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These pages do not apply outside the United Kingdom.
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| Home | Overview | Disability | Employment | Services | Education | Benefits | Business | Advice | Links | More... |
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These pages do not apply outside the United Kingdom.
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The DED seeks to build disability equality into the culture of public authorities. The courts have adopted a tough line with authorities whose decision-making fails to take adequate account of disability issues. Disability Rights Commission Codes of Practice and other documents are at www.dotheduty.org. The normal DDA rules on employment and on services etc apply as well as the DED.
The disability equality duty has been in force since December 2006. It requires organisations across the public sector (including hospitals, local and central government, schools and colleges) to be proactive in promoting disability equality. Disability should be 'mainstreamed'. Disabled people and disability equality should be taken into account from the outset, rather than focusing on individualised responses to specific disabled people. This should help identify from the start unnecessary barriers to equal participation both by disabled users of services, and by current and potential employees.
The DED has two parts, the general duty and specific duties. Under the general duty, the public authority must 'have due regard to' a list of considerations relating to disability. The courts have been willing to give this duty real teeth, and in a number of cases have quashed public authority decisions because the impact on disabled people was not adequately considered when the decision was being made.
Many public authorities are also subject to so-called specific duties. These set a practical framework for making improvements in disability equality in relation to the general duty. At the heart of the specific duties is the authority's obligation to produce a Disability Equality Scheme, and to involve disabled people in doing so.
The DED is in addition to the authority's obligations under the normal DDA rules relating to employment, provision of services, exercise of public functions and education.
| The general duty
Every public authority shall in carrying out its functions have due regard to:
'I shall try to explain what "due regard" means and how the courts interpret it. The courts have made it clear that having due regard is more than having a cursory glance at a document before arriving at a preconceived conclusion. Due regard requires public authorities, in formulating a policy, to give equality considerations the weight which is proportionate in the circumstances, given the potential impact of the policy on equality. It is not a question of box-ticking; it requires the equality impact to be considered rigorously and with an open mind.' |
Despite the rather vague nature of the general duty, the courts have been willing to give it real teeth and claimants have won a number of cases. (Cases which I mention below are linked at the end of this section). In the first case on a public equality duty, namely the race duty, the Court of Appeal said:
It is the clear purpose of [the general duties] to require public bodies ... to give advance consideration to issues of ... discrimination before making any policy decision that may be affected by them. That is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfillment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter." Elias [2006], Court of Appeal
Here are some of the points emerging from court decisions so far:
A practical limitation on taking this type of 'judicial review' case to court is the risk of liability to legal costs - since the claim goes to the Administrative Court which is part of the High Court. Because of this, legally aided individuals are those most likely to make a claim for breach of the public duties. However even where someone has no intention of starting a court action, it is of course legitimate to call on an authority to comply with their duties. See the Disabled People's Toolkit below, under What if I think an authority is not complying?
Links to bailii.org for cases mentioned: Elias, High Court [2005] and Court of Appeal [2006]; BAPIO [2007]; Chavda [2007]; Eisai, High Court [2007]; Watkins-Singh [2008]; 'C' [2008]; Kaur [2008], ie the 'Southall Black Sisters case').
In February 2010 the prison service was found to be in breach of the general duty, where it failed to undertake an equality impact assessment in advance of implementing a policy: High Court ruling on Prison Service compliance with race and disability laws (link to EHRC website).
Many public authorities are also subject to the 'specific duties'. These set a practical framework for making real improvements in disability equality in relation to the general duty. At the heart of the specific duties is the obligation to produce a Disability Equality Scheme, and to involve disabled people in doing so. Essential elements of a scheme are:
Within three years from publication of the scheme, the authority must take the steps in its action plan and put into effect the arrangements for gathering and using information. There is an exception where this would be unreasonable or impracticable.
An authority must publish annual reports on the implementation of the scheme, in particular on steps taken under the action plan, the results of information gathering and what use has been made of the information. The scheme itself must be reviewed and revised every three years.
There are also three-yearly reports, mostly by Ministers, covering authorities within a particular policy sector such as health or education.
For much more on the specific duties, see the documents at www.dotheduty.org.
The general duty applies to any public authority, including both those which are subject to the specific duties (see below) and those which are not. There are just a few specific exceptions such as Parliament, the Security Service and decisions of a judge.
Private companies and voluntary sector organisations are also subject to the general duty where they perform a public function. For example, a private company which has contracted with the Home Office to run a prison will be subject to the general duty, though not in relation to private activities it also undertakes such as providing security guards for supermarkets.
Is employment a private activity, and therefore outside the general duty (for a private company) even where it relates to carrying out public functions? This is not clear, but there is a respectable argument that employment issues should not be excluded - e.g. that employment of prison officers by a private contractor would fall within the general duty. This is supported by comments from Ministers during the passage of the Equality Bill.
For any contractor, even one not performing public functions, public authorities should reflect disability considerations in the procurement process.
The specific duties, including the obligation to draw up a Disability Equality Scheme, apply to a long list of public authorities. Examples include county councils and London Borough Councils, government departments, the armed forces (except regarding employment), police, and NHS primary care trusts. Examples of public authorities not covered by the specific duties include parish, town or community councils.
(More on who is covered by the general and specific duties: Chapter 5 of DED Statutory Code of Practice for England and Wales, www.dotheduty.org).
The disability equality duty is not primarily aimed at giving individual rights - those are to be found in the other parts of the DDA (see below).
As regards the general duties, however, in numerous cases people have successfully brought judicial review cases to the High Court - see general duty above. Because of the risk of legal costs, individuals entitled to legal aid are more likely to bring a claim.
The specific duties are enforced by the Equality and Human Rights Commission (EHRC), which can serve an enforcement notice. Also, depending on their role, audit and inspection bodies may need to assess whether authorities are complying with the DED.
Where an authority does not seem to have taken disability adequately into account, it can be useful to ask to see a copy of the authority's equality impact assessment for the policy. As discussed above under the General duty, courts have said that having due regard to disability is likely to involve the authority conducting an impact assessment or similar, and that a box ticking exercise is not sufficient - the impact assessment should be undertaken as a matter of substance and with rigour.
Also the former Disability Rights Commission issued a Disability Equality Duty Disabled People's Toolkit - see www.dotheduty.org. This has standard letters which an individual can use to ask further questions of public authorities they have an interest in, where the authority does not seem to be meeting its general or specific duties under the DED.
The Toolkit also says that if you completely exhaust the formal complaints procedure of the public authority and are still not satisfied with their progress in meeting the DED, you may wish to consider forwarding full details to the Disability Rights Commission (now EHRC) Helpline. The Commission would conduct an initial assessment of the enquiry and consider whether to investigate further.
See my Guidelines for service providers for some ideas on removing barriers for people who stammer. Bear in mind that the DED covers employment too. I also give some links to training providers.
The DED is proving useful, but an individual's main rights against public authorities are still those given by other parts of the DDA, on employment, provision of services, and education. More recent rules also give individual rights in respect of public authority functions even where these do not involve provision of services.
The rules above do not apply in Northern Ireland. Even before the rest of the UK introduced a Disability Equality Duty, Northern Ireland had positive obligations on public authorities under 'section 75'. However, from January 2007 Northern Ireland also has its own form of 'disability equality duty'. For more see Northern Ireland: Special obligations on public authorities.
A race equality duty has been in force for some years (on EHRC website), and a gender equality duty came into effect in April 2007 (on EHRC website). Public authorities may have a 'Single Equality Scheme' combining their race, gender disability equality schemes.
Proposals for a Single Equality Bill envisage major changes to the disability equality duty. More on changes to DED..
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© Allan Tyrer 1999-2008
Last updated 11th October, 2008
the need to eliminate discrimination that is unlawful under the DDA;