Citizens Advice is a unique problem solving charity which supports 494 Citizens Advice Bureaux delivering advice and information from 3,200 outlets across England and Wales. The service helps people resolve their consumer, legal, money, and other problems by providing free information and advice and by influencing policymakers.
The CAB service currently deals with 5.6million new problems each year. A further 1.6 million visits were made to our public advice website,  www.adviceguide.co.uk. In 2003/04 Citizens Advice Bureaux supported 2.75 million people and dealt with 5.6 million problems.
This briefing responds to the Disability Discrimination Bill published on 25 November 2004 and focuses specifically on four key areas:
- compliance with disability discrimination legislation – clause 3
- the meaning of disability – clause 17
- reasonable adjustments and the cost of enforcement
- link to Commission on Equalities and Human Rights Bill
If you would like further information or briefing please contact:
Mark Atkinson, Head of Government & Parliamentary Relations E-mail: mark.atkinson@citizensadvice.org.uk
Introduction
Citizens Advice welcomes the publication of the Disability Discrimination Bill and recognises that it strengthens the Disability Discrimination Act 1995 and the subsequent amendments passed in 1999. It makes significant progress towards the Government’s objective of securing comprehensive and enforceable civil rights for disabled people.
Citizens Advice believes that the bill has been strengthened by pre-legislative scrutiny and this briefing identifies four key issues that require further consideration by Peers as the Bill makes it passage through the House of Lords.
It is critical that this Bill gains Royal Assent in this session.
1. Compliance with disability discrimination legislation – clause 3
One of the deficiencies of the DDA regime has been the lack of enforcement powers, placing the full burden of taking action to enforce the law on individual disabled people. The Institute of Employment Studies have undertaken successive surveys of cases under the Disability Discrimination Act and found the main reason why so many cases are withdrawn is that disabled people find it difficult to gain access to justice because of the stress and difficulty of pursuing cases through the courts. This is particularly so for those with mental health problems.
Citizens Advice welcomes the proposals under the Disability Discrimination Bill to enable the Disability Rights Commission (DRE) to serve a compliance notice on a public authority where it is satisfied that a public authority is not complying with a specific duty. The Commission would be able to apply directly to the court for an order to force a public authority to supply information – this complements the Commission’s existing powers with respect of formal investigations, requiring action plans and issuing non-discrimination notices.
However, the Bill does not significantly expand the Commission’s powers to take appropriate legal action where there are clear breaches of the Act, or enhance the Commission’s conciliation function and the power does not extend to the private sector providing goods and services to disabled people or as actual and potential employers.
We are particularly concerned about people with mental health problems who may not be able to take action on their own behalf. Citizens Advice are seeking assurance from the Government that they will again review the scope of powers available to the DRC and introduce amendments allowing the Commission to act as guardian or to bring independently, proceedings concerning any discriminatory practice.
2. The meaning of disability – clause 17
Clause 17 of the bill amends the definition of disability as is presently set out in Section 1 of the Disability Discrimination Act 1995. It removes the requirement set out in the original Act that a mental illness must be “clinically well-recognised” before it can amount to a mental impairment. The removal of this requirement does not affect the need for people with a mental illness to demonstrate that they have an impairment, which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities.
Citizens Advice is concerned that even with the welcome removal of the need for mental illnesses to be “clinically well-recognised” the new legislation is still likely to continue to exclude a significant proportion of people with mental health problems and as such the Bill will fail to offer them appropriate protection.
Citizens Advice believes the definition of mental impairment should take into account a wide range of mental illnesses and clearly take account of the effect of mental disability on people’s lives and enable individuals affected by mental illness to challenge unacceptable discrimination.
The requirement to prove that an illness has a long-term effect is defined in Schedule 1 of the 1995 Act and the Code of Practice produced by the Disability Rights Commission as an impairment that “has lasted, or is likely to last, for at least a year”. This fails to recognise the periodic and recurrent nature of some illness and serves to exclude people whose mental health problems are, by their nature, short term, such as depression caused by reaction to pressure, trauma or severe stress. Reactive depression can respond positively to medication and therapeutic interventions within a few months; however, for the duration of depression or a depressive episode, a person may be totally physically and mentally incapacitated.
Impairment as defined must also have a substantial adverse effect on, ‘normal day-to-day activities’. Such activities are mostly defined in physical terms; yet physical activities may not be affected by mental health. Current definitions fail to take sufficient note of the kinds of difficulties people with mental health problems face, such as psychiatric impairment affecting behaviour, social interaction, relating to strangers and communication.
The evidence of Citizens Advice is that people with mental health problems frequently face discrimination as workers and as consumers. For example, access to effective insurance is difficult for people with mental health problems. One reason for this is that terms and conditions of many insurance policies can exclude any claim where either the consumer has had a pre-existing medical condition amongst a wide range of mental health problems, and too often we come across cases where a claim cannot be made for an insured event because the consumer has experienced a mental health problem, as opposed to a physical illness or injury.
This appears to particularly affect payment protection insurance, which is designed to help consumers meet their credit and loan commitments when they experience an unexpected reduction in or loss of income, due to ill health or redundancy. People with mental health problems who lose their jobs through illness are hit with loss of cover to protect their income at crucial times in the management of their health. It is vital they should be able to rely on insurance products to give them this protection. As the insurance industry frames its policies within the framework of the Disability Discrimination Act it is vital that the definitions of disability within that act sufficiently include all disabilities where individuals experience discrimination.
If the intention of Government, through this Bill, is to recognise mental health as a disability the legal definition of disability, which is the heart of the framework for defining, identifying and tackling discrimination must encompass mental as well as physical illness, and the periodic and intermittent/recurrent nature of mental disabilities.
3. Reasonable adjustments and the cost of enforcement
It is wholly appropriate that the duties to make reasonable adjustments should apply to all service providers. However, disabled people should not be forced to pay higher costs for goods and services simply because they are entitled to an equal access.
The range of providers to whom this legislation applies is comprehensive and, in the area of goods and services and facilities, includes everything from advice agencies, to hospitals, banking services, professions and trades such as solicitors and builders, courts and local authority and government.
Citizens Advice welcome the introduction of a pro active duty and the notion of indirect discrimination (by outcome) as set out in new section 21D(2), which mitigates the problem of always needing a ‘trigger event’ to make legislation effective. However, these only relate to public authorities. It should be made clear that the duty on employers and service providers to make reasonable adjustments is a proactive, anticipatory and continuing duty.
Some service providers have policies and procedures to align their provision with the DDA that are not delivering the intended outcome. People with disabilities who choose these services because of the promise of considerate and effective treatment are often disappointed. The DDA was intended to prevent the exclusion of people with disabilities from access to goods and services. Some disabilities are not obvious and service providers should be more willing to be responsive to requests.
A CAB client in the South found the local taxi firm doubled its fares because his wife was a wheelchair user.
A client in Wales owed £78.56 on his fuel bill. He was told his only option was to have a pre-payment meter fitted. His disability made the proposed site for the meter impossible for him and he was told it would cost him £200 to change the site. The CAB commented that if he had £200 he would pay off the arrears.
Link to Commission on Equalities and Human Rights Bill
As part of the Queen’s Speech the Government announced its intention to introduce legislation to create a Commission on Equality and Human Rights (CEHR), which will eventually incorporate the DRC. In responding to consultations on CEHR, Citizens Advice has called for powers to enable the Commission to take cases on behalf of individual victims of discrimination – this is particularly important for disabled people.
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