Memorandum from the Parliamentary Under
Secretary of State for Work and Pensions (DDB 131)
I was very pleased to be invited to give evidence
to the Joint Committee yesterday on the Government's thinking
behind, and approach adopted in, the draft Disability Discrimination
Bill. The draft Bill is the next step toward comprehensive civil
rights for disabled people and it is important to ensure its provisions,
and how they interact with those in the Disability Discrimination
Act 1995 (DDA), are clearly understood.
I said I would write on some further issues
and there are a few matters we discussed where you may find it
helpful to have my additional comments.
PUBLIC BODY
DUTIES
I would like to clarify a few points from our
discussion on clauses 4 and 8 of the draft Bill.
First, we discussed the difference between a
public function and a service. All the activities of public authorities
are, in fact, functions of those authorities, but some of these
may relate to employment or be classified as services under Part
3 of the DDA. The Government believes that the relationships between
service providers and users, and between those exercising public
functions and people affected by the exercise of those functions,
are similar in nature. As a consequence we intend to impose the
same duty to make reasonable adjustment on both service providers
and public bodies exercising functions; that is an anticipatory
duty which bites when a trigger equivalent to the "impossible
or unreasonably difficult" trigger at s. 21 of the DDA is
activated.
This avoids any confusion if it is unclear whether
a particular function (such as the maintenance of highways) constitutes
the provision of a service, as the same type of duty would apply
to all the activities of the authority.
I would also like to clarify a couple of points
of detail in our discussion:
— the exemption (at s. 21C(5) of the
draft Bill) for acts of allocating prisoners applies to the allocation
both to prisons and within prisons;
— a care home would not necessarily
meet the definition of a public authority in the draft Bill. Private
sector bodies can and do provide such homes with and without public
funding and therefore their provision is not a function of a public
nature.
Finally, in relation to the duties imposed by
s. 75 of the Northern Ireland Act 1998, I fear that the Committee
may be operating under a misapprehension. The duty to promote
good relations only applies in respect of racial origin, religious
and political belief, and does not extend over the remaining six
equality grounds (disability, gender, age, sexual orientation,
marital status and whether a person has dependents) which are
covered only by the duty to promote equality of opportunity imposed
by that section. Similarly, the positive equality duty imposed
by s. 404 of the Greater London Authority Act 1999 covers six
equality grounds (race, disability, gender, age, religious belief,
and sexual orientation), but imposes a duty of good relations
only in respect of race, religious belief and sexual orientation.
Our Bill would therefore follow the precedents set by other UK
legislation.
MENTAL HEALTH
CASES
I agreed to provide the Committee with details
of my analysis of tribunal cases relating to discrimination against
persons on the grounds of mental impairment.
The Department is routinely notified of cases
submitted to Employment Tribunals, including those involving a
claim under the DDA. My analysis is based on cases known to the
Department involving a preliminary or substantive hearing before
an Employment Tribunal during the six month period 1 September
2003 and 29 February 2004. This produced a sample of 100 cases.
Of these, 31 concerned a person who was pursuing a claim on the
basis that their disability arose from a mental impairment. In
nearly 90% of these cases (ie 27 out of 31), the applicant was
able to demonstrate that they met the current definition of disability.
This included people whose impairments were described as depression,
stress and anxiety. Only four were unable to prove that they met
the definition. This was largely on the basis of lack of provision
of adequate medical evidence.
We also examined a number of cases that went
to an Employment Appeal Tribunal (EAT) between January and December
2003. We identified 42 cases in total, 13 of which concerned a
person with a mental impairment. In only two of these cases did
the person fail to meet the current definition of disability.
That was because they failed to provide sufficient medical evidence.
I am aware that the Committee have been provided
with details of a number of tribunal cases in which the applicant
has a mental impairment. I thought it might be helpful to provide
a summary of three particular cases of interest. This is attached
at Annex 1. The Committee will wish to note, in particular, that
EAT decisions in the cases of Goodwin and Morgan provide important
guidance for future interpretation in similar cases.
RESEARCH AND
MONITORING
You asked me about the analysis of cases in
the report Monitoring the Disability Discrimination Act 1995 (Phase2),
published by my Department.
This report was based on a statistical analysis
of claims brought under both Part 2 and Part 3 of the DDA. The
Part 2 cases analysed represented all known tribunal cases issued
and/or decided in the United Kingdom for the period 2 December
1996 to 1 September 2000, a total of 8,908 cases. The analysis
of Part 3 cases is based on cases issued and/or decided for the
period 2 December 1996 until 1 February 2001. Only 53 Part 3 cases
were identified.
It should be noted, however, that the two figures
are not directly comparable. Those for the Part 2 cases cover
a period during which the full employment provisions were in force.
In contrast, the Part 3 duties were introduced in stages and,
in particular, the most important provision for disabled people—the
duty to make adjustments—has been one that has not been
fully in place during the period. Service providers have been
under a duty not to refuse to serve a disabled person since December
1996, but the duty to make reasonable adjustments to policies,
practices and procedures, or to provide auxiliary aids only came
into force in October 1999. Thus the main duties for service providers
had only been in force for 16 months by the end of the period
covered by the research. lndeed, a requirement to make adjustments
to physical features will only apply to service providers from
October this year and duties applying to transport vehicles will,
subject to the Bill becoming law, not be in place until after
Royal Assent.
You also asked for my views on the findings
of further research undertaken by the Institute for Employment
Studies on behalf of the DRC, in partnership with my Department
and the Equality Commission for Northern Ireland, monitoring the
implementation of the DDA. This is the third phase of a series
of studies in this area. The two previous studies are already
published: Monitoring the Disability Discrimination Act (DDA)
1995, DfEE Research Report RR119, May 1999, and Monitoring
the Disability Discrimination Act 1995 (Phase 2), DWP In-house
Report 91, 2002. If you do not already have them I would be happy
to arrange for you to receive copies of both of these reports;
the Clerk to the Committee can speak to the Bill team about this.
However, I understand that the Phase 3 Report is still being finalised
by the DRO and will not be published by the Commission until around
the end of April. I am unable to comment, therefore, on its findings
or to offer to provide a copy to the Committee at this stage.
OFFICE HOLDERS
AND LAY
MEMBERS
I agreed to clarify the detail behind our discussion
on office holders.
The legislative framework protects office holders
from disability discrimination (including failure to make a reasonable
adjustment) in a number of separate provisions:
(1) The 2003 Amendment Regulations insert
new sections 4C-4F into the Disability Discrimination Act 1995
(from 1 October 2004). This provides protection where:
— the office or post holder is personally
appointed to perform functions under the direction of another
person and for which they are entitled to remuneration (remuneration
excludes expenses or payment for loss of other income); or
— the office or post is one to which
appointments are made, recommended by, or subject to the approval
of a Minister of the Crown, a Government department, the National
Assembly for Wales or any part of the Scottish Administration.
This protection is identical to that under the
Race Relations Act and the Regulations implementing the Employment
Directive provisions on sexual orientation and religion and belief.
(2) Clause 15 of the draft Bill provides
protection to councillors and members of the Greater London Authority
when carrying out official business.
(3) Clause 4 of the draft Bill provides
protection whenever a public authority exercises its public functions.
This may include the appointment to offices or posts, making arrangements
for such appointments or anything in relation to office holders
of a public nature.
This means that lay magistrates are covered
(by new sections 4C-4F) because their appointment is made either
by the Crown or the Chancellor of the Duchy of Lancaster on the
recommendation of the Lord Chancellor/Secretary of State for Constitutional
Affairs.
While lay members of local authority standards
committees in England and Wales are not covered by sections 4C-4F
or by clause 15, clause 4 would be likely to apply to their appointment
and their on-going relationship with the authority.
We also discussed school governors. In the context
of state schools, I can confirm that clause 4 would apply to the
arrangements for their election, or their appointment or co-option,
and to the ongoing relationship between the governing body and
the governors themselves.
This is a very comprehensive package of protection
for a wide range of offices and posts in which the Government
has set a clear lead for others to follow.
PRIVATE CLUBS
I explained to the Committee that the Government's
intention is to consult widely on how and when the practical duties
under the Bill would come into force. To facilitate this, we intend
that the reasonable adjustment duties for private clubs will be
set out in Regulations made under the powers introduced by Clause
5 of the draft Bill. They will not be set out on the face of the
Bill.
Finally, I am grateful to you for you providing
a copy of the letter of 24 March from the Rt Hon Jean Corston
MP concerning the meaning of public authority in the draft Bill.
We had a lengthy discussion on the definition of an authority
yesterday, but I would be happy to respond to any further specific
concerns the Committee may have.
I look forward to the Committee's final report.
Please let me know if I can be of any further assistance in the
meantime
Maria Eagle MP
April 2004
| 
