Twenty years after the Disability Discrimination Act: What next for Disabled People’s rights?

Introduction

The purpose of this time line is to mark the twentieth anniversary of the Disability Discrimination Act and celebrate the progress made in the last two decades to protect the rights of disabled people in the United Kingdom. It is not a statement of law but can be used as a reference

Why is 2015 important?

2015 is an important year for disabled people. On 8 November it will be 20 years since the first significant anti-discrimination legislation for disabled people, the Disability Discrimination Act (DDA) 1995, became law.

2015 also marks the 50th anniversary of legislation on Race Discrimination (1965); 40th anniversary of the Sex Discrimination Act 1975 and implementation of the Equal Pay Act and the 10th anniversary of the Disability Discrimination Act (2005).

Anniversaries provide an opportunity to reflect on progress, to consolidate and build on this and to take stock of key challenges now and in the future.

It is important that we reflect on the progress we have made and mark the 20th anniversary of the enactment of the DDA. It is an opportunity to renew and re-fresh the agenda, to set out the next steps in the campaign for comprehensive legislative protection and continue to pursue our goal of breaking down the barriers that isolate and exclude disabled people.

he 1995 DDA achievement was the culmination of huge mobilisation by disabled people calling for comprehensive rights. Moreover, it was the promotion of a challenging agenda to ensure equality in policy and practice and to bring about transformational change in public policy and society.

Prior to the enactment of the Disability Discrimination Act, disabled people had set out a clear agenda and vision to remove the barriers in society that prevented them from fulfilling their potential in all areas of life.

A clear vision was articulated in the then NALGO report entitled More Than Ramps published in the early 1990s. The report set out a new approach to disability based on the ‘social model of disability’ which challenged the established concept based on the ‘medical model’ approach.

The ‘social model of disability’ was a defining feature in the new approach to developing policies in UNISON and the wider disability and trade union movement. The social model soon gained traction within trade unions and beyond. It is now used as the basis for developing trade union policies for disabled people – both in the workplace and beyond.

The Social Model recognises that it is the societal barriers that disabled people face which is the disability not an individual’s medical condition or impairment. The TUC endorses the social model of disability and as a result of our activism many good employers have also adopted the Social Model but we still have a long way to go as the law remains rooted in a medical model, in which the problem is the impairment.

It is important to recognise the achievements of UNISON’s Disabled Members who have been instrumental in driving forward an agenda for comprehensive rights to improve disabled peoples access and participation in all areas of society and public life.

The election of a Coalition Government in 2010 heralded a new era in down grading protection on equality in general and specifically in areas of employment and public policy where disabled people had begun to make progress. One example is the Public Sector Equality Duty included in the Equality Act 2010 which many believe to be considerably weaker than the previous Disability Equality Duty.

Austerity-wide measures were introduced in the UK – cuts to public spending, cuts to public sector jobs, the imposition of public sector pay freezes, reduction in funding to NGOs and funding for disabled peoples’ organisations. Devastating cuts were implemented through a draconian regime of reform of welfare benefits, scrapping Disability Living Allowance, introducing Personal Independence Payments (PIPs) and decimating the Access to Work Scheme. Disabled people are now being demonised and degraded for being disabled.

The weakening of the Public Sector Equality Duty in England and the removal of the Specific Equality Duties and the obligation to carry out Equality Impact Assessments has had an adverse and disproportionate impact on disability equality and progress on the disability equality agenda.

The Coalition government cut £14 million of funding for 285 frontline organisations when it removed the EHRC’s grants budget. The Government also repealed the statutory discrimination questionnaires that allowed an individual to get information from their employer or service providers to help them establish whether or not they had a case even though many employers joined disabled people’s calls for them to be retained. They have since repealed the powers enabling employment tribunals to make recommendations that an employer change their policies or practice following a finding of discrimination.

On 29 July 2013, fees for lodging claims to the employment tribunal were introduced - which for discrimination cases are set at the higher of two levels. This has resulted in a significant fall in all areas of equality cases and specifically a 46 per cent fall in disability cases. This combined with the Government’s closure of the EHRC’s Helpline and casework service has left many disabled people in a position where they have no recourse to law when discriminated against.

he key conclusion is that since the election of the Coalition Government, progress on disability equality has stalled. As the DDA approaches it’s coming of age a new, proactive campaign is required if we are not only to protect the gains made over the last two decades but to continue to make progress.

Why is this important?

  • Over a quarter of voting age people in the UK are disabled but politicians don’t listen to us.
  • Disabled people’s votes can make a real difference in politics - especially at the General Election.
  • The impact of austerity cuts is 9 times greater for disabled people than the rest of the population
  • For severely disabled people the impact is 19 times greater
  • Disabled people are being demonised in the media
  • Services disabled people rely on are in crisis
  • More disabled people are living in poverty than at any time sincethe great recession of the1920’s
  • Hard fought for disability rights are being eroded

What are the key legislative milestones?

  • 1995 The Disability Discrimination Act – prohibiting disability discrimination in employment and other fields became law on 8 November 1995. The Disability Discrimination Act 1995, as amended continues to apply in Northern Ireland.
  • 1996 Duty to make Reasonable Adjustments came into force
  • 1998 The Human Rights Act – now threatened with being repealed by the 2015 Tory Government
  • 1999 The Disability Rights Commission established – replacedwith the Equality and Human Rights Commission (EHRC).
  • 2000 The EU Framework 2000/78/EC – which status will be subject to the outcome of the Tory Government EU negotiations and the EU Referendum.
  • 2001 Special Education and Disability Act – Implemented Part 4 of the DDA 1995 to prohibit discrimination in the provision of education
  • 2005 Special Educational Needs and Disability (NI) Order 2005, asamended
  • 2005 Disability Discrimination Act – Disability Equality Duty, now included in the 2010 Equality Act, which has since been diluted in England in terms of the Public Sector Equality Schemes, the Specific Duties and Equality Impact Assessments. This Act also extended the definition of disability and introduced Disability Discrimination Questionnaires.

2005 Disability Equality Duty

The DDA 2005 amended the DDA 1995 to take protection for disabled people a step further. The 2005 Disability Equality Duty placed a duty on public authorities to build disability equality into the way they carry out their public functions.

This was a key milestone in progress on disability equality. It enacted a General duty on public authorities. In addition some public authorities had Specific duties and an obligation to demonstrate how they planned to eliminate unlawful discrimination and promote equality of opportunity.

This framework of duties required practical measures to be demonstrated in what became known as the Disability Equality Scheme.

All public authorities were required to adopt a proactive approach to mainstreaming disability equality in all its activities and decision-making. In short it placed a duty on every public authority whether subject to the general duty or the specific duties to have due regard to:

  • promote equality of opportunity between disabled persons and other persons
  • eliminate discrimination that is unlawful under the DDA
  • eliminate harassment of disabled persons that is related to their disability
  • promote positive attitudes towards disabled persons
  • encourage participation by disabled persons in public life and
  • take steps to meet disabled persons’ needs – including where required more favourable treatment.

2006 Disability Discrimination (NI) Order 2006

2010 Equality Act - on 1 October 2010, the Disability Discrimination Act became part of the Equality Act 2010 (EqA). Although the basic concepts remained the same, there were small changes to the way the definition of disability is applied and to ways in which disability discrimination can occur.

  • 2010 The Equality Act – created a single statute out of all the preceding equality legislation, including the Disability Discrimination Act,
  • April 2011 Public Sector Equality Duty – a new, single public sector equality duty incorporated the previous disability equality duty, with a significant change of approach. The way this is implemented is different in England, Scotland and Wales
  • Disability is a protected characteristic under the Equality Act and here is a duty to make reasonable adjustments for disability equality.

The Public Sector Equality Duty

The Public Sector Equality Duty (PSED) came into force on 5 April 2011. It replaced the previous disability equality duty. Section 149 of the Equality Act imposes a public sector equality duty (PSED) on public authorities. There are limited exceptions but this duty applies to all public authorities, including local authorities, NHS Trusts, Government Departments, the police, schools and universities.

The General Duty applies to public authorities when carrying out their functions, including the employment function. It can also apply to other organisation carrying out a function on behalf of a public authority even if they are not a public organisation

The PSED includes the duty to have due regard to the need to:

  • eliminate discrimination, harassment and victimisation;
  • advance equality of opportunity; and
  • take steps to foster good relations between those sharing a relevant protected characteristic,

Havingdue regard for advancing equality includes:

  • removing or minimising disadvantages suffered by people due to their protected characteristics;
  • taking steps to meet the needs of people from protected groups where these are different from the needs of other people;
  • and encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.

However, the PSED has been significantly weakened and watered down in England. While the General Duty remains, in England, the Specific Duties have been removed and Equality Impact Assessment are no longer obligatory.

The Equality and Human Rights Commission

The Equality and Human Rights Commission role is to regulate and enforcer of equality legislation and can bring proceedings against an employer who makes unlawful pre-employment health enquiries.

Northern Ireland has its own Equality Commission – the Equality Commission for Northern Ireland.

Codes of Practice

The separate Codes of Practice issued by the former Disability Rights Commission, which offered clear guidance on many aspects of disability discrimination law, have been withdrawn and can no longer be used. In their place there is now a single Code of Practice on employment prepared by the Equality and Human Rights Commission (EHRC), which has statutory force (that is, it can be cited in legal proceedings).

The EHRC Employment Code

The Employment: Statutory Code of Practice covers discrimination in employment in relation to all the protected characteristics under the Equality Act 2010. Chapters 5 and 6 deals with disability and provides guidelines and illustrations of the law, including the kind of adjustments which employers should make to their workplace and when discrimination may be justified.

What Next for Disabled Peoples’ Rights?

Our Vision

  • A society based on the values of equality, fairness and human rights
  • free from cultural, economic, educational and social barriers
  • where disabled people are recognised for the valuable contribution they make
  • where politicians and governments of all political persuasions take action to fully implement the United Nations Convention on Rights of Disabled People across the UK

Over the last twenty years significant progress was being made:

  • Disabled people became more engaged and involved in the process of consultation and participation in influencing public policy and public life;
  • Huge gains strengthened legal protection for disabled people in employment, goods and services;
  • A progressive body of case law has been developed giving disabled people better representation and rights in employment and society

These are key milestones achieved by disabled people, developed by disabled people and based on their experience of disability. But this progress was to be short-lived.

Since the election in 2010 of the then Coalition Government and in 2015 by the election in 2015 of the Conservative Government many of the gains made have been reversed.

The DDA was a key milestone in enacting disability discrimination legislation. It was a remarkable achievement by disabled people in their concerted and sustained campaign for comprehensive rights. Moreover, it was a significant achievement UNISON and Disabled Members who were at the forefront of the campaign – with the ground-breaking report More than Ramps published in the early 1990s.

UNISON has long since been a driving force in fighting for disabled people’s rights. But there is much more to do. The result of the General Election in May 2015 was a shock to many but for Disabled Members it was devastating – with the risk of rolling back years of progress on disability equality. UNISON disabled members will resist those attacks.

Despite over 50 years of equality legislation and an increasingly diverse workforce, significant inequalities persist in Britain’s workplaces:

  • There is a 30 per cent gap in the employment rate between working age disabled people and non-disabled people.
  • Disabled people are more likely to be in lower skilled jobs and three in ten earn less than the living wage.
  • People with mental health conditions and learning disabilities are considerably more disadvantaged.1

Public sector cuts and welfare reform have had a negative and adverse impact – leading to increased isolation, exclusion and discrimination of disabled people. Attacks on the Access to Work Scheme have left many disabled people bereft of support in employment; and changes to the eligibility rules are making it harder to access Personal Independence Payments (PIPs) which is replacing Disability Living Allowances for people of working age with disabilities.

But there is no end in sight to this continuing onslaught. There are over £12billion of expected cuts to come from the Department for Works and Pension’s budget and we expect PIP, the Independent Living Fund and Access to Work to be targeted with more stringent eligibility tests to apply. So we can expect disabled people to find it even harder to get the support we have fought so hard for.

UNISON is developing a proactive campaign on disability equality to fight this Government campaign against disabled people; to challenge the new Tory Government’s cuts and to protect the gains on disability rights made over the last two decades.

The challenge ahead is to resist attacks by the Tory government to roll back the progress of recent years. UNISON’s National Disabled Members intend to take the campaign forward with a new agenda for progressive rights.

UNISON continues to be at the forefront of disability activism. The National Disabled Members Committee (NDMC) is working to develop an agenda to protect disabled people’s rights and will work in partnership with the TUC to protect the gains of the last twenty years.

Disabled people continue to face severe barriers to participation and equality across society. Unions can help to challenge these by tackling discrimination at work, negotiating good employment and equality policy and ensuring that employers adopt a positive approach to the employment of disabled people.

While some good legal judgements interpreting the Disability Discrimination Act have developed the law has also changed at an international level, with the ratification by the UK of the ground-breaking UN Convention on the Rights of People with Disabilities.

The Convention provides a framework against which UK law can be tested. Parliament ratified the Convention on the understanding that British law was compliant with it but only after taking into account specific reservations and exemptions that the government had put in place against the wishes of disabled people’s organisations and the TUC. Disabled people need to ensure that Parliament and this Government are held to account and meet its international obligations.

The National Disabled Members’ Committee is launching a campaign to improve the position of disabled people in society.

Our five point charter for disabled people calls for:

  1. Elections, democratic and decision making processes that are accessible and enable disabled people's participation.
  2. A disability friendly justice system that is affordable to all.
  3. Increased support for disabled people to secure and maintain decent jobs to close the employment and pay gap between disabled and non-disabled people.
  4. Barrier free, mainstream education that is accessible to disabled students and support to close the skills gap.
  5. Accessible and affordable transport throughout the UK.

What you can do to support this charter:

  • Encourage your branch to put disability equality on the bargaining agenda.
  • Challenge employers failure to make reasonable adjustments
  • Monitor the abuse of employers using capability procedures to remove disabled workers.
  • Encourage attendance at Regional Disabled Members’ Group.
  • Raise disability policy issues with your Member of Parliament (MP), for example the adverse impact of cuts to PIPs and the Access to Work Scheme.
  • Encourage support for the points in the charter.

References