The period between the early 1990s and 2010 saw huge leaps forwards in law to prohibit discrimination and to advance equality for disabled people. From the first Disability Discrimination Act 1995, twenty years ago this year, to the Disability Rights Commission Act in 1999, the Special Educational Needs and Disability Act 2002 which saw the DDA extends across schools, further and higher education, the extension of the DDA’s employment provisions to all employers in 2002, the implementation of the duty on service providers to make adjustments regarding physical access in October 2004 and the Disability Discrimination Act 2005, which extended the Act’s provisions to transport providers and to public functions, expanded the duties of landlords and introduced a duty on public bodies to promote equality of opportunity for disabled people. The Equality Act 2006 replaced the Disability Rights Commission with the Equality and Human Rights Commission. The Equality Act 2010 incorporated into a single piece of equality legislation the provisions of the Disability Discrimination Act’s albeit maintaining most of the features that distinguished them from other areas of equality legislation related to gender, race, age and so on. The latter act also extended the reach of disability discrimination law, extending duties to provide auxiliary aids and services as a reasonable adjustment to schools, prohibiting the use of pre-employment health questionnaires by employers and clarifying that direct disability discrimination applied to those associated with disabled people, such as carers, or perceived to be disabled, whether they actual are or are not. .
From the early to late ‘noughties’ ‘disability equality’ framed the agenda regarding disability policy in the UK. Developments in the UK mirrored those internationally during this time, with laws to prohibit disability discrimination being enacted in North America, Australasia and across the European Union. Today in the UK it sometimes feels like a forgotten agenda from a bygone age, which is why it’s so heartening to see the House of Lords choose to focus a ‘post-legislative scrutiny committee’ on the impact of the Equality Act 2010 for disabled people.
What has emerged in the intervening period is a yawning implementation gap.
In the absence of the Disability Rights Commission (DRC) and the ever more weakened Equality and Human Rights Commission (now smaller than the DRC was in 2005/6) there has been little if any official promotion or systematic enforcement of the law since the production of Equality Act guidance in 2010.
Changes to legal aid, judicial review, the introduction of employment tribunal fees, the absence of alternative dispute resolution in relation to goods and services and the general decimation of the advice sector have cumulatively placed the law beyond most people’s reach.
Where the Disability Rights Commission’s helpline handled around 120,000 inquiries in its final full year of operation, the Equality Advisory and Support Service (which handles calls in relation to all the grounds covered by the Equality Act) now handles between 40-50,000 inquiries a year – a fraction of what the DRC did (interestingly 62% of those inquiries relate to disability).
Through secondary legislation the government has eroded the influence and effect of the Public Sector Equality Duty (PSED) in England. Once explicit duties on public bodies to involve disabled people in the discharge of their disability equality duties – duties which research showed had enjoyed the a transformative effect -are now only implied in guidance. Explicit duties to conduct equality impact assessments regarding policies and decisions are not only gone, the very step itself has been attacked by the Prime Minister David Cameron as unnecessary red-tape, a sentiment echoed by the Chair of the PSED review, despite having found no evidence to sustain his argument. The ‘red-tape challenge’ leading to the Enterprise and Regulatory Reform Act also unhelpfully positioned anti-discrimination law as a constraint on enterprise and economic growth, rather than as a vehicle for ensuring that Britain draws on all of its talent.
Away from government and public bodies a principal point of engagement between disabled people’s organisations and the Act has been to seek to utilise the Public Sector Equality Duty as a bulwark against spending cuts and policy reforms. While this has led to some successes in slowing the pace of reform and in exposing potential impact it has generally failed to halt damaging policy implementation, as has been seen in relation to the Independent Living Fund. A succession of such cases has arguably further weakened the influence of the Duty itself, with each case revealing its limitations as a ‘process duty’ (that is, so long as public bodies follow the right steps they can lawfully implement decisions which set disability equality back). Moreover, the duty is now largely characterised almost solely as a tool to frustrate the implementation of government policies, rather than a vehicle for policy implementation. What political support it may have enjoyed has as a consequence been eroded further still. I have little doubt that a Labour-led government between May 2010 and May 2015 would also have become intolerant of a succession of such cases.
Of course the key difference is between equality in a time of growth and a government committed to unprecedented increases in public spending and equality in a time of recession and a government committed to unprecedented spending reductions. It is perfectly understandable that people should look to the law to protect them from reforms which will without doubt damage their wellbeing and set disability equality back. But it would be unwise – in my opinion – to continue to allow the equality agenda to be cast solely in those terms. Doing so further creates the imperatives for government to block routes to redress and enforcement and to cast the law as a burden. We need to be able to demonstrate the central role of equality law, policy and practice in building an opportunity society in which everyone can flourish and in creating and sustaining inclusive economic recovery. Government must once again regard equality law, policy and practice as a means to its own policy ends, not always at odds with it.
Regarding disability equality, an opportunity lies in what appears to be have been largely overlooked: that the Conservative Party manifesto committed to halving the employment gap between disabled and non disabled people. People are right to be fearful of how this commitment might be used to justify further, largely unrelated reforms to disability benefits as indeed is being touted in relation to benefit rates of those in the Work Related Activity Group. But the opportunity is to re-assert the question of discrimination and labour market disadvantage – to ensure that its influence on disabled people’s job prospects is not ignored and to set forward proposals for how discrimination and structural disadvantages can be addressed as part of a comprehensive new approach designed to help achieve the government’s goals, not to stand in their way.
Disability equality can equally be re-asserted in relation to the achievement of other policy aims, such as implementation of the Care Act 2014 or the NHS Five Year Plan, where issues of accessibility and inclusion are instrumental to achieving prevention and well-being.
Without this I fear all the gains of the 1990s and 2000s risk becoming a curious footnote in history. The Equality Act itself will remain, but like a long dormant volcano, it will have little bearing on disabled people’s futures. As a starting point I encourage as many people as possible to submit evidence to the House of Lords Committee.
Disability equality is too important to give up on. It’s time to make it relevant once again.