Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents

Memorandum submitted by the Disability Charities Consortium


  1.1  We are the Disability Charities Consortium (DCC), an informal coalition of seven disability charities: Leonard Cheshire Disability, Mencap, Mind, RNIB, RNID, RADAR, and Scope. We offer information, support and advice to over ten million disabled people in the UK. The DCC comes together to work on issues of shared concern, including disability discrimination legislation. Due to the importance of the Equality Bill, we are working with other disability organisations: National Aids Trust, NDCS, Sense, Skill and The Guide Dogs for the Blind Association. This is a joint submission from our twelve organisations.

  1.2  We share concerns around a number of issues which have been raised by the Joint Committee on Human Rights, and we ask the Committee to use all its influence to persuade the Government to ensure no weakening in legal protection for disabled people. To make sure that disabled people's human rights are adequately protected it is also essential to ensure that the Equality Bill fully reverses the damaging precedent that was set by the House of Lords judgement (Lewisham v Malcolm, 2008).

  1.3  Human rights are universal and indivisible. The Disability Discrimination Act was an important stepping stone in the advancement of disabled people's human rights and it is therefore essential that any new legislation must build upon the foundations laid by the DDA. Unfortunately, the Equality Bill as it stands has the unintentional consequence of weakening the rights of disabled people. We must ensure that new legislation must be absolutely clear about disabled people's rights to be treated as full and equal citizens.

  1.4  It is vital that the Equality Bill will not lead to a reduction in disabled people's rights not to be discriminated against. For this reason, we have highlighted a number of areas where there is a real risk of regression:

    — the definition of disability is not adequate to ensure that all disabled people are covered, and the Bill adopts the medical model of disability rather than the social model which is preferred by disability organisations;

    — the new provision of "discrimination arising from disability" will not provide the same level of protection afforded by "disability-related discrimination" in the DDA, leaving the door open for another "Malcolm" case;

    — the public sector equality duty will not achieve the same outcomes as the Disability Equality Duty, and we are concerned that a number of important public bodies will not be covered; and

    — the reasonable adjustment duty shifts the emphasis onto taking steps to overcome the disadvantage rather than addressing the disadvantage itself.


  2.1  We share the Committee's concerns regarding the Bill's adoption of the "medical model" of disability over the "social model" which is increasingly recognised as international best practice. Disabled people developed the social model of disability because the traditional medical model did not explain their personal experience of disability or help to develop more inclusive ways of living.

  2.2  The social model says that disability is caused by the way society is organised. The medical model of disability says people are disabled by their impairments or differences. Under the medical model, these impairments or differences should be "fixed" or changed by medical and other treatments, even when the impairment or difference does not cause pain or illness. It creates low expectations of people with impairments so that their education and employment opportunities are more limited and they are more likely to live in poverty. We are, therefore, disappointed that the Equality Bill adopts the medical model which leads to people with impairments and differences losing independence, choice and control in their own lives.

  2.3  Disability discrimination legislation in the UK requires disabled people to face a dual burden of proof—first, the individual must prove that they are disabled (ie they must meet the defined criteria of disability), and only then the focus shifts to the treatment and whether it was discriminatory. Under every other protected characteristic in the Equality Bill the focus is on the treatment firstly, then on the connection with the protected characteristic.

  2.4  Compared to other groups, disabled people are at a significant disadvantage when claiming discrimination because of the way the definition of disability operates, in particular the long-term requirement and the "normal day-to-day activities". We are also concerned that the meaning of "substantial" is not defined on the face of the Bill. Currently "substantial" means "not more than minor or trivial", however because this meaning is not on the face of the Bill, there is a risk for a narrower interpretation in the courts.

  2.5  We believe that the definition of disability in the Equality Bill excludes disabled people with fluctuating conditions. Certain mental health conditions are fluctuating in nature. The requirement that the impairment is "long-term" (likely to last or have lasted for more than 12 months) can therefore be a barrier for people when they challenge discrimination relating to their mental health. In many cases it can also be very difficult to predict what the duration of a mental health condition is likely to be.


  3.1  We share the Committee's concern regarding the new provision of "discrimination arising from disability", which we believe does not sufficiently reproduce the protection of "disability-related discrimination" contained in the DDA. The provision does not provide adequate safeguards that another "Malcolm" case will not happen. By linking the treatment to the detriment, another "Malcolm" may happen where the court determines that as a non-disabled person suffered the same detriment, there was no unlawful discrimination against the disabled person. The definition needs to make it clear that the reason for the treatment is linked to the disability, not simply assess the treatment itself or the detriment.

  3.2  The knowledge requirement in the Bill sets a higher threshold and can lead to protracted and complex cases. There is no knowledge requirement in the DDA and we fear that by inclusion in the Equality Bill it will make it much harder to prove disability discrimination. We would like to see this removed.


  4.1  We welcome the single public sector equality duty but we are concerned about the risk of excluding bodies which are not listed in Schedule 19. Clause 143(2) states that "a person who is not a public authority but who exercises public functions" will still be covered by the General Duty; however there is ambiguity about what constitutes a public function, and organisations which are important for disability equality may be excluded, for example care homes, housing organisations and academies.

  4.2  We are worried about whether the public sector equality duty will achieve the same outcomes as the Disability Equality Duty. We want to ensure that public authorities must have due regard to the need to take account of the needs of disabled people, even where this involves more favourable treatment. The public sector equality duty provides that compliance with the duty "may" involve treating someone more favourably. This is a regressive step as the current Disability Equality Duty "requires" public authorities to take account of disabled person's disabilities even where this involves more favourable treatment. The Equality Bill needs to restore this feature.


  5.1  We believe that the reasonable adjustment duty in the Equality Bill places the emphasis on taking steps to overcome the disadvantage rather than addressing the disadvantage itself. This undermines one of the fundamental principles in the DDA which is to ensure that disabled people enjoy the same level of access as non-disabled people. We want to restore the DDA approach where the focus is on removing the barrier, and where this is not reasonable, providing an alternative means.

  5.2  Of particular concern is the power of regulators such as OFQUAL to determine which parts of exams are not subject to the reasonable adjustments duty, without stringent safeguards to ensure that the needs of disabled students are taken into account.


  6.1  We agree with the Equality and Human Rights Commission and a number of other groups that the insertion of a purpose clause into the Equality Bill would clarify the purpose and intention behind the legislation and give guidance about its underlying principles, aims and objectives. We believe that a purpose clause in the DDA would have avoided the Malcolm judgment as the spirit and intention of the legislation would have been clear on the face of the Bill.

  6.2  We believe that the government should also give consideration to inserting a purpose clause which explicitly sets out what reasonable adjustments are supposed to achieve.

  6.3  Furthermore, the Equality Bill introduces a much stricter comparator test for the reasonable adjustment duty. We believe this to be inappropriate as the reasonable adjustment duty should focus on ensuring that the disabled person can actually do their job or can access the same level of service.


  7.1  The Equality Bill is a vital vehicle for making sure that disabled people in the UK can enjoy their full human rights. The Disability Charities Consortium hope that the Government will ensure no regression in relation to the level of protection afforded to disabled people, and address specific issues to guarantee that disabled people are not disadvantaged.

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