Memorandum submitted by the Disability
Charities Consortium
1. INTRODUCTION
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. THE DEFINITION
OF DISABILITY
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. DISCRIMINATION
ARISING FROM
DISABILITY
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. PUBLIC SECTOR
EQUALITY DUTY
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. REASONABLE
ADJUSTMENT DUTY
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. PURPOSE CLAUSE
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. SUMMARY
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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