Disability Discrimination Act 2005: an EOR guide

Michael Rubenstein presents an in-depth analysis of the Disability Discrimination Act 2005, including the new positive duties on public authorities to promote equality of opportunity for disabled people.

The Disability Discrimination Act 2005, which received royal assent on 7 April, makes important changes to the definition of disability and introduces a new positive duty on public bodies to promote equality of opportunity for disabled people.

The Act makes other changes of interest. It prohibits disability discrimination by public authorities in the exercise of their functions. It strengthens the provisions of the amended Disability Discrimination Act 1995 (DDA) on discriminatory advertisements, and brings the awarding of general qualifications within the scope of the legislation.

Meaning of disability

There are two major amendments to the statutory definition of disability. One affects the definition of mental impairment and the other the definition of a progressive condition. According to Secretary of State for Work and Pensions, Alan Johnson, the new legislation "extends the definition of disability to provide protection against discrimination for at least another 175,000 people". The changes to the definition of disability are expected to come into force in December 2005.

Mental illness

The most far-reaching change made by the Act is to remove the requirement in para. 1(1) of Schedule 1 to the DDA that mental illnesses must be "clinically well-recognised" in order to be covered by the definition of disability.

Until now, those seeking to claim that they were discriminated against for a reason related to a mental illness have had to demonstrate not just that their mental impairment has a substantial and long-term adverse effect on their normal day-to-day activities, but also that it is a clinically well-recognised illness. This has acted as an additional hurdle for claimants, which is not faced by those with a physical impairment or with a mental impairment other than a mental illness, and has often required claimants to call an expert witness to establish the precise nature of their condition. The change made by the Act will bring mental illnesses into line with other impairments.

As Baroness Hollis, the Parliamentary Under-Secretary of State at the Department for Work and Pensions (DWP), explained during the debate on the Bill in the House of Lords, as a result of the amendment, "someone who clearly has a mental illness could be covered by the DDA even if it is difficult, at an early stage in the diagnosis, to name the precise condition."

Under the new provisions, someone with a mental illness will still have to prove that the impairment has both a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Depression amendment reversed

Depression is a clinically well-recognised illness. The International Classification of Diseases states that the median length of a depressive episode is six months. As a result, some claimants with clinical depression have had difficulties in bringing their case within the Act because the definition of a "long-term" impairment requires evidence that the impairment has lasted, or is likely to last, for at least 12 months.

In the House of Lords, an amendment was passed against the government's wishes, the effect of which would have deemed a person to meet the long-term impairment limb of the definition of disability if they had two periods of depression, so long as the first occurred in the preceding five years and had had a substantial adverse effect on the claimant's ability to carry out normal day-to-day activities for six months or more.

When the Bill went to the House of Commons, this amendment was removed, which the House of Lords eventually agreed to. The government's view was that there is a distinction between episodes of depression that are a symptom of an underlying condition, which is already covered by the DDA's provisions on recurring conditions no matter how far apart the incidents, and a discrete episode, such as a period of post-natal depression, followed by a second period of depression unconnected with the first, such as one engendered by a bereavement. The "recurring condition" definition provides that where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if the effect is likely to recur.

Explaining the government's decision, the Parliamentary Under-Secretary of State for Work and Pensions in the House of Commons, Maria Eagle, said that the amendment "undermines the most basic principle of the DDA - that a disability must be a long-term or permanent condition. Under the new provision, a person with depression could qualify under the legislation as disabled after experiencing unrelated depressive episodes totaling little more than six months, and it constitutes a special arrangement for one form of mental impairment, which I believe to be unwise."

However, the Disability Rights Commission (DRC) has been asked to consider ways of progressing the "social model" of disability, and the government's view is that the DRC's review is the right place to consider whether and how to cover short-term conditions.

Progressive conditions

The new Act provides that "a person who has cancer, HIV infection or multiple sclerosis is to be deemed to have a disability, and hence to be a disabled person". This means that people with these conditions will be protected against discrimination from the point of diagnosis, thereby removing the need to show that these progressive conditions have any current (or past) effect on normal day-to-day activities.

As regards multiple sclerosis (MS), until the decision of the EAT in Mowat-Brown v University of Surrey (EOR 104), it had generally been assumed - including by the government - that people with MS would be protected from the point of diagnosis. The new provisions make clear that this is the case.

HIV and cancer are deemed to be disabilities because of the stigma attached to them. Baroness Hollis explained: "For HIV and some cancers we have evidence to show that disability discrimination starts early, at the pre-symptomatic stage ... In particular, evidence ... suggests that there is still widespread fear and prejudice against people with a diagnosis of HIV infection." She referred to a report by the National AIDS Trust that a fear of dismissal prevents many people from disclosing their HIV status to their employers.

So far as other progressive conditions are concerned, Baroness Hollis acknowledged: "There is an argument that if we treat some people with progressive conditions as disabled people from the point at which they are diagnosed, we should do the same for all of them. We agreed with this in principle but we are not persuaded that there are any additional conditions which are inadequately covered." This is because other serious progressive illnesses, such as motor-neurone disease or muscular dystrophy, are identified when the symptoms show, so that there is no need to include them in a list of illnesses that can be asymptomatic.

Cancer exclusion

In respect of cancer, the new provisions recognise that people with cancer, like those with HIV, can experience disability discrimination based on stigma from the point at which a diagnosis was made.

However, the government is concerned that people with minor cancers, which are treated comparatively easily, should not be deemed to fall within the definition of disability. The Act allows for regulations to be made by the secretary of state under which the deeming provisions will not apply in the case of a person who has cancer if they have cancer of a prescribed description. As we reported in Discrimination complaints - the new regime in focus: Part 3 equal value, the DWP has been carrying out a consultation on this issue. This makes clear that the Regulations are likely to exclude those cancers that are not considered to require "substantial treatment". The underlying principle is that it is not appropriate, in all cases, for a person always to be protected by the DDA once they have had cancer.

The consultation lists the conditions as: basal cell carcinoma (rodent ulcers); most squamous cell carcinoma of the skin; Bowen's disease; in situ skin cancers (ones that do not affect the full skin thickness and can be treated easily and simply); and in situ cancer of the cervix uteri that it is likely can be treated successfully and fully by cone biopsy. The DWP proposes that if a person has any of these conditions, they will not be covered by the extended definition of a progressive condition.

Baroness Hollis told the House of Lords: "We do not accept that a person who has a cancer requiring minor treatment would consider themselves to have a long-term disability ... How can we promote a wider understanding of disability and of the discrimination it attracts, and address it in civil rights language if we deem all people who have ever had treatment for a cancer, such as squamous cell carcinomas, or a rodent ulcer that has been easily and completely eliminated, to be disabled?" She added: "I find it difficult to accept the argument that because something is called 'cancer' - in other words, it is associated with damaged cells - it is different from, say, angina, a heart condition, or a circulatory disease. Surely what matters is the effect on someone's life - that is, whether there is an impairment which has a substantial, adverse and long-term effect on their daily life."

Set against that, there was considerable criticism of the government's approach in the House of Lords. The view was expressed that having been diagnosed with cancer, no matter how minor the cancer may be for the individual, it can have a serious impact, and that the stigma and ignorance apply to all cancers at the point of diagnosis, not just to major ones. As a result, the government conceded that any exclusion from the deeming provisions would be put before parliament in the form of an affirmative resolution that could be debated.

The consultation closed on 18 March, and the government is committed to bringing in the change in coverage "as expeditiously as we can, and certainly by the end of the year".

Discriminatory advertisements

The Act strengthens the provisions of the amended DDA on discriminatory advertisements, which came into force in October 2004, by extending the duty not to discriminate to "third-party publishers", such as newspapers.

The Disability Discrimination Act 1995 (Amendment) Regulations 2003 made it unlawful for a person intending to confer a relevant appointment or benefit to publish a discriminatory advertisement or cause such an advertisement to be published.

However, as it currently stands, the DDA applies to employers and others who publish, or cause to be published, a discriminatory advertisement. It does not prohibit newspapers and other third parties from publishing discriminatory advertisements on behalf of the person placing the advertisement. That gap is filled by the new Act, which extends the scope of the prohibition on discriminatory advertisements to cover third-party publishers who publish a discriminatory advertisement. Therefore, both the employer and the newspaper will be liable when the new provisions come into force.

Awarding bodies

With effect from October 2004, it has been unlawful for "a body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person - (a) in the terms on which it is prepared to confer on him that authorisation or qualification ..." "Profession" is widely defined as including any "vocation or occupation".

The new Act extends this by prohibiting unlawful discrimination against disabled people by general qualifications bodies. This will cover qualifications such as GCSEs and A-levels in England and their equivalents in Scotland.

Statutory duties of public authorities

The Act sets out a new positive duty on public authorities to promote equality of opportunity for disabled people. This closely parallels the duties that were imposed on public authorities by the Race Relations (Amendment) Act. All public sector bodies will have a general duty to promote disability equality, but key public sector bodies will have a specific duty (see below) to produce action plans for tackling discrimination, and to devise mechanisms to consult effectively with disabled people. These provisions are expected to come into force in December 2006.

According to the Secretary of State for Work and Pensions, more than 40,000 public bodies will be covered by these duties in some way. In a statement made to parliament on 23 March 2005, he confirmed that schools will be subject to specific duties, including requiring schools to take action to improve outcomes for disabled children.

The new duty, in effect, will import the concept of mainstreaming disability rights issues into public authority decision-making. As the DWP explains: "This means, in broad terms, that public bodies, when making decisions or when developing or implementing a new policy, must make consideration of the needs of disabled people an integral part of the policy-making or decision-making process - with a view to eliminating discrimination and harassment against, and improving opportunities for, disabled people." In its consultative draft code of practice on the duty to promote disability equality, the DRC adds: "The general duty does not tell public authorities how to do their work, but it requires them to give due weight to the need to promote disability equality in relation to all policy and practice including planning, policy-making, service delivery, regulation, inspection, enforcement and employment."

General duty

Following amendments as the legislation went through parliament, the general duty is now defined by s.49A of the DDA as amended as follows:

"(1) Every public authority shall in carrying out its functions have due regard to:

(a) the need to eliminate discrimination that is unlawful under this Act;

(b) the need to eliminate harassment of disabled persons that is related to their disabilities;

(c) the need to promote equality of opportunity between disabled persons and other persons;

(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;

(e) the need to promote positive attitudes towards disabled persons; and

(f) the need to encourage participation by disabled persons in public life."

The amendments made clear, as Baroness Hollis explained, that "public bodies will have a clear duty to have regard not only to the need to combat discrimination and promote equality of opportunity, but also to the need to influence attitudes and to educate people about disability. They will have a duty to create a climate where disabled people are fully able to participate in public life as school governors, directors of NHS trusts and as other players in the community."

In its consultative draft code of practice, the DRC points out that "the duty is aimed at tackling systemic, institutionalised discrimination against disabled people." It sees the general duty as a way of addressing the "social model" of disability, which focuses on barriers that fail to take into account the particular circumstances of disabled people, and by so doing exclude or disadvantage them. The DRC notes that the duty "is not a passive one, requiring merely prevention of discrimination, but requires active promotion of equality of opportunity, focusing on improved outcomes for disabled people, which ... may require additional steps to be taken ... The mere fact that a public authority is not committing an unlawful act of discrimination does not mean that it is complying with all elements of the general duty ..."

The general duty is enforceable by way of a claim to the High Court against the public authority for judicial review. The claim could be made by a person or group with an interest in the matter or by the DRC.

Specific duties

As with the Race Relations (Amendment) Act, the general duty will be amplified by specific duties on public authorities imposed by Regulations. These are intended to assist public authorities in meeting the general duty.

The Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 have now been published by the DWP (www.disability.gov.uk/campaigns/regs_final.html ). The key element is that they require public authorities to produce a Disability Equality Scheme. The scheme must set out how the public authority intends to fulfil both its general and specific duties. It must be developed with the involvement of relevant disabled people.

Regulation 2(3) goes on to provide that a scheme shall include a statement of the following:

"(a) the ways in which such disabled people have been involved in its development;

(b) that authority's methods for assessing the impact of its policies and practices, or the likely impact of its proposed policies and practices, on equality for disabled persons;

(c) the steps which that authority proposes to take towards the fulfilment of its section 49A(1) duties [the general duty];

(d) that authority's arrangements for gathering information on the effect of its policies and practices on disabled persons and in particular its arrangements for gathering information on -

(i) the effect on the recruitment, development and retention of its disabled employees,

(ii) the effect, in the case of an authority specified in Part II of Schedule 1, on the educational opportunities available to, and on the achievements of, disabled pupils and students, and

(iii) the extent to which, in the case of an authority other than one specified in Part II of Schedule 1, the services it provides and those other functions it performs take account of the needs of disabled persons; and

(e) that authority's arrangements for making use of such information to assist it in the performance of its section 49A(1) duties and, in particular, its arrangements for—

(i) reviewing on a regular basis the effectiveness of the steps referred to in sub-paragraph (c), and

(ii) preparing subsequent Disability Equality Schemes."

The public authority is given three years from the date it publishes its Disability Equality Scheme to take the steps required to comply with its general duty and to put into effect the arrangements it is required to set out in the scheme by virtue of regs. 2(3)(d) and (e) for gathering information and making use of such information.

The specific duties will be enforceable by the DRC, which will have the power to issue a compliance notice and, ultimately, can seek a compliance order from a county court in England and Wales or a sheriff court in Scotland.

In its draft code of practice, the DRC gives guidance on how a public authority should approach the different elements of the Disability Equality Scheme: preparing action plans; involving disabled people; gathering evidence; analysing evidence; and assessing the impact of policies and proposed policies.

In terms of gathering information, the DRC suggests that disabled people should not be lumped together as one group: "Disabled people with different impairments can experience fundamentally different barriers, and have very different experiences according to their impairment type. It will often be necessary therefore to monitor outcomes according to impairment type to capture this information." For employers with more than 150 employees, it is recommended that they collect statistical information on disabled staff who receive training, or benefit or suffer detriment as a result of performance assessment procedures, or are involved in grievance procedures, or are subject to disciplinary procedures. The DRC points out that "employers will need to consider any differential in these areas between disabled and non-disabled staff; investigate the reasons for this; and take action to remedy it."

A public authority must include a statement in the Disability Equality Scheme as to its methods for assessing the impact of its policies and practices on equality for disabled persons. The DRC code recommends that a full impact assessment is likely to involve, in sequential order: consideration of available data and research; assessment of impact - what effect will this policy/decision, etc have upon disabled people; consideration of measures that might mitigate any adverse impact and alternative policies that might better achieve the promotion of equality of opportunity for disabled people; involvement; a decision by the public authority; publication of the results of the impact assessment; monitoring for future adverse impact.

Discrimination by public authorities

The Act extends the scope of the DDA to prohibit discrimination against disabled people by public authorities in the exercise of their functions. This broadly parallels s.19B of the Race Relations Act as amended by the Race Relations (Amendment) Act 2000 although, as explained below, the DDA's provisions are more wide-ranging because of the duty on public authorities to make reasonable adjustments. The government's Equality Bill, which fell when parliament was prorogued for the general election, contained provisions setting out a public sector duty as regards sex discrimination.

The new Act provides: "It is unlawful for a public authority to discriminate against a disabled person in carrying out its functions." The DWP's explanatory notes say that in general terms, the effect of the new sections will be "to prohibit discrimination, as defined, in the exercise of all public functions other than (in broad terms) those of legislation, prosecution, judicial acts, state security and allocation of prisoners to accommodation. This new prohibition of discrimination will therefore cover decisions by ministers, local authorities, the police and other governmental organisations." Baroness Hollis told the House of Lords that the new section will bring into coverage "functions such as the issuing of licences, a planning authority drawing up a local plan or the appointment of governors by a school".

"Discrimination" by a public authority is defined in two ways in the Act. It can occur where there is less favourable treatment for a reason relating to disability, without justification, or it can occur where there is a failure to make adjustments, again without justification.

The first definition of discrimination parallels that for disability-related employment discrimination:

"a public authority discriminates against a disabled person if -

(a) for a reason which relates to the disabled person's disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and

(b) it cannot show that the treatment in question is justified ..."

The second definition of discrimination is a novel one. It requires the individual to show that, to his or her detriment, the public authority has failed to comply with a duty of reasonable adjustment imposed by new s.21E, and the authority was unable to show that its failure was justified. The Act provides: "a public authority also discriminates against a disabled person if -

(a) it fails to comply with a duty imposed on it by s.21E in circumstances in which the effect of that failure is to make it -

(i) impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred, or

(ii) unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by the authority; and (b) it cannot show that its failure to comply with that duty is justified under subsection (3), (5) or (7)(c)."

The news.21D sets out a complicated test of justification. It provides:

"(3) Treatment, or a failure to comply with a duty, is justified under this subsection if -

(a) in the opinion of the public authority, one or more of the conditions specified in subsection (4) are satisfied; and

(b) it is reasonable, in all the circumstances of the case, for it to hold that opinion.

(4) The conditions are -

(a) that the treatment, or non-compliance with the duty, is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);

(b) that the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment, or non- compliance with the duty, is reasonable in the particular case;

(c) that, in the case of treatment mentioned in subsection (1), treating the disabled person equally favourably would in the particular case involve substantial extra costs and, having regard to resources, the extra costs in that particular case would be too great;

(d) that the treatment, or non-compliance with the duty, is necessary for the protection of rights and freedoms of other persons.

(5) Treatment, or a failure to comply with a duty, is justified under this subsection if the acts of the public authority which give rise to the treatment or failure are a proportionate means of achieving a legitimate aim."

Taking the last justification first, where the treatment or failure to comply is said to be a proportionate means of achieving a legitimate aim, the DWP takes the view that "a public authority will be able to rely on this justification only in relation to matters of public interest ... that, subject to an assessment of proportionality, can be said to be sufficiently important to override the right ..."

Alternatively, the public authority can satisfy the requirements of s.21D(3) by showing that it holds the opinion that one or more of the conditions set out in subsection (4) are satisfied and that it is reasonable in all the circumstances for it to hold that opinion.