DDO

A consultation on private clubs; premises; functions of public authorities and the questions procedure

1.1 Law Centre (NI) is a public interest law non-governmental organisation. We work to promote social justice and provide specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.

1.2 We welcome the opportunity to respond to this consultation document. We have made some general comments in response and addressed the questions which were posed for consultation.

1.3 We welcome the extension of rights for people with disabilities through the Disability Discrimination (Northern Ireland) Order 2006 (the DDO). The widespread recognition of the rights of people with disabilities to equal protection and wider access to the full range of facilities and services is long overdue and we are encouraged by the significant changes in legislation and policy that have occurred over the last few years. There is an expectation that this momentum will continue to ensure that people with disabilities are finally on an equal footing with people without disabilities in all aspects of everyday life.

1.4 The need for this recognition is nowhere more evident than in Northern Ireland where more than one in five (over 300,000) people has a disability, higher than in the rest of the United Kingdom. Indeed over one quarter of all families in Northern Ireland are affected to some degree by disability.[1]

2.1 Notwithstanding our overall support for the DDO and our commendation of the extension of protection and recognition of the rights of people with disabilities, we do have concerns regarding the use of the term “reasonable” throughout the draft statutory rules and in particular those provisions which detail “circumstances in which less favourable treatment is justified.” The use of these terms sends a message that discriminatory treatment is acceptable, when it is not.

2.2 We are concerned that the draft statutory rules place an undue focus on the concept of reasonableness and on justifiable discrimination which is at odds with the purpose and spirit of the Disability Discrimination Act 1995 (DDA) and the DDO. Therefore, we take this opportunity to highlight our apprehension about prescribing in legislation the circumstances in which an adjustment would, or would not, be reasonable and when less favourable or discriminatory treatment is justified.

2.3 We would prefer terminology within the draft rules refer to “necessary adjustments” not “reasonable adjustments”, which is too subjective in rules as important as those seeking to protect against discrimination.

2.4 We are also concerned about the frequent references to the consideration of cost and the resources available to private clubs. Any clause which supports discrimination on the basis of cost is neither fair nor equitable and we would argue that these references should be removed from the draft rules.

2.5 We have considerable reservations about the circumstances in which less favourable treatment is justified within the draft rules, particularly provisions that relate to deposits and guarantees. We fail to see the rationale behind these provisions as we cannot identify a justifiable reason for their inclusion within the draft rules. Therefore, we would welcome further information regarding the addition of these provisions.

3.1 We welcome the wider scope of the new rights within Article 13 of the DDO to give people with disabilities the right not to be discriminated against by private clubs. Responsibility for ensuring that people with disabilities are not discriminated against falls to the private club. We are anxious therefore that considerable information on the changes enforced by the DDO is available and communicated to private clubs within Northern Ireland to ensure a high level of compliance with the new rules. We note that the dissemination of information, especially to private bodies, can be problematic at times and would hope to avoid any undue problems caused by a lack of knowledge in this regard. Therefore, we would welcome the development of a Code of Practice by the Equality Commission for Northern Ireland to assist with the dissemination of information within this area. There should be a governmental information strategy in place to inform private clubs of their new responsibilities.

3.2 There should be no difference in the duties afforded to political associations and other private clubs. Although we note there are differences between political associations and other private clubs, what is required is a uniform standard to ensure that there is a high level of protection and clear recognition of the rights of people with disabilities. Therefore, there should be no requirement for the duties to make reasonable adjustments to be modified for political associations.

Question 1. Do you agree with the proposals that the duties to make “reasonable adjustments” to be applied to private clubs should be framed in the same way as those for service providers?

3.3 Notwithstanding our concerns regarding the use of the term “reasonable,” we agree that there should be as much consistency as possible in legislation and policy in the treatment and rights of people with disabilities. Our opinion is that legislation enacted to prevent discrimination against people with disabilities should be as wide reaching and all encompassing as possible. Therefore, the proposals to ensure the new duties on private clubs are consistent with those already placed on providers of goods and services are appropriate.

3.4 The concept of reasonableness as applied to private clubs specifically is very difficult to define. What is reasonable for private clubs to undertake to make their facilities, goods or services more accessible and non-discriminatory will vary widely depending on the facilities and service or goods the private club is providing. When the question of reasonableness is raised consideration will need to be given to the nature, the size and the resources available to the private club. It will also depend on the type and possible effect on the actual impairment of any individual person.

3.5 The Regulatory Impact Assessment (RIA) published at the time of the DDO states that “the concept of reasonableness is central to this policy it means that clubs will never have to make adjustments which are unreasonable.”[2] This wording creates a sense of reassurance for officers and the ruling bodies of private clubs rather than for people with disabilities. The focus of this legislation must be on the people it is there to assist, namely, people with disabilities or significant impairments.

Question 2. Do you agree with the proposals for the trigger point for reasonable adjustment duties and that these should be anticipatory?

3.6 We support the proposal that private clubs, like other service providers, should be subject to an anticipatory duty. It is fundamental that providers of goods, services or facilities, be they public or private, take responsibility to protect against discrimination in any form. We hope that an anticipatory duty will assist with reducing the level of complaints as officers and the ruling bodies of private clubs should be planning any necessary changes to ensure compliance prior to any issues arising. However, as previously mentioned it will be vital to ensure that adequate information is available to the officers and ruling bodies of private clubs regarding the anticipatory duty.

3.7 However, we are concerned by the lack of reference in the draft rules to this duty. Without a clear definition as to what is or is not reasonable, and in the absence of specific case law relating to private clubs, the idea of an anticipatory duty may lose its impact when linked with the idea of reasonableness. We would welcome further clarity on how the anticipatory duty will apply to private clubs and how the duty will be enforced.

4.1 Bearing in mind our previous comments on the use of the term “reasonable”, overall, we welcome the proposals made within this section on the new duties placed on those who own or manage premises. It is encouraging that such thought has been given to increasing the remit of discrimination protection within Northern Ireland. We are confident that extending the law within this area will help people with disabilities to lead more independent lives and will enable them to be better integrated within their communities. Further, people with disabilities will have more choice in residential accommodation and therefore more choice over where and how they live.

4.2 According to the RIA “approximately 13% of people classified as having a disability under the DDA also have a learning disability, mental illness including depression, or sight/hearing impairments which implies that around 880 people with disabilities might require some reasonable adjustments from landlords or managing agents.”[3]

4.3 These are significant numbers and we would urge that an information strategy plan be devised to convey these new rules to landlords and managing agents. We look forward to the release of the Equality Commission for Northern Ireland’s Code of Practice, which will go some way to assist with the dissemination of information in the sector.

4.4 We would also recommend placing a further anticipatory duty on landlords or managing agents. We would recommend that the Code of Practice or any other guidelines/information leaflets contain advice on simple measures landlords and managing agents can take in anticipation of their new obligations under these regulations. This should ensure that contracts and leases are in easily accessible formats and that consideration has been given to whether terms of letting may need to be altered for certain situations and that appropriate templates are readily available.

4.5 The imposition of an anticipatory duty will bring benefits to both parties. For people with disabilities their dealings with landlords and managing agents will be made more effective and efficient. Landlords and managing agents will also benefit as the pool of people wishing to rent property will increase as people with disabilities will have better options in the rental market as more properties will be able to meet their needs.

Question 3. Do you agree with our proposals bearing in mind the points we have made in relation to defining physical features and tenants’ alterations?

4.6 We generally support the working definition of “physical features” as contained within the draft regulations. We note the desire to maintain the definition set by the DDA and would concur that the draft regulations should be consistent with practice elsewhere in Part III of the DDA where the new duties will fit.

4.7 We wish to raise an area of inconsistency within the draft rules and the consultation document. The draft rules at 4(4)(a) states the replacement or provision of any signs or notices are not to be treated as alterations of physical features. Yet the consultation document at point 3.30 states, “signs screwed to a wall are fixtures and would be treated as physical features…with the result that the landlord would not have to alter or remove them.” The draft rules are more suitable as the alteration or provision of signs may be very valuable for people with disabilities and therefore there should be provision to do so.

4.8 We are concerned by the proposal that a controller of rented premises will not be required to consent to a tenant making alterations to premises they rent or propose to rent, or to take steps to change a practice, policy or procedure regarding landlords’ consent to tenants’ improvements. It is important to place some form of obligation on controllers of premises to not unreasonably withhold consent for a tenant to make alterations to premises they rent or propose to rent, especially if any alterations will be at the expense of the tenant.

4.9 We welcome the imposition of a duty to take reasonable steps to change the terms of a letting which expressly prohibits a tenant from making any alterations at all, especially if the prohibition makes use or enjoyment of the premises impossible or unreasonably difficult for a disabled person. Although again, would query the use of the term reasonable.

5.1 We welcome the extension of the DDA by the DDO so that the exercise of public functions is brought within the scope of the Act. These provisions within the DDO will bring new rights for people with disabilities by placing new duties on the public sector not to discriminate against people with disabilities across the whole range of its public activities.

5.2 While Section 75 of the Northern Ireland Act 1998 places a duty on a public authority to have due regard to the need to promote equality of opportunity between persons with a disability and persons without, the additional duties contained within the DDO should have a positive influence on how the functions are exercised. Many public authorities therefore should not have to make significant adjustments as they will already have made adjustments to their role as service providers under the DDA or as a result of their duties under section 75.

5.3 However, again we draw attention to our reservation about the use of the term “reasonable adjustments” and the use of justifications within the draft rules. The use of this language in duties placed on public authorities is of particular concern as public authorities should be leading by example. People with disabilities should have exactly the same level of access and support provided by public authorities as those without disabilities. Including such terminology which can give rise to ‘get out clauses’ significantly weakens the position of people with disabilities and dilutes the message that discrimination against people with disabilities in any shape or form is wrong.

4. Do you agree that the draft regulations adequately use those powers in the DDO to cover all functions of public authorities?

5.4 Notwithstanding our concerns regarding the use of the term reasonable adjustments, the draft regulations do provide an adequate use of the DDO to cover the functions of public authorities.

Question 5. Do you agree with our proposals in relation to the extension of the questions procedures?

6.1 We welcome the extension of the questions procedure so that it applies to alleged discrimination in access to goods, facilities, and services, by public authorities, private clubs, those who sell, rent, or manage premises and those who control rented premises.

6.2 We support the proposal to use different forms for the existing and the extended questions procedures to avoid confusion.

6.3 The extension of questionnaire procedure within these areas should allow for easier identification of problems for people with disabilities and lead more readily to resolution for aggrieved persons.

7.1 There are significant benefits arising from these proposals. They would ensure greater fairness and participation for people with disabilities by extending the DDA’s coverage, which in turn will help to ensure wider social inclusion.

7.2 However, we draw attention to our earlier comments about the use of the term “reasonable adjustments” and the use of justifications within the draft rules. We are concerned by this weakening of the duty to protect people with disabilities against discrimination by requiring bodies and agencies referred to within this consultation to only make reasonable adjustments. Other areas of discrimination such as race discrimination are not subject to such conditions. Our anxiety is that framing anti-discrimination legislation for people with disabilities with such ‘get out clauses’ lessens the impact of the legislation. It also sends out an unfortunate message that disability discrimination is not as important as other forms of discrimination and that responsibilities can be avoided if it is too costly or too onerous.

7.3 Law Centre (NI) welcomes the opportunity to respond to this consultation document. We trust you will find our comments helpful. If there is any further way in which we could contribute to this process we would welcome the opportunity to do so.

[1] Disability Action, “Agenda for Change,” 2003, pg. 1

[2] Final Regulatory Impact Assessment, The Disability Discrimination (Northern Ireland) Order, 2006, pg. 36

[3] Ibid at pg. 41