Memorandum from the Disability Charities
Consortium: Mencap, Scope, MIND, RNIB, RNID, RADAR and Leonard
Cheshire (DDB 17)
A. INTRODUCTION
1.1 The Disabilities Charities Consortium
(DCC) is formed by Leonard Cheshire, Mencap, Mind, RADAR, RNIB,
RNID and Scope.
1.2 The DCC welcomes the principles behind
the draft Disability Discrimination Bill which seeks to implement
important recommendations of the Disability Rights Task Force
(DRTF). The measures proposed by the Government are a significant
step towards tackling inequality and discrimination faced by millions
of disabled people in Britain today.
1.3 In particular, we welcome the inclusion
of MS, cancer and HIV from the point of diagnosis, the inclusion
of public functions, the power to extend the scope of the DDA
to transport services and vehicles and a statutory duty on public
authorities to promote equality and eliminate discrimination.
1.4 The extent to which this Bill improves
the everyday lives of disabled people will largely depend on its
detail rather than its principles. We feel that in many areas
of the Bill—most notably transport—the Government
has not gone far enough. Other vital issues, such as the inclusion
of mental illness within the definition of disability, are currently
not on the face of the Bill despite overwhelming evidence in support
of such a move. We ask the Joint Committee to rectify these omissions
in its recommendations.
1.5 We hope the Government will respond
swiftly to the Joint Committee's recommendations by introducing
a full Disability Discrimination Bill before the Summer recess.
We believe this is necessary in order to ensure that the Bill
becomes law before the next General Election and that the provisions
enter into force before the Commission for Equality and Human
Rights takes over from the Disability Rights Commission (DRC).
B. GENERAL CONSIDERATIONS
2. Trigger for a Service Provider to have
to make a Reasonable Adjustment
2.1 The current Disability Discrimination
Act 1995 puts the point at which someone has to make a reasonable
adjustment ("trigger") at different levels across the
law. The draft Disability Discrimination Bill adds even more.
We believe that the use of different triggers is confusing. The
law would benefit from a clear and consistent approach across
the DDA.
Trigger in relation to private clubs
2.2 We welcome the extension of Part 3 DDA
to cover private clubs with more than 25 members. The duty to
make reasonable adjustments is not specified but will be introduced
through regulations. The draft Bill offers the framework for the
regulations. Amongst other duties it states, in particular:
"a duty to take steps for a purpose relating
to a policy, practice or procedure of the association, or a physical
feature, which adversely affects disabled persons who are, or
might become, members or associates of the association".
[Emphasis added]
2.3 This trigger is significantly more generous
than other triggers used in Part 3 of the DDA and the draft Bill,
which are; "impossible or unreasonably difficult" (goods
and services) and "very much less favourable" (functions
of public authorities).
2.4 However, the explanatory notes qualify
the Government's intentions stating that:
"52. [...] It is not expected that the duties
to be imposed by regulations made under new section 21G will go
further than those which providers of goods, services or facilities
are under by reason of section 21 DDA."
2.5 This is disappointing and confusing
given the statement on the face of the draft Bill and the apparent
retraction of the more generous trigger in the explanatory notes.
This is an area where clarification of the Government's intentions
in relation to use of regulatory powers would be welcome at an
early stage. We hope that points raised in the following paragraphs
influence how the regulatory power is used.
Trigger in relation to Part 3 DDA
2.6 Currently under Part 3 of the DDA when
taking a claim to court, a disabled person has to show that the
failure to make a reasonable adjustment made it impossible or
unreasonably difficult for them to access the service. This is
a very high threshold, and has resulted in cases where lower levels
of service were justified because it was not "impossible
or unreasonably difficult" for them to access the service,
just reasonably difficult.
2.7 In the case of Appleby v DWP (July 2002),
Mr. Appleby, who is deaf, went to a Benefits Agency office to
get a national insurance number. A visual display screen, which
would indicate when his appointment number had been reached, was
not working. He had to rely on other members of the public to
advise him when his number had been called. In respect of this
issue, the district judge stated:
"At no stage in his evidence before me or
in his statement of case or witness statement do I find that he
experienced "unreasonable difficulty" in applying the
practice as required by the defendants to ascertain when it was
his turn. Indeed with commendable imagination and improvisation
he enlisted without apparent difficulty the help of two members
of the public, who, it would appear were more than willing to
assist, and he was thus able to ascertain when it was his turn."
2.8 The high threshold means that a right
to independently access information and services is not guaranteed
in cases such as this. Following this approach, if, for example,
a service provider sends a blind person correspondence in a standard
print format that they cannot read, it would be possible for a
court to decide that, if the person had a relative or friend who
could read the letter to them, it is not impossible or unreasonably
difficult for the person to access the letter.
Trigger in relation to functions of public authorities
2.9 In addition, the draft Bill proposes
that functions of public authorities are subject to reasonable
adjustments only when the outcome of the function is "very
much less favourable" for a disabled person. This trigger
is at the same level as, if not higher than, "impossible
and unreasonably difficult" and will present the same problems.
One trigger across all parts of the DDA: "substantial
disadvantage"
2.10 Triggers for the duty to make adjustments
need to be reviewed as they vary across the DDA:
— The trigger for reasonable adjustments
in education and employment, "substantial disadvantage",
is lower than the trigger for goods and services, which is "impossible
or unreasonably difficult".
— Within goods and services the trigger
for reasonable adjustments to policies, practices, procedures
and physical features is "impossible or unreasonably difficult";
but auxiliary aids and services have a trigger that states reasonable
adjustments are needed to "enable or facilitate" access,
which is lower.
— The draft Bill is not clear about
the future trigger for private clubs: "adversely affects"
OR a higher trigger that will be brought in via regulations (as
per explanatory notes).
2.11 The DRC's Legislative Review proposed
that a new trigger of "substantial disadvantage" be
set as the point at which a disabled person is entitled to a reasonable
adjustment in relation to goods, facilities, services and premises.
2.12 The "substantial disadvantage"
trigger has received widespread support as a realistic and workable
solution to simplify the current triggers and stop counter-intuitive
outcomes where disabled people are denied measures that would
make services accessible to them as independent people who should
not be assumed to be reliant on others.
2.13 It is vital however, that the definition
of "substantial" is that given by the Section 4.17 of
the Employment Code of Practice. This provides that:
"The Act says that only substantial disadvantages
give rise to the duty (S6(1)). Substantial disadvantages are those
which are not minor or trivial."
Recommendations
We ask that the Government clarify their intentions
about the use and definition of the trigger to make reasonable
adjustments in relation to private clubs.
We ask that the Government adopt a uniform and
consistent approach to the trigger to make a reasonable adjustment
across the DDA. The trigger should be modelled on the one used
for employment and education, which is "substantial disadvantage".
Use of Regulatory Powers
3.1 The DCC is being asked to comment on
what is, in many places, essentially a skeleton Bill.
3.2 It is only by considering the draft
Bill with draft regulations and timescales included, that disability
charities can engage in proper debate about the merits of the
draft Bill and provide proper scrutiny through the legislative
process.
3.3 We do recognise that some regulatory
powers are necessary and there are obvious merits in the flexibility
they offer. However, regulations must not be used as a delaying
tactic or as a tool to escape democratic scrutiny.
Recommendation
Where regulations are necessary, we ask the
Government to publish draft regulations as soon as possible.
4. Raising public awareness about the Bill
4.1 The DCC recognises that legislative
change by itself will only go so far in reducing discrimination
against disabled people. Changing attitudes towards disabled people
is as important as legislative change.
Recommendation
We ask the Government to set aside sufficient
resources to provide an extensive communications campaign to explain
the changes, introduced by the new Disability Bill, and provide
constructive assistance in changing attitudes towards disabled
people when necessary.
PROVISIONS OF
THE DRAFT
DISABILITY DISCRIMINATION
BILL
5. Transport (Clause 3)
5.1 The DCC welcomes the provision within
the draft Disability Discrimination Bill that allows for the extension
of the DDA to transport services. This was a major recommendation
of the Disability Rights Task Force.
5.2 Inaccessible transport has a major impact
on disabled people's independence, social participation and employability.
According to a research study "Attitudes of disabled people
to public transport" by DPTAC in 2002, 60 per cent of households
with a disabled member do not have access to a car (compared to
27 per cent of the general population), so access to the public
transport system is a crucial part of many disabled people's lives.
Findings from recent research show that 23 per cent of disabled
people actively seeking employment have had to turn down a job
offer because of inaccessible transport. 62 per cent of wheelchair
users and 86 per cent of people with a visual impairment said
inaccessible transport had restricted their choice of jobs (Campion,
Greenhalgh and Knight, Mind the Gap, 2003). A large number of
other initiatives on social inclusion, access to employment and
access to healthcare depend on an accessible transport system.
5.3 The transport provisions of the draft
Bill rely heavily on regulation-making powers. The timing and
content of the regulations are unknown which makes it difficult
for us to assess the overall effectiveness of this part of legislation.
5.4 We are extremely disappointed with the
decision not to remove fully the blanket exclusion but to do it
on a sector-by-sector basis. In this way ambiguities surrounding
the areas of responsibility within the transport infrastructure
remain. Removing the exemption from all modes of transport would
bring greater clarity to this extremely confusing area of law.
As the draft Regulatory Impact Assessment (RIA) states, removing
the exemption for transport services is likely to mean that transport
operators would need to implement disability awareness training
for their staff. Many are already doing this, so we do not envisage
significant cost implications (even if we would question the quality
of the training given currently). The DCC would welcome this as
a more positive approach.
5.5 To demonstrate the need for the immediate
removal of this exemption instead of the suggested staggered regulations,
the DCC has listed below a number of examples of discrimination
that its membership regularly reports experiencing. Without the
immediate removal of this exemption, disabled people have no legal
recourse when such discrimination occurs.
— Bus drivers refusing to stop for
wheelchair users or refusing to operate functioning ramps.
— Drivers/staff refusing to alert people
with learning disabilities or visual and/or hearing impairments
to get off at the correct stop.
5.6 The draft Disability Bill will give
the Government the power to place duties to make reasonable adjustments
on transport service providers. This will include reasonable changes
to practice, policies and procedures. It will not include changes
to physical features. The proposals are not clear whether transport
providers will be required to consider providing a reasonable
alternative means of accessing the service. We are seeking clarification
from the Government whether they intend to apply this requirement.
5.7 The "Enforcement and Sanctions"
section of the RIA suggests that regulations will not be introduced
immediately after Royal Assent for the Disability Discrimination
Bill and that further consultation would be required. We consider
that further consultation is unnecessary, as this issue has now
been consulted on three times over a period of five years.
Recommendation
The exemption for transport services should
be immediately removed as recommended by the Disability Rights
Task Force, as a whole, not on a sector-to-sector basis. Further,
the DCC seeks clarification from the Government that, if regulations
are used to remove the transport operators' exemption from Part
3, they will be introduced quickly.
Aviation and Shipping
5.8 It is suggested in the RIA that aviation
and shipping will only be brought under the legislation if they
are failing to comply with existing voluntary Codes of Practice.
The recent cases of EasyJet who refused to carry a group of deaf
people and, a group of footballers with learning disabilities,
as well as the negative reaction of RyanAir to the verdict that
they cannot charge wheelchair costs, prove that the aviation industry
is failing to comply with the voluntary code.
5.9 The European Commission, in their working
paper on "rights of persons with reduced mobility when travelling
by air", is considering legislation that entitles disabled
passengers to equal opportunities for air travel, and that clarifies
the responsibilities resting on airlines and airports.
5.10 The RIA rightly states that relying
on voluntary compliance from the transport sector:
"would not provide disabled people with
confidence in the transport network as a whole. And [...] it would
not deliver against the Government's manifesto and policy commitments."
Recommendation
The DRTF specifically named aviation as an area
where statutory intervention was needed and the DCC would like
to see the Government bring aviation and shipping immediately
within the remit of legislation.
Prioritising audio-visual information in transport
vehicles
5.11 Under the current draft Bill, the physical
features of vehicles would remain under Part 5 regulations and
it could be many years, perhaps even decades, before certain transport
operators would need to introduce or alter audio-visual features
to ensure they provided accessible information for disabled passengers.
Buses, for example, would not have to carry information systems
to provide visual information, such as where the bus is stopping
next or provide information in case of diversions and delays,
even though this is when disabled people most need such information.
5.12 The DCC believes this lack of progress
on accessible information onboard public transport vehicles is
unacceptable.
Recommendation
We would like Part 5 regulations amended to
prioritise accessible audio-visual information in refurbishment
programmes across the transport sector.
Amendments to the Rail Provisions in Part V of
the DDA
5.13 The DCC welcomes the Government's intention
to include in the final Bill measures on setting an end date for
rail vehicle accessibility and regulations to cover refurbishment
of vehicles, subject to the outcome of the ongoing Department
for Transport consultation. However, we are very concerned about
the length of time this important DRTF recommendation is taking
to be acted upon and we hope the Committee will take this opportunity
to investigate both the content and timing of this consultation.
5.14 The DCC is extremely concerned that
2025 is the Government's preferred date by which all rail vehicles
must be accessible. Such a date will mean that trains remain inaccessible
to disabled people long after other forms of transport have become
accessible. Consequently, a crucial link in the transport chain
will be missing, thereby ruling out whole journeys for many disabled
people.
5.15 The DCC feels that the end date should
be set as early as possible. 2017 would be in line with the PSVAR
for buses and would provide disabled people with freedom to move
across the country, having the full choice of transport modes.
Whilst recognising the additional costs that will be incurred
by the rail operators as a consequence of this earlier compliance,
the additional revenue generated as a result of the increased
volume in passengers using the service will, to some degree, offset
such costs. Although this was cited as a benefit that had been
experienced by bus companies complying with similar legislation,
it is not costed in the RIA. It is essential that any future Regulatory
Impact Assessment give full weight to both the costs and the benefits
of the proposals.
Recommendation
We ask the Government to regulate for 2017 as
an end date for all rail vehicles to be compliant with the RVAR.
6. Public Functions (Clause 4)
6.1 We welcome the provisions in the draft
Disability Discrimination Bill that will bring an end to confusion
around the status under the DDA of bodies such as the Highways
Authority who exercise functions as public authorities. However,
we have concerns about the nature of the duties owed to disabled
people by public authorities.
Duty to make adjustments
6.2 The draft Bill states that discrimination
will have taken place when a public authority fails to make adjustments
to the performance of a function that causes a very much less
favourable outcome for a disabled person when it would have been
reasonable for it to carry out the function in other ways to prevent
the function having that effect.
6.3 The wording does not place public authorities
under a sufficiently anticipatory duty. The draft Bill words the
duty in such a way that it focuses on the effects on the individual
in each case. This differs in approach from the anticipatory duty
in Part 3, which is to all disabled persons. This duty has raised
awareness of the DDA amongst service providers who have to assess
disabled people's access needs before they use their services.
The draft Bill does not appear to place a similar duty on public
authorities towards disabled persons and therefore we anticipate
that its effects in widening access would be significantly less
than that achieved under Part 3. In addition, the positive duty
on public authorities demands that the duty to make reasonable
adjustments has an anticipatory element.
Recommendation
For consistency across Part 3 it is necessary
that the new Disability Bill subject public authorities to an
anticipatory duty when exercising their function.
6.4 We also have concerns that the reasonable
opinion test remains as part of justification for failure to make
a reasonable adjustment; the test itself is not appropriate for
a public authority. When the DDA came into force the reasonable
opinion test existed to allow for smaller service providers who
might not have the expertise in-house nor have easy access to
information; and so they may hold genuine beliefs that the treatment
was necessary for reasons related to health and safety or the
costs of equal treatment. However, a public authority should have
access to that expertise and information, and it should have policies
and training in place for staff that make a reasonable opinion
test unnecessary. In addition, as a public authority, best practice
should be expected in relation to accessibility of public functions
for disabled people, again showing the inappropriate nature of
the test.
6.5 The DCC is also very concerned that
regulatory powers exist to add to the list of justifications.
6.6 In addition the DCC would point out
that there is no rational for allowing a failure to make a reasonable
adjustment; either an adjustment is reasonable or it is not. If
it is reasonable in all the circumstances of the case then it
should be made. Failure to make a reasonable adjustment in relation
to employment will not be justifiable after October 2004 and we
would like this approach to be extended.
Recommendation
The Government should remove the "reasonable
opinion" test from the list of justifications. They should
also remove the power to introduce new grounds for justification.
7. Housing (Clauses 6 and 7)
7.1 In order to live an independent life,
it is essential that disabled people have the right to accessible
and affordable housing. Many do not. The 2001 census estimated
that over 18% of the population have a long term limiting illness
or disability. Also there are more people living into their late
70s and 80s when the incidence of disability rises sharply.
7.2 We welcome the introduction of the reasonable
adjustment duty for landlords when renting to disabled tenants.
Landlords and managers may need to change their policies, practices
and procedures or provide auxiliary aids or services, where reasonable.
This would mean that, where reasonable, a landlord might be obliged
to:
— Allow a tenant with mobility difficulties
to leave her rubbish in another place if she cannot access the
designated place.
— Change or waive a term of the letting
to allow a tenant to keep an assistance dog on the premises.
— Change or waive a term of the letting
which forbids alterations to the premises so that a disabled tenant
could make necessary access alterations with the consent of the
landlord.
— A landlord might need to read out
a tenancy agreement to a visually impaired person.
7.3 The DCC is very concerned that the draft
Disability Discrimination Bill does not extend to an obligation
not to unreasonably withhold consent for physical alterations
to their premises. This was a recommendation of the DRTF, and
accepted by the Government in "Towards Inclusion". Instead
the Government is saying that the 1927 Landlord and Tenant Act
makes provision for this situation. However, the use of the 1927
Landlord and Tenant Act ("1927 Act") to plug this gap
in civil rights legislation is insufficient in the rights it affords.
7.4 The 1927 Act only covers current lettings,
providing no right to reasonable adjustments in prospective lettings
accommodation. It also does not cover the common parts of a building:
in many cases a 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). Furthermore the DRC has no power to take cases under
the 1927 Act, and so disabled people are left without representation.
It is also a matter for serious concern that such an important
issue of civil rights for disabled people (independent living)
is left to an area of land law.
7.5 The 1927 Act does not extend to Scotland.
Recommendation
The new Disability Bill should make it clear
that landlords should not unreasonably withhold consent to disabled
tenants to carry out physical alterations.
7.6 The new proposals apply only to landlords,
and do not cover wardens and management committees where people
own their premises. For example, a warden who provided services
to occupiers of individual leasehold properties in a block, would
not be under a duty to make reasonable adjustments for the owner
of one of those flats if he was a deaf BSL-user. Management committees
who run communal areas in privately owned blocks, can lawfully
refuse adjustments to communal areas.
Recommendation
We ask the Government to bring the provision
of benefits or facilities by freeholders for residents (such as
the provision of a warden) into the scope of the new housing provisions.
8. Duties of Public Authorities (Clause 8)
8.1 The DCC welcomes the introduction of
a statutory duty on public authorities to promote equality and
to eliminate discrimination. The current provisions of the DDA
have a strong reactive nature, and can for the most part only
be enforced by individual disabled people; the DDA does not address
institutional discrimination and structural disadvantage caused
by discrimination. The key to change is a proactive duty that
goes further than active encouragement and dissemination of good
practice. The statutory duty to promote equality is therefore
a logical and necessary step forward on the disability anti-discrimination
agenda.
8.2 We hope that this leads to inclusion
of disabled people in planning and decision-making processes.
Further we hope that local authorities will reflect this duty
in their purchasing power to promote disability equality among
contractors and suppliers.
8.3 Unlike the Race Relations (Amendment)
Act 2000, the draft Disability Discrimination Bill does not list
specified authorities.
8.4 Our understanding is that authorities,
such as some examination bodies, standard setting bodies and planning
authorities will be subject to this duty. Currently, an examination
board that sets GCSEs, does not have to comply with the DDA, and
so can refuse adjustments to examination modes. Using a BSL/English
interpreter allows deaf pupils with BSL as their first or preferred
language to demonstrate their subject knowledge rather than their
English skills. Similarly a student may need specialist software
to take an exam, for example, speech software for a student with
visual impairment.
8.5 However, we understand that some examination
boards are not public bodies and would therefore not be covered
by the duty. In this case there would be no means of redress for
a disabled person who had faced discrimination. In addition, even
if the body were a public authority there would, under the general
duty, be no individual right to redress for a disabled person
who has faced discrimination (see also point 16).
8.6 The Approved Document to Part M of the
Building Regulations gives minimum standards to new public buildings.
Our experience is that, when a local authority employs a designated
Access Officer and there is an active and well-supported Access
Group, then consultation between disabled people and the local
authority is far more active. We expect that local authorities
will have to involve disabled people in the planning and building
of the environment. We would like to hear from the Government
if this interpretation is correct.
8.7 In the interests of effective implementation,
the approach to the statutory duty needs to be consistent across
the equality laws. The DCC is of the view that the duty mirrors
the one laid down in the Race Relations (Amendment) Act 2000,
although we would like to hear from the Government why they have
not considered it necessary to formulate a duty to promote good
relations between disabled people and non-disabled people. We
would welcome the publication of draft regulations that list specified
public authorities at the same time as the Disability Bill. Thirdly,
we ask that the provisions enter into force as soon as is reasonably
possible, in order for the Disability Rights Commission (DRC)
to establish a framework, before the Commission for Equality and
Human Rights takes over from the DRC.
Recommendations
We ask that the Government introduce at the
same time as the Disability Bill a Schedule and/or regulations
listing public authorities that are under a specific duty to promote
equality, conform the Race Relations (Amendment) Act 2000. The
duty to promote equality and to eliminate discrimination should
offer the same level of protection as for race.
We ask the Government to establish a framework
to implement the duty as soon as is reasonably possible.
9. Questionnaire for Part 3 Claims (Clause
10)
9.1 The introduction of the questionnaire
follows the recommendations in the DRC's Legislative Review and
in the independent review of the enforcement of UK anti-discrimination
legislation "Equality: A New Framework", and is in keeping
with the recommendations of Lord Woolf in relation to pre-trial
disclosure. The questionnaire is an enormously important tool
in any potential employment discrimination situation, and will
undoubtedly help disabled people in Part 3 cases.
9.2 Currently the timeframe for the questionnaire
procedure places disabled people who need personal assistance
or communication support to draft a questionnaire and to read
the response, at a disadvantage. A longer time frame would allow
disabled people to use personal assistance or communication support,
which may lead to their questionnaires being better drafted and
hence ensuring that all relevant material is disclosed. We would
therefore support an extension of the time limit for Parts 2 and
3 questionnaires to eight weeks. The time limit for service providers
to respond should be placed at eight weeks, the same as the time
limit for employers. This will help a disabled person to consider
the response before deciding whether to press ahead with legal
proceedings.
Recommendation
The Government needs to extend the timeframe
for submitting a questionnaire to ensure that disabled people,
who require communication support or personal assistance, can
benefit fully from the questionnaire procedure.
10. Meaning of Disability (Clause 12)
10.1 The DCC welcomes the inclusion of people
with MS, cancer and HIV from the point of diagnosis in the scope
of protected people. We do, however, have some concerns about
a piecemeal approach to the definition of disability with lists
of individual conditions being covered. We believe that it is
preferable, where possible, to have a comprehensive definition
of disability that will cover all relevant conditions.
10.2 The Disability Rights Commission and
advice services, including that of DCC member Mind, have evidence
that those who suffer discrimination on the ground of their mental
health issues are prevented from bringing cases to an Employment
Tribunal (ET). This is because their impairment does not meet
the current definition of disability. It is very likely that this
also affects cases under Parts 3 and 4. This group of potential
applicants makes up the biggest category of people for who the
DDA is not working. This is particularly troubling given the persistence
of discrimination against people with mental health difficulties
in the workplace.
10.3 The impairments most commonly affected
are depression, eating disorders, self-harm, and schizophrenia.
Currently s. 1 (1) of the DDA defines disability as:
"Subject to the provisions of Schedule 1,
a person has a disability for the purposes of this Act if he has
a physical or mental impairment which has a substantial and long-term
adverse effect on his ability to carry out normal day-to-day activities."
10.4 The problem however arises because
the normal day-to-day activities relate predominately to physical
rather than mental impairments.
10.5 The day-to-day activities that do not
relate to physical functionality specifically are pertinent to
sensory impairment and learning difficulties. The only one of
the listed activities which is specific to the common symptoms
of mental illness is ability to concentrate. Thus a whole category
of impairment type is virtually written out of the definition
of disability. By comparison, overseas legislatures have been
careful to include mental health issues fully.
10.6 The problem faced by people with depression,
as evidenced in recent case-law, is that there may be several
episodes over a relatively short period, but no episode lasts
for 12 months. As NICE points out:
"Depression is usually a time limited disorder
lasting up to 6 months." (Management of Depression, draft
Guideline, 2003)
10.7 Depressive illnesses also have a strong
tendency to reoccur. At least 50 per cent of people following
their first episode of major depression will go on to have at
least one more episode (Kupfer, 1991), with those experiencing
their first episode of depression before the age of 20 being particularly
susceptible to relapse (Giles, Jarret, Biggs et al, 1989).
10.8 In addition, those experiencing depression
may not seek medical advice at the point at which their symptoms
first manifest. This may be due to fear of stigma and/or of the
treatment they may be prescribed. This means that whilst applicants
to an ET may well have been depressed for the requisite period,
there will be no medical record to establish this.
10.9 The long-term test has the effect of
excluding severe, but short-lived depression, Yet, cases demonstrate
vividly that these short-term episodes of depression can give
rise to discrimination simply because of the stigma attached to
the condition. Cases also show that recurrent episodes do not
fit well into the definition of recurrent illnesses because of
clinical disagreements about the aetiology and underlying mechanisms
of depression.
10.10 The current definition requires that
a mental illness be clinically well recognised and by doing so
creates inequality between people with mental illness and all
other disabled people, and thus runs entirely counter to the anti-discrimination
principle which underpins the DDA. This extra legal burden can
be difficult to overcome because of disagreements between medical
experts. It also distracts from the real issue of whether day-to-day
activities have been substantially limited.
Recommendations
We ask the Government that they add to the list
of "day-to-day activities" the following sub-paragraph:
"(i) a person's thought processes, perception of reality,
emotions or judgement;"
We ask the Government to correct the indirect
discriminatory effect of the 12-month test by including an explicit
regulation reducing the length of time an impairment must have
an effect to six months in the case of depression.
We ask the Government to ensure through regulations
or guidance that recurrent episodes of depression are not excluded
from the definition of disability.
We ask the Government to remove the requirement
that mental impairment illness needs to be "clinically well
recognised", and bring this in line with physical impairments,
where such a requirement does not apply.
Recipients of disability-related benefits
10.11 Recently the Employment Appeals Tribunal
in Scotland did not accept that receipt of the Disability Living
Allowance (DLA) is conclusive proof of a disability in the meaning
of the DDA. The DCC would welcome similar regulation as are in
place for people who are registered or certified blind or partially
sighted.
10.12 However, many disabled people do not
claim DLA as a matter of principle, or because they find it difficult
to access the application procedure (RNID, Can't hear—Can't
benefit, October 2001), and safeguards must be in place that non-receipt
of a disability-related benefit is not regarded as a sign that
someone is not disabled in the meaning of the DDA.
Recommendation
We ask the Government to regulate that receipt
of disability-related benefits, such as the Disability Living
Allowance (DLA), is conclusive proof of a disability.
Benefit-related enquiries
10.13 We would also welcome further consideration
being given to whether Respondents will be permitted to enquire
as to whether an application for a disability benefit has been
made and failed. We would not wish such information to be used
against disabled applicants in courts and tribunals. Respondents
must also be prevented from "second guessing" the decision
making of the Department of Work and Pensions by seeking to re-open
the question of whether a person is entitled to a benefit. We
are aware of at least one case where a Respondent sought to show
that a person was not entitled to a particular benefit despite
the Benefits Agency having awarded it. The Respondents were successful
in obtaining an order for disclosure of the person's application
form.
Recommendation
We ask the Government to make it clear that
disability benefit-related enquiries are not permitted.
11. REPRESENTATION
IN PUBLIC
LIFE
11.1 We are pleased that the draft Disability
Discrimination Bill addresses the issue of discrimination against
disabled councillors. We also welcome the Government's proposals
outlined within the Appendix of the Explanatory notes to the Draft
Bill in principle.
11.2 The Government has indicated their
intention to publish the draft provisions in time for the joint
committee to consider. This will leave much less time for those
wishing to scrutinise the proposals and make their views known
to the committee. We will be interested to see how the legislation
is set out to implement the proposals and how many of the proposals
are fully included in the final draft Bill.
11.3 Many public appointments will be covered
after October 2004 and we strongly feel that this piece of legislation
should include those that are still omitted. The DCC believes
that this piece of legislation should not cover just councillors
but all elected officials, for example, elected School Parent
Governors. If councillors are to be given protection under this
legislation then this should be extended to all elected and appointed
representatives in public life that are not covered by legislation
at present, including MPs.
Recommendation
The Government should include the whole range
of elected officials in the draft Disability Bill. We request
that they publish the new provisions in time for adequate consideration
by the scrutiny committee and by members of the public.
WHAT IS NOT PROPOSED IN OR BY THE DRAFT DISABILITY
DISCRIMINATION BILL
12. THE HEARING
OF PART
3 CASES IN
EMPLOYMENT TRIBUNALS
12.1 The draft Disability Discrimination
Bill does not address the well researched difficulties that disabled
people have had and are still experiencing in relation to taking
discrimination cases under Part 3 of the DDA in the County or
Sheriff Courts (The Price of Justice, RNIB, 2000).
12.2 Currently cases of alleged discrimination
in relation to goods, facilities, services and premises are heard
in the County Court (in England and Wales) or Sheriff Court (in
Scotland). This is different to employment cases, which are heard
in Employment Tribunals.
12.3 The available numbers illustrate the
huge gap between the number of cases heard in the Employment Tribunals
and those taken to the County of Sheriff Courts, demonstrating
the consequences of the expense and risks associated with taking
cases in the courts:
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)", Income
Data Services & DWP, February 2002.)
Cost of bringing a claim
12.4 Unlike Employment Tribunals, the County
and Sheriff Courts require a fee in order to issue a summons and
begin proceedings. This fee varies according to how much and what
is being claimed in the case, and is not payable by people on
income support or in severe hardship. However, knowledge of this
exemption is not widespread and the initial fee is beyond the
means of many.
Allocation of the case to a track
12.5 In addition, the track to which a case
is allocated can determine whether or not a claimant pursues the
case. Claimants will want to keep cases in the small claims track
where costs are unlikely to be awarded against them if they lose
(unless they have acted unreasonably). However, it is open for
defendants to argue that the case be heard in the fast or multi-track
(costs are fixed in the fast-track, but potentially unlimited
in the multi-track).
12.6 Where a defendant is successful in
getting the case allocated to the fast or multi-track, in most
cases a claimant without legal aid or support from the DRC, disability
organisation or others, will have to withdraw their claim due
to the potential financial implications of losing the case and
having the defendant's costs awarded against them.
12.7 It is imperative that disabled people
have access to justice. Otherwise the DDA is little more than
a voluntary code. We propose the following measures:
— All discrimination cases should be
commenced in employment tribunals. Where the matter does not relate
to employment the tribunal should be designated an equality tribunal.
This is in line with the Independent Review of the Enforcement
of UK Anti-Discrimination Legislation.
— Lay members who are called to hear
cases should have knowledge and experience of the relevant field;
additional members should be appointed with relevant knowledge
in respect of education and consumer affairs.
— The President of Tribunals or a Regional
Chairman should have the power to transfer a matter to the County
Court either on application by a party or of his or her own motion.
The criteria for transfer should include:
— whether it would be more convenient
or fair for the hearing to be held in County or Sheriff court,
having regard to the facts, legal issues, remedies and procedure.
— the availability of a judge specialising
in this type of claim.
— the facilities available at the tribunal
and at the court where the claim is to be dealt with and whether
they may be inadequate because of the disabilities of a party
or a potential witness.
— the financial value of the claim
and the importance of the claim to the public in general.
12.8 Equivalent provisions should be made
for the transfer of cases to the Sheriff Court in Scotland.
Recommendation
The Government has to make provision that Part
3 cases can be heard in an Employment or Equality Tribunal, with
the power to transfer cases to the courts.
13. POWER OF
EMPLOYMENT TRIBUNALS
TO ORDER
REINSTATEMENT OR
RE-ENGAGEMENT
13.1 Currently an Employment Tribunal, when
ruling in favour of a disabled person who has taken a disability
discrimination case against an employer, does not have powers
to order the reinstatement of that person in their job or re-engagement
if requested. This is unlike cases of unfair dismissal, where
the power of reinstatement already exists.
13.2 Disabled people are almost twice as
likely to be unemployed as non-disabled people, face additional
barriers to gaining and retaining employment, such as discriminatory
adverts (which the draft Bill addresses), discrimination at recruitment
stage, an inaccessible transport system and inaccessible workplaces.
For these reasons it makes sense to offer disabled people who
win disability discrimination employment cases the same option
of reinstatement available to people who win unfair dismissal
cases, so they can go back to their job or be re-engaged if that
is an option they wish to take up.
13.3 In some cases a breakdown in employer-employee
relations will have occurred prior to the case being heard that
will make reinstatement an unattractive proposition. However,
we feel that the option of reinstatement should exist and legislation
should be harmonised.
13.4 Currently there is no limit on the
compensation that can be awarded in cases of disability discrimination.
With unfair dismissal cases there is a £50,000 ceiling. It
is imperative that giving tribunals powers of reinstatement in
relation to disability discrimination does not lead to limiting
compensation awards. As an employer could defy a reinstatement
order, leading to a further compensation claim, such a limit to
compensation awards would act against the interests of disabled
people who have faced disability discrimination. In addition,
those for whom reinstatement or re-engagement is not appropriate
need unlimited damages to be maintained.
13.5 The DRTF recommended this and the Government
agreed in "Towards Inclusion".
Recommendation
We ask the Government to follow up their commitment,
by granting employment tribunals the power to order re-instatement
or re-engagement.
14. VOLUNTEERS
14.1 Within the draft legislation there
is no mention of discrimination against volunteers on the basis
of disability. Many of those who hold the status of unpaid members
within places of employment such as those undertaking work placements
will be protected by Part 2 DDA from October 2004. This legislation
could be an opportunity to offer protection from discrimination
to volunteers on the basis of disability. Rights that could be
offered could include many of those that are offered to disabled
people in the work place already, such as rights to reasonable
adjustments, protection if an individual should acquire an impairment
whilst already volunteering, discriminatory terms and conditions
and rights around selection for volunteer posts.
14.2 Volunteering is important for many
disabled people. They may be finding it difficult, because of
discrimination, to find paid employment and need the practice
of voluntary work before being able to get paid work; some may
be making their way back into full employment and may not yet
be ready for full time employment; or they may be people who want
and need to participate in work but who are unable to take on
paid work. For this last group, volunteering is key to overcoming
social exclusion. In this light it would be a glaring omission
if discrimination against volunteers on the basis of disability
was not addressed within this legislation.
Recommendation
We ask the Government to bring volunteers under
the protection of the DDA.
15. DISABILITY-RELATED
ENQUIRIES
15.1 A person should not have to disclose
a disability at the point of application. Proper procedures should
be in place to ensure that candidates are selected for interview
before any enquiries are made about the need for reasonable adjustments
either at interview or in the job. In order to protect people
from intrusive questions about medical records that are not relevant
to the job in question, they should not be permitted on application
forms.
15.2 The use of disability-related questions
may reinforce prejudice in employers, who may read the application
form in a different, less positive light. What is relevant is
that a person meets the requirements of the job description, not
whether a person has a disability or not. The equal opportunities
form helps Human Resources to monitor their equal opportunities
policy, like it does for race and gender.
Recommendation
The Government should make provision that disability-related
enquiries are kept to an absolute minimum, and only used when
it is the only means to achieve a necessary objective, for example,
if the employer wants to recruit a person with a specific disability.
This was recommended by the DRTF, which was made up of disability
organisations and business.
16. DUTIES ON
EXAMINATION AND
STANDARD SETTING
BODIES
16.1 As outlined in 8.4, the draft bill
does not comprehensively address the issue of exam and standard
setting bodies who are not covered by the DDA. The general duty
on public authorities to eliminate discrimination and promote
equality of opportunity will not extend to some bodies who are
not public authorities. This leaves disabled students and professionals
seeking qualifications with no means of legal redress.
Recommendation
The Government should make examination and standard
setting bodies subject to Part 4 of the DDA. This would bring
them into line with other education providers and ensure that
an anticipatory duty to make reasonable adjustments works across
all areas of learning and assessment.
February 2004
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