Memorandum from RADAR (DDB 67)
1. INTRODUCTION
1.1 RADAR is a national disability non-government
organisation working on behalf of disabled people, from the broadest
range of cultural, racial and social backgrounds, irrespective
of their impairment.
1.2 RADAR's vision is of a society where
human difference is routinely anticipated, expertly accommodated
and positively celebrated:
— where the dignity of the individual
is paramount;
— where people are valued as individuals;
and
— where their different needs, ambitions,
choices and abilities are recognised and encouraged (not assumed).
1.3 RADAR's mission is to promote change
by empowering disabled people to achieve their rights and expectations
and by influencing the way that disabled people are viewed as
members of society.
The organisation's primary functions are:
— To provide high-quality campaigning
tools and services to organisations of and for disabled people;
RADAR has over 450 autonomous disability organisations as members
whose interests we seek to represent in all aspects of our work.
— To comment on all major social policy
areas affecting disabled people: anti-discrimination legislation,
health, education, employment, social security, community care,
independent living, mobility, transport and access to the built
environment.
— To provide support, training and
development to networks of disability organisations eg we co-ordinate
a network of over 400 Access Groups throughout the country. These
are voluntary organisations, largely comprising of disabled people,
who come together to work to improve access to the built environment
locally.
1.4 Although RADAR works with organisations
of all types (of and for disabled people) RADAR itself is an organisation
of disabled people. Constitutionally the majority of our governing
board of trustees must be disabled people. Currently, 70% of our
trustees are disabled.
1.5 This submission is based on continued
dialogue with our members and reflects the views of a broad spectrum
of disability organisations covering most impairment groups.
2. THE BILL
2.1 RADAR welcomes the principles behind
the draft Disability Discrimination Bill that seeks to implement
important recommendations of the Disability Rights Task Force
(DRTF). The measures proposed by the Government are a significant
step towards tackling inequality and discrimination faced by millions
of disabled people in Britain today.
2.2 In particular, RADAR welcomes the inclusion
of a statutory duty on public authorities to promote equality
and eliminate discrimination, the inclusion of HIV, cancer and
MS and from the point of diagnosis, and the power to extend the
scope of the DDA to transport services and vehicles.
2.3 How far the Bill goes in improving the
everyday lives of disabled people will largely depend on its detail
rather than the principles set out in the current draft. RADAR
feels that in many areas of the Bill—most notably transport—the
Government has not gone far enough. Other vital issues, such as
the inclusion of mental illness within the definition of disability,
are currently not on the face of the Bill despite overwhelming
evidence in support of such a move. We ask the Joint Committee
to rectify these omissions in its recommendations.
2.4 RADAR is concerned that it is being
asked to comment on what is, in many places, essentially a skeleton
Bill. It is only by considering the draft Bill with draft regulations
and timescales included, that RADAR can engage in proper debate
about the merits of the draft Bill and provide proper scrutiny
through the legislative process. We do recognise that some regulatory
powers are necessary and there are obvious merits in the flexibility
they offer. However, regulations must not be used as a delaying
tactic or as a tool to escape democratic scrutiny.
2.5 RADAR is concerned at the absence of
any commitment to a timescale for the implementation of the bill.
RADAR urges the publication of a government timetable setting
out its implementation strategy.
2.6 Most importantly RADAR hopes the Government
will respond swiftly to the Joint Committee's recommendations
by introducing a full Disability Discrimination Bill before the
summer recess. We believe this is necessary in order to ensure
that the Bill becomes law before the next General Election and
that the provisions enter into force before the Commission for
Equality and Human Rights supersedes the Disability Rights Commission
(DRC).
2.7 RADAR is aware of the detailed submissions
made by the DRC in relation to all aspects of the Bill. For the
sake of expediency and avoiding duplication RADAR has limited
its detailed response to the following areas:
— Definition of Disability
3. DEFINITION
OF DISABILITY
3.1 RADAR does welcome the extension of
the definition of disability to include people with MS, cancer
and HIV from the point of diagnosis. RADAR does have some concerns
about the less than coherent approach to the definition of disability.
RADAR believes that, where possible, there should
be a comprehensive definition of disability that will cover all
relevant conditions.
3.2 There is evidence to show that those
who suffer discrimination on the grounds of their mental health
are prevented from bringing cases to Employment Tribunals or the
courts under Parts 3 and 4 of the Disability Discrimination Act
(the "Act"). It is very likely that this group of people
make up the biggest category of people for whom the DDA is not
working because their impairment does not meet the current very
strict definition laid down in the 1995 Act.
3.3 This is particularly troubling given
the persistence of discrimination against people with mental health
difficulties in the workplace.
In a recent case a young woman who had worked
in a dentist's surgery was dismissed from her post as she had
suffered from periods of depression resulting in an eating disorder
and periods of self-harm. Her case did not fall in the current
S1(1) definition, as it is not considered a "long term"
condition.
3.4 The difficulties of fitting depression
in the current definition of disability is that there may be several
episodes over a relatively short period, but no episode lasts
for 12 months.
3.5 Depressive illnesses also have a strong
tendency to reoccur:
— at least 50% of people following
their first episode of major depression will go on to have at
least one more episode; and
— those experiencing their first episode
of depression before the age of 20 are particularly susceptible
to relapse.
3.6 The social stigma surrounding depression
also has a significant effect on whether those with mental health
issues fall within the definition. It is clear that those who
experience depression often do not seek medical advice at the
point at which their symptoms first manifest. This often means
that whilst applicants at a tribunal may well have been depressed
for the requisite period, there will be no medical record to establish
this.
A recent case brought to our attention highlights
the above: A 46 year old Company Secretary was dismissed due to
incidents relating to his mental illness. He did not wish to reveal
details of his health as he felt it would significantly reduce
his chances of gaining further employment in his field.
3.7 The current definition of disability
requires that a mental illness be clinically well recognised,
however by doing so this creates inequality between people with
mental illness and all other disabled people. This runs entirely
counter to the anti-discrimination principle, which underpins
the Act. This extra legal burden can be difficult to overcome
because of disagreements between medical experts. It also distracts
from the real issue of whether day-to-day activities have been
substantially limited.
3.8 The current definition places a considerable
burden on disabled people during tribunals and in court hearings
to prove their disability. This is often complex and time consuming
and open to subjective interpretations. RADAR believes that a
shift in emphasis from the disabled person "proving"
the disability to a focus on actual discrimination from employers
and service providers would considerably improve the everyday
lives of thousands of disabled people who fear having to "prove"
their disability.
3.9 RADAR Recommendations on Definition
We ask the Government to:
— correct the indirect discriminatory
effect of the 12-month test by including an explicit regulation
reducing the length of time an impairment must have an effect
to six months in the case of depression;
— ensure through regulations or guidance
that recurrent episodes of depression are not excluded from the
definition of disability;
— remove the requirement that mental
impairment illness needs to be "clinically well recognised"
and bring this in line with physical impairments, where such a
requirement does not apply; and
— regulate that receipt of disability-related
benefits, such as the Disability Living Allowance (DLA), is conclusive
proof of a disability.
4. TRANSPORT
4.1 Inaccessible transport has a major impact
on disabled people's independence, social participation and employability.
For example:
— 60% of households with a disabled
member do not have access to a car, so access to the public transport
system is a crucial part of many disabled people's lives.
— Findings from recent research show
that 23% of disabled people actively seeking employment have had
to turn down a job offer because of inaccessible transport.
— 62% of wheelchair users and 86% of
people with a visual impairment said inaccessible transport had
restricted their choice of jobs.
4.2 RADAR welcomes Government initiatives
on employment, education and health to improve access for disabled
people. However access to employment and access to healthcare
depend on an accessible transport system. Without significant
improvements on access to public transport initiatives in other
areas will simply be wasted opportunities.
4.3 RADAR is inundated with reports from
disabled people angry about their lack of access to transport
systems. With a membership of 450 disability organisations of
and for disabled people and as an organisation of disabled people
we can rely heavily on the authenticity of the outcry for change.
During the recent Newspirit consultation access to transport was
cited as the most significant concern of disabled people.
4.4 The points set out below reflect the
significant concerns that disabled people have in relation to
transport:
— We have received examples of bus
drivers refusing to stop for wheelchair users or refusing to operate
functioning ramps. Considerable problems exist because even where
buses are accessible some bus drivers continue discriminating
against disabled people.
— Members have informed us of occasions
where bus drivers have shouted "I know I don't have to stop
for you".
— Some drivers/staff refuse to alert
people with learning disabilities or visual and/or hearing impairments
of the correct stop.
— Members often inform us of taxi drivers
refusing to take passengers with assistance dogs.
— Members have informed us "Any
blind person who tries to use the bus services will tell of being
put off at the wrong stop". For too many blind people, though,
the problem is access to services and particularly to guidance
and way finding".
— Members in the Dover area state there
are no accessible buses at all. People are imprisoned in their
villages once they lose the ability to drive a car.
Some individual cases illustrate clearly the
problems that disabled people face:
— It took a young visually impaired
man up to four hours to get home because the driver had not indicated
that the bus had already passed the stop requested. At the start
of his journey the disabled man was only four miles from home.
— A disabled person has informed us
that he often asks a passer-by to hail down a taxi for him, while
he hides nearby—as in his experience taxi drivers will not
stop if they can see his disability.
4.5 These examples of discrimination against
disabled people must be put into the context of the overall debate
on equality. Such forms of discrimination would, and rightly so,
be unacceptable for any other minority group. We have much to
celebrate from the fact that there are no longer parts of the
world where people are separated into different carriages because
of the colour of their skin. The Government must be applauded
for moving to outlaw discrimination on the basis of age, religion
and sexual orientation. Furthermore the adoption of the European
Convention on Human Rights into British law has added another
dimension to the debate on rights and discrimination. Disabled
people cannot continue to face daily discrimination and humiliation
as the discriminators hide under the umbrella of "reasonableness".
4.6 For disabled people to be able to travel
with confidence all aspects of the transport chain must be fully
accessible. The benefits of new vehicles and systems will be minimised,
or lost altogether, if disabled people find that they cannot move
easily and safely between transport modes.
4.7 Though RADAR welcomes the provisions
within the draft Disability Discrimination Bill that allows for
the extension of the DDA to transport services, we believe that
our members, and the disabled constituency at large, feel extremely
frustrated with the decision not to remove fully the blanket exclusion.
Removing the exemption from all modes of transport
would give disabled people significant confidence that the government
is serious about giving people full and enforceable civil rights.
4.8 Unfortunately the transport provisions
of the draft Bill rely heavily on regulation-making powers. The
timing and content of the regulations are unknown which makes
it difficult for us to assess the overall effectiveness of this
part of the Bill.
4.9 RADAR urges the Government to set out
its intended timetable of regulations to lift the Part 3 exemption
from transport operators before the bill is introduced to the
House.
4.10 RADAR believes that regulations are
urgently required to bring into the scope of the Disability Discrimination
Act 1995 services such as car hire, private rental, tourism and
breakdown recovery.
4.11 The Bill will give the Government the
power to place duties to make reasonable adjustments on transport
service providers. This will include reasonable changes to practice,
policies and procedures. RADAR is disappointed that it will not
include changes to physical features. At present it is not clear
whether transport providers will be required to consider providing
a reasonable alternative means of accessing the service.
4.12 The prospect of further consultation
is viewed with much scepticism and widely seen as a further delaying
tactic. The "Enforcement and Sanctions" section of the
RIA suggests that regulations will not be introduced immediately
after Royal Assent for the Disability Discrimination Bill and
that further consultation would be required. RADAR considers that
further consultation in this area is unnecessary, as this issue
has now been consulted on three times over a period of five years.
4.13 The impact of the Bill provisions will
depend entirely on the content and timing of regulations. The
Government must set out the intended timetable for regulations
to lift the Part 3 exemption from transport operators as soon
as possible.
4.14 An end-date for rail vehicle accessibility
4.14.1 Despite the introduction of the RVAR,
in 1999, many RADAR members feel that the majority of the rail
industry has still to demonstrate a sincere commitment to meeting
the reasonable requirements of disabled people.
"I travel to work from Folkestone three
times a week. I have written to my train operating company 57
times. Why am I still travelling in a guards van?"
4.14.2 The Bill is to include an "end
date" by which all passenger rail vehicles should comply
with rail accessibility regulations in line with Task Force recommendation
7.1. At present trains brought into service since 1 January 1999
must comply with the detailed technical standards set out in the
DDA Rail Passenger Accessibility Regulations 1998. There is however
no requirement on any train brought into use before that time
to be accessible, even when it is refurbished.
4.14.3 The Government has issued a consultation
on the end date and accessibility regulations for the refurbishment
of existing rolling stock. RADAR is extremely disappointed to
see that the Government is expressing a strong preference for
2025 as an end date when all rail vehicles must be accessible.
Though there may be some difficulties in replacing significant
numbers of trains ahead of schedule, this date means that trains
will remain inaccessible long after other modes of public transport,
thereby leaving a crucial link in the transport chain broken for
disabled travellers. RADAR strongly urges the committee to recommend
2017 as the latest end date. Any further delay would risk profound
disappointment with disabled people as well as giving transport
providers the green light to continue discriminating against disabled
people.
4.14.4 Just because a station has been made
accessible or a train operator has RVAR compliant rolling stock
does not automatically mean that access for disabled people has
been "solved". RADAR is aware of many examples of disabled
people being left stranded on a station or a train because the
required assistance, booked at least 24 hours in advance (as the
majority of operators require), has not materialised. The government
must force, by regulation if necessary, the rail industry to develop
robust systems for providing assistance to disabled passengers.
Otherwise, even with 100% RVAR compliance a large percentage of
disabled people might choose to avoid rail travel because they
believe the system will let them down, leaving them stranded and
possibly vulnerable in terms of their personal security.
One member informed us "on several occasions
I have found myself having to jam a train's doors open with my
wheelchair to prevent it leaving the station until either the
requested assistance is provided or a helpful member of the public
gets me off the train".
4.14.5 2017 would be in line with the PSVAR
for buses and would provide disabled people with freedom to move
across the country, having the full choice of transport modes.
4.15 Aviation and Shipping
4.15.1 It is suggested in the RIA that aviation
and shipping will only be brought under the legislation if they
are failing to comply with existing voluntary Codes of Practice.
For example, EasyJet refused to carry a group of deaf people and
on another occasion refused to board a group of footballers with
learning disabilities. In addition, RyanAir had a negative reaction
to the verdict that forbids airlines to charge for wheelchair
use that they cannot charge. These stories prove that the aviation
industry is failing to comply with this voluntary code.
4.15.2 The European Commission, in their
working paper on "rights of persons with reduced mobility
when travelling by air", is considering legislation that
entitles disabled passengers to equal opportunities for air travel,
and that clarifies the responsibilities resting on airlines and
airports.
4.15.3 RADAR agrees with the RIA that relying
on voluntary compliance from the transport sector does not provide
disabled people with confidence in the transport network.
4.16.1 Prioritising audio-visual information
in transport vehicles
4.16.2 Under the current draft Bill, the
physical features of vehicles would remain under Part 5 regulations
and it could be many years, perhaps even decades, before certain
transport operators would need to introduce or alter audio-visual
features to ensure they provided accessible information for disabled
passengers. Buses, for example, would not have to carry information
systems to provide visual information, such as where the bus is
stopping next or provide information in case of diversions and
delays, even though this is when disabled people most need such
information.
4.16.3 RADAR believes this lack of progress
on accessible information onboard public transport vehicles is
unacceptable.
4.17 RADAR Transport Recommendations
We ask the Government to:
— Ensure that Part 5 regulations are
amended to prioritise accessible audio-visual information in refurbishment
programmes across the transport sector.
— Bring aviation and shipping immediately
within the remit of legislation.
— Regulate for 2017 as an end date
for all rail vehicles to be compliant with the RVAR.
— Set out an intended timetable for
regulations to lift the Part 3 exemption.
5. HOUSING
5.1 In order for disabled people to live
an independent and fulfilling life, it is essential that they
have the right to accessible and affordable housing. Many do not.
The 2001 census estimated that over 18% of the population have
a long term limiting illness or disability. Also there are more
people living into their late 70s and 80s when the incidence of
disability rises sharply.
5.2 We welcome the introduction of the reasonable
adjustment duty for landlords when renting to disabled tenants.
Landlords and managers may need to change their policies, practices
and procedures or provide auxiliary aids or services, where reasonable.
This would mean that, where reasonable, for example a landlord
might be obliged to:
— Allow a tenant with mobility difficulties
to leave her rubbish in another place if she cannot access the
designated place.
— Change or waive a term of the letting
to allow a tenant to keep an assistance dog on the premises.
— Change or waive a term of the letting
that forbids alterations to the premises so that a disabled tenant
could make necessary access alterations with the consent of the
landlord.
— A landlord might need to read out
a tenancy agreement to a visually impaired person.
5.3 RADAR is very concerned that the draft
Disability Discrimination Bill does not extend to an obligation
not to unreasonably withhold consent for physical alterations
to their premises. This was a recommendation of the DRTF, and
accepted by the Government in "Towards Inclusion". Instead,
the Government is saying that the 1927 Landlord and Tenant Act
makes provision for this situation. However, the use of the 1927
Landlord and Tenant Act ("1927 Act") to plug this gap
in civil rights legislation is insufficient in the rights it affords.
The difficulties of obtaining permission are
illustrated by a recent case brought to RADAR's attention. The
case concerns a man who lives in sheltered accommodation, has
chronic emphysema, is increasingly housebound, and is unable to
climb stairs. He asked for a stairlift and offered to pay for
the installation and maintenance of it. His neighbour objected
and the management committee stated that they could overrule the
objection. The work could only take place if all four people in
the block agreed.
5.4 The 1927 Act only covers current lettings,
providing no right for reasonable adjustments to be made in prospective
lettings accommodation. It also does not cover the common parts
of a building: in many cases a disabled occupier needs alterations
to the exterior of the building (such as the installation of a
grab rail) or to its approach (such as the installation of a ramp
or additional lighting). Furthermore the DRC has no power to take
cases under the 1927 Act, and therefore disabled people are left
without representation. It is also a matter of serious concern
that such an important issue of civil rights (independent living)
for disabled people is left to an area of land law.
A further case highlights the difficulties that
disabled tenants face. "I live in a block of flats. Though
I own the flat it is on a leasehold basis. I am a wheelchair user
and would like a ramp to be put in. The management company has
consistently refused my requests, and I cannot afford to bring
action against them because the terms of my grant state that I
cannot start work until all necessary consents are obtained".
5.5 The new proposals apply only to landlords,
and do not cover wardens and management committees. For example,
a warden who provides services to occupiers of individual leasehold
properties in a block would not be obligated to make reasonable
adjustments for the owner of one of those flats if he was a deaf
BSL-user. Management committees who run communal areas in privately
owned blocks can lawfully refuse adjustments to communal areas.
RADAR has been made aware of a case where a
resident of a block of flats acquired a disability following an
accident. Through a management company he owned his flat in the
same way as the other residents. He put forward proposals for
a lift to be installed to enable him to gain access to his flat
but two members of the management board refused it. A ballot of
all the residents in his block of flats, and those of the surrounding
blocks, took place to decide whether the permission should be
granted. Two members of the board refused to give permission,
stating that the lift would restrict access and bring down property
values. Some residents of the block of flats next door objected
on the grounds that it would make all the flats look like an old
people's home!
5.6 Failure to amend the DDA along the lines
suggested by the Disability Rights Task Force would perpetuate
inconsistency within the Act itself. Under it landlords are already
prevented from unreasonably withholding consent to physical alterations
designed to facilitate access by disabled people when their tenants
are employers, service providers or educational establishments.
Why not when their tenant is a disabled person?
5.7 RADAR Housing Recommendations
We ask the Government to:
— bring Management Committees and wardens
into the scope of the new Housing provisions; and
— make it clear that landlords should
not unreasonably withhold consent to disabled tenants to carry
out physical alterations.
6. OTHER IMPORTANT
RECOMMENDATIONS ON
THE DRAFT
BILL
— Employment tribunals should be able
to order re-instatement or re-engagement under the employment
provisions of the DDA.
— A power should be taken in the DDA
to bring volunteers into coverage through regulations.
— All examining bodies and standard
setting agencies should be covered (the exact parameters of coverage
are at present unclear).
— School governors should be covered.
— Disability-related enquiries before
a job is offered should be permitted only in very limited circumstances.
— Part 3 DDA (relating to discrimination
in service delivery) along with the new provisions relating to
transport, housing, private clubs and public functions, should
be enforced through employment tribunals rather than through the
Courts.
— Most of the recommendations of the
DRTF have been consulted upon widely. We consider that the need
for reform is now urgent.
February 2004
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