Disability, Society and the Law Teresa Munby, Tutor in Law and Social Work

1. Disability, Society and the LawTeresa Munby, Tutor in Law and Social Work

2. History, Demography and a changing landscape • Post second World War creation of the welfare state –designed to address the ‘giants of want’ • Poverty • Education • Health • 1948 National Assistance Act • Provision for those with disabilities: • s.21 ‘the local authority may make arrangements to provide residential accommodation for persons who, by reason of age, illness, disability or any other circumstances, are in need of care and attention which is not otherwise available to them’. • S.29 a local authority shall make arrangements for promoting the welfare of those who are aged 18 or over who are blind, deaf, or dumb, or who suffer from mental disorder of any description, and other persons aged 18 or over who are substantially and permanently handicapped by illness, injury, congenital deformity or such other disabilities’.

3. History, Demography and a changing landscape • Anticipation of assisting those injured during the war – disability a ‘temporary issue’ • Full employment including for those with disabilities –disability ‘quota’ BUT: • Underestimate of the developments and progress in medicine and science • Increasing development of disability rights groups in 1960’s and 1970’s

4. History, Demography and a changing landscape Legislation developed to assist in provision of services for people with disabilities: • Chronically  Sick and Disabled Persons Act 1970 • Key piece of legislation –significant provisions • Arguably UK’s first disability rights legislation YET • NOT a government bill –introduced by as a Private Members Bill

5. History, Demography and a changing landscape PROVSIONS of Chronically Sick and Disabled Persons Act 1970 • Local authorities has a duty to assess the individual needs of everyone who falls within section 29 of the National Assistance Act • The Act sets out provisions and services to improve  access and support for people with disabilities. • These include: • practical support in the home; • provision of meals at home or elsewhere; • provision or assistance to obtain radio, TV, library or other recreational services; • provision of recreational and educational activities outside the home; • provision of services or help in accessing travel to and from the home to participate in these activities; • arranging home adaptations to meet people’s needs.

6. History, Demography and a changing landscape Disabled Persons Act 1986 • This Act strengthened the legislation laid down in the Chronically Sick and Disabled Persons Act. • Local Authorities subject to a the duty to assess people with disabilities for services if asked to do so by the individual, their representative, or carer. • Social Services have to provide a written assessment and look at the abilities of informal carers when deciding what services to provide to the person with disabilities. • BUT no requirement to provide services

7. History, Demography and a changing landscape NHS and Community Act 1990 • This legislation placed a responsibility on local authorities to undertake an assessment where a person may be in need of services as a result of illness, disability or impairment (s47), the local authority has a duty to provide services if the needs are assessed as eligible.

8. What progress on rights of disabled people and freedom from discrimination? Conservative Government (1979-1997) • Reluctance to legislate • Reluctant to promote the rights of disabled people • Private members bill followed by ……..… demonstrations

10. Mass demonstrations

11. Disability Discrimination Law Disability Discrimination Act 1996 • The government adopted the bill and the Disability Discrimination Act 1995 (DDA) came into force in December 1996. • Illegal to discriminate against people with disabilities in employment, education, transport and the provision of goods and services. • Duty imposed on employers to make ‘reasonable adjustments’ to working practice or the environment so that someone who had disabilities was not disadvantaged in the workplace. Examples of adjustments included: altering working hours; allowing time off for treatment; acquiring or modifying equipment; and adjusting the premises. • A decade later the Disability Discrimination Act 2005 was passed. This introduced a disability equality duty which required all public bodies to have ‘due regard’ to the need to eliminate discrimination and harassment of those with disabilities, promote positive attitudes towards them and encourage their participation in public life.

12. Disability Discrimination Law Equality Act 2010 • A new unified single act bringing all discrimination into one place on the grounds of different ‘protected characteristics’ e.g. sex, race, age, sexual orientation, transgender, religion and belief and disability. • It provides protection from discrimination whether: • Direct • Indirect • Harassment • Victimisation • In employment, education, goods and services, transport, housing and functions of public bodies and local authorities

13. Discrimination by association and by perception • Direct discrimination also occurs when you treat a person less favourably because of their association with another person who has a protected characteristic • Direct discrimination also occurs when you treat a person less favourably because you mistakenly think that they have a protected characteristic

14. Discrimination arising from disability • Discrimination arising from disability occurs when you treat a disabled person unfavourably because of something connected with their disability and cannot justify such treatment. • Discrimination arising from disability will also occur where there is a failure to make, ‘reasonable adjustments’. This will be in relation to: • A provision, criterion or practice which disadvantages a disabled person or, • A physical feature which disadvantages a disabled person , or • Provision of an auxiliary aid to prevent disadvantage to a disabled person

15. Discrimination arising from disability Discrimination arising from disability will occur if the following three conditions are met: 1. You treat a disabled person unfavourably, that is putting them at a disadvantage, even if this was not your intention, and 2. This treatment is because of something connected with the disabled person’s disability (which could be the result, effect or outcome of that disability) such as an inability to walk unaided or disability-related behaviour, and 3. You cannot justify the treatment by showing that it is ‘a proportionate means of achieving a legitimate aim’. NB. If you have not complied with your duty to make reasonable adjustments it will be difficult for you to show that the treatment can be justified.

16. Equality and Human Rights Commission (EHRC • Established by the Equality Act 2006 • Resulted in the abolition of: • Commission for Racial Equality CRE • Equal Opportunities Commission EOC • Disability Rights Commission DRC • Funded by the Dept. of Culture, Media and Sport, the EHRC works to promote: • fairness and equal opportunity in the UK’s future economy • fair access to public services, and autonomy and dignity in services provided • dignity and respect, and safeguarding people’s safety • The EHRC promotes and monitors equality and human rights, and provides institutional support for the Human Rights Act • Codes providing a more detailed explanation of equality law are available on the Commission’s website: www.equalityhumanrights.com

17. UN Convention on the Rights of Persons with Disabilities • In 2008 the United Nations introduced the UN Convention on the Rights of Persons with Disabilities, which obliged members to promote, protect and ensure equal rights and root out discrimination.

18. Disability Rights achieved? “There is, however, still a long way to go to meet the Government target of full equality for disabled people by 2025.” “We will continue to: • Press for the adoption of the definition of disability as contained in the UN Convention on the Rights of Persons with Disabilities (UNCRPD). • Press the Equalities and Human Rights Commission (EHRC) to make sure disabled people are given information and support to legally challenge discrimination. • Press the EHRC to publish information on cases of successful legal challenges that are taken in relation to disability, ensuring that other strands of discrimination if present are reported. • Only through these measures and positive steps will be ensure that Government and public bodies are fully committed rooting out disablism and to building real inclusion in our society.” UK Disabled People’s Council http://www.ukdpc.net/site/position-statementsbr/equality-act-2010 Accessed 22.04.14