This under-representation of disabled people as public policy researchers, has historically resulted in disabled people again being are stripped of the powers to decide as to how to live their lives. The societal perception of disability, as already mentioned has been viewed as giving rise to a culture of dependence, Mike Oliver contradicts this sentiment by positing:
“Disabled people have argued that our problems are not caused by tragedy but by the failure of society to take account of our needs and therefore we need social change not charity.”
Oliver argues in the best interest of the disabled people, what would be required is, rather than medical assistance as individual endeavours, a large scale modification for society. He re-examines the society’s treatment of disabled people on the whole as:
“too much is invested in individually based interventions with ever-diminishing returns. As a consequence, modifications to environments tend to be neglected or under resourced when the potential benefits of such investments are much greater.”
In conjunction to his argument, in which, Oliver criticises the small scale investments, catering to the needs of individuals, emptying out the State’s kitty, in the absence of money instead being put towards large scale projects for the benefit of a wider range of disabled individuals. Oliver states, he is not against the need for rehabilitation, just aware of the scarce resources and puts forward, what he believes to be the most efficient way of utilising money set aside for the benefit of the disabled population.
The Transition from Disability Discrimination
Act 1995-Disability Discrimination Act 2006.
As is characteristic to all forms of discrimination, whether it be based on class, colour, religion, sexuality, beliefs or any other form of discrimination, although eradication has been long overdue, a step in the direction has only recently been taken. It was already well documented and established that disabled people needed social inclusion and to be represented in the policy making procedures, in order to utilise to their benefits the provisions made for them as citizens, and carry out duties placed upon them as citizens, rather than being treated as the “socially dead”. In order to have this inclusion commence effectively, in 1995 the Disability Discrimination Act was born. This Act, as the name suggests dealt with the issue of discrimination against disabled people, in the fields’ of Education, Employment, Provision of Goods and Services, Facilities, buying and letting land, and Public Transport for those who fell within the definition of disability as per the Act.
These provisions in each of the fields were aimed at introducing an independent lifestyle amongst those suffering from disabilities by penetrating public policy to its foundations, in order to ensure that the disabled peoples’ rights are in conjunction with their able bodied neighbours. Independence, an objective of this Act, can be interpreted in accordance with those who use the term. Governments see independence as being financial independence, and individuals not being dependent upon the Welfare State. The professional sector sees independence as the ability to undertake on full range of self care activities. Finally and most importantly the disabled people according to Barnes see independence as “autonomy and the ability to take control of all aspects of our own lives”.
The Act sets up Statutory right to an education was introduced as a means for securing qualifications, insuring better employment prospects, in order to break the cycle of dependency upon charity, and the welfare state. Accessibility and legislative rights to goods, facilities, and services reinforces an obligation upon service providers to respect the rights of disabled people as consumers. The legal right to buying and selling land and to public transport again reinstates the strength of disabled population’s statutory rights to maintain independence.
The Disability Discrimination Act 1995 was a precursor to the Disability Discrimination Act 2005. The 2005 Act extends and further clarifies the rights of disabled people, from how they previously existed under the prior Act. Some of the new provisions:
- Place a duty on public authorities to comply with the need to promote equal opportunity for disabled people.
- Under the Accessibility Regulations of 2020, all trains must be refurbished in accordance with the rail vehicle accessibility regulations.
- Formalise the recognition of disability parking badges from other countries.
- Extend a duty of reasonable adjustment, towards those who let or manage premises and common hold properties.
- Landlords cannot reasonably withhold consent for a disability related improvements to certain rented dwellings housings.
- Duty of reasonable adjustment now exceeds to private clubs with more than 25 members.
- The Act places a duty upon public authorities to ensure that as public service providers their organisation is such that the needs of a disabled consumer, job applicant, or employee have been taken into consideration.
In addition to the above regulations, the Disability Rights Commission (DRC) has been set up in 2000; the Commission Members presiding over this body are selected from the disabled population. This Commission has been actively involved in producing a voluntary Code of Practice for employers. The Commission Members are working for the benefit of the disabled population, and have the power of influencing policies with regards to the disabled peoples’ rights.
The creation of this Commission is an imperative step towards achieving the independence, i.e. the right to make lifestyle choices, which many Disability Rights activists complained disabled people have been deprived of. Bert Massie in his speech comments on this powerlessness suffered by disabled people for centuries, as being equivalent to that of “Victorian children – they were supposed to be seen and not heard” he asserts the new found sense of alleviation with the phrase “Nothing About Us Without Us,” referring to new found powers of disabled people with regards to influencing public policies through the DRC. Nevertheless the transition is slow in its path, disabled people are still underrepresented in the public domain, and if this trend is to continue undeterred then the disabled will remain unrepresented and loose the chance to influence public policy making processes. The DRC with regards to disability discrimination, believe in the effectiveness prevention rather than cure, therefore they have been involved in the
Although the changes brought on and the rights under the DDA 2005 and the Equality Act 2006 are many and varied, due to the word constraints of this essay I shall attempt to demonstrate, with the benefit of hindsight the development, under the said pieces of legislation and common law, with regards education and employment and the rights afforded disabled people in particular.
Education and the DDA 2005:
With regards to the fundamental concept of ‘independence’, education arguably is the key to achieving independence. Independence here being in conjunction with the professional interpretation, allowing disabled people a higher possibility to earn a living with qualifications, thereby be able to support them. Independence can be achieved in conjunction with the Governmental interpretation, this being independence from the welfare state. And finally and most importantly, by receiving an improved standard of education the upcoming generation, suffering from disabilities will be able to increase their chances, to find places as policy makers or opportunities to work alongside or influence policy makers.
First of all in order to be entitled to protection from discrimination under the DDA 2005 part 4, a student must be able to prove s/he falls within the definition of disability under the 2005 Act, this definition is derived from its predecessor in 1995 and prior to that from the ADA definition of 1990, with added exceptions. A disability under Schedule 1 DDA 1995 has been defined as:
- Physical or mental impairment.
- With substantial, long-term adverse effects.
- Causing inability to carry out normal day to day activities.
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Including long term fluctuating health conditions.
The 2005 Act has removed the need for mental illness to be “medically well recognised” Further conditions such as H.I.V, Cancer, and Multiple Sclerosis now also fall within the scope of the definition of disability. For the purposes of the new definition, whether a person is disabled, is “generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities” and “not necessarily on how the impairment is caused, or if the cause is a consequence of a condition which is excluded.” The emphasis under the new Act is not on the impairment or illness itself, rather on the ability of an individual to carry out normal day to day activities as a result of the impairment. However it was held in the case of Vance v Royal Mail Group it was held “it is not a corollary of that where a person does not, as part of his daily life, carry out an activity that is normal for others, that he is to be treated as disabled if he would not be able to do it”. Therefore it is incapacity to carry out day-to-day activities, which deems a person disabled for the purposes of the Act, in contrast to whether or not he carries them out himself is not relevant. Also what amounts to “substantial adverse effect” has been described as being more than minor, and the “normal day-to-day” can be, mobility, manual dexterity, physical coordination, continence, ability to lift, carry, move everyday objects, perception of risk of physical danger e.t.c.
Under Part IV of the Disability Discrimination Act since September 1st 2006, there are now 4 types of discrimination Direct Discrimination, Disability Related Discrimination, Failure to make Reasonable Adjustments, and Victimisation (these will be discussed at more length below, with conjunction to DDA and Employment).
Under s.28R fundamentally all educational institutions for post 16 education, apart from wholly privately funded post 16 institutions and work based training practices, fall within the scope of the DDA. Disabled students can be discriminated against, under section 38(1)(b) if they suffer “less favourable treatment, placing them at a substantial disadvantage” for the purposes of the Act, under Section 28R(1)-(2) Schedule 4C, discrimination in an educational institution can be practiced in terms of in terms of, admissions, exclusions, availability of courses, the terms of admissions and exclusion, can all fall. Further the case of White v Clitheroe Royal Grammar School reiterates the duty held by educational institutions, to make reasonable adjustments in order to include disabled students, not just in terms of academic activities but also in extra-curricular activities, such as trips and excursions. I believe this to be a positive step towards the overall aim of making the disabled population feel included in the mainstream social activities, for them to grow up within the society, rather than circle its periphery as they have done for far too long.
Effectiveness of the DDA measures for Education:
The Labour Force Survey, autumn 2004 showed that in comparison to 9% of the able bodied population aged between, 21% of the disabled population hold no qualifications at all. In a survey for the DRC by the NOP 86% of disabled people find it harder to find work, This gap is significant and the date of the survey results, being post the 1995 Act and just a year prior to the 2005 makes one question the effectiveness of the regulations imposed. However in defence of the pieces of legislation, are relatively new and a long past of discrimination needs to be made up for.
Although the DDA 1995 amended by Special Educational Needs and Disability Act 2001 makes it unlawful to discriminate, without justification, against disabled pupils and prospective pupils, across their school life, disabled children living in care homes are still being denied the right to claim their statutory rights as per SENDIST since an appeal against discriminatory treatment of a student, can only be launched on behalf of the child.
Therefore not only are these children denied the security of a family life but also accessibility to their basic statutory rights.
For those children who are fortunate enough to live with their families, and thereby have access to their statutory rights, their rights in conjunction with the ‘Services for disabled children and their families report’ states the strength of a disabled pupil’s capability of claiming his statutory rights with regards to education depend upon the area the child and his parents live in and “how hard the parents are able to push.”
In criticism to the definition of disability in conjunction with education being covered by the new Act, the definition fails to regards “learning difficulties” as being a disability therefore, fails to offer protection to students with learning difficulties under the Act.
The above analysis of the DDA provisions for education although not conclusive however makes one realise that the legislation is still in its premature stages, there are a lot of grounds to cover, and this is just a commencement. However having said that, the right to a decent education is one which is a fundamental human right, and if the education system is sociologically assessed it more than a mere academic institution, it is one which plays a primary role in our socialisation into society and realisation of our citizenship roles. Therefore discrimination really needs to be eradicated at policy level in order to re-integrate the disabled population from an early age into the mainstream society and bring an end to the culture of dependence, investing in the young a sense of self worth. Another aspect of education rights under the DDA which I have failed to cover due to the word constraint is that of the provisions made for higher and further education under Part IV of the DDA. This would have been essential as it sheds lights on the accessibility to fundamental education rights of disabled students in contrast those of able bodied students, and therefore the shape of the future employment market. However instead I have chosen to study the DDA provisions for Employment because this is the next step on the path to disabled people achieving the independence which according to disability speakers is the most anticipated result of the DDA.
The Effectiveness of the DDA with measures taken on Employment:
Employment for the purposes of the Act has been defined as “under contract of services or apprenticeship or a contract personally to do any work”. Under part 2 of the DDA 1995, Employers have a duty of responsibility towards employees during recruitment, during actual employment, and after employment (references). The DDA covers the rights of both part time and full time workers. Further the Act identifies five types of discriminations:
Direct Discrimination: whereby an employer treats an employee less favourably on grounds of his disability. An example would be if two job applicants, with identical qualifications apply for a job and the employer rejects one of the employees on the basis of his mental health impairment, such treatment would amount to direct discrimination.
Failure to Comply with Duty to Make Reasonable Adjustments:
Employers are under a duty to make reasonable adjustments for disabled employees in order to integrate them into their work environment. Employers in negligence of the need to make reasonable adjustments for an employee, of whose disability the employer is or should have been aware of, are in breach of their duty. An example of this form of discrimination would be failure to ensure breaks suitable for a diabetic employee. In the case of Morse v Wiltshire County Council the questions which were asked by the tribunal here were: Has the employer taken reasonable steps to prevent the disabled person being in a place of substantial disadvantage? Could employer have taken reasonable steps to prevent such discrimination?
Disability Related Discrimination:
Is when a disabled employee is treated less favourably than their able bodied counterparts, Hammersmith and Fulham LBC v Farnsworth. This form of discrimination can be claimed in conjunction with Direct Discrimination as well; however there are justifications applicable as a defence for employers with this form. But employers cannot use lack of employee’s disability as a defence. Further the defence of justification would not be available to employers where reasonable adjustments would have avoided the dispute and discriminatory treatment of a disabled employee. An example of this form of discrimination would be an employer dismissing a Multiple Sclerosis sufferer from employments because of too many needs for days off. Lack of knowledge of disability as already mentioned will not be considered suitable justification of actions, but genuine needs of business may succeed in a justification attempt.
Victimisation:
Applies to both able bodied and disabled employees, making being treated less favourably than any other employee, because they carried out a protected act under the DDA, e.g. for bringing a claim against an employer or giving evidence against the employer.
Harassment:
Makes it unlawful, to subject a disabled member of staff, and in some circumstances an disabled ex member of staff to harassment. Harassment can mean unwanted conduct, creating hostile, degrading, or intimidating environment. An example of harassment would be to call a member of staff with learning difficulties, stupid or slow.
The case of Archibald v Fife Council:
Just prior to the 2005 Act, the case sets out the standards of care required from employers towards their disabled employees. Baroness Hale emphasises on the need to recognise the differences between disabled people and others, the need for disabled people to not be treated in the same way as others. The need for reasonable adjustments to be made to cater for their needs, also the need for positive discrimination in favour of disabled employees in order for them to be put on an equal footing as their able bodied colleagues. Such sentiments expressed in the judgement of an obscure case seem very moving however their practicality in actual work places, is something which needs to be policed, therefore awareness needs to be raised in conjunction to the DDA and Equality Rights afforded to employees in conjunction with the two above stated Acts, and employers.
However despite such legal obligations being imposed upon employers, since 1995, with regards to their duty towards disabled employee’s and applicants, a survey carried out in 2002 by NOP for the DRC, showed that 80% of the young disabled population complained, it was still harder to find work in comparison with their able bodied counterparts. By the age of 30 disabled people expected and 30% expected to be earning less than other able bodied 30 year olds.
The most disturbing report of so far however is Pipa and Joesph Rouwntree Foundation 2002, in which young disabled participants experienced isolation, loneliness, and exclusion, all the bones of contention picked up upon by the
Conclusion:
In conclusion, the structure of my essay was specifically designed towards, first of all attempting to etch a distinction of the Disability Discrimination Act 2005 form its predecessor in 1995, and then the relevance of the Equality Act 2006, in context of the question. Then I attempted to look through the disability activist’s eyes, at the treatment of disabled people within public policy, the application in practice of citizenship rights and human equality rights. Finally taking the essay back to the present situation, I attempted to analyse the effectiveness of the promises made to the disabled community through the statutory provisions made under the Disability Discrimination Act 1995 and the amendments to the Disabled peoples’ rights under the Disability Discrimination Act 2005, with regards to case law. My focus has remained upon the DDA, reason being the scope of the syllabus has been such it has encouraged an insight strictly into this Act and its repercussions.
As I have already mentioned, there are a lot of changes being imposed, to break the cycle of discrimination of the disabled community, however these changes are understandably premature, and still in a process of experimentation. But it, as already mentioned, these changes are a long overdue step in the right direction. However, what worries me looking at the provisions’, and the motivation behind such needs, is it really to allow equal footing with regards to opportunities to better life styles and independence, or is the motivation something more not mentioned in black and white. As Barnes already establishes the distinction between the understandings of the word “independence” for difference sectors in society, he attributes to the policy makers, an economically based understanding of the term ‘independence.’ The achieving of independence has been a central concern of disabled people who feel they have for far too long been made to feel their say in their life style choices is taken away from them. However the disparity in the way the two take the meaning of independence I find to be a cause for concerns. Government under the cloak of equal opportunity is pushing certain sectors of society into employment, with the benefit of reasonable adjustments’ under their belt, however, are disabled all disabled people really ready emotionally to be suddenly thrown into the employment sector and off the welfare state, especially those who have grown up under the old system, whereby they have little or no qualification or experience and their health and lack of experience is working against them? Despite the figures which show the difficulties faced by disabled people in finding employment, the reality of ‘finding employment,’ is not as easy as the government theorists make it seem, and this sudden surge of attempt to push disabled people into employment seems like a tactic which will eventually mean lack of welfare based financial support to those who need it most in society by legally binding them with a duty to work, pay taxes and be “citizens enjoying equal human rights” but the reality of which is yet to be tested.
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