BERWICK-UPON-TWEED BOROUGH COUNCIL AND THE DISABILITY DISCRIMINATION ACT
Disability Discrimination Act (DDA)
The Disability Discrimination Act (we’ll call it DDA from now on) has been introduced by the Government with the aim of
“making it unlawful to discriminate against disabled persons in connection with employment, the provision of goods, facilities or services or the disposal or management of premises”.
The purpose of this brief guide is to explain what the Act is, what it means, how it affects the Council, and how it affects the services that the Council provides for you.
The guide consists of the following sections:
- A brief overview of the Disability Discrimination Act
- Definition of a Disabled Person
- Which of the Council’s services are affected by the DDA?
- What does the Act mean by discrimination?
- When does less favourable treatment equal unlawful discrimination?
- Favourable treatment
- The Act and Reasonableness
- What is Reasonable?
- Reasonable adjustments in practice
- Justification issues
- Selling, letting or managing premises
- Other provisions under the Act
This guide doesn’t provide an exhaustive summary of the DDA, but aims to highlight the key issues from the Council’s perspective.
For more detailed information on the DDA, it is suggested that you visit the following sites :
A Brief Overview of the Act
The purpose of the DDA is to prevent discrimination against disabled people.
In relation to service providers, duties of the DDA are being introduced in three parts:
1. Since 2 December 1996, it has been unlawful for service providers to treat people less favourably for a reason related to their impairment.
2. From 1 October 1999, service providers have had to make "reasonable adjustments" for disabled people, such as providing extra help or making changes to the way they provide their services
3. It is intended that, from 2004 , service providers will also have to make "reasonable adjustments" to the physical features of their premises
This guide also focuses on the reasonable adjustments required from 1 October 1999.
Definition of a Disabled Person
The Act defines a disabled person as:
"A person has a disability if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities"
People who have had an impairment but have since recovered ARE covered under the Act (for example, people who have had cancer). If someone is receiving medical treatment which alleviates or removes the effects (though not the impairment) they ARE covered under the Act. The sole exception to this is people with 'minor' visual impairments corrected by spectacles.
It is easier to say who is excluded from the Act:
- people with an addiction or dependency problem (other than a result of the substance being medically prescribed)
- people with seasonal allergic rhinitis (eg hayfever)
- people with a tendency to set fires
- people with a tendency to steal
- people who physically or sexually abuse others
- exhibitionism
- voyeurism
Which of the Council's Services are affected?
ALL council services are affected in some way by the DDA.
Some major services are not affected, relevant to council business, are transport services. However, transport infrastructure is affected by the Act, for example bus stations, airports.
What does the Act mean by discrimination?
The Act states that discrimination can happen in two ways, when a service provider:
1. treats the disabled person less favourably than others - for a reason relating to the person's impairment or the service provider cannot show that the treatment is justified
2. fails to comply with the duty to make reasonable adjustments and cannot show that the failure is justified
When does less favourable treatment equal unlawful discrimination?
- It is discrimination if a service provider treats a disabled person in a less favourable way than they would treat other people. The reason for this less favourable treatment must relate to the person's impairment
- Unlike other equality legislation, there does not have to be a direct comparison - the disabled person does not have to show that others were treated more favourably
- It would also be discriminatory if a service provider refused to provide (or deliberately did not provide) a service to a disabled person which it offers to other people, (unless it can be justified)
- A service provider must not offer a disabled person a lower level of service than it offers to other people, or serve a disabled person in a worse manner (without justification). This would be discriminatory
- A service provider must not provide terms of service which are worse than those offered to other people. Worse terms include charging more for goods and services or imposing extra conditions (without justification)
Favourable treatment
The Act does not prohibit positive action in favour of disabled people, unless unlawful under any other legislation. Favourable treatment includes free entry to a park for a personal assistant, to support a disabled person to access the park facilities without having to pay two entrance fees.
The Act and Reasonableness
The Council is required to make reasonable adjustments or positive steps to make our services accessible to disabled people. We have a duty to make reasonable adjustments to our services. Failure to do this could result in discriminatory behaviour.
Berwick-upon-Tweed Borough Council has a duty to:
- make reasonable adjustments to practices, policies and procedures
- provide alternative service methods where physical features make it impossible to access current services
- provide an auxiliary aid or service if it would enable disabled people to use services
We should not wait until a disabled person wants a service before giving due consideration to reasonable adjustments. Reasonable adjustments are good management practice, essential to delivering best value and important to continuous improvement. We have to anticipate the requirements of disabled people and identify the adjustments.
The duty to permanently alter physical features comes into force in 2004.
What is Reasonable?
This is a key difficulty of the Act. It is dependent on a number of factors - the type of service being provided, the nature of the service provider, its size and resources and the effect of the disability on the individual disabled person. Guidance within the Code of Practice indicates factors which might be taken into account when considering what is reasonable as:
- whether taking any particular steps would be effective in overcoming the difficulty that disabled people face in accessing the service in question
- the extent to which it is practicable for the service provider to take the steps
- the financial and other costs of making the adjustment
- the extent of any disruption which taking the steps would cause
- the extent of the service provider's financial and other resources
- the amount of any resources already spent on making adjustments
- the availability of financial or other assistance
Reasonable Adjustments in Practice
a) Practices, Policies and Procedures
Reasonable adjustments must be considered to formal or informal practices, policies and procedures.
We will continue to proactively consider the impact of practices, policies and procedures on services to disabled people.
Issues will be considered carefully and thoroughly and all options considered before deciding against adjustments.
The code specifies that it is not sufficient for service providers to make some changes if they still leave their service impossible or unreasonably difficult for disabled people to use, for example ensuring a member of front line reception staff is trained in basic British Sign Language Interpreters (BSL) but not providing information on the service on tape, large print or Braille, could still be discriminatory.
Initial adjustments and changes do not mean the final result. Review and evaluation is necessary to ensure it is still reasonable. For example, arranging for car parking spaces for orange badge holders directly outside the Council Offices at Wallace Green would be a reasonable initial adjustment. However, if non-disabled customers regularly used the spaces, simply designating the spaces would not be adjustment enough, and further action would be necessary to ensure the parking was monitored or policed.
We must ensure that practices or procedures do not have an effect of screening out disabled people from enjoying access to services. For example, if accessible council housing is allocated on criteria which may also meet the needs of non-disabled people, for example the number of bedrooms, might it have the effect of screening out disabled people?
b) Reasonable Adjustments and Physical Features
The duty on service providers to remove or alter physical features became effective this year.
Justification Issues
The Act refers regularly to actions which can or cannot be justified. Justification is a difficult issue as the test for justification is both subjective (what did the service provider believe?) and objective (was that belief reasonably held?).
Service providers will not be expected to be experts in disability issues but they are expected to take account of the information available, whether it was possible to seek advice and whether the service provider asked for and took account of the opinion of the disabled person concerned.
Spurious health and safety reasons will not justify less favourable treatment. The code says: "Service providers should avoid using safety requirements as an excuse for making discriminatory decisions based on stereotyping of disabled people or making generalisations or assumptions about them"
Selling, Letting or Managing Premises
Disposal
It is unlawful to discriminate against disabled people in the disposal of premises. This includes selling or letting. Such discrimination might include offering different disposal terms, refusing to dispose of premises to a disabled person or within the treatment of the disabled person in relation to any list of persons in need of premises.
Premises can include housing, office space, flats and industrial sites.
Management
It is unlawful for a person managing any premises to discriminate against disabled people occupying those premises. Such discrimination might include the way management allows disabled people to make use of any benefits or facilities, by refusing to permit the disabled person to make use of any benefits or facilities, by evicting the disabled person, or by subjecting the disabled person to any other detriment.
There is no duty to make reasonable adjustments in relation to premises. Nor is there anything in the Act to prevent positive action in favour of disabled people.
Housing Lists
It is unlawful to discriminate against a disabled person in relation to any lists.
Eviction
It is unlawful to evict a disabled person on the grounds of their impairment, for example AIDS.
Other Provisions under the Act:
Victimisation
Is unlawful, whether it is the disabled person or someone working for or acting on behalf of the disabled person or a witness in a complaint of disability discrimination.
Aiding Unlawful Acts
A person who knowingly helps someone else to do something made unlawful by the Act is also treated as having acted unlawfully.
It is unlawful to knowingly make a misleading or false statement in a material respect - for example guidance to staff. This can be liable for a fine of up to £5,000.
Liability for Employees
The Act says that employers are responsible for anything done by their employees, demonstrating the importance of making all staff aware of the Act.
Expense
The Act does not allow a service provider to pass on the additional costs of complying with the duty to make reasonable adjustments.
Contracting (eg tenancy agreements)
Refusal to contract with a disabled person must be reasonable and service providers must have considered reasonable adjustments to the contracting procedures in an attempt to remove the barriers.
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