THE DISABILITY DISCRIMINATION ACT 1995
Imagine a world in which the bar staff in a pub shouted ‘I don’t want your kind in here’ as soon as you walked through the door, in which your local cinema barred you because you were a ‘health hazard’ and large stores turned you away because ‘seeing you would upset their regular customers’. Now imagine that there is absolutely nothing you can do about it. You cannot retort ‘I know my rights’ because you don’t have any. You cannot take legal action because no offence has been committed. There is no one to complain to – you simply have to accept it.
Not that many years ago, this was the world as many adults with learning disabilities in the United Kingdom knew it. Yet, amazingly, this was not discrimination. There was no such offence as disability discrimination. That, however, has now changed with the introduction of the Disability Discrimination Act 1995. Introduced in phases between 1996 and 2005, the Disability Discrimination Act is the first piece of legislation to specifically address issues of disability in the United Kingdom since the Chronically Sick and Disabled Act of 1945, and the first in the United Kingdom to address the discrimination faced by disabled people. With eight Parts and 70 sections, the most important sections of the act for people with learning disabilities are contained in Parts I–V.
PART I: DISABILITY
Part I, section 1 defines disability as ‘a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’. For the purposes of the act, ‘long-term’ means that the person has had the disability for more than 12 months and/or it is expected to continue for 12 months or more, whilst ‘normal day-to-day activities’ include:
• mobility
• manual dexterity
• physical coordination
• speech, hearing or eyesight
• continence
• the ability to lift, carry or move ordinary objects
• memory, or the ability to concentrate, learn or understand
• being able to recognize physical danger.
Clearly, this broad definition encompasses those with a learning disability, and, as such, they are entitled to the protection that this legislation affords. So, what protection does it afford?
PART II: EMPLOYMENT
Part II, section 4 of the act, which places a duty on employers not to discriminate against disabled employees or applicants for employment, came into force on 2 December 1996. At that time, the act only applied to employers who employed 15 or more employers. However, since October 2004, the legislation now applies to all employers, regardless of the number of people whom they employ. As a consequence of the act, it is unlawful for employers to treat a disabled person less favourably than a non-disabled person. This includes the recruitment and interviewing of new employees, the terms of employment, such as length of contract and salary, training, promotion, transfers and dismissal procedures. Employers are still able to recruit or promote the most suitable or best equipped candidate for a job but they cannot now reject a candidate or pay him/her less solely on the grounds that s/he is disabled.
Furthermore, section 6(1) of Part II states that ‘Where – (a) any arrangements made by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect’.
In effect, this requires employers to make reasonable changes to the workplace or working practices to enable the disabled person to carry out the job, providing these changes do not breach health and safety laws. Examples of reasonable adjustments identified in the act include:
• making adjustments to premises
• allocating some of the disabled person’s duties to another person
• altering their working hours
• allowing the disabled person to be absent during working hours for rehabilitation, assessment or treatment
• providing or arranging for training
• modifying equipment
• modifying assessment procedures
• providing a reader or interpreter
• providing supervision.
The duty of the employer to make reasonable adjustments, however, is not absolute and applies only if (a) the disabled person is at a disadvantage, and (b) the adjustments are reasonable. In determining what is reasonable, the employer is entitled to consider the cost in relation to the benefits of any changes. Where the cost of making the change proves prohibitively expensive and/or results in minimum benefit, employers will be able to argue that the adjustments are not reasonable.
This is not the only exemption, as the employment provision in the legislation does not apply to the armed forces, the police service, the fi re service and the prison service or to anyone employed onboard ships, aeroplanes or hovercraft.
PART III: DISCRIMINATION IN OTHER AREAS – GOODS, FACILITIES AND SERVICES
Section 19 of Part III, which also came into force in December 1996, places a duty on providers of goods, facilities and services (service providers) not to discriminate against disabled people. The range of different service providers is far too extensive to list here; however, some examples include:
• hotels
• pubs
• shops
• theatres
• churches
• parks
• train stations
• airports
• housing associations and hostels.
Education is, as is public transport, excluded from this, as they are covered in Parts IV and V, respectively. In October 1999, a number of further provisions were enforced which require service providers to make reasonable adjustments to policies, practices and procedures, and to provide auxiliary aids and services.
Under section 20(1) of the act, a service provider is said to have discriminated against a disabled person if ‘(a) for a reason which relates to the dis abled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified’.
As a consequence, it is now unlawful for a service provider to:
(1) refuse to provide, or deliberately not provide, a service to a disabled person when it is normally offered to other people;
(2) provide a lower standard of service, or in a worse manner;
(3) provide a service on less favourable terms.
Part III also puts a separate duty on people selling, renting or managing property not to discriminate against disabled people. Where a physical feature makes it unreasonably difficult or impossible for a disabled person to make use of a service provider’s services, the provider now has a duty to find a reasonable alternative way of making their service available and, since October 2004, they are required to consider either removing the physical feature, altering it or providing a reasonable means of avoiding it. As with Part II, there is a cost–benefit criterion in determining what is reasonable. However, it is no longer legally acceptable, for example, for a pub, theatre or shop to exclude or limit the access of people with learning disabilities solely on the grounds of disability to the services and leisure facilities that most of us take for granted.
PART IV: EDUCATION
Although excluded from Part III of the act (‘Provision of Goods, Services and Facilities’), Part IV did recognize the needs of disabled people in relation to education. However, the Special Educational Needs and Disability Act 2001 (SENDA) amended the DDA 1995, imposing new duties for education providers, which came into effect in September 2002. Section 28A(1) states that ‘It is unlawful for the body responsible for a school to discriminate against a disabled person – (a) in the arrangements it makes for determining admission to the school as a pupil; (b) in the terms on which it offers to admit him to the school as a pupil; or (c) by refusing or deliberately omitting to accept an application for his admission to the school as a pupil’. Similarly, section 28A(4) states that ‘It is unlawful for the body responsible for a school to discriminate against a disabled pupil by excluding him from the school, whether permanently or temporarily’.
As with the earlier parts of the act, the meaning of ‘discrimination’, in relation to education, is treating an individual with a disability less favourably than others when it cannot be shown that the treatment in question is justified. Under section 28C, it is also considered to be discrimination if an educational provider fails to take ‘reasonable’ steps to ‘ensure that (a) in relation to the arrangements it makes for determining the admission of pupils to the school, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and (b) in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled’.
As a consequence of these amendments, Part IV of the act has now been brought into line with Part III, and providers of education now have a duty to make ‘reasonable’ adjustments to working practices and premises where existing premises or practices put disabled people at a substantial disadvantage. These might include:
• changing admissions, administrative and examination procedures;
• changing course content, including work placements;
• changing physical features and premises;
• changing teaching arrangements;
• providing additional teaching;
• providing communication and support services;
• offering information in alternative formats;
• training staff.
However, if those adjustments would lower academic standards, then education providers are not compelled to make them. The act also requires all education authorities to prepare an accessibility strategy to:
(a) increase the extent to which disabled pupils can participate in the schools’ curriculums,
(b) improve the physical environment of the schools for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and associated services provided or offered by the schools;
(c) improve the delivery to disabled pupils within a reasonable time, and in ways which are determined after taking account of their disabilities and any preferences expressed by them or their parents.
PART V: PUBLIC TRANSPORT
Part V of the 1995 Act did little other than give the government powers to make regulations relating to the design and accessibility of public transport vehicles, such as taxis, buses, coaches, trains and trams at a later date. This paved the way for the Disability Discrimination Act 2005 which identifies minimum standards, and a timetable for the introduction of those standards. However, whilst the 2005 amendment to the act requires public transport operators to ensure that all new vehicles, including rail vehicles and newly licensed taxis, are (a) accessible to disabled people, and (b) that disabled people are able to travel in safety and reasonable comfort, the legislation did not take immediate effect. The dates of the introduction of these duties vary according to the type of vehicle:
• Taxis: new taxis should now be made accessible. All vehicles should meet the requirements by the year 2012.
• Buses and coaches: all new single-decker buses should now be accessible. All double-decker buses should now also be accessible. All vehicles will have to comply with the regulations at a later date.
• Rail vehicles: all new rail vehicles that have come into service after 31 December 1998 will have to comply with the regulations.
As with other service providers, transport operators will have to make ‘reasonable’ adjustments to policies, practices and procedures that discriminate against disabled people and also to provide auxiliary aids and services where they enable or facilitate access. However, it should be noted that even with the legislation, it is likely to be 2020 before all public transport is fully accessible to people with disabilities.
As stated earlier, the above five parts of the Disability Discrimination Act 1995 are likely to be of the most immediate interest to people with learning disabilities, as they identify those areas in which disability discrimination has been outlawed. There is, however, one further part of the act that is worthy of consideration and that is Part VI.
PART VI
Opportunities Commission and the Commission for Racial Equality. Part VI of the Disability Discrimination Act 1995, however, created the National Disability Council. Whereas the Commissions can hear complaints and have the power to take action against those found to have acted in a discriminatory manner, the remit of the National Disability Council was to merely advise the Secretary of State on matters ‘relevant to the elimination of discrimination against disabled persons’.
For many, this was seen as a major weakness of the legislation, as, in the absence of a Commission, the only course of action open to those who believed that they had been discriminated against was a prohibitively expensive private legal action. However, in response to these criticisms, 4 years after the Disability Discrimination Act came into force, the Government passed the Disability Rights Commission Act 1999, which abolished the National Disability Council and replaced it in 2000 with the Disability Rights Commission. Unlike the earlier Council, whose role was simply to advise government, the remit of the Commission is far more extensive and includes:
• promoting equal opportunities for disabled people in the provision of services;
• providing information and advice to anyone with rights or duties under the act;
• supplying assistance and support to disabled litigants;
• undertaking formal investigations into discrimination and ensuring compliance with the law;
• arranging a conciliation service between service providers and disabled people to help resolve.
More importantly, the Commission can also take offenders to court, where a successful prosecution could result in compensation or an injunction forbidding the offender from repeating the discriminatory behavior. Whilst it is unlikely that the Disability Discrimination Act will completely eradicate discrimination against people with disabilities, the legislation does give people with learning disabilities the right to access the services and facilities that most of us take for granted, and a means to take action where that right is denied.
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