Memorandum from Turning Point (DDB 47)
INTRODUCTION
1. Turning Point is the UK's largest social
care charity providing services across a range of health and disability
issues including substance misuse, mental health and learning
disability. We have been providing mental health services in England
for the last 20 years and learning disability services for the
last 10 years. The range of services across both sectors spans
residential and day support and community services including assertive
outreach.
2. We have particular expertise in working
with people with complex needs and who are facing multiple social
challenges. For example, we support people with a learning disability
who have high support needs, including profound and multiple learning
disabilities, challenging behaviour or additional mental health
needs. The majority of our mental health services are for people
with severe and enduring mental illness, who may have associated
issues such as substance misuse, a learning disability, homelessness
or offending behaviour.
3. Turning Point welcomes the publication
of the Draft Disability Discrimination Bill and the progress this
represents for disabled people. We are also pleased that the Bill
is subject to consultation, but it is important that legislation
is introduced as soon as possible. We are, however, disappointed
that it took nearly two months for an accessible version of the
Bill to be published. The Bill is about preventing discrimination,
but the very way it was published was discriminatory.
THEME 1. WHETHER
THE DRAFT
BILL'S
PROPOSALS ARE
NECESSARY, WORKABLE
AND SUFFICIENT
4. People with a learning disability or
mental health problem experience discrimination in many areas
of their lives. The discrimination they experience is often a
result of assumptions and prejudices people have about what it
means to have a mental health problem or learning disability.
The Disability Discrimination Bill is essential to working to
end this discrimination as it sets out a clear message that discrimination
is unacceptable and unlawful. It also provides a formal mechanism
for redress when discrimination occurs.
5. We are however concerned that the Bill
does not fully recognise:
— That the nature of discrimination
people with a learning disability or mental health problem face
is not only related to the physical environment but also to the
non-physical environment, attitudes and a lack of understanding.
— That although many issues facing
people with a learning disability and people with a mental health
problem are common and require the same solution, there are areas
where there are distinct differences that require distinct solutions.
— That people with complex needs, for
example someone with a co-existing learning disability and mental
health problem, face particular discrimination. People with complex
needs can be discriminated against because they do not fit into
the usual "categories". This can mean that they are
refused access to mainstream services and the support they need,
or are not considered or involved in policy development or consultations.
Also, often misunderstandings and presumptions about quality of
life can lead to access to support or treatment services being
refused.
Transport
6. The Bill should make clear that accessible
transport is not only about making the transport physically accessible.
The barriers people with a mental health problem or learning disability
face in accessing transport also relate to how information is
provided and also to attitudes and understanding of staff. For
example, some users of Turning Point's mental health services
have had to explain and justify their disabled "status"
when presenting their bus passes to bus drivers who have commented
that they do not "look disabled".
7. To make sure transport is accessible,
the Bill should make sure that information about travelling is,
as far as possible, accessible to people who may find conventional
information hard to understand due to their disability. This should
include clear and easy to understand signs and travel information.
Timetables, which are often complex and difficult should be produced
in larger font and should be as clear as possible. Audio and visual
announcements detailing where the bus or train will be stopping
next or changes to the route should be made. Disability awareness
training for transport staff is also important so that the impact
of different disabilities are better understood. This will mean
that transport staff are more sympathetic to requests for help
and have a more sophisticated approach to providing people with
information.
8. We are also disappointed that the transport
provisions do not yet cover shipping or aviation. This is particularly
important given the recent case when Easy Jet initially refused
to allow a group of young people with a learning disability to
fly without more supporters.
9. Turning Point therefore recommends that
training and clear guidance is giving about what sorts of adaptations
may be needed, including the examples given above, to make sure
that services and transport consider the non-physical elements
of accessibility.
Public Sector Duty (clause 4)
10. Clause 4 will make it unlawful for a
public authority to discriminate against a disabled person in
carrying out its functions.
11. We welcome these provisions and the
inclusion of the public authorities in the scope of the Disability
Discrimination Bill. The explanatory note to the Bill says that
the definition will include Government Departments, local authorities,
the police and other governmental organisations, but it is not
clear what other public authorities will be included. It would
be helpful if the Bill set out in a non-exhaustive list the public
authorities that are included. This is important so there is clarity
for disabled people about which bodies are covered.
12. We also think that it is important that
public authorities receive disability awareness training so that
they are aware of how they may discriminate against a disabled
person. It is important that this training is developed with and
by people with a disability so it reflects their experiences of
discrimination. It is particularly important that public authorities
understand that disabilities are not uniform and so a variety
of solutions are needed.
13. We are also concerned that there is
no anticipatory duty for public authorities. This means that policies,
practices and procedures will not have to change in advance. Disabled
people will have to experience discrimination before being able
to challenge the public authority to make a reasonable adjustment
to the function they are providing. We would prefer an anticipatory
duty to make reasonable adjustments, as this would help minimise
the need for disabled people to make challenges and it has been
shown to be more cost effective to make anticipatory changes.
14. Turning Point recommends that a non-exhaustive
list of public authorities covered by the Bill is published and
that public authorities receive disability awareness training.
Turning Point also recommends that the Bill include an anticipatory
duty to make reasonable adjustments.
Private clubs—Clause 5
15. We welcome this provision but because
the detail is left to regulations it is not clear what impact
this will actually have. It is important that clubs are accessible
to ensure consistency across a range of premises and they are
also places where people's attitudes towards disabled people may
be challenged.
16. We are also concerned that the Bill
does not cover communal areas of privately owned blocks of flats.
This should be brought within the scope of the Bill so that management
committees cannot unreasonably refuse consent to make adjustments
to common parts of privately owned premises.
Premises (Clause 6)
17. Turning Point welcomes this provision.
Accessible and affordable housing is essential for promoting social
inclusion and for ensuring that people with a learning disability
or mental disorder have the same choices over where they live.
At the moment they don't—only 6% of people with a learning
disability have control over where they live and with whom[30].
We are however concerned that the Government is relying on the
Landlord and Tenant Act 1927 as a mechanism for ensuring that
Landlords do not unreasonably withhold consent when adaptations
are requested. We consider that this should be brought within
the scope of the Bill so that the DRC has powers to support and
take cases forward.
Public Functions (Clause 8)
18. Clause 8 makes it a duty for public
authorities to have due regard to the need to eliminate unlawful
discrimination against disabled people, the need to eliminate
unlawful harassment and the need to improve equality of opportunity.
19. Turning Point particularly welcomes
this clause. Specifically, we are pleased that there is a duty
on public authorities to work to eliminate unlawful harassment.
This is very important for people with a learning disability or
mental health problem. We think it is crucial that local authorities
use the power in the Bill to try to end the harassment of people
with a learning disability or mental health problem. Two thirds
of people with a learning disability say that they have been bullied
more than once a month[31].
Many of these people say that it was one of their own neighbours
who bullied them. People with mental health problems are also
more likely to report having being bullied or experience violence
in the home[32].
This is not right and working to end harassment should be a priority
for local authorities. This should include training people with
a learning disability or mental health problem. This will help
them know what harassment is, understand what their rights are
and what to do if they have been harassed. The police and social
services staff should also be trained so that they take cases
of harassment seriously and know what powers they can use to stop
it, such as Public Harassment Act 1997.
20. We are however disappointed that there
is no equivalent to the duty in the Race Relations Amendment Act
to promote good relations between persons of different ethnic,
racial and national groups. We consider that an equivalent duty
in the Disability Discrimination Bill would be beneficial as otherwise
public authorities may take its absence to mean that the issues
tackled in relation to race have no relevance for people with
a disability.
21. Turning Point recommends that the ending
of harassment of people with a learning disability or mental health
problem is made a priority for local authorities.
Employment
22. The Bill does not adequately address
the discrimination people with a mental health problem or learning
disability face when trying to get a job. Fewer than 1 in 10 people
with a learning disability are in employment and 39% of adults
of working age with a mental illness do not have a job[33].
23. People with a mental health problem
often have to face stigma and misunderstanding when looking for
employment. Questions on application forms are often framed retrospectively,
for example: "Have you ever . . .?" with no time limit
or opportunity to give details around the circumstances such as
reactive depression to a life-event. As well as being discriminatory
this can act as a major disincentive to applying for jobs which
reinforces the social exclusions people with mental health problems
have to face. Turning Point therefore proposes that the Bill stipulates
that confidential non-essential information is not sought until
after a job offer and that disability related enquiries before
a job is offered may only be allowed in very limited and specific
circumstances
24. In addition, Turning Point recommends
that the legislation should be extended to cover those undertaking
voluntary work in all forms. Voluntary work is valid in its own
right and is vital to building self-esteem, social networks and
community integration. For people with a learning disability,
voluntary work can be the first step to getting paid employment.
Similarly, for people with mental health problems voluntary work
can ease the transition back into employment in incremental stages.
Voluntary placements in "real" work settings are an
essential step in this process—for example giving practice
at interview techniques and opportunities to develop their skills.
THEME 2. WHEN
THE BILL'S
PROVISIONS SHOULD
COME INTO
FORCE
25. We consider that the Bill's provisions
should come into force as soon as practicably possible. We support
the DRC in calling for all provisions to be in force and fully
implemented by the end of 2006. We also support the DRC in calling
for the Joint Committee to press for an earlier date than 2025
for when all rail vehicles must be accessible.
THEME 3. WHAT
SHOULD BE
IN THE
REGULATIONS, ORDERS
AND CODES
OF PRACTICE
PROPOSED IN
THE DRAFT
BILL
26. Much of the Bill is left to regulations.
This means that many of the details of the Bill are unclear. The
Government should publish draft regulations early so the full
detail of the Bill can be assessed and commented on, but this
should not delay progress. In addition it is also important that
codes are developed for consultation and that accessible versions
are provided so that consultation is properly inclusive. The codes
must set out the specific issues people with a mental health problem,
learning disability, or complex needs can face and how services
and public authorities should respond.
THEME 4. THE
ADEQUACY OF
THE ENFORCEMENT
PROCEDURES
27. The court system is often too expensive
to pursue claims in relation to goods and services. This is clear
when the difference in number of cases pursued is examined.[34]
We therefore support the DRC's recommendation that Part 3 of the
DDA should be enforced through accessible tribunals rather than
through the courts. This is particularly important for many people
with disabilities who find the court system inaccessible, intimidating
and stressful.
28. As well as making the court and Tribunal
system more accessible, the Bill will extend the remit of the
DRC. Whilst this is welcome, the DRC is already overloaded with
calls. The Government must make sure that the DRC is properly
resourced to be able to deal with the increase in calls and inquiries
that it will no doubt receive.
THEME 5. WHETHER
THE DRAFT
BILL ACHIEVES
THE RIGHT
BALANCE BETWEEN
SECURING THE
RIGHTS OF
DISABLED PEOPLE
AND IMPOSING
DUTIES AND
COSTS ON
THE PRIVATE
AND PUBLIC
SECTORS
29. We consider that the balance is consistent
with the Government's policy of developing comprehensive and enforceable
civil rights for people with a disability.
THEME 6. THE
PROPOSED CHANGE
TO THE
DEFINITION OF
DISABILITY
30. Turning Point welcomes the extension
of the definition of disability to include people with MS, cancer
and HIV, but does not believe that the draft Bill sufficiently
addresses the discrimination experienced by people with mental
health problems, both in relation to goods and services and employment.
31. We bring the Committee's attention to
the current work of the Social Exclusion Unit. This highlights
the extensive discrimination faced by people with mental health
problems and the need to move more such people into work since
one third of people coming onto Incapacity Benefit cite mental
health problems as their main disability. At the same time, numerous
Department of Health policies and guidance stress the importance
of making mental health services more accessible and appropriate.[35]
This can be helped by employing appropriately qualified staff
who also have experienced periods of mental ill health. However,
this will only happen if such workers have confidence that legislation
to tackle discrimination is in place.
32. We believe that three aspects of the
definition of disability are problematic:
(a) The list of normal day-to-day activities
(in Schedule 1, section 4), predominantly concerns physical disabilities—"memory
or ability to concentrate or understand" being the most relevant
to mental illness. However, case law has shown that this description
still potentially excludes many with mental health problems, particularly
people with schizophrenia or eating disorders.
Turning Point recommends that the list should
be revised so that mental illness is more explicitly and clearly
covered.
(b) The requirement that impairment has a
substantial and long-term adverse effect. This clause is particularly
problematic for people with depression. A period of depression
may be severe, require treatment in hospital, and attract considerable
stigma, but may only last three months, leaving a person no protection
under the Bill.
Turning Point recommends that in the case of
depression, the time period is shortened from 12 to six months.
(c) We believe that the requirement that
mental illness is clinically well recognised is discriminatory,
since it is not required for physical conditions. Therefore this
requirement should be removed.
THEME 7. WHETHER
THE RANGE
OF "TRIGGERS"
IN THE
DRAFT BILL
FOR REQUIRING
REASONABLE ADJUSTMENTS
ARE APPROPRIATE
33. We are disappointed that the Bill does
not set out a coherent view on the level at which a disabled person
is entitled to a reasonable adjustment. This means that the rights
of individuals and the obligations on service providers and public
authorities will vary depending on the sector and the service
provided. We consider that it is illogical that that the law sets
different tests for what amounts to discrimination in different
sectors. It is also confusing.
34. Turning Point recommends that a consistent
approach is taken with harmonised triggers across all the Disability
Discrimination legislation. We recommend that the trigger should
be where there is a "substantial disadvantage".
THEME 8. HOW
THE DRAFT
BILL REFLECTS
THE GOVERNMENT'S
2001 MANIFESTO COMMITMENT
TO EXTEND
BASIC RIGHTS
AND OPPORTUNITIES
FOR DISABLED
PEOPLE
35. The Bill certainly reflects the Government's
manifesto commitment, however more needs to be done so that people
with a disability have the same rights and opportunities as people
who do not have a disability.
36. For example, people with a learning
disability or mental health problem are more likely to experience
social exclusion than others. But, there is evidence that Government
programmes to tackle social exclusion have not looked fully enough
at disability or in engaging their communities. We welcome the
Social Exclusion Unit's consultation on mental health and hope
they will look at how social exclusion effects people with other
disabilities.
37. Mainstream policy agendas need to take
into account as a matter of course the issues people with a learning
disability or mental health problem face. This is not happening
yet. For example, the Choice initiative by the Department of Health
did not adequately deal with the problems people with a learning
disability or mental health problem face in accessing services,
let alone exercising choice.
38. Finally, Turning Point considers that
greater provision of independent advocacy is integral to extending
the basic rights and opportunities for disabled people. This is
because advocacy helps to ensure that people are not deprived
of their rights through lack of information, lack of resources
or lack of someone to speak up for them. Turning Point feels that
advocacy plays an essential role in helping people to have a say
in their lives and what services they want. We recommend the greater
use of advocacy support in general but particularly when significant
decisions need to be made, such as medical treatment, where to
live and perhaps decisions on work and benefits, or for people
with complex needs, who may not otherwise have networks of support.
This will go a long way in making sure people with a learning
disability or mental health problem are able to exercise their
rights and maximise their opportunities.[36]
Finally, Turning Point fully supports Mind's
submission to the Committee and is part of the consortium of learning
disability groups (including Mencap and Bild) that made a joint
submission to the Committee.
February 2004
30 Valuing People White Paper. Back
31
Mencap. Back
32
ONS. Back
33
Mencap and Sainsbury Centre for Mental Health. Back
34
There have only been 53 cases brought under part 3 of the Disability
Discrimination Act which have gone to court, whereas there have
been over 8,000 employment Tribunal claims. Back
35
For example, the National Service Framework for Mental Health,
Delivering Race Equality: a framework for action; Choice, responsiveness
and equity in the NHS and social care. Back
36
See also Advocating for Equality by Wendy Lewington and
Caroline Clipson for the Independent Advocacy Campaign. Back
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