Memorandum from the National Centre for
Independent Living (DDB 77)
GENERAL COMMENTS
The draft disability discrimination bill contains
some very welcome aspects. Not least of these is the clear commitment
from the Government to end, once and for all, discrimination against
disabled people. We very much welcome this commitment and, for
our part, wish to work closely with the Government to help bring
this about.
The National Centre for Independent Living especially
welcomes the section on public bodies and the comitment in the
draft bill to outlaw discrimination and put in place a duty to
promote equality. This is a most welcome progress in thinking
about legislation in relation to disabled people as it identifies
the problem as being a question of discrimination, rather than
impairement. This is a positive move in the direction of the social
model of disability and is most welcome.
In order to assist with the stated aims of the
bill, NCIL would likke to suggest an ammedment to part 21B "Discrimination
by Public Authorities", which will give more specific details
about how a public body will be expected to do that, by having
regard to a number of key issues which, together, will underpin
a disabled persons' right to independent livin and equal citizenship.
NCIL is suggesting that this commitment in principle
can be more properly and fully explained in regulations to be
issued by the Secretary of State.
Below we give the wording of that ammendment,
in the section in bold and italics. We have placed the ammendment
in the place in the text of the original draft of the bill, to
give it context.
21B Discrimination by public authorities
(1)
It is unlawful for a public authority to discriminate
against a disabled person in carrying out its functions.
(2)
In this section, "public authority":
1. includes any person certain of whose
functions are functions of a public nature; but
2. does not include any person mentioned
in subsection (3).
1. either House of Parliament;
2. a person exercising functions in connection
with proceedings in Parliament;
4. the Secret Intelligence Service;
5. the Government Communications Headquarters;
and
6. a unit, or part of a unit, of any
of the naval, military or air forces of the Crown which is for
the time being required by the Secretary of State to assist the
Government Communications Headquarters in carrying out its functions.
(4)
In relation to this duty, a public body must give
consideration to an holistic view of disabled peoples lives, including
housing, transport, employment, information/communication, advocacy,
welfare benefits to ensure a basic minimum income, education,
community care which also includes social, leisure, sport, family,
religious, work and voluntary sector related activity, to ensure
a genuene right to independent living and participation in the
community. This clause will be further clalified and explained
by the isuing of regulations by the Secretary of State.
(5)
In relation to a particular act, a person is not
a public authority by virtue only of subsection (2)(a) if the
nature of the act is private.
Regulations may provide for a person of a prescribed
description to be treated as not being a public authority for
the purposes of this section.
This section does not make unlawful any discrimination
which:
1. is made unlawful by virtue of any
other provision of this Act; or
2. would be so made but for any provision
made by or under this Act.
In the remaining parts of the draft bill, there
are many more welcome additions to legislation. NCIL is pleased
to see progress being made in these areas, but has some reservations
in the way these changes have been proposed.
The changes to the definition of disability
originally contained within the Disability Discrimination Act
of 1995 are entirely welcome in extending the range of the Act.
However, the inclusion of 6(A) (2) and 6(A) (3) in section 12,
the meaning of disability, is not at all welcome. There seems
little reason to provide for future regulations determining exactly
which cancers are to be included and which cancers are not to
be included within the definition of the Bill. We will want to
argue that everyone with cancer is likely to face discrimination
as a result of their condition and so should be provided the protection
of the Bill.
In the same way, we would point out that the
disabled community have long argued that the definition of disability
needs to be extended to cover users and survivors of the mental
health system and people with learning difficulties. These groups
should be included in the definition of disability, as they will
also experience discrimination because of their physical or mental
differences from others.
Given these last two groups are often among
the most vulnerable, there seems additional reasons why we should
take this opportunity to include more disabled people within the
protection of the Bill. If we are going to attempt to eradicate
discrimination completely, then beginning with a more inclusive
definition of disability is important.
1. DISCRIMINATORY
ADVERTISEMENTS
The new provision to legislate on discriminatory
advertisements is very welcome. This provision will help underpin
the governments intentions in many cases. However, we are unsure
of the need for section 2(A) and 2(B).
Within the proposed new legislation. Is it not
enough to rely upon the ability of the person accepting the advert
for publication to be able to determine whether or not the advert
complies with the proposed legislation or not. This does seem
to be a fairly simple task, given the clarity of the definition
given in section (1). It may be simpler to administer the legislation
if we rely on the publisher to be aware of the legislation rather
than relying only on those placing the advert being honest about
their motivation in doing so.
2. GENERAL GROUP
INSURANCE
The provisions for general group insurance are
welcome in extending protection to employees.
3. PUBLIC AUTHORITIES
The new section on public authorities is especially
welcome. This is something of a milestone in legislation on rights
of disabled people in recognising that the issue is discrimination
rather than disability itself. Disabled people have long wished
for legislation which outlaws discrimination and this section
is an extremely welcome first step in that direction.
It is an opportunity to define the areas where
discrimination is illegal more carefully. Experience with other
rights legislation tends to show that it's sometimes necessary
to define where public authorities need to eliminate discrimination
more precisely to ensure the effectiveness of the legislation.
The McPherson and the Morris reports are examples of how this
has been necessary in the area of institutional racism. Similar
work may now be necessary in the area of discrimination against
disabled people.
We would like to see the introduction of a Right
to Independent Living, which will guarantee a disabled persons
right to the basic requirements of living and participating within
his/her own community. When disabled people first began to set
up Centres for Independent Living, they agreed on seven pillars
of independent living, which, they argued, formed the base upon
which genuine independent living for disabled people could be
built. We will argue for duties to be given to public bodies to
ensure these basic rights are available and that we have the ground
on which we can build a more equal community. We have already
refered to this in our ammendment sugested above. Here we outline
some of the traditional views of the disabled peoples movement
relating to these questions. These include:
(A) Housing
The right to fully accessible housing within
their own community. Local housing authorities should be required
to ensure that 100% of newly built housing is to the "Lifetime
Homes" standard. By doing this, the proportion of accommodation
within the community which has minimum disabled access requirements
met will gradually increase over time. The objective should be
that all accommodation meets this minimum standard. The reason
for aiming for such a goal is that disabled people don't just
want to have access to their own homes. Disabled people have families
and friendship networks, as well as contacts through employment
and voluntary activities. They want and need to be able to visit
the homes of the people in their social circles as well as having
access to their own homes, if they are to be given equal opportunity
to live within their different communities.
(B) Education
This new bill offers the opportunity to go beyond
SENDA, and look at, not just access to adult education and colleges
and local universities for disabled people wishing to use them,
but also what day-service provision is made available by local
authorities. Usually such provision doesn't include education
leading to qualifications, job opportunities or further education
opportunities. Promoting non-discrimination should include making
sure day-services contain genuine career and self development
opportunities in education.
(C) Advocacy
The recent evidence taken by the Joint Select
Committee on the Mental Incapacity Bill shows that there is an
urgent need for advocacy support for disabled people. In the Joint
Select Committee recommendations, there is an acknowledgement
that advocacy support is an essential ingredient in guaranteeing
that disabled people can get support to make good choices and
to get their voices heard in the decision making process.
No recommendations were made about making finances
available, but we believe the figures involved in this are not
that great and that once reasonable levels of advocacy support
are provided, the overall cost will not be prohibitive. Therefore,
we would want to see a duty on local authorities to provide advocacy
support to disabled people who request that service, as part of
the provisions under public bodies.
(D) Employment
Once again, this is an excellent opportunity
to lay the basis for beginning the process of ending discrimination
against disabled Peoplle in another key area of independent living.
We would like to see every local authority required to provide
training to assist disabled people prepare for employment, seek
suitable employment, secure and develop their career in employment,
including assistance in accessing and using the Access to Work
scheme.
(E) Independence
The right to live independently in your own
home in the community of your choice. The principal behind this
right is that no-one should be forced to live in residential accommodation
against their wishes. We would like to see the standard form of
support for disabled people being support to live independently
within their own community of choice. We would like to see a programme
of review of every residential establishment, with the intention
of encouraging and supporting residents to move to independent
living within their own communities of choice. Previous programme
similar to this carried out by companies running residential institutions
have proved successful in resettling disabled people into the
community. We would like to see a commitment to reduce the number
of disabled people in residential institutions by half in the
next five years, with a longer term objective to close all residential
institutions by the year 2020.
To complement this commitment, we believe that
it is necessary to strengthen this commitment with a strengthening
of the existing government commitment to see community care as
the principal way in which support services are offered to disabled
people. We would like to see new legislation complementing the
National Health Service and Community Care Act of 1996 by emphasising
that every community care assessment must take account of a disabled
persons need for support in the following areas:
(a)
personal care, including support getting out of bed,
dressing, washing, preparing, eating and clearing away after meals,
and all other personal care tasks.
(b)
Domestic care, including all tasks involved in maintenaning
the home.
(c)
Social activity, including visiting friends, family,
other social activity, such as following religious belief.
(d)
Voluntary activity involving local community groups.
(e)
Political activity through local political parties
and structures of the disabled persons choice.
(f)
Educational activity through adult education, evening
classes, local colleges and universities, lifetime learning schemes,
etc.
(F) Information/Communication
Continuing the theme of using this opportunity
to create specific duties on public bodies, we will argue for
a right to access to information and support in communication.
This should cover access to information through using different
formats, for example, large print, cd rom, floppy disk, tape,
braille, BSL, plain english, easy read and picture format. Support
needs to be available to all disabled people who need it to assist
them in clearly communicating their views, wishes and needs.
(G) Welfare benefits
Every disabled person needs to have a basic
income which is sufficient to sustain them and meet their basic
needs. We will ask for a further review of the welfare benefit
system to ensure that the genuine additional costs of being a
disabled person are reflected in the way that the benefits system
operates.
MORE DETAILED
COMMENTS ON
TEXT
1. Transport vehicles
The new provisions appear to exclude the services
where a vehicle is provided by the service to a disabled person
from the general definition of discrimination in providing services.
We will ask for more information about the government consultation
last year into the possibility of including private hire vehicles
into the DDA. We will also ask about the Disability Rights Task
Force Final Report, which contains many recommendations about
including transport into the DDA, including fixing end dates to
provision of transport by rail, air or sea.
2. The meaning of discrimination in public
bodies
In the section on conditions under which treatment
or outcomes are to be regarded as justified, in (4)1, we will
ask that this paragraph should refer to the debate currently going
on in relation to the Mental Incapacity Bill, where proposals
are being advanced by some groups representing disabled people
that there should be a right for every disabled person to be able
to make their own decisions and a right to supported decision
making for disabled people, who want or need this. The same principals
needs to apply here.
3. Health and Safety
There are well known examples of Health and
Safety aspects clashing with the needs of a disabled person to
receive support. This has been a problem with the regulations
on moving and handling, where disabled people have argued that
the priority has to be supporting and enabling a disabled person
when interpreting the health and safety guidelines. NCIL have
written some useful information about this.
4. Paying for the end of discrimination
While the question of resources is important,
we will argue that it will be better if an exercise can be carried
out to estimate the overall cost of providing equal services,
so that a discussion can take place about how best to make available
additional resources for public bodies, so that they can carry
out its duties not to discriminate against disabled people. The
eradication of discrimination will benefit the whole community
and not just disabled people. There is a strong case to invest
in equality and make available government resources which can
be used by public bodies if they need it. However we would also
hope that public bodies will take into account the cost of carrying
out their responsibilities in promoting equality.
We will argue that it is risky to describe a
treatment or outcome as justified on the grounds that they are
a proportionate means of achieving a legitimate aim. The problem
with this wording is that it is far too general and could be used
to cover a wide range of circumstances, some of which definitely
need to be within the powers of the act. We will argue that the
Bill must make it clear that the primary duty of any public body
must be not to discriminate. Any actions or policy which contradicts
this aim must be unlawful under the Bill. It should be possible
to achieve the legitimate aims of the public body without the
need to discriminate against disabled people.
5. The meaning of discrimination in private
clubs
In paragraph 3, where the exclusions from the
general provision not to discriminate are written, under 1 and
2, the same reservations apply as did under the meaning of discrimination
for public bodies. In the case of points 3 and 4, we will argue
that it should be possible to provide services and benefits to
all members of the club without discrimination against disabled
people. In the case of point 5, we understand that costs are an
issue. However, many private clubs may have considerable resources
of their own. For those where resources is an issue, we will argue
that local authorities, under their duties as public bodies, should
set aside funding for this purpose. Private clubs can then apply
to their local authority to get grant aid in order to ensure that
disabled people using their club as members or associate members
will not be discriminated against.
6. Let premises
These new provisions are very welcome in providing
protection to disabled people living in privately rented accomodation.
The concepts introduced do assist to provide a useful regal framework
for establishing the rights of disabled people in this new area.
We will argue that the exceptions to section 19 of the original
DDA may not be necessary to achieve what the government intends
in this case.
There are provisions in the law already about
health and safety and it may be possible in most circumstances
to find ways of meeting disabled peoples' access needs without
having to create any difficulties under health and safety regulations.
Is further legislation necessary in this area? It may be that
landlords already have protection in the existing law.
NCIL will make further detailed comments on
the text of the draft bill as the consultation process develops.
February 2004
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