Promoting Positive Attitudes Towards Disabled People
A Guide for Public Authorities - December 2006
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. It provides a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: immigration, social security, community care, mental health and employment.
1.2 The services are provided to almost 500 member agencies. Members include local Citizen Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic organisations.
1.3 We welcome the opportunity to respond to this consultation document. We have made some general comments in response and address some of the questions which were posed for consultation.
1.4 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 need for more positive action on the part of public authorities to promote and protect the rights of people with disabilities 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.
1.5 We believe it is important that public authorities are provided with appropriate guidance on how to meet the new disability duties, namely to have due regard to the need to promote positive attitudes towards disabled people and encourage participation by disabled people in everyday life. We welcome the draft Guide for Public Authorities (the Guide), which aims to meet this need.
2. Chapter 1: Overview of the Disability Duties
2.1 We welcome the disability duties and generally support the Guide provided by the Equality Commission for Northern Ireland (the Commission). We agree that the duties are important for a variety of reasons and that despite the welcome developments that have occurred people with disabilities still do not have the same opportunities or choices as people without disabilities. This lack of equality is often due to pre-existing prejudice or discrimination towards people with disabilities and it is hoped that the duties, if implemented effectively, will contribute to the process of education.
2.2 We would encourage the strong enforcement of the timetable as proposed within the Guide and support the requirement for disability action plans to be submitted to the Commission by 30 June 2007.
2.3 We note the reference to the Review of Public Administration (RPA) and the possible changes to the functions of some public authorities and the creation of new authorities following that review. We are concerned that implications of the RPA may have an undue effect on the implementation of the DDO, especially in relation to the duties placed on public authorities. Therefore, we would welcome further information from the Commission regarding the safeguards that will be put in place to ensure that this does not occur and confirmation that the timetable and requirements as detailed within the Guide will not be unduly affected by any changes as a result of the RPA.
2.4 We are concerned by the reference within the Guide to the exemption powers of the Commission and are of the opinion that the Guide offers insufficient explanation as to when an exemption is justified. We would concur with the concerns raised by Disability Action in their submission that ‘this Guidance does not include a sentence on the Commission’s stance on exemption.’1 The Guide is vaguely worded and we would propose that exemptions should only be offered in very narrow and restrictive circumstances, if at all and that reasons should be published for exemption decisions. Although we note that the exemption is only to the submission of an action plan and not to the implementation of the duties themselves, the Guide does not place sufficient levity upon the need for public authorities to produce an action plan.
3. Chapter 2: Implementing the Disability Duties
3.1 We welcome the mainstreaming of the disability duties and support the requirement for a proactive approach by public authorities in the implementation of the duties. Public authorities should be leading by example therefore it is hoped they will embrace these new duties and actively implement them.
3.2 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 disability duties contained within the DDO go even further and should have a further positive influence on how the functions are exercised. If the Section 75 duties are being met, the new disability duties will not place an undue burden on public authorities. Many public authorities therefore should not have to make significant adjustments as they should have already have made adjustments under the DDA or as a result of their duties under section 75.
3.3 We disagree with the statement that the principle of treating people with disabilities ‘more favourably’ is recognised in the Act through the duty to provide reasonable adjustments. The duty to provide reasonable adjustments is not a duty to treat people with disabilities ‘more favourably’ but rather a duty to ensure equality of access and support for those with disabilities. The linking of these terms is inappropriate as it sends an incorrect message to public authorities that by providing reasonable adjustments they are, as a result, treating people with disabilities more favourably than those without disabilities.
3.4 The wording and heading of the ‘affirmative action’ section should be corrected to provide for clarity in relation to the need for lawful affirmative action as a distinct requirement from the duty to provide reasonable adjustments.
3.5 We welcome the requirement for public authorities to consult on their draft disability action plans. However, we note that the Guide refers to a consultation period of only 2 months. Best practice guidelines confirm that the recommended period for a public consultation exercise is 12 weeks.2 Consultation, especially with people with disabilities themselves, must be a priority for public authorities and sufficient time must be allocated for effective consultation.
3.6 Public authorities with functions in Great Britain and Northern Ireland should be subject to the same requirement to provide an action plan. However, we note that certain public authorities in Great Britain are also subject to specific disability duties, which require them to develop a Disability Equality Scheme including an action plan. Although we have previously stated that exemptions should only be granted in extremely limited circumstances, where Great Britain authorities have submitted a Disability Equality Scheme that reflects the requirements of an action plan they should be able to cross-reference this scheme to their work in Northern Ireland rather than provide a separate action plan.
4. Chapter 3: Preparation of a Disability Action Plan
4.1 Following on from our earlier comments at point 3.5 regarding the importance of public authorities undertaking appropriate consultation we welcome the provision that the action plan must contain a statement outlining the way in which the public authority consulted on its draft plan. It is important that public authorities are held to account for their consultation process and for the implementation, monitoring and review of the action plan.
4.2 We appreciate the requirement for public authorities to send consultees an executive summary only rather than the full plan in the first instance may be intended to encourage widespread initial interest yet save on resources. However, careful consideration must be given to any undue effect of placing the burden on consultees to obtain the full consultation. It is important that consultees are able to easily access the full document if required and that there be no undue delays in the provision of the full action plan when requested.
4.3 The Guide should also contain further information regarding the obligations placed on public authorities to notify the public on the consultation process.
4.4 Responsibility for ensuring that action plans are implemented will often fall to the staff of the public authorities. We are anxious therefore that considerable information on the duties enforced by the DDO and the action plan agreed to by the public authorities is available and communicated to staff to ensure a high level of compliance with the new rules. The Guide offers little advice on the dissemination of information or training for staff. Further guidance may need to be issued to public authorities to ensure that staff are aware and appropriately trained in respect of the new duties.
4.5 We note the comments within the chapter regarding the RPA and refer to our earlier comments at point 2.3.
4.6 We generally support the examples and bullet point guidance detailed within this chapter which seek to provide practical guidance for public authorities on how to prepare and implement their action plans. It is important that information regarding the input by people with disabilities in the drafting of this practical guidance is reflected in the consultation document. We would welcome further information from the Commission regarding the pre-consultation process taken by the Commission prior to the drafting of the Guide.
5. Chapter 4: Monitoring and Reviewing Progress
5.1 We agree with the Guide on the importance of monitoring and look forward to obtaining further information from the Commission regarding the drafting of guidance for public authorities on monitoring.
5.2 We support the examples within the Guide of ways in which public authorities can monitor the effectiveness of measures taken to promote positive attitudes towards people with disabilities. However, as previously mentioned we would welcome a Guide that reflects the input provided by people with disabilities.
6. Chapter 5: The Role of the Equality Commission
6.1 We agree that the general powers of the Commissions and its enforcement duties are clearly explained within this chapter.
6.2 We would welcome further information regarding how the Commission will monitor the submission of action plans. We note that if a public authority does not submit an action plan or is late in doing so this will be reported to the Assembly. Further comment on any follow up implications would be welcomed.
7.1 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.
Footnotes1. Disability Action, Response to Consultation on the Draft Guide for Public Authorities, November 2006 at pg 2 [back]
2. OFMDFM, A Practical Guide to Policy Making in Northern Ireland, at pg 19 [back]