Memorandum from the Citizens Advice Bureau
(DDB 84)
Citizens Advice welcomes the opportunity to
comment on this Bill in draft form; the Citizens Advice service
is a network of community-based advice agencies providing free,
impartial, confidential and independent advice and information
from over 2,000 service outlets across England Wales and Northern
Ireland. CABx deal with deal with some six million problems raised
by the people who contact them each year—these include consumer,
employment and public service disputes where disability discrimination
is an issue.
1. WHETHER THE
DRAFT BILL'S
PROPOSALS ARE
NECESSARY, WORKABLE
AND SUFFICIENT
We welcome the fact that the bill extends the
scope of protection afforded by the DDA to cover discriminatory
advertising and publicity, use of public transport services, and
public authority actions. However, we question they are sufficient
in respect of enforcement and the definition of disability.
2. WHEN THE
BILL'S
PROVISIONS SHOULD
COME INTO
FORCE
3. WHAT SHOULD
BE IN
THE REGULATIONS,
ORDERS AND
CODES OF
PRACTICE PROPOSED
IN THE
DRAFT BILL
It appears that the result of this legislation
will be the Disability Discrimination Act 1995 as amended by the
Disability Rights Commission Act 1998, DDA 1995 (Amendment) Regulations
2003 and The DDA 1995 (Pensions) Regulations 2003 and further
amended by the Disability Discrimination Bill 2004. The committee
may want to consider whether the new legislation should be processed
with a codification of existing law relating to disability discrimination
protection. Another further issue is the Bill's relationship with
the DTI's Single Equalities Body proposals, and the extent to
which further integration of disability discrimination law may
be required with the body of legislation dealing with unfair discrimination,
including the EU's Equal Treatment Directive.
However, for the purposes of the as Bill amending
legislation, it come into force as soon as possible so that the
Bill's provisions can be integrated into the DDA timescale. As
regards the regulations, orders and codes of practice proposed
in the draft bill we would like to see a greater focus on:
— Use of order making powers to facilitate
the Commission's role with respect of requiring service providers
to implement notices and action plans.
— Greater Awareness training.
Our reasons are evident from our response to
question 5.
4. THE ADEQUACY
OF THE
ENFORCEMENT PROCEDURES
One of the deficiencies of the DDA regime has
been the lack of direct enforcement powers, placing the burden
of action and proof on individual disabled people. The Institute
of Employment Studies have undertaken successive surveys of cases
under the Disability Discrimination Act; and found that main reason
why so many cases are withdrawn is that disabled people find it
difficult to gain access to justice because of the stress and
difficulty of pursuing cases through the courts. Amendments to
the Disability Rights Commission Act to improve the their situation
by allowing the Commission to act as guardian, or to independently
bring proceedings concerning a discriminatory practice, have been
repeatedly rejected.
The Draft Bill is an improvement in that the
DRC may serve a compliance notice on a public authority where
it is satisfied that a public authority is not complying with
a specific duty imposed by the Secretary of State under clause
49, to require compliance and inform the DRC of the steps it has
taken (or is taking) to do so. It enables the DRC to apply directly
to the court for an order to supply information, and complements
existing powers with respect of formal investigations, action
plans and non-discrimination notices.
However, this does not in Citizens Advice view
significantly expand the DRC's powers to take appropriate legal
action where there are clear breaches of the Act, or enhance the
Commission's conciliation function, and the power not extend to
the private sector. We would urge the Government to look again
at the scope of powers available to the DRC.
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
It is wholly appropriate that the duties of
reasonable adjustments should apply to all service providers.
The range of providers to whom this legislation applies is comprehensive
and, in the area of goods and services and facilities, includes
everything from advice agencies, to hospitals, banking services,
professions and trades such as solicitors and builders, courts
and local authority and government. However, CABx evidence shows
a gap in the knowledge and attitudes of a range of these providers
that requires the attention of trade associations, regulators,
providers and consumers.
Some service providers remain still appear unaware
of the requirement that since 1996 it has not been lawful for
service providers to treat disabled people less favourably for
a reason related to their disability.
A CAB client in the South found the local taxi
firm doubled its fares because his wife was a wheelchair user.
A CAB in the Southwest reported a client facing
discrimination about his appearance. He had been told by his local
library to wear gloves to use their IT facilities. The client
has psoriasis and looses scales of skin. Someone had complained
when he used the facilities before. The librarian was not influenced
by his explanation that there was no risk of cross infection and
that gloves would not stop skin flaking from his beard. When he
pointed out that there were plenty of other local people who could
be carrying diseases the reply was, "But it doesn't show."
He did not want to complain about the library in case it jeopardised
his benefit claim with the local Council.
Since 1 October 1999, service providers have
had to make "reasonable adjustments" for disabled people,
such as providing extra help or making changes to the way they
provide services.
A West-Midlands CAB client was refused a sign
language interpreter for a home visit arranged by the council,
to check gas appliances in her home. The bureau found the company
completely unaware of DDA requirements and of the view that deaf
people didn't need access to information about work being carried
out in their home.
A CAB in the North-West was appalled at the attitude
of a local trader to a client with visual and hearing disabilities.
The client had bought a cooker with a one-inch sticker on it saying
that the ignition was faulty. He was not informed of how this
fault would affect the product. The shop's response to Bureau
was that people like that shouldn't be allowed out to shop.
A seriously disabled CAB client in the South
reported he had to travel miles to find a petrol station who were
prepared to help refill the petrol in his car.
A client in Wales owed £78.56 on his fuel
bill. He was told his only option was to have a pre-payment meter
fitted. His disability made the proposed site for the meter impossible
for him and he was told it would cost him £200 to change
the site. The CAB commented that if he had £200 he would
pay off the arrears.
A CAB client in London had taken out a student
loan and had made the company aware that he was blind. The company
had been writing to him and expecting written replies. When he
came to the bureau he had a county court judgement for over £4,000
with £108 cost. The bureau helped him have the judgement
set aside but found the court also expected him to sign documents.
A CAB client in the Southwest was disappointed
by a failure to provide reliable access, via the lift, for her
disabled daughter's access to leisure centre facilities for which
she had paid a £300 yearly subscription.
A CAB in Wales reported their client had specifically
checked the suitability of a holiday destination because her husband
uses a wheelchair. On arrival the hotel had steps to the entrance
and the area was all hills so they refused to leave the coach
and returned home.
Some service providers have policies and procedures
to align their provision with the DDA that are not delivering
the intended outcome. People with disabilities who choose these
services because of the promise of considerate and effective treatment
are disappointed. The DDA was intended to prevent the exclusion
of people with disabilities from access to goods and services.
Some disabilities are not obvious and services providers should
be more willing to be responsive to requests for alternative delivery
mechanism, learning from best practice. Citizens Advice evidence
shows that there is a need for greater awareness on the part of
service providers about the needs of disabled customers and their
legal obligations, and for strengthening the enforcement machinery.
6. THE PROPOSED
CHANGE TO
THE DEFINITION
OF DISABILITY
This remains unchanged from the DDA and we are
concerned that it continues to exclude a significant proportion
of mental health problems. A substantial number of enquiries to
CABx are from people with mental health problems; indeed some
bureaux observe that in 2002 over half the clients seen had or
had had a mental health problem. In the summer of 2003, Citizens
Advice gathered evidence, from bureaux and from a survey of the
100 or more special projects that CABx run for people with mental
health problems, for a submission to the Social Exclusion Unit's
consultation on Mental Health and Social Exclusion. This evidence
highlighted the very extreme difficulties people with mental health
problems face trying to hold on to their job during a phase of
illness and having lost their job, trying to get back into employment.
Workplace experience, in particular, stigma, prejudice and discrimination
were near universally cited as the main reason why people with
mental health problems give up work and their main hurdle when
trying to get a job.
People with mental health problems are also
excluded from insurance protection when member organisations of
the Association of British Insurers translate guidelines on the
Disability Discrimination Act into policies of not recognising
mental health problems as grounds for payment, unless the illness
is clinically well recognised. For example, a loan protection
plan typically says "We will not pay benefit if . . . your
disability arises from stress, anxiety, or depression or any mental
or nervous disorder, unless a specialist certifies that the condition
prevents you from working." [58]
People with mental health problems who lose
their jobs through illness are hit again with loss of cover to
protect their income at crucial times in the management of their
health. It is vital that people should be able to rely on insurance
products to give them this protection. If insurance guidelines
rely heavily on the terms and definitions of the Disability Discrimination
Act, it becomes of paramount importance to recognise the real
impairment that many forms mental illness incur and to have this
recognition incorporated into the Act.
For these reasons Citizens Advice recommend
the definition of mental impairment in the Disability Discrimination
Act should be broadened to take account of the range of mental
illness and to reflect the effect of mental disability on people's
lives to help people with mental health problems challenge unacceptable
discrimination.
Problems facing people who consider taking action
under the Act are several. The "clinically well-recognised"
requirement doesn't apply to physical impairments and it is unclear
why should it be a requirement for people with mental health problems;
it would seem sufficient to accept GP diagnoses of incapacity.
The Goodwin case[59]
illustrates the difficulty of proving mental impairment. In this
case the Employment Tribunal would not recognise schizophrenia
under the definition because the client's medication allowed him
to carry out normal day activities as described in the Act.
There are also problems with the definition
of "normal day activities". As defined, "normal
day activities" fail to take sufficient note of the kinds
of difficulties people with mental health problems face, namely
in the behaviour and everyday activities that are affected when
they are not well and the periodic and recurrent nature of their
illness.
7. WHETHER THE
RANGE OF
"TRIGGERS" IN
THE DRAFT
BILL FOR
REQUIRING REASONABLE
ADJUSTMENTS ARE
APPROPRIATE
We welcome the introduction of a pro active
duty and the notion indirect discrimination (by outcome) as set
out in new section 21D(2), which mitigates the problem of always
needing a "trigger event" to make legislation effective.
However, these only relate to public authorities; it should be
made clear in the drafting that the duty on employer and service
providers to make reasonable adjustments is a proactive, anticipatory
and continuing duty.
8. HOW THE
DRAFT BILL
REFLECTS THE
GOVERNMENT'S
2001 MANIFESTO COMMITMENT
TO EXTEND
BASIC RIGHTS
AND OPPORTUNITIES
FOR DISABLED
PEOPLE
The Committee should consider how far the Bill
moves towards implementing all the remaining recommendations of
the Disability Rights Task Force in its final report to Government:
"From Exclusion to Inclusion".
February 2004
58 Council of Mortgage Lenders, Mortgage Payment Protection
Insurance Baseline Cover Specification, para 15. Back
59
Goodwin v The Patent Office [1999] IRLR 4, Employment
Tribunal Appeals. Back
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