Memorandum from Disability Agenda Scotland
(DAS) (DDB 52)
Disability Agenda Scotland (DAS) is an alliance
of Scotland's leading disability organisations[37],
founded in 1998. Together our experience, expertise and interests
cover physical disability, sensory impairment, learning disability
and mental health problems.
DRAFT DISABILITY
DISCRIMINATION BILL
1. DAS broadly welcomes the publication
of this draft Bill and is pleased that it implements a number
of the outstanding recommendations made by the Disability Rights
taskforce in their report, From Inclusion to Exclusion. We particularly
welcome the extension to cover transport and the new duty on the
public authorities to promote disability equality. However, we
have a number of concerns which are outlined below.
REGULATION MAKING
POWERS
2. The Bill contains significant regulation-making
powers. We urge the Joint Committee to give careful consideration
to this as we are concerned that matters left to be specified
in regulations are unlikely to attract the same level of consultation
and scrutiny as the Bill. It appears that many of the regulation-making
powers will be subject to "negative" procedure, rather
than "affirmative". We would question the extent to
which this is appropriate. In particular, we believe that regulations
in relation to key issues such as transport should be subject
to affirmative procedure.
DEFINITION OF
"DISABILITY"
3. The definition of "disability"
within the DDA operates to unfairly exclude many people with mental
health problems. This has been highlighted by the Disability Rights
Commission (DRC) in its report Disability Equality: Making it
Happen, and by mental health organisations such as the Scottish
Association for Mental Health (SAMH). We consider it a serious
omission that this issue is not addressed in the draft Bill.
4. There are a number of ways in which the
definition could be amended in order to help address this:
(a)
The requirement in Schedule 1 of the DDA that a mental
illness must be "clinically well recognised" should
be removed. This requirement does not apply to physical impairments.
Why should those with mental health problems face an extra hurdle?
This seems rather incongruous in legislation which aims to protect
vulnerable people from discrimination.
This requirement has caused difficulties in
practice. Psychiatry is not an exact science. People may not be
given a diagnosis, there may be disagreements between professionals
as to diagnosis or there may be changes in diagnoses over relatively
short time periods.
(b)
The list of "normal day to day activities"
in schedule 1 should be revised. This list is intended to be exhaustive
and seems to have been framed largely with physical and sensory
disabilities in mind. Whilst two of these activities would relate
to mental health problems, they do not adequately cover the range
of debilitating effects that users of mental health services may
experience eg impairments of thinking, feeling or social interaction,
voice hearing, self-harm, panic attacks, insomnia, agoraphobia
etc.
The list should cover: "ability to communicate
and interact with other people", "ability to care for
oneself" and "the ability to perceive reality".
We understand that the list of "life activities"
(the equivalent of our "normal day-to-day activities")
in the Americans with Disabilities Act 1990 includes sleeping.
We believe that this should also be incorporated.
The category of "perception of physical
risk" should be revised so that "self-harming behaviour
is clearly included.
(c)
An impairment's substantial adverse effects must
either last for 12 months or be shown to be likely to recur, to
qualify as a "disability" in terms of the Act. The DRC
has highlighted that this is proving to be a persistent barrier
for people with depression and anxiety disorders. We agree with
their view that the qualifying period should be reduced from 12
to 6 months for people with depression.
DISABILITY-RELATED
ENQUIRIES BEFORE
A JOB
IS OFFERED
5. We would like to see the Bill amended
to ensure that disability-related enquiries before a job is offered
are permitted only in very limited circumstances eg to enquire
as to whether someone requires reasonable adjustments to selection
procedures.
DISCRIMINATION BY
PUBLIC AUTHORITIES
6. We are concerned about the term "very
much less favourable" as it appears in the new section 21D(2)
inserted by clause 4. In addition to being very clumsily worded,
this sets a higher threshold than other parts of the Act. We can
see no justification for this and believe that the appropriate
threshold would be "substantial disadvantage", which
would mirror the threshold in relation to education and employment.
February 2004
37 DAS members: Capability Scotland, Enable, RNIB
Scotland, RNID Scotland, Scottish Association for Mental Health
(SAMH) and Sense Scotland. Back
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