"Will the new equality duty deliver progress for disabled people?"

Caroline GoodingEquality Consultant

I will discuss:

Background the disability equality duty What are the disability equality duties? What do we know about the impact of

the disability equality duty? How is the revised Equality Duty likely

to impact on disability equality?

Disability Discrimination Act 2005

General Duty Specific duties Secretary of State Duty

In force from December 2006

Theoretical foundations

Recognition of institutionalised discrimination and the need for tools to tackle this, not just individual rights challenges

‘the social model of disability’

Background to the duty

Legal antecedents: Section 75 Northern Ireland Act 1998

and Race Relations (Amendment) Act 2000. Political and policy background Good Friday Agreement Stephen Lawrence inquiry Disability Rights Taskforce Report 1999

Equality duties introduced

A new positive requirement: to promote equality, not just to stop discriminating

A new approach to implementing law in this area: ‘enforced self-regulation’

Every public authority shall in carrying out their functions have due regard to the need to:

promote equal opportunities eliminate unlawful discrimination eliminate disability related

harassment; promote positive attitudes towards

disabled persons   encourage participation by disabled

persons in public life and 

…give due regard to

the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled person more favourably than other persons

Under-pinning principle

Disability Equality Schemes Showing how it intends to fulfill its duties Statement of involvement of disabled

people in its development Statement of equality impact assessment

methods Action plan Evidence gathering: employment;

educational opportunities; services and other functions - extent to which they take into account disabled people’s needs

Specific disability equality duties

1. Involve disabled people in developing Disability Equality Scheme

2. Publish scheme3. Demonstrate have taken actions in

scheme (unless it would be unreasonable and impractical to do so)

4. Report on progress5. Review and revise scheme

Secretaries of State

Must publish every three years an overview of the progress made by public authorities in their policy sector in relation to disability equality.

And set out proposals for co-ordination of action by public authorities in that policy sector to bring about further progress on disability equality

Theoretical foundations

Modern regulatory theory Evidence based Regulation should build on self-interest

of regulated Regulation is improved by bringing in

the views of those directly affected

Congruent with “nothing about us without us’ principle of disability movement

3 foundations for regulation for equality

Requirement on organizations: to examine what they are doing on the

basis of firm evidence to consider alternative approaches to

shift entrenched patterns of inequality, which must be monitored by an external authoritative body

to engage with stakeholders in civil society who will regularly challenge their assumptions.

Enforcement

Commission: Has power to conduct an assessment of compliance with the general and the specific duties (a compliance notice can be subsequently issued)

Interested parties: can enforce general duty by judicial review

Research: compliance

Public Bodies’ Response to the Disability Equality Duty: An audit of compliance with the requirement to publish a disability equality scheme Ipsos Mori 2007

72% had scheme 75% of sampled schemes showed

evidence of having involved disabled people.

Common messages from research the importance of the involvement of

disabled people, the success of the duty in raising the

profile of disability equality including into areas where it had previously not been seen to be relevant, and

its failure to produce clear evidence of improved outcomes – are echoed in other studies.

Value of involvementThe public sector equality duties, Making an impact

(Schneider Ross, 2007)

Progress on disability was only slightly less than on race

‘This fits with anecdotal data. At the stakeholder discussions practitioners were particularly enthusiastic about the impact of the public sector duty in encouraging consultation and (more significantly) about the on-going involvement of disabled people’.

72% of respondents said that involvement of disabled people contributed to successful implementation of the DED.

The benefits for public services of involving disabled people, DRC 2007

‘If you are a disability practitioner, you are pretty much a lone one. If you have got the voice of students and staff behind you, you have a much more powerful message. It is not just me; it is me and 100 others. It is numbers and proof.’ (Student Welfare Officer, Ravensbourne College of Design and Communication)

Making practice happen EHRC 2009

Key findings: The requirement for race equality schemes, and

equality impact assessments provide a framework and focus for action

The specific duty to involve disabled people has ensured a step change in policy and services:

“While it is recognised that there is still much to do across the public services, disabled people’s involvement has provided a spotlight on generic and specific services to meet their needs. It has also provided a catalyst for wider participation across all equality strands. Significant local and national accountability mechanisms have been developed across the country to the extent that there is a strong plea for the extension of the involvement duty to all strands.”

Making practice happen EHRC 2009

“The Secretary of States’ specific duty to report on disability across each sector has created a significant shift in central government’s understanding and response to disability equality.”

Examination of the Implementation of the Disability Equality Duty in England Office for Disability Issues 2008

Disabled interviewee, described as having been involved in disability issues for a long time, : “I feel as though this is going at a reasonable pace, and I think there’s been huge changes in the last five years compared with what we had before.”

Examination of the Implementation of the Disability Equality Duty in England Office for Disability Issues 2008

“ All of the Managers in the organisation are supposed to buy into it and actually deliver on what it says, how it relates to their area of work, but I have to be honest with you that they’re generally pretty poor.” (Transport Target, Senior Manager)

Improve enforcement or improve the duty?

Regulators hugely important EHRC not seen as effective Perhaps require equality outcome

objectives to be set (as gender duty)

Gender equality duty

Schemes must set out objectives which it has identified as being necessary for it to perform its general equality duty

Must achieve the fulfilment of the objectives unless unreasonable or impracticable

Single Equality Act 2010

New Equality Duty will bring together the three existing duties (disability, race and gender) and extend to:

gender reassignment, age, pregnancy and maternity, sexual orientation and religion or belief

New Equality Duty

Retains requirement for authorities to give due regard to:

eliminating unlawful discrimination and harassment;

advancing equality of opportunity; and

advancing good relations between different groups.

The Act says that advancing equality of opportunity involves in particular the need to:

(a) remove or minimise disadvantage (b) take steps to meet the needs of people

who share a protected characteristic (c) encourage people who share a protected

characteristic to participate in public life or in any other activity in which participation is disproportionately low.

s.149

The Act says that steps to meet disabled people’s needs

Includes in particular steps to take account of disabled people’s disabilities

The Act says that fostering good relations requires in particular:

Tackling prejudice Promoting understanding

Proposed specific dutiesPublic authorities must:

Set one or more equality outcome objectives – and review at least every 4 years

Publish equality data annually Equality Act 2010: The public sector equality duty Promoting

equality through transparency August 2010

What equality outcome objectives must be set? one or more objectives which the

authority reasonably thinks that it should achieve in order to further one or more of the aims set out in the general equality duty

must be specific and measurable; and authorities should set out how progress towards the objective(s) will be measured

Public bodies with more than 150 employees must publish

Employment data in relation to ‘the protected characteristics of employees’

Code and guidance will provide further guidance on which information should be published by different types of public bodies.

The Government “expect this to include data on important inequalities such as ..the distribution of disabled employees throughout an organisation’s structure.”

Authorities must also publish

assessments of the equality impacts of its policies and practices, and the likely impact of its proposed policies and practices and the information taken into account in such assessments

details of any engagement with persons it considered interested in the general equality duty

Weakens duties

No mainstreaming Weaker self-regulation Minimal – if any- involvement Weaker central government and

regulatory state Weaker EHRC?

In place of regulation… “Our focus on transparency means that

citizens themselves will be able to judge, challenge, applaud and hold to account public bodies in their performance of both the general duty and the specific duties. This new emphasis means that public bodies will be democratically accountable, and that citizens and representative groups will engage with public bodies in ensuring that they fulfil the aims of the Equality Duty.”

General Disability Equality Duty cases

R (on application of Chavda and Others) v Harrow LBC 2007

R (on the application of Lunt and another) v Liverpool City Council 2009