The disability equality duty for the public sector
The disability equality duty
IntroductionThe Disability Discrimination Act 2005 amended theDisability Discrimination Act 1995 (the DDA) by introducinga new duty - the ‘disability equality duty’ - into the Act.It is supposed to ensure that organisations which are‘public authorities’ incorporate disability equality into allthey do.The disability equality duty has two parts: the ‘general’duty and the ‘specific’ duty (or specific duties).We start with the general duty.
What is the general disability equality duty?Section 49A of the DDA sets out the general duty.It says public authorities must, when carrying out theirfunctions, have due regard in relation to disabled peopleto the need to: eliminate discrimination against them that is unlawful under the Act eliminate harassment that is related to their disability promote positive attitudes towards disabled people promote equality of opportunity for disabled people encourage their participation in public life take steps to meet disabled people’s needs, even if this requires more favourable treatment.
What are the specific duties?The DDA also gives the Secretary of State the power tointroduce regulations containing more specific duties toensure that public authorities meet their general duty.These ‘specific duties’ are set out in the DisabilityDiscrimination (Public Authorities) (Statutory Duty)Regulations 2005 (SI 2005 No. 2966) – for England andWales.The content of the specific duties is essentially arequirement to produce a class of document - a ‘DisabilityEquality Scheme’.
What organisations are subject to the duties?There is no list of organisations which are subject to thegeneral duty. Rather it applies to any organisation whichfalls within the DDA’s definition of a ‘public authority’. Thedefinition follows that in the Human Rights Act 1998.The specific duties on the other hand, apply only toorganisations which are listed in the regulations.
What does the definition of a public authorityinclude?For the purpose of deciding whether the general dutyapplies, a ‘public authority’ includes:• government departments, executive agencies, and ministers• local authorities• governing bodies of colleges and universities and schools, NHS trusts and boards• police and fire authorities• the CPS and Crown Office inspection and audit bodies• certain publicly-funded museums.In addition the definition includes private organisationsin so far as they carry out public functions
When did the disability equality duty come intoforce?• The general duty came into force on 4 December 2006.• As to the specific duties, most public authorities subject to them had to publish their Disability Equality Schemes by 4 December 2006 (schools had a little longer).
What does having ‘due regard’ to the general dutymean?The general duty requires public authorities to have ‘dueregard’ to the six parts of the general duty.What is ‘due regard’ is hard to say, but it depends on twothings: proportionality and relevance.‘Proportionality’ involves balancing how much benefit willflow to disabled people from changing a policy or functionagainst other considerations.‘Relevance’ is the extent to which the policy or function hasan impact on disabled people.
What exactly do the specific duties require?The specific duties require those public authorities listed inthe regulations to:• publish a Disability Equality Scheme• involve disabled people in the development of this scheme• review the scheme every three years.
What goes into a Disability Equality Schemedocument?The scheme should include a statement of:• how disabled people have been involved in developing it• the steps the authority will take to fulfil its general duty (the action plan)• the arrangements made for gathering information about its performance on disability equality• the arrangements made for assessing and improving the impact of its activities on disability equality (impact assessments)• the arrangements for using gathered information in evaluating its action plan and preparing future schemes.
Is a Disability Equality Scheme just a piece ofpaper?Perhaps in practice, a lot of the time. But note that apublic authority must also:• take the steps set out in its action plan• put into effect its arrangements for gathering and making use of informationand …• publish an annual report on its scheme! This report should say what it has done to involve disabled people in developing the scheme, the result of its information gathering, and the use it has made of the information gathered.
Can the disability equality duty be enforced?• The general duty can be ‘enforced’ against a public authority by an application for judicial review as would apply for breach of any other statutory duty.• The specific duties can be enforced by the Commission for Human Rights and Equality, which can issue a compliance notice requiring a public authority to meet its specific duties and to tell the Commission what it is doing to comply with them. The notice can also request information regarding the authority’s performance and can be enforced in the county court.
How can lawyers acting for disabled people usethe duty?Firstly, to gather evidence.Lawyers bringing a claim for discrimination against a publicauthority could ask for a copy of its Disability EqualityScheme either by means of a questionnaire or as part ofdisclosure in court or tribunal proceedings.The objective would be to show that the authority has notcomplied in some way with its own scheme for ensuringdisability equality.Additionally disclosure might be sought of evidence derivedfrom the public authority’s own information gatheringcarried pursuant to its specific duties, which might revealpatterns of disadvantage amongst disabled groups.
How can lawyers acting for disabled people usethe duty?Secondly, to challenge legislation and policy decisions.In the area of public law, the duty might be cited tochallenge potentially discriminatory legislation. See thecase involving the similar duty in relation to race of Elias vSecretary of State [IRLR] 2005 788.In relation to local government, claims against a localauthority for a breach of statutory duty to assist a disabledperson in the home may involve showing a failure topromote disability equality - and thus a breach of thedisability equality duty as well as of duties under the NHSand Community Care Act 1990.
This concludes your presentationThank you for the attention