Joint Committee on the Draft Disability Discrimination Bill Minutes of Evidence

Memorandum from the Disability Rights Commission (DDB 1)

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 four 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, ie 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 s21D 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—ie 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 cannot be unreasonably withheld and that consent can be given subject to conditions eg 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 (2001-02) 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 cases 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, ie:

—  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 ie 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 one in five disabled people[5] and nine 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 12 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 12 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 12-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 ie 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;

—  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; and

—  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 ie 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 four 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 2002-03, the DRC handled 720 cases concerned with discrimination in relation to goods and services cases (31% 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—ie 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: ie 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 six 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.

February 2004

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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

3   Disability Equality: Making it happen. First review of the Disability Discrimination Act 1995. Disability Rights Commission, May 2003. 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   ibid p 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 1 September 2000. 53 known Part 3 cases were issued from when the DDA came into force up until 1 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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Prepared 27 May 2004