2. Memorandum from the Disability Rights
Commission
The Disability Rights Commission was set up
in April 2000, as an independent statutory agency, following the
passing of the Disability Rights Commission Act 1999, with the
objectives of:
— Working to eliminate discrimination
against disabled people.
— Promoting equality of opportunity
for disabled people.
— Encouraging good practice in the
treatment of disabled people.
— Advising the government on the working
of legislation.
Our evidence will be confined to the need to
improve protection against discrimination. We very much welcome
the attention given by the Committee to the issue of extending
legal protection for disabled people against discrimination.
Poverty and Social Exclusion
The need for more effective measures to tackle
discrimination and exclusion is clear. Disabled people make up
a significant proportion of the population in Britain—at
least 8.6 million, representing one fifth of the total adult population.
(Grundy et al, Disability in Great Britain)
Among adults, disability prevalence increases
steeply with increasing levels of area deprivation, with residents
in the most deprived areas being more than twice as likely to
have one or more disabilities as residents in the least deprived
areas. (Health Survey 2001, England)
— In Britain, disabled people are only
half as likely as non disabled people to be in work:
— 50% of disabled men (of working
age) are in employment, compared with 87% of non disabled men.
— for disabled women, the employment
rate is less than 50%, compared with 76% for non disabled women.
Employment rates vary significantly by type
of disability. Only one fifth of people with mental illness are
in work (21%), compared with 64% of people with a hearing impairment
(64%). However, this contrasts with the overall employment rate
of 81% for the non disabled population. (LFS summer 2002)
Disabled people are nearly twice as likely to
be unemployed as non disabled people—8% compared with 5%
(LFS summer 2002)
Households with a disabled adult have a higher
workless rate than those without. In autumn 2001 around 5.7 million,
or a third of working-age households in Britain, contained at
least one disabled adult of working age. In the population as
a whole the total workless household rate was 16.4%. However,
households with a disabled adult had a workless rate of 31.1%,
compared with a rate of 9.7% for those households where no disabled
adult was present. (Labour Market Trends August 2002)
Lower Income and Higher Reliance on State Benefits
— Disabled households have a total
income that is 20-30% less than all households in Britain. (Grundy
et al, Disability in Great Britain)
— Disabled people are nearly five times
more likely than non disabled people to be out of work and claiming
benefits. There are currently over 2.8 million disabled people
out of work and on benefits, over a million want to work. (LFS
summer 2002)
— For the disabled population out of
work, over 42% received state benefits, compared with only 9%
of the out of work non-disabled population. (LFS summer 2002)
Education
Disabled people have lower levels of educational
qualifications than non disabled people. Only 16% of disabled
people have a higher qualification, compared with 27% of non disabled
people. (LFS summer 2002)
Over half of disabled people (54%) in Britain
have no qualification at all, compared with 28% of non disabled
people. (Disabled for Life, 2002)
Housing
— 13.1% of long-term sick and disabled
people under 60 were in poor living conditions, compared to 6%
of all interviews. (English House Conditions Survey, DETR 1998).
— A survey of families with a disabled
child in the Northern and Yorkshire regions found that three quarters
reported unsuitable housing. Just under a fifth lived in cold
damp housing in poor repair (Rowntree Trust 1998).
Strengthening Protection against Discrimination
The Disability Discrimination Act marked the
first formal acknowledgement in law of the existence of disability
discrimination and the need for legal remedies to counter it.
Nevertheless, it provides limited and inadequate protection against
discrimination and social exclusion, and requires urgent reform.
At present there is still no comprehensive and
effective legal protection for disabled people against discrimination.
The Government needs to act urgently to redress this situation.
The Government recognised the flawed nature
of the DDA when they established the Disability Rights Taskforce
and charged it with advising on the changes needed to proved comprehensive
and enforceable civil rights. In 1999 the Taskforce's Report,
From Exclusion to Inclusion, provided the Government with
a significant legislative reform agenda, much of which remains
to be implemented. The Task Force was chaired by the then Minister
for Disabled People, and brought together a wide range of stakeholders
including not only a wide range of disability groups but also
the Small Business Federation, Institute of Directors, CBI, TUC
and representatives from the health and social services sectors.
Its recommendations to the Government were unanimous. The Taskforce's
Report therefore carries an enormous authority, and one of the
DRC's first actions was to agree full support for all its recommendations
Towards Inclusion—civil rights for
disabled people, published in March 2001, committed the Government
to implementing most of the other Taskforce recommendations. This
formed part of the Labour Party Manifesto at the last General
Election. All these changes to the DDA will require primary legislation
(with the sole exception of some employment changes explained
below).
The Government has stated that it will issue
a draft Disability Bill later this year. We expect this to contain
the bulk of the outstanding Taskforce recommendations. Because
of the urgent need for this extended legal protection, we urge
the Government to ensure that the Disability Bill is included
in the year's Queen's Speech.
We will shortly be publishing our first Legislative
Review, and hope to see some of our recommendations included in
the Disability Bill. We set out below the key reform proposals
from the Taskforce, and from our forthcoming Review.
KEY REFORM
PROPOSALS
The educational recommendations of the Taskforce
were implemented by the Special Educational Needs and Disability
Act 2001. Other key proposals cover transport, public sector,
and housing.
Transport
The DDA currently excludes transport services.
The DRC receives many complaints on this subject.
— An "end date" by which
all passenger rail vehicles should comply with rail accessibility
regulations should be introduced. At present, there is no end
date, giving no certainty as to when disabled people can expect
all passenger rail vehicles to be accessible.
— Accessibility regulations should
be introduced to apply to refurbishment of existing rolling stock—at
the moment, the regulations apply only to new build trains.
— The exemption for transport operators
from the first two phases of the DDA access to services should
be removed. At the moment, where a disabled person is, for example,
refused access to a bus because the driver does not wish to have
disabled people on board, there is nothing that can be done under
the DDA about it.
— The DDA should apply to car hire
and breakdown recovery services.
— A reserve power should be taken to
give the Code of Practice on access to air travel statutory force.
Public Sector
— Public bodies must be placed under
a legal duty to promote equality of opportunity for disabled people.
Such a duty has recently been introduced in relation to race,
by the Race Relations Amendment Act. The duty was promised in
relation to disability in November 1999—but no timescale
has as yet been indicated.
— The DDA should apply to all functions
of public authorities
Some "service" functions carried out
by public authorities may not be covered by Part III of the DDA.
These include services which can only be carried out by public
authorities and which are not similar in kind to the services
which can be performed by private persons (such as planning decisions,
the carrying out of law enforcement functions, or certain functions
of the Highway Authority). These services are crucial for disabled
people. The Race Relations Act has recently been amended to ensure
that such functions are covered under that Act.
Housing
The DDA provides limited rights in relation
to housing. In particular, the key DDA requirement to make reasonable
adjustments does not apply to housing. This needs to be remedied.
— The duties on those disposing of
premises should be extended to include a duty to make reasonable
adjustments to policies, practices and procedures. The duty under
the DDA to provide auxiliary aids and services should extend to
any communications between those disposing of the premises and
the lessee. At the moment, there is no obligation for landlords
to provide, for example, rent statements which are accessible
to disabled people, or to provide a sign language interpreter
when discussing a tenancy issue. In general, there is no rationale
for requiring such reasonable adjustments from service providers,
but not from landlords. It is particularly important that landlords
communicate with tenants in accessible ways, and that they operate
flexible policies—for example allowing service animals in
premises and permitting adjustments to properties.
— Landlords should not be allowed to
withhold consent unreasonably from a disabled person to make changes
to the physical features of the premises, although the landlord
should not have to meet the costs. The DRC receives many calls
from people in this situation.
— Create a power to reduce below six
persons the exemption figure for small dwellings in private premises.
Employment
The Government has published significant proposals
for extending disability rights. They will come into force on
1 October 2004, and will extend disability rights to all employees
(except those in the armed services) and to employment related
matters such as bodies issuing qualifications.
The DRC is however very disappointed that the
basic right to equal treatment remains inadequately protected.
It will continue to be too easy for employers to legally "justify"
less favourable treatment on the basis of disability. In the absence
of either a concept of indirect discrimination or an anticipatory
duty to make adjustments the law remains inadequate to address
institutional discrimination.
Justifying discrimination
Under the DDA, if less favourable treatment
for a reason related to a disability can be shown by an employer
to have been for a "material and substantial" reason
it will be "justified", and will not constitute unlawful
discrimination. Recent caselaw has interpreted the DDA in a way
which allows employers too much latitude in "justifying"
less favourable treatment which would otherwise constitute discrimination.
The DRC's view is that less favourable treatment
on the basis of a disability should only be permitted where an
employer shows the disabled person is not competent capable or
available to perform essential functions, taking into account
the employer's reasonable adjustment duty. The test which a tribunal
applies needs to be an objective one.
No indirect discrimination or anticipatory duty
Unlike other British anti-discrimination laws,
the DDA does not prohibit "indirect discrimination".
This would remain the case under the new proposals.
Systematic, often unrecognised, barriers exclude
disabled people from the workplace. These include: unnecessary
job criteria; inflexible work practices; unnecessary medical requirements;
training systems which are not equipped for disabled staff; intranets
which cannot be accessed by people with a range of disabilities;
and buildings not designed to accessible standards.
The legal mechanism, which addresses systemic
discrimination in relation to race and gender, is "indirect
discrimination". The European Framework Directive requires
indirect discrimination to be prohibited in relation to sexual
orientation, religion and age. However, the Directive provides
that where a disabled person can claim a reasonable adjustment,
there is no requirement to also provide a remedy through indirect
discrimination.
The DRC's concern is that, whilst this approach
gives redress to an individual, it neglects the extent to which
institutional barriers can exclude groups of disabled people.
A legal mechanism which encourages employers to dismantle institutional
barriers is needed.
The DRC believes that, in the absence of an
indirect discrimination provision, employers should be subject
to a duty to anticipate the requirements of potential disabled
employees and applicants, and to take reasonable action to remove
barriers in advance of individual complaint. This would parallel
the provisions which relate to disabled students and customers
in Parts III and IV DDA.
Extending this approach to employment would
encourage employers to think in advance about the ways in which
their practices or premises might be made more accessible to disabled
people. This would create similar management thinking to that
fostered by indirect discrimination, helping promote a coherent
approach across the different diversity issues.
All that would be required is reasonable steps.
Thus, employers would not be expected to make expensive changes
to their premises in case a disabled person applied for a job,
but would be expected to consider access improvements when refurbishing.
Definition of Disability
To claim protection under the DDA a claimant
must first establish that they are (or have been) "disabled"
under the terms of the Act. A person has a disability for the
purposes of the DDA if s/he has a physical or mental impairment
which has a substantial and long-term adverse effect on his or
her ability to carry out normal day-to-day activities (section
1).
The DDA's definition of disability has significant
flaws. Research indicates that applicants lost in 16% of decided
cases because tribunals ruled that they had not met the statutory
definition of disability[2]
This was the single most common reason for a claim to fail. We
are concerned that people who experience great stigma and discrimination
are sometimes not protected by the law.
The Government has accepted two Taskforce recommendations
to improve coverage:
— HIV infection should be deemed a
disability from the point at which it is diagnosed. Terence Higgins
Trust state that research conducted in 2001 suggested that up
to 20% of people who are HIV positive had experienced some form
of discrimination in the last 12 months.
— People with cancer should also be
deemed to be disabled from the point at which it has significant
consequences on their lives. It is clear from the cases brought
under the DDA that the DDA definition does not always cover people
with asymptomatic cancer nor those where it is unclear that substantial
effects are likely to worsen (eg some cancers during or after
treatment).
People in both these positions—where significant
treatment is likely to be required in future or who have had significant
treatment—may encounter discriminatory treatment. DDARAP
and the Disability Law Service submitted evidence to the Disability
Rights Taskforce to indicate that they had seen several women
in remission from cancer following treatment, with less than a
50% chance of the effects of cancer recurring, have been dismissed
or selected for redundancy.
Mental illness
The high level of stigma associated with mental
illness is well documented[3]
However, the caselaw reviewed by the DRC reveals that people with
serious, in some cases life threatening, mental conditions have
been excluded from coverage by the definition. We propose three
changes to address this problem.
1. The list of normal day to day activities
should be revised to include: "the ability to communicate
with others" and to ensure that self-harming behaviour is
covered.
To qualify as a disability under the DDA an
impairment must have a substantial effect on normal day-to-day
activities. In order for an impairment to be treated as affecting
the ability of the person to carry out day to day activities it
must affect one or more of the categories of activities contained
in the DDA: mobility, manual dexterity, physical co-ordination,
continence, ability to lift, carry or move everyday objects; speech;
hearing; sight; memory; the ability to learn, understand or concentrate;
the perception of risk or physical danger[4]
This list of categories of day-to-day activities
inadequately captures the effects of many mental illnesses. Such
illnesses typically have an impact on thinking, feeling or social
interaction, which are not specified capacities under the DDA
definition.
Two cases illustrate the deficiencies of the
present categories:
Batten v Medical Research Council (London
South, Case No 2301397/98)
Ms Batten had Post Traumatic Stress Disorder,
following an accident. This caused her acute anxiety and an inability
to concentrate on routines which led to her giving up classes
she was taking. She had no social contact, feared going out and
had difficulties with concentration.
The tribunal held that she had a clinically
well-recognised illness. They accepted that the condition had
had a substantial effect on her lifestyle but concluded that it
did not substantially affect her ability to carry out normal day-to-day
activities.
Gittins v Oxford Radcliffe NHS Trust (EAT/193/99)
Ms Gittins had Bulimia Nervosa. The Trust would
not employ her because of this diagnosis. Nevertheless they argued
that she was not disabled because this condition did not have
a substantial adverse effect on her ability to carry out day-to-day
activities.
It was accepted in evidence that the condition
meant that Ms Gittins regularly forced herself to vomit; and self-harmed.
She was prescribed an anti-depressant and went to a positive thinking
group. Medical evidence stated that Ms Gittins had an impaired
memory and ability to concentrate, and that perception of the
risk of physical danger was also affected.
The tribunal ruled that Ms Gittins' condition
did not affect her day-to-day activities, and that therefore she
was not protected by the DDA. The EAT upheld this decision.
We propose that:
— The categories of day-to-day activities
should be revised so that the ability to "communicate and
interact with other people" is added. People with severe
depression may often lose the ability to communicate with others,
which has the same impact on their life as not being able physically
to speak, but it is not adequately covered by the present law.
— The wording of the category "perception
of physical risk" should be revised to ensure that it covers
people who self-harm, for example through cutting themselves,
or through anorexic or bulimic behaviour. At present the argument
can be successfully made that an individual who has a clear intellectual
perception of the risk of harm, but chooses to ignore this, is
not covered by the Act.
2. The requirement that a mental illness
be "clinically well recognised" should be removed.
The DDA states that a mental illness must be
"clinically well recognised" in order to be capable
of constituting a disability under the Act[5]
There is no such requirement for other forms of mental or physical
impairment.
The Taskforce recommended that this provision
should be reviewed and consulted on. The Taskforce commented:
"We appreciate the policy desire behind the inclusion of
clinically well recognised conditions—to prevent abuse through
people claiming non-existent or unproven conditions—but
we received no evidence that removal of the term would bring into
coverage any such conditions."
There is no evidence from the case law that
this restriction has fulfilled its declared role of excluding
"obscure conditions unrecognised by reputable clinicians"
or "moods or minor eccentricities."[6]
Furthermore, reported cases and research show that the requirement
to prove that a condition is clinically well recognised is disadvantaging
some people with genuine mental health conditions. This was a
major concern for applicants' representatives interviewed in Monitoring
the Disability Discrimination Act[7]
A common problem was that "many people with quite severe
mental illnesses may not have a clear diagnosis, or may have different
diagnoses at different times, which will make it difficult to
satisfy this element of the definition."[8]
The EAT decision in Morgan v Staffordshire
University (EAT/322/00) clearly illustrates the difficulty
caused to some applicants. Ms Morgan had experienced bouts of
depression over a number of years. She gave evidence that her
depression made her lose interest in engaging in many of her normal
activities (housework, reading, going out, studying) and become
withdrawn. She hardly slept and had panic attacks on two occasions.
She was having counselling and was prescribed medication. Her
GP records were before the tribunal and contained numerous entries
over an extended period indicating when Ms Morgan had been treated
for depression and anxiety.
However, the EAT held that the absence of a
medical report specifically addressing whether the applicant's
symptoms conformed to the World Health Organisation's International
Classification of Diseases entitled the tribunal to hold that
she had not established that she had a clinically well recognised
illness.
3. For individuals whose day-to-day activities
are substantially affected as a result of depression the requirement
that the effects last 12 months should be reduced to six months.
To qualify as a disability an impairment's substantial
adverse effects must either last at least twelve months or, if
the effect is shorter, must be shown to be likely to recur[9]
The last is designed to cover people who experience recurring
conditions.
This requirement is proving a persistent problem
for people with depression and anxiety disorders. In a DRC case
a man who had attempted suicide and had his job offer withdrawn
as a result was held not to be disabled because he could not establish
that the substantial effects of his depression were likely to
last 12 months or more[10]
In a number of cases a person who has experienced
a series of severe depressions, each individually lasting less
than a year, have been ruled not to be disabled. The applicant
may argue that because they have a recurring depressive illness
this should be covered. However, unless he or she can show a persistent
low grade depression (known as dysthymia) technically they will
have an impairment which recurs rather than a continuing impairment
with recurring effects. This means they will not be protected
by the DDA.
We recommend a reduction in the time limit targeted
at people with depression. We do not propose that the twelve-month
requirement is reduced for every one. Whilst many cases are lost
because the applicant fails to satisfy this requirement, these
are not usually conditions which have a substantial impact on
the applicant's life, or which attract significant social stigma.
(Typically, these conditions involve temporary back, neck or shoulder
difficulties.) In contrast, experience of a substantial depression,
even one which is short-lasting and is not likely to recur, does
attract considerable stigma.
4. Progressive conditions should be covered
from the point of diagnosis, rather than (as at present) from
the point at which the condition has an effect on day-to-day activities.
The DDA already makes special provision for
progressive conditions. Where such a condition results in an impairment
which has an effect on an individual's ability to carry out normal
day-today activities, but that effect is not substantial, the
person is nevertheless deemed to have an impairment which has
a substantial adverse effect provided that the condition is "likely
to result" in such an impairment[11]
This will remain even if the symptoms disappear ie the person
goes into remission. This provision recognises that progressive
conditions will often attract considerable stigma from the point
of diagnosis.
A particular problem has arisen in relation
to MS, following an EAT decision that an applicant with multiple
sclerosis was not disabled because he had not shown that it was
a progressive condition[12]
This case reflects the fact that it is often difficult to predict
the course of multiple sclerosis, and perhaps 15 or 20% of people
with this condition will never experience any substantial effects.
It is, of course, understandable that doctors would not wish to
pronounce a negative prognosis in situations like these. Health
care professionals are put in an invidious position by the definition.
A similar situation arose in relation to HIV
in Rodgers Entertainment UK Ltd, where the doctors of a person
diagnosed with HIV would not say that the condition was one which
was more likely than not to progressively deteriorate[13]
The Taskforce proposal relating to better coverage for people
with HIV will solve this particular problem, but there seems to
the Commission to be a need to tackle these recurring problems
with regards to progressive conditions more generally.
Regulations could clarify in some instances
(such as HIV, cancer or MS) whether or not a particular condition
should be deemed to be progressive.
5. Discrimination because of an association
with a disabled person or because a person is mistakenly treated
as a disabled person should be made unlawful.
There are a number of cases where individuals
experience discrimination either because they are falsely perceived
to be disabled (under the DDA's meaning) or because of an association
with a disabled person. A recent example involved a secretary
whose child has cerebral palsy and who felt pressurised into leaving
her job because of her employer's attitude.
We think that it is right that such people should
be protected by the DDA, and in any event we believe that a change
to the law is now required under the European Framework Directive.
Under the DDA only people who have or have had a disability may
claim protection from discrimination (with the sole exception
of the victimisation provisions). By contrast, the Directive extends
protection against any discrimination "on the grounds of"
disability. The DRC's view is that the Directive requires the
DDA to be extended to cover discrimination by association and
to cover perceived disability (see the DRC Response to "Equality
and Diversity—The Way Ahead", on DRC website).
April 2003
2 Leverton S, (2002) Monitoring the Disability Discrimination
Act 1995 (Phase 2), London: Department for Work and Pensions. Back
3
Sticks and Stones 1996 MIND. Back
4
Schedule 1 paragraph 1. Back
5
DDA schedule 1 paragraph 1 (1). Back
6
William Hague, Minister for Disabled People Stg Co Deb Standing
Committee E, Date col 71. Back
7
Meagre N, Doyle B, Evans C, Kersley B, Williams M, O'Regan S and
Tackey N (1998) Monitoring the Disability Discrimination Act 1995,
London Department for Education and Employment. Back
8
Ibid p 91. Back
9
DDA schedule 1 paragraphs 2 (1) and (2). Back
10
Compton v Bolton Metropolitan Borough Council, Manchester,
Case No 2400819/00. Back
11
DDA schedule 1 paragraph 8. Back
12
Mowat-Brown v University of Surrey (2002) IRLR 235. Back
13
Unreported Case No 2701199/99. Back
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