Disability Discrimination Acts
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The Disability Discrimination Act 1995 ("the DDA"), introduced new measures aimed to end discrimination against disabled people. The Act provides that in certain areas it is unlawful to discriminate against people, who the Act defines has having a disability. Some requirements of the Act are being phased in over a number of years. The 1995 Act was amended by the Disability Discrimination Act 2005 ("the 2005 Act"), However, these amendments are additions, or clarifications to the 1995 Act. As such the Disability Discrimination Act 1995 remains the primary statute on disability in the UK.
The 2005 Act extends to the whole of Great Britain, except for section 9 (recognition of disabled persons' blue badges issued outside Great Britain), and section 16 (improvement to dwelling houses), both of which only extend to England and Wales.
Summary of the 2005 Act's Measures
Public Authorities
- Section 1 : Brings councillors, and members of the Greater London Authority under the scope of the DDA
- Section 2 : Functions of public authorities not already covered by DDA are brought within its scope.
- Section 3 : Introduces a new duty on public authorities in relation to disabled people when exercising their functions.
- Section 4 : Amends section 64A of the DDA clarifies who is the correct defendant in the case of a claim of discrimination being made against a police officer.
Transport
- Section 5 : Provides that the current exception from sections 19–21 of the DDA (which deals with the provision of goods, facilities and services to the public) for transport services extends only to transport vehicles themselves, and creates a power to enable that exemption to be lifted for different vehicles at different times and to differing extents.
- Section 6 : Amends the definition of rail vehicle in Part 5 of the DDA.
- Section 7 : Introduces new provisions requiring all rail accessibility compliance certificates to be obtained for prescribed rail vehicles.
- Section 8 : Replaces the existing criminal offence for use of a rail vehicle which does not conform to the accessibility regulations with a civil enforcement system.
- Section 9 : Amends the Chronically Sick and Disabled Persons Act 1970 so as to provide recognition in England and Wales of disabled persons parking badges issued outside Great Britain.
Other Matters
- Section 10 : Amends the DDA's new provisions on discriminatory advertisements (section 16B, as inserted by the Amendment Regulations).
- Section 11 : Amends the DDA in respect to group insurance arrangements.
- Section 12 : Brings private clubs with more than 25 within scope of Part 3 of the DDA.
- Section 13 : Imposes a duty to provide reasonable adjustments on landlords and others who manage rented properties.
- Section 14 : Confers a power to modify or end the current small dwellings exemption.
- Section 15 : Makes it unlawful for general qualification bodies to discriminate against disabled persons in relation to the award of prescribed qualifications.
- Section 16 : Makes provision for cases where a tenant seeks consent to make improvements to a let dwelling house to facilitate the premises by a disabled occupier. Provisions included the Disability Rights Commission making available a conciliation service, to provide assistance in legal proceedings in any dispute arising from the landlords withholding of his consent.
- Section 17 : Extends section 56 of the DDA (help for persons suffering discrimination) as to provide a procedure for questions and replies, not only for claims under Part 2 of the DDA but also for claims under Part 3.
- Section 18 : Amends the definition of disability.
Supplementary
- Sections 19 and 20 : Deals with minor and consequential amendments and repeals, the short title, extent and commencement.
- Schedule 1 : Makes minor and consequential amendments to the DDA and other enactments.
- Schedule 2 : Provides for the repeal of provisions contained in the DDA and other enactments.
Discrimination by Public Authorities
The 2005 Act introduces a new duty on all public bodies to promote equality of opportunity for disabled people. This provision came into force on 5th December 2005. Public bodies must have due regard to:
- I Eliminate unlawful discrimination and disability related harassment.
- II Promote equality of opportunity and positive attitudes towards disabled people.
- III Encourage disabled people to participate in public life.
The Act (new section 21B(1)), makes it unlawful for a public authority to discriminate against a disabled person when carrying out its functions.
Every public authority is covered by the Act unless it is particularly exempted. There is no definition of pubic authority in the Act, although the Act does say that a public authority includes 'any person whose functions are functions of a public nature'. These include local authorities, police, NHS Trusts and Boards, the Crown Prosecution Service, colleges and universities etc.
There are some public authorities which are excluded from these provisions. These include both Houses of Parliament and the Security Service.
Discrimination in Carrying out a Public Function
For the purpose of public authority functions, a public authority discriminates against a disabled person if :
- Firstly, for a reason relating to a disabled person's disability, it treats him less favourably than it would treat others to whom that reason does not or would apply (section 21D(1)(a)); and
- It cannot show that the treatment in question is justified in accordance with one of the specific grounds laid down in the Act (s21D(1)(b)).
A public authority also discriminates for these purposes if it fails to comply with a duty imposed on it by section 21E (the reasonable adjustment duty) in circumstances in which the effect of the failure is to make it:
- Impossible or unreasonably difficult for the disabled person to receive any benefit that is (or may be) conferred by the carrying out of the function by the authority; or
- Unreasonably adverse for the disabled person to experience any detriment which he is (or may be) subjected to by the authority in carrying out a function; and
- It cannot show that failure to comply with the duty is justified in accordance with one of the specific grounds laid down in the Act (section 21D(2)(b)).
The Duty to Make Reasonable Adjustments
Where a public authority has a practice, policy or procedure which makes it:
- Impossible or unreasonably difficult for the disabled person to receive any benefit that is (or may be) conferred by the carrying out of the function by the authority; or
- More severe (unreasonably adverse) for disabled people to be subjected to any detriment by the carrying out of a function than for a non-disabled person.
Then the authority must take reasonable steps to change the practice, policy or procedure so that it no longer has that effect (sections 21E(1)-(2)).
Physical Features
Where a physical feature makes it:
- Impossible or unreasonably difficult for disabled people to receive any benefit conferred by the carrying out of the function; or
- More severe (unreasonably adverse) for disabled people to be subjected to detriment by the carrying out of the function than for non-disabled people
Then the public authority must take reasonable steps to:
- Remove the feature;
- Alter it so it no longer has that effect;
- Provide reasonable means of avoiding the feature; or
- Adopt a reasonable alternative method of carrying out the function.
(sections 21E(3) -(4)).
Who is owed the Duty
An adult or child has protection from discrimination under the Act if they are a disabled person. A disabled person is someone who has a mental or physical impairment which affects their ability to carry out normal day to day functions.
Physical or mental impairment includes sensory impairments. Also covered are hidden impairments such as mental illness, mental health problems, learning disability, and conditions such as diabetes or epilepsy. The Act also specifically covers anyone who has HIV, cancer or multiple sclerosis.
Note – the Act (section 18) has amended the definition of disability in DDA1995. The phrase 'mental illness' must be clinically recognised if it is to be the basis of 'mental impairment'.
Justification
The Act (s21(D)(4)) sets out a number of conditions for justifying the treating a disabled person less favourably for a reason related to their disability, or failing to make reasonable adjustments.
Health and Safety: section 21(D)(4)(a) – That the treatment or non-compliance with a duty is necessary in order not to endanger the health and a safety of others. (This may include the disabled person himself).
Incapacity to give consent: section 21(D)(4)(b) – That the disabled person is incapable of entering into an enforceable agreement, or is incapable of giving an informed consent. (The treatment or non-compliance must be reasonable in that particular case).
Substantial extra costs: section 21(D)(4)(c) – A public authority can justify treating a disabled person less favourably in the carrying out of a function if treating the disabled person equally would, in the particular case, involve substantial extra costs, and having regard for resources, the extra costs in that particular case would be too great. Note – this justification is not intended to be used in every case where extra costs are involved. The extra costs must be substantial, and must be judged taking into account the resources of the public authority. Authorities with a large amount of resources will have more difficulty in relying upon this justification than those with limited resources.
Protecting the Rights and Freedoms of Others: section 21(D)(4)(d) – A public authority can justify treating a disabled person less favourably or failing to comply with a duty to make reasonable adjustments where this is necessary to protect the rights and freedoms of others.
