Disability Discrimination

What is disability discrimination?

The Disability Discrimination Act 1995 describes a disabled person as someone with "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", which has or can be expected to last for more than 12 months.

Conditions that impair an individual's abilities in this way include those that hamper mobility; manual dexterity; physical co-ordination; continence; the ability to lift; carry or move everyday objects; speech; hearing or eyesight; memory or ability to concentrate, learn or understand; and understanding of the risk of physical danger. For the purposes of the law, treatment and correction - apart from spectacles and contact lenses - are not taken into account.

The Disability Discrimination Act states that discrimination occurs when a disabled person is treated less favourably than someone else, the treatment is for a reason relating to the person's disability, and the treatment cannot be justified.

The Act also states that discrimination occurs when there is a failure to make a reasonable adjustment for a disabled person, and that failure cannot be justified.


Background

The Disability Discrimination Act 1995 was the first domestic Act on the issue of disability discrimination, prior to which it was legal to discriminate and exclude on the basis of disability.

The Act covers a variety of areas of disability discrimination from employment issues to access to transport. This Act also set up the National Disability Council, latterly the Disability Rights Commission, which is an equality commission on the same footing as the Commission for Racial Equality and the Equal Opportunities Commission.

The government has increasingly been working with the disabled community to ensure its members are able to participate fully in society. The main areas of focus have been education, employment, welfare provision and transport.

In 2001, the Disability Discrimination Act (DDA) was extended into the public sector to cover (among other things) the police, prison service and fire service. The Equal Treatment in Employment Directive requires the Government to ensure that all employers, except for the armed forces, will come under the DDA by 2004.

Accessibility to modes of transport and modification of architectural design to incorporate disabled access is another area where improvements are being claimed. For example, an 'accessibility action plan' formed a central part of the Mayor of London's transport strategy in 2001.

In November 2001, the UN General Assembly established an Ad Hoc Committee (AHC) to "consider proposals for a comprehensive and integral convention on the rights and dignity of persons with disabilities." Subsequently, work is underway to establish an international disability convention.


Controversies

Given the high costs and complexity of disability litigation, the issue of enforcing legal rights that protect against discrimination under the DDA has courted controversy since the act was introduced.

A report published by the Royal National Institute for the Blind in 2000, titled 'The Price of Justice', criticised the framework of the existing protection, suggesting the high costs involved in pursuing claims of discrimination in the provision of goods, services and facilities effectively blocked access to justice in some cases, and called for a review of the way these claims are brought. The report called for greater use of tribunals and more effective training of judges in disability related issues.

On the other side, the costs of complying with the Disability Discrimination Act have sometimes been high, particularly when modifications to buildings and vehicles were needed. Given the wording of the Act, it is clear that what "can be justified" is the key variable - and it is hotly contested.

Irrespective of the availability of legal action against explicit discrimination, there remain considerable prejudices against disabled people and various barriers to their participation in many areas of life.


Statistics

There are an estimated 9.8 million adults, and 700,000 children, living with disabilities in the UK.

In 2001/02, an estimated 3.6 million long-term sick and/or disabled people in Great Britain received either disability living allowance (DLA) or attendance allowance (AA), more than double the number who received these benefits or their equivalents in 1991/92

8,908 cases have been commenced in England, Scotland and Wales under the employment provisions of the DDA

The most common reason given by tribunals for rejecting a claim, in 26% of all unsuccessful cases, has been that the applicant is not disabled

In 21.9% of all started employment cases, an employer has sought to justify its unfavourable treatment of a disabled employee, most frequently on the grounds of health and safety considerations, or sickness absence

Statistic 1: (Source: Department of Work and Pensions, March 2004)); Statistics 2 to 5: (Source: National Statistics and Disability Rights Commission / Monitoring the Disability Discrimination Act 1995: Report to the Department for Work and Pensions 2003)


Quotes

"Legislation is no guarantor of social change; nor can the law operate in isolation from other social and economic forces. The causes of social change are complex, the reasons for legislative impotence various. To stand a chance of success, the law must be adequately framed, the courts and tribunals sympathetic to its generous interpretation. The alternative is erosion and obsolescence."

Disability Rights Commission, 2003