Memorandum submitted by Leonard Cheshire
Disability
THE DEFINITION
OF DISABILITY
Leonard Cheshire Disability has supported suggestions
as previously made by the Disability Rights Commission for a move
to a social model definition of disability within anti-discrimination
law. The fact that the first hurdle that must be overcome in any
disability discrimination case is to prove that an individual
is disabled under the terms of the Act is an additional complexity
that could be easily avoided. The medical definition of disability
also presents additional problems with regard to discrimination
on the grounds of perception—where it remains unclear as
to exactly what a person who is discriminated against because
someone perceived them to be a disabled person would need to demonstrate.
Would they be required, for example, to prove that the discriminator
was specifically thinking about a disability under the terms of
the Act?
There are, however, benefits to retaining the
structure that is set out in the DDA. It is important to retain
the "asymmetry" of disability legislation to the extent
that it ensures that more favourable treatment (through the provision
of reasonable adjustments, for example) is maintained for disabled
people. The current DDA definition of disability, as retained
in the Equality Bill, is also a format that is fairly widely understood,
and it is important to ensure that disabled people are familiar
with and understand their legal rights.
Leonard Cheshire Disability would like to see
continuing consideration given to a social model definition of
disability. We would, however, suggest that our priority for the
Equality Bill is to ensure that we work to ensure that the definition
of disability as currently set out works as effectively as possible
and achieves the correct coverage.
DISCRIMINATION RELATED
TO DISABILITY
Leonard Cheshire Disability is very pleased
that the Government has set out to rectify the damage done to
anti-discrimination law through the Malcolm judgement. We, along
with many other organisations, voiced very serious concerns when
the Government initially proposed having only an "indirect
discrimination" provision to replace "disability related
discrimination". We favoured filling the gap left by the
Malclolm judgement by maintaining some form of "disability
related discrimination" provision, alongside an "indirect
discrimination" provision. As such we were very pleased that
the Government came forward with a proposal along these lines.
We do have some concerns about the way in which
the provisions have been set out at present. In particular we
are concerned about the introduction of the knowledge requirement
(subsection 14(2)) for "discrimination arising from disability".
The requirement of someone who discriminates to have fore-knowledge
of an impairment was one of the most damaging aspects of the judgement
reached in Malcolm. As such we do not believe it should be replicated
in the Equality Bill. Presumably the Government's intention is
that fore-knowledge should be required for "discrimination
arising from disability", but not for "indirect discrimination"—as
such, depending on the circumstances of the case, an individual
could take a case using one or the other of these provisions.
However one of the key arguments against having only an "indirect
discrimination" provision was that "indirect discrimination"
and "disability related discrimination" do not always
cover the same ground—one relates to individual circumstances
and one relates to general policies that have an impact on a group.
The knowledge requirement drastically reduces
the scope of the protection from "discrimination arising
from disability", but we are not convinced that this is fully
covered by the introduction of "indirect discrimination".
At best it leaves the scope of the "indirect discrimination"
provisions open to interpretation through the courts, with the
possibility of another judgement like Malcolm being reached at
a later point. To avoid any regression in disabled people's rights
we would like to see the knowledge requirement removed from Clause
14.
We would also question whether there is a need
for a subsection in Clause 18 to specifically allow more
favourable treatment for disabled people, as there is in Clause
13. Whilst we are concerned about the wording of the more favourable
treatment subsection in clause 13, and so would be concerned about
it simply being replicated in Clause 18, we would wish to ask
the Government to confirm the rationale as to why it has not been
felt necessary to specifically allow more favourable treatment
in Clause 18.
PREMISES
Leonard Cheshire Disability would like to focus
specifically on the issue of "common parts" within the
Bill. We welcome the extension of the duties currently placed
on landlords to make adaptations to the common parts of a let
property. We believe that this is necessary and important to enable
disabled people to remain in their own home.
We are concerned, however, that the Bill in
its current form allows the landlord to require the disabled person
who has asked for the reasonable adjustment to pay for all the
costs involved. Disabled people are twice as likely to live in
poverty as non-disabled people, and as such it is likely that
having to bear the brunt of any costs made to the common parts
of a property will present a serious barrier to disabled people
actually making use of this provision.
Disabled people can receive support from programmes
like the Disabled Facilities Grant and the Social Fund to cover
some of the costs of making a property suitable for their needs.
But this support may not be available for all. Of particular concern
is Schedule 4, paragraph 7(3)(b), which suggests that agreements
might be reached requiring a disabled person to cover the costs
not only of installing an adaptation, but also of having it removed.
If this is indeed the intention, and disabled people will be obliged
to sign up to agreements to cover the costs both of installation
and of removal at a later date, then this is likely to present
a serious barrier to anyone making such an agreement.
Such a provision might also encourage some landlords
to set exorbitantly high costs for restoration (including, for
example, costs of removing an adaptation, costs of redecorating,
costs of replacing other fixtures and fittings) in order to prevent
the adaptation from being made in the first place.
Currently around a quarter of people who require
adapted homes live in accommodation that is unsuitable for their
needs. People who acquire an impairment, or whose impairment worsens,
can end up having to stay in hospital for months if they cannot
make necessary adjustments to allow them to return to their own
home. This provision has the potential to significantly improve
this situation, but it will not be successful if disabled people
are forced to sign up to agreements that would oblige them to
cover huge additional expenses if they ever decide, or are required,
to move.
We would like to see arrangements put in place
for funding to be made available for these reasonable adjustments,
to ensure that cost is not a barrier to landlords meeting their
obligations to disabled tenants. This could be done through the
Disabled Facilities Grant or the Social Fund, or through a new
funding stream.
OTHER ISSUES
Leonard Cheshire Disability is concerned with
the current wording of section 91(8), relating to examinations.
We are concerned with the equivalence given to public perception
about examinations alongside the basic right of disabled people
to enjoy equal access to examinations.
At present the clause suggests that regulators
should have regard when making reasonable adjustments for disabled
pupils to three areas:
— "the desirability of minimising
the extent to which disabled persons are disadvantaged in attaining
the qualification";
— "the need to secure that the qualification
gives a reliable indication of the knowledge, skills and understanding
of a person upon whom it is conferred"; and
— "the need to maintain public confidence
in the qualification".
It must be more than "desirable" to
minimise disadvantage and discrimination for disabled people—it
should be a basic right. Beyond this, surely public confidence
in examinations should be based on whether a qualification is
a reliable indication of knowledge and skills? As such there is
no justification for a further subsection on the need to maintain
public confidence—such a subsection could end up offering
a carte blanche to discriminate against disabled pupils should
an examination body decide that the media might not agree with
an adjustment that is made. We would welcome the Committee's views
on the human rights implications of this section.
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