is further legislation necessary in this
area? It may be that landlords already have protection in the
existing law.
NCIL will make further
detailed comments on the text of the draft bill as the consultation
process develops.
Yours sincerely
Roy Webb
Head of Policy
NCIL
