The Disability Equality Duty recent legal cases

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The Disability Equality Duty recent legal cases

• Catherine Casserley

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Disability equality duty

• s.49A When carrying out their functions public
  authorities must have due regard to the need to
• eliminate unlawful discrimination
• promote equal opportunities
• eliminate disability related harassment
• promote positive attitudes towards disabled
  persons  
• encourage participation by disabled persons in
  public life
• take steps to take account of disabled persons
  disabilities even where that involves treating
  disabled persons more favourably than other
  persons

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Disability Equality Duty

• Note
• No list and broad definition - of public
  authority (includes those who carry out
  functions of a public nature)
• No good relations concept, but additional
  concepts often included in good relations (i.e.
  harassment, public participation)
• Re-enforcement of the positive nature of the
  reasonable adjustment duty (steps to take account
  of .more favourable treatment)

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Disability Equality Duty

• Disability Equality Scheme (Disability
  Discrimination (Public Authorities) (Statutory
  Duties) Regulations 2005 SI2005/2966
• Requirement to involve disabled people in the
  development of a scheme
• The Scheme must include a statement of
• The way in which disabled people have been
  involved in its development

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Disability Equality Duty

• Disability Equality Scheme (Disability
  Discrimination (Public Authorities) (Statutory
  Duties) Regulations 2005 SI2005/2966
• The Scheme must include a statement of
  (contind)
• The authoritys methods for impact assessing its
  policies and practices, or likely impact of its
  proposed policies and practices, on equality for
  disabled people
• Steps which the authority proposes to take
  towards the fulfilment of its general duty (the
  action plan)
• Arrangements for gathering information on the
  effect of the authoritys polices and practices
  on disabled people (minimum requirements laid
  down)
• Arrangements for making use of information
  gathered and in particular for reviewing the
  effectiveness of the action plan and reviewing
  the scheme

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Disability Equality Duty

• Implementation of Disability Equality Scheme
• Authorities must
• Put evidence gathering arrangements into effect
• Carry out the actions committed to
• Revise scheme at least every 3 years
• Report annually

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Equality Duties enforcement

• General duty judicial review (including EHRC
  s.30(1) Equality Act 2006)
• Assessment by the Commission s.31(1), with
  compliance notice a possibility (s.32)
• Specific duties assessment as above
• Issuing of a compliance notice independent of a
  formal assessment (s.32(1)
• Legal proceedings for a breach of the specific
  duties can only be taken by the commission
  (s.32(11))

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due regard

• Comprises two elements
• Proportionality
• Relevance
• In all their decisions and functions, public
  authorities should give due weight to the need to
  promote disability equality in proportion to its
  relevance
• greater consideration should be given to
  disability equality in relation to functions or
  policies that have the most effect on disabled
  people. Where changing a function or proposed
  policy would lead to significant benefits to
  disabled people the need for such a change will
  carry added weight when balanced against other
  considerations
• Will not always be possible for authorities to
  adopt the course of action which will best
  promote disability equality, but must ensure that
  they have due regard

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due regard

• Regina (Elias) v Secretary of State for Defence
  2006 1 WLR 3213
• Baker Ors, R (on the application of) v
  Secretary of State for Communities Local
  Government and Ors 2008 EWCA Civ 141 (28
  February 2008)
• Eisai Ltd and NICE and Alzheimers Society and
  Shire Pharmaceuticals 2007 EWHC 1941

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Impact assessment

• Impact assessment
• Means by which due regard is shown
• A full impact assessment will involve
• Consideration of available data and research
• Assessment of impacts what effect will this
  policy/decision etc have upon disabled people
• Consideration of measures which might mitigate
  any adverse impact and alternative policies which
  might better achieve equality of opportunity
• A decision by the public authority
• Publication of the results of impact assessment
• Arrangements for monitoring for future adverse
  impact

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Equality Duties impact assessment

• R (on the application of Lisa Smith) v South
  Norfolk Council 2006 EWHC 2772
• R (Bapio Action Ltd) v Secretary of State for
  Health 2007 EWHC 199
• Eisai Ltd and NICE and Alzheimer Society and
  Shire Pharmaceuticals 2007 EWHC 1941
• R (on the application of C)(A Minor by his
  litigation friend) v Secretary of State for
  Justice 2008 EWHC 171 (Admin)
• R( on application of Chavda and Others) v Harrow
  LBC 2007 EWHC 3064,

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Equality of opportunity

• the promotion of equality of opportunity is
  concerned with issues of substantive equality and
  requires a more penetrating consideration than
  merely asking whether there has been a breach of
  the principle of non-discrimination
• the equality of opportunity is of opportunity in
  all areas of life in which the person or persons
  under consideration are, or may not be, at a
  disadvantage by reason of membership of a
  particular racial group. In practice, this is
  likely to include disadvantage in the fields of
  education, housing, healthcare and other social
  needs.
• Baker Ors, R (on the application of) v
  Secretary of State for Communities Local
  Government and Ors 2008 EWCA Civ 141

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Equality Duties to whom do the duties apply?

• The duties apply not just to the makers of
  policies but also to those who implement them
  and/or individual decision makers
• R (Chavda) v Harrow LBC 2007 EWHC 3064
• R (Watkins-Singh) v Governing Body of Aberdare
  Girls High School 2008 EWCA 1865 (Admin)
• R (Baker and others) v Secretary of State for
  Local Government and others 2008 EWCA Civ 141
• O'Brien and Others v South Cambridgeshire
  District Council 2008 EWCA Civ 1159

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The role of the Code of Practice and guidance

• R (Kaur Shah) v London Borough of Ealing 2008
  EWHC Admin 2026

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What if the duties are breached?

• R (C) v Secretary of State for Justice 2008
  EWCA Civ 882

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The future

• Role of the equality decisions in decisions not
  to prosecute R (on the application of FB) v
  Director of Public Prosecutions (EHRC
  intervening)
• Nature of the impact assessment required - R
  (Lunt and another) v Liverpool MBC

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The future

• Equality bill
• - weaker general duties?
• - Weaker specific duties?