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Discrimination

Introduction

Discrimination against disabled people occurs most often through ignorance of their needs and capabilities, and is hurtful and distressing when encountered. Pressure from disability organisations and individual disabled people over many years finally resulted in the Disability Discrimination Act 1995 (DDA) being introduced.

Summary

The DDA creates:

  • a right of non-discrimination in the field of employment, including a duty on employers to provide a "reasonable adjustment" to working conditions or the working environment to overcome the practical effects of a disability;

  • a right of access to goods, services and facilities, including the removal of barriers, changes in policies and provision of aids, where reasonable;

  • a right of redress against discrimination in the sale and letting of property;

  • a right of access to the transport infrastructure, such as railways and bus stations, together with provisions which allow the Government to set minimum access criteria for new public transport vehicles, including buses, trains and taxis;

  • a requirement that schools, colleges and universities provide information to disabled people about the accessibility of their facilities;

  • a National Disability Council to advise the Government on issues and measures relating to the elimination of discrimination.

The Act gives protection against discrimination to people who have or have had a disability which makes it substantially difficult for them to carry out normal day to day activities. Only people who are (or have been) disabled as defined by the Act are entitled to protection:

  • The disability can be physical or sensory, a learning disability or a clinically well- recognised mental health condition

  • It must be long term (have lasted or be expected to last 12 months) or likely to recur

  • People with a history of disability are also protected - for example, people who have recovered from mental illness but continue to experience prejudice;• people with a severe disfigurement;

  • People with progressive conditions such as cancer, HIV infection, multiple sclerosis or muscular dystrophy are included provided their condition has, or has had, an effect (no matter how minor) or their ability to carry out normal day to day activities.

Goods and Services

It is unlawful for the providers of goods, services and facilities to discriminate against a disabled person. This applies to a very wide range of goods and service provision, regardless of whether it is paid or unpaid, provided by a local authority or a private company.

Any goods and services which are provided to the general public are covered and this includes health, insurance, legal services and sport and leisure facilities, including hotels and restaurants. Access to and use of information services are also included under this section, as are means of communication. However, services not provided to members of the general public, for example private clubs, are not covered by the provisions. It means that, unless "justified" (see below):

  • Refusing to serve disabled customers, or providing them with second-rate services, is unlawful;

  • Policies, practices and procedures must be changed (where reasonable) if, as they stand, they have the effect of discriminating against disabled people (for example, a restaurant may no longer refuse to admit a person with a guide dog because of a general policy not to admit animals);

  • Auxiliary aids and services will have to be provided where this is reasonable given the size, resources and nature of the business (for example, information may need to be provided on tape for blind customers);

  • Where a physical barrier makes it impossible or unreasonably difficult to access a service, the service provider is under an obligation to provide the service by reasonable alternative means;

  • From 2004 physical barriers will have to be removed where this is reasonable, or the service provided by alternative means (for example, the rearrangement of furniture or the provision of permanent ramps).

  • "Justifiable" discriminatory treatment is where:

    • it is necessary in order not to endanger the health or safety of any person (including the disabled person);

    • the disabled person is incapable of giving informed consent or entering into a legally enforceable agreement;

    • a refusal of service is necessary because the provider of services would otherwise be unable to continue providing the service to members of the public;

    • a disabled person has been treated less favourably than other people, but that was the only way of providing the service to him or her at all;

    • a disabled person has been charged extra for a service because of the greater cost to the provider (this does not, however, allow a provider to charge extra in order to cover the costs of making adjustments).

Special rules apply to insurers, who are only allowed to charge higher premiums or to refuse cover if actuarial or statistical data indicate that the disabled person is a higher risk.

There are also special rules for guarantees and warranties given by retailers. Such guarantees usually state that the goods will be replaced if they wear out within a certain period of time and have only been subject to ordinary wear and tear. If, however, a retailer refuses to replace goods on the basis that as a result of the purchaser’s disability they have not been subject to ordinary wear and tear, this is justifiable.

Renting or Buying Property

People who sell or let property must ensure that they do not discriminate against disabled people. This covers land and business property as well as residential property. There is, however, no requirement that a landlord should make reasonable adjustments to a property for a disabled tenant.

This means that there is no requirement for landlords, housing providers or vendors to make premises accessible in terms of altering physical access, changing policies or providing auxiliary aids, nor are they required to put information such as tenancy agreements into accessible formats such as large print.

Some aspects of housing provision will also fall under the "goods and services" section of the Act, for example local authority area housing offices will eventually have to be made accessible.

Landlords who rent six or fewer rooms in their own homes are not affected (as is the case under the sex and race discrimination laws); nor are people who sell or let their properties privately, ie not through an estate agent or by any form of advertising.

Education

The Act amends provisions made under the Education Act 1993, which placed a duty on all county, voluntary or grant-maintained schools to include information relating to pupils with special educational needs in their annual reports, by requiring that these records contain specific information concerning the arrangements made for the admission of disabled pupils; the steps taken to prevent disabled pupils from being treated less favourably than other pupils; and the facilities provided to assist access to the school by disabled pupils.

Education is specifically excluded from the provisionsof the Act relating to goods and services.

Transport

Part V of the Act covers the accessibility requirements of public transport vehicles including taxis, public service vehicles and rail vehicles. The Secretary of State for Transport is empowered to make detailed regulations to ensure that new buses, taxis, trams and trains meet minimum access requirements.

Access to the transport infrastructure, eg bus and train stations, is covered by Part III of the Act under the general right of access to goods and services.

The minimum access requirements for trains are already in force, but full implementation of Part V will be phased in and is not expected until 2013. For further information see Public Transport.

Employment

The Act defines discrimination against disabled people in employment in the following terms: "... an employer discriminates against a disabled person if for a reason which relates to the disabled 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 he cannot show that the treatment is justified." For further information on this section of the DDA, see Employment.

National Disability Council

The Act established a National Disability Council (NDC). This body advises the Government on how existing and new measures to help disabled people are working, and recommends further ones where necessary.

The NDC can only advise the Government and cannot advise individuals or organisations. The result is that if any disabled person believes they have been discriminated against they have to take any legal action individually (see below).

The Government has, however, committed itself to establishing a Disability Rights Commission with powers to advise disabled people, employers and service providers and promote good practice, and it should be in place by April 2000. The Commission will have the power to conduct formal investigations and take cases, along the lines of the Equal Opportunities Commission and the Commission for Racial Equality.

Enforcing the Law

Until the Disability Rights Commission is in operation, if you feel that you have been discriminated against you can instigate legal proceedings. If successful, you may be able to recover damages for any financial loss incurred as well as damages for injuries to feelings and an instruction that the employer or service provider makes a reasonable adjustment to provide access.

In employment cases, a complaint can be presented at an Employment Tribunal. In goods and services cases, a complaint can be made to the local County Court.

Legal aid may be available to pay for a solicitor to provide initial advice and help you to prepare your case, but it is not available for representation. If you live near a Law Centre, its staff may provide you with free advice and representation, and Citizens Advice Bureaux will also be able to give free advice on your rights under the DDA.

Further Information

RADAR has a series of factsheets on the different sections of the DDA: an overview; employment; education; goods and services; and housing. The Government has produced a number of free publications about the DDA. These are available from the DDA Information Line: Tel 0345 622 633; Fax 0345 622 611; Textphone 0345 622 644. The Information Line will also signpost callers to relevant organisations.

 

Carers association

We are indebted to RADAR for providing the information for this section.