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Disability Equality Duty (DED) - before Equality Act 2010

Up to its replacement from 5th April 2011, the DED has sought to build disability equality into the culture of public authorities. The courts have adopted quite a tough line with authorities whose decision-making fails to properly consider disability issues. Disability Rights Commission Codes of Practice and other documents are at www.dotheduty.org. The normal DDA/Equality Act rules on employment and on services etc applied as well as the DED. From 5th April 2011, the DED has been replaced by the single Public Sector Equality Euty under Equality Act 2010.

Note: this page covers the former Disability Equality Duty which is no longer in effect. From 5th April 2011 it was replaced by the single Public Sector Equality Duty under Equality Act 2010.

Aim of 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.

Summary

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 properlyconsidered 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.

General duty

The general duty

Every public authority shall in carrying out its functions have due regard to:

the need to eliminate discrimination that is unlawful under the DDA;

the need to eliminate harassment of disabled persons that is related to their disabilities;

the need to promote equality of opportunity between disabled persons and other persons;

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

the need to promote positive attitudes towards disabled persons; and

the need to encourage participation by disabled persons in public life.

What is 'due regard'?

'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.'
Baroness Thornton, Parliamentary Under-Secretary of State at the Department of Health, col 1401 HL Hansard 2/3/10 (link to UK Parliament website)):

The 'general duty' obliges the public authority to 'have due regard to' a list of six considerations, such as the need to promote equality of opportunity for disabled people. See box for the full list.

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. See under the new (post-Equality Act) duty for discussion of What is 'due regard'.

Specific duties

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.

What bodies are covered?

General duty - normal public authorities

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

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. For more, see in the context of the new (Equality Act 2010) PSED: Private companies.

For any contractor, even one not performing public functions, public authorities should reflect disability considerations in the procurement process.

Specific duties

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).

What if I think an authority is not complying?

To a large extent, this should be similar to the Equality Act 2010 Public Sector Equality Duty: see Enforcing the duty.

Northern Ireland

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.

Race and gender

A race equality duty has been in force for some years (see EHRC website), and a gender equality duty came into effect in April 2007 (see EHRC website). Public authorities may have a 'Single Equality Scheme' combining their race, gender disability equality schemes.

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Last updated 11th October, 2008 (partial update 30th April 2011)