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SCVO
Equalities Briefing August 2003
The Disability Discrimination Act 1995 (DDA)
This anti-discriminatory Act was passed by the UK
Parliament and it applies UK wide. The Scottish
Parliament has no power to amend the DDA. Local,
national and UK government fall under the
provisions of the Act and so does the voluntary
sector.
For the purposes of the Act “a person has a disability…
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”.
The DDA protects disabled people under the following
headings:
- Part
II: employment
- Part
III: access to goods, facilities and
services
- Part
IV: education
The management, buying or renting of land or
property is also covered within Parts II and
III.
Part II Employment:
At present there are two types of discrimination in
employment.
1)
Treating a disabled person less favourably for a reason
relating to their disability without
justification.
2)
Failing to make a reasonable adjustment to facilitate the
employment of a disabled person.
However, the government has committed to scrapping the
provision whereby an employer can ‘justify’
less favourable treatment. Small employers
(those with less than fifteen employees) are
also exempt at the moment but from October 2004
that exemption will no longer apply.
Part III Access to goods, facilities and services:
For providers of goods,
facilities and services:
- since
December 1996, it has been unlawful to treat
disabled people less favourably than other
people for a reason related to their
disability
- since
October 1999, they have had to make
reasonable adjustments for disabled people,
such as providing extra help or making
changes to the way they provide their
services;
- from
October 2004, they may have to make
reasonable adjustments to the physical
features of their premises to overcome
physical barriers to access.
Part IV Education:
The
Special Educational Needs and Disability Act
2001 (SENDA) amended
the DDA to include education. New duties that
apply to education providers (schools, colleges,
universities, providers of adult education,
youth services) come into effect in stages from
September 2002 through 2003 and 2005.
Education (Disability Strategies and Pupils’ Educational
Records) (Scotland) Act 2002
This Act of the Scottish Parliament is not part of the DDA or SENDA but it obliges Scottish
local authorities to produce Accessibility
Strategies outlining how they will ensure full
access to all their schools (including
nurseries) to disabled pupils in respect of the
curriculum, buildings and information.
Transport:
Part V of the DDA refers to transport. Transport infrastructure (stations, airports etc)
is already covered under the provision of goods,
facilities and services but the actual transport
service itself
is not. The government is planning to introduce
legislation to change this.
The DDA does
allow the Government
to set minimum standards to assist disabled
people to use public transport easily. This has
been realised in the form of regulations
governing the accessibility of public transport
vehicles (trains, trams, buses and coaches).
However, the deadlines for making different
types of vehicle accessible vary, 2020 currently
being the last one.
The DRC
The Disability Rights Commission Act 1999 created the
Disability Rights Commission (DRC). The DRC has
a variety of statutory duties that support the
implementation of the DDA, including keeping the
DDA under review and advising the government
accordingly. It is the primary source of
information on the DDA and it produces the
relevant codes of practice to accompany the Act.
It also supports individuals to bring legal
action using the DDA but it does not bring cases
in its own name.
Subsequent Developments
The DDA has been criticised for not being comprehensive
enough. The government has announced that it
will introduce a Disability Bill late in 2003
that will address some of the problems with the
DDA.
Bridget Prentice MP tabled a Private Members Bill at
Westminster earlier this year entitled Disabled People (Duties
Of Public Authorities) Bill.
Its intention was to give similar
responsibilities to public bodies with regard to
disability as they have with regard to race (under the Race Relations Amendment Act 2000
- to
see previous SCVO equality briefing click
here)
This Bill was talked out in May and therefore lost. It now
appears likely that the Government will adopt
the provisions of the Bill as part of its own
promised Disability Bill.
Key Questions
Do the DDA and the other relevant
acts apply to the voluntary sector?
Yes. Furthermore, certain legal cases have suggested that
in particular circumstances voluntary
organisations can fall within the definition of
a ‘public authority’. It is therefore
possible that some of them may come under
the scope of any measures introduced of the type
contained in Bridget Prentice's lost Bill.
Why is October 2004 an important date?
Some sections of the DDA are already in force. October 2004
is the date by which the final sections of the
DDA will be in force. Those covered by the
provisions of the Act will be legally bound to
comply with them or face possible legal action.
For the voluntary sector, two important
provisions are the abolition of the small
employer threshold and the duty to make reasonable adjustments to the physical features of their
premises to overcome physical barriers to
access.
What
is a ‘reasonable adjustment’?
What counts as a ‘reasonable adjustment’ depends on the
circumstances of an individual case. It will
vary according to the type of service, the
nature (size, resources) of the employer,
service provider etc, and the effect of the
disability on the disabled person. For example,
it is clearly more reasonable for a large
supermarket chain to make substantial
alterations to a branch than it is for a small
grocer with only one shop. This lack of
definition is a key problem with the DDA but the
various codes of practice (available from the
DRC) provide some practical advice and examples.
Any disagreement over the nature of what is
reasonable in an individual case would hopefully
be decided by negotiation between the two
parties but the ultimate resolution to such a
disagreement would be through the courts. It is
likely that, over time, case law will provide
clearer examples of what is or is not
reasonable.
Do the employment provisions protect volunteers or
trustees of a charity?
The Disability Rights Task Force, which was set up in 1999
to review the DDA, stated (in its report ‘From
Exclusion to Inclusion’, 1999) that:
- ‘In
principle voluntary workers should be
covered by civil rights legislation’ but
suggested that in recognition of the
diversity of volunteers and voluntary
organisations good practice guidance should
be created.
- Powers
to cover volunteers by means of regulation
should be taken by government.
- Trustees
should be included in this good practice
approach.
The government agreed to this approach and has asked the
DRC and the other Equality Commissions to
provide a joint Code of Practice on tackling
discrimination against volunteers. The
government intends to ‘take the power to bring
a range of voluntary workers into the DDA but
will only use that power if it proves
necessary’ (‘Towards Inclusion: The
Government’s Response to the Disability Rights
Task Force’ 1999).
Are trustees and volunteers included as part of an organisation for the purposes of making a complaint against that organisation?
Yes. If someone who is either a trustee of or volunteer
with an organisation discriminates against a
disabled person with respect to the business of
that organisation they will fall under the scope
of the Act. For example, trustees are often
employers. This means that it is especially
important that trustees and volunteers as well
as paid staff are aware of their
responsibilities under the Act.
Can I use the DDA myself?
Yes. In fact the DDA relies for its enforcement on
individuals taking action under it. However, it
is not always an easy or affordable task for
individuals to take legal action and because of
this situation there is an absence of case law
with respect to certain aspects of the DDA. This
means that those aspects remain less clear than
ones where there is more case law. The DRC can support
an individual to bring action but it cannot
bring action in its own name. This means that it has to
wait until someone brings an action before it
can help clarify the law in court. The DRC is
actively looking to support cases that it
believes will clarify parts if the DDA,
particularly with respect to Part III, goods and
services etc.
Our organisation lets out property. Does the DDA affect
us?
Yes. In Part
III of the Act there are a range of
anti-discrimination measures pertaining to
letting or selling land or property including
sub-letting.
Resources
This briefing is not an authoritative statement of the law
nor is it possible to list the many provisions
of the DDA in a document of this type. The best
way to get to grips with what it means in
practice is to read the Act, the DRC’s Codes
of Practice and other related documents. The
Codes of Practice in particular are very clear
and informative and are available to download
free from the DRC website.
Most of these sites feature information about the DDA etc
whereas others contain useful information about
related matters e.g. access issues.
Disability Rights Commission (DRC)
www.drc-gb.org
DRC
'October 2004' campaign Open4all
www.drc-gb.org/open4all
Allan Tyrer - www.atyrer.demon.co.uk - this is a great site primarily concerned with people who
stammer but also containing clear, accessible
and useful information about the DDA in general.
Centre
for Accessible Environments www.cae.org.uk
Disabled Person Transport Advisory Committee www.dptac.gov.uk
Mobility and Access Committee for Scotland www.macs-mobility.org
OUCH!
- www.bbc.co.uk/ouch/
UK Government:
For further information see www.scvo.org.uk/equalities. To obtain this document in
alternative formats please contact Andrew
Jackson Tel 0131 474 6183 email andrew.jackson@scvo.org.uk
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