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