Memorandum from the Disability Law Service
(DDB 60)
INTRODUCTION
1.1 The Disability Law Service (DLS) is
a registered national charity established since 1975. It employs
solicitors and legal advisers who, together with trained volunteers,
provide legal advice and a casework service for disabled adults
and children in five areas of public and social welfare law. These
are Community Care, Consumer and General Contract, Education,
Employment and Welfare Benefits. A significant proportion of its
work involves disability discrimination and it has been providing
legal advice and taking up cases on behalf of individuals in this
area of law since the Disability Discrimination Act 1995 came
into force.
1.2 In the following submission DLS draws
upon 29 years' experience tackling the legal problems of individual
disabled people, most of whom are seeking to gain the education,
employment, social care and benefits enabling them to achieve
independence and inclusion in the life of their community.
1.3 DLS welcomes the draft Disability Discrimination
Bill and the implementation of important recommendations of the
Disability Rights Task Force. The measures proposed demonstrate
a significant step towards tackling the inequality and social
exclusion experienced by disabled people in this country and contributes
to the implementation of the Government's 2001 manifesto commitment
to extend basic rights and opportunities for disabled people.
1.4 We hope that, following the implementation
of the recommendations from the Joint Committee, the Government
will introduce the Bill within a timeframe to ensure that the
provisions come into force before the Disability Rights Commission
is merged within the Commission for Equality and Human Rights.
1.5 DLS wishes to highlight a number of
issues it believes will clarify and strengthen the legislation,
avoiding costly legal cases to establish points of law.
ENFORCEMENT
2.1 49 (f) DLS seeks clarification on how
the county court order enforcing a compliance notice would itself
be enforced. Without guidelines from the legislation, there is
a risk that there may be an inconsistent approach throughout the
country.
Recommendation: DLS requests the Committee to
stipulate the consequence of such a breach.
DEFINITIONS
3.1 The Bill presumes that some frequently
used and significant terms are already defined. These terms should
be clarified in order to avoid the courts and tribunals becoming
clogged with cases disputing interpretation of the Regulations.
For Example:
DISCRIMINATORY ADVERTISEMENTS
3.2 Section 1 refers to "publish"
of an advertisement. We understand there have been concerns as
to the scope of this term for those enforcing Race Legislation.
Clarification would assist on whether the term would apply to
the small cards displayed in newsagent's windows, flyers and the
Internet (where the author can be identified).
3.3 This has particular importance for disabled
people, many of whom live on benefits and wish to take on casual
part-time work (indeed this is sometimes recommended for therapeutic
reasons). This type of work is often advertised in the manner
described above.
Recommendation: DLS requests the Committee considers
widening the definition of publish to include the advertising
of all employment opportunities in the public domain.
DEFINITION OF
DISABILITY
4.1 Schedule 1 section 8 of the Disability
Discrimination Act 1995 gives as examples of progressive conditions
Multiple Sclerosis, Cancer and HIV. The broader meaning of disabled
from the point of diagnosis apply only to these three progressive
conditions.
4.2 Whilst we welcome the extended definition
of disability to people affected by these conditions, we are disappointed
that the Bill does not afford the extended protection to all progressive
conditions. For example Schedule 1 makes reference to muscular
dystrophy which although listed with MS, Cancer and HIV within
the Act, will be dealt with in a different manner.
Recommendation: DLS requests the Committee to
consider applying the extended definition in respect of progressive
conditions.
4.3 DLS welcomes the call for further consultation
on the definition of mental impairment and hopes that this will
lead to greater inclusivity.
4.4 People with Autistic Spectrum Disorder
(ASD) have been encountering difficulties in employment law cases
in proving that they are disabled within the meaning of the Act.
This is because it is unclear in the guidance what "understand"
means in the day to day activity "memory/ability to concentrate,
learn or understand", in particular whether it includes ability
to understand social cues etc.
Recommendation: DLS requests the Committee to
consider an additional day-to-day activity in the guidance namely
"ability to understand social cues".
REASONABLE ADJUSTMENTS
5.1 DLS considers that the current inconsistency
in the triggers for reasonable adjustments is confusing and leads
to unnecessary distress for disabled people wishing to assert
their rights under disability discrimination legislation.
5.2 Furthermore, inconsistencies leave the
legislation open to challenge through individual legal action
which can be costly to the individual and the public purse.
5.3 For example: S 24 G relies on specific
request for auxiliary aid by disabled tenant-to-be whereas in
s 21 E, no such request is necessary. No such request is required
by s 21(4) of the Act either.
Recommendation: DLS would wish the Committee
to consider applying a consistent approach to the triggers for
reasonable adjustments throughout the DDA.
GROUP INSURANCE
6.1 The Bill appears to give insurers extra
justification for discriminatory behaviour under Part III of the
Act than they previously had under Part II.
6.2 S 20 (1)(4) of the Act grants service
providers justification for adverse treatment, one of which includes
incapacity to enter into a contract. No such adjustment is available
to employers. Since capacity to enter into an employment contract
is not co-extensive with the capacity to enter into an insurance
contract, it could leave learning disabled employees with no redress,
no pension, and no health insurance.
Recommendation: DLS would ask the Committee
to consider the exclusion of the justification sub-section.
DISCRIMINATION BY
PUBLIC AUTHORITIES
8.1 21B(3)
This section lists those organisations that
are excluded from the public duties obligation. Given the implications
for an organisation that comes within this category, it is necessary
that this section have no ambiguity regarding organisations protected
by section 21b(3). For example:
8.2 Section 21B(3)(c) refers to "Security
Service". Without further clarification various organisations
not intended to be excluded may try to rely on this exclusion
on the basis that they provide some form of a security service.
Recommendation: DLS would ask the Committee
to more clearly define the scope of Security Service referred
to.
8.3 21D(2)(a)
In order to ensure consistency and fairness
DLS would ask the Committee to replace the term "very much
less favourable" in this clause to "less favourable"
in line with other sections of the Act.
8.4 21D(4)(c)
DLS feels that this clause as it stands would
allow all public authorities not to comply as soon as any extra
costs are involved. This particular clause includes "the
extra costs" and "too great". However we feel the
intention of this clause would be strengthened by the inclusion
of the word "substantial" in relation to "extra
costs" mentioned earlier in the clause.
Recommendation: We would ask the committee to
consider clarifying the definition of extra costs and inserting
"substantial" to read ". . . treating the disabled
person equally favourable would in the particular case involve
substantial extra costs and, having regard to resources, the extra
costs in that particular case would be too great".
PRIVATE CLUBS
9.1 21E(1)(b)
DLS welcomes the inclusion of private clubs
within the scope of the Act. However it feels that the limitation
to 25 members is arbitrary and open to challenge. We would wish
to see the removal of a limit on membership to bring it into line
with Section 7 of the DDA 1995 as amended from October 2004.
DUTY TO
MAKE ADJUSTMENTS
10.1 21G(3)
It appears that this clause allows for any breach
of duty to make reasonable adjustments to be not actionable and
therefore not enforceable. DLS feels that it should be actionable
to ensure compliance and act as a deterrent.
DISCRIMINATION IN
RELATION TO
LETTING OF
PREMISES
11.1 DLS has a general point to make under
this section which is to ask for clarity in the definition of
premises to include the common parts. As it stands the legislation
could be interpreted as "demised premises" which relates
to the premises occupied by the lessee (in this case disabled
person).
11.2 In DLS experience most problems of
access occur in the common parts of a domestic dwelling. Eg The
main entrance; shared gardens; storage areas; etc.
Recommendation: That the term "including
the common parts" be included in relation to mention of premises.
PROPOSALS FOR
CHANGE OF
FORUM FOR
PART 3 CASES
12.1 DLS has been aware that for some time
of calls for Part 3 cases to be transferred from county courts
to employment tribunals. We recognise the attraction of the Tribunal
route includes a more straightforward procedure, few costs penalties,
no issue fees and higher damages rates for injury to feelings.
However:
12.2 For many disabled people bringing Part
3 cases, employment will never be an option and the employment
tribunal could be as off-putting as a county court.
12.3 Further, employment tribunal panels
will have little, if any, experience /understanding of issues
surrounding Part 3 cases.
12.4 Further, this raises the question of
what would happen to Part 4 Further Education and Higher Education
cases, which are currently heard in the county court; we consider
that the employment tribunal would not be an appropriate venue
for such cases.
12.5 We consider that an equalities tribunal
would be more appropriate. This is in line with the Independent
Review of the Enforcement of UK Anti-Discrimination Legislation.
Recommendation: that provision be made for an
equality tribunal.
EDUCATION LAW
REFORM
13.1 DLS is aware that the Bill as its stand
does not include changes to Part 4 of the Disability Discrimination
Act 1995, as amended by SENDA 2001. Although Part 4 of the DDA
has been in force for a relatively short time, our experience
of its impact on individual disabled learners has given us some
significant concerns about its workings. Accordingly DLS would
ask the Committee, if it is within their remit, to recommend a
review of Part 4 of the DDA within the next two years.
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