Conference 2008: Doing your Duty: “Effective involvement in disability equality scheme development”
Holiday Inn, London 22-23rd February
Conference proceedings
Edited and compiled by Daniel Park, Information and Communications Manager, Equal Ability CIC
Table of Contents
- Pre-Conference briefing - Sue Maynard Campbell MBE, Chair of GSD
- Introduction – Gary O'Donoghue
- Keynote speeches: Andrew Holroyd - President of Law Society
- Dr. Alice Maynard
- Baroness Campbell of Surbiton DBE
- Gala Dinner
- Workshop A – Solicitors Regulation Authority
- Workshop B – Crown Prosecution Service
- Workshop C – Reasonable Adjustments
- Workshop D – Disability and the Media
- Workshop E – GSD – Services to members
- Experience of Mike Forrester “buddying”
Pre-Conference briefing - Sue Maynard Campbell 
The DDA has a general duty to promote disability equality. As such, all public authorities must, in carrying out their functions, having due regard to the need to eliminate discrimination which is unlawful under the act; eliminate harassment unlawful under the act; to promote equality of opportunity between disabled people and non-disabled people; and to take steps to take account of disabled people’s issues or impairments, even where that involves treating disabled people more favourably than others. All four of these points are equally important.
Who is a disabled person?
There are lots of people who do not consider themselves as disabled. This is an interesting question as there are a lot of questions of the DDA that involve the definition of disability, which does not require the disability to have a particular label. A person is considered disabled if they have a physical or mental impairment (even if not ‘labelled’,) which has a substantial (not minor or trivial ie mere clumsiness,) and long term (at least 12 months or remainder of the life concerned) adverse effect on their ability to carry out normal day-to-day activities (not employment) which are:
• Mobility
• Manual dexterity
• Physical co-ordination
• Continence – this is key, because it is not normally considered a disability, but comes under the definition if ie flexible working hours are required
• Ability to lift, carry or otherwise move everyday objects
• Speech, hearing or eye sight
• Memory or ability to concentrate, learn or understand
• Perception of the risk of physical danger
When the DDA was established, it was not expected to relate to jobs, i.e. a postman who would not be considered disabled because he could still carry his shopping even if he could not carry his postbag. It has to be thought about creatively in terms of access (there is a lot of case law building in this area.) The DDA also does not say that if you have cerebral palsy you are covered, it relates more to the doing of things. This means that it has a flexible definition. It is also important to consider policies and procedures that society works with (both written and unwritten.)
“Disability … is the loss or limitation of opportunities to take part in society on an equal level with others due to social and environmental barriers” (Northern Officers Group – a local authority in the North of England)
The DED is framed so that it follows the social model of disability (developed by the Disabled Person’s Movement). It is the only useful way of looking at disability, which society says is “I cannot do this because society does not enable me.”
When looking at disability, you have to consider the four P’s:
• Physical environment
• People in the environment – their attitudes towards other disabled people, and to change
• Policies and procedures through which organisations work (written and unwritten)
• Practice – what actually happens – it would be a brilliant communications policy where everyone is entitled to have the information given to them in an accessible format, but this can take a long time to produce
Organisations may disable a person by i.e. not providing access. It should be that public sector organisations are encouraged to be proactive to enable disabled people to get to work or to provide bus services which are accessible.
The general duty of the DED builds upon the duties that were in the DDA, but goes beyond the non-discrimination duties in the act, to the active promotion of equality of opportunity. It is aimed at tackling systematic, institutionalised discrimination against disabled people and is based on the social model of disability approach. It does not tell you how to do the work, but it requires that you give due weight to the need to promote disability equality, in relation to all policy and practice, including planning, policy making, service delivery, regulation, inspection, enforcement and employment (fundamental.) Part 3 of the DED deals separately with the issues of access to facilities and services.
Public authorities have a duty to be proactive and forward thinking about employing disabled people. They have to think ahead about what they are choosing to do (an anticipatory duty.) This enables organisations to take advantage of the best people for the jobs.
Guiding principles should govern your efforts to meet the duties. These are:
• Proportionality – not proportional to have sign language interpreters at a meeting where the public are going to be involved, when they might not be required
• Effectiveness – in providing or not providing access
• Involvement – this is key when getting it right in relation to the DED. This may not be currently be what you are doing
• Transparency – people need to know what the public authority is doing (these are reporting requirements)
The codes of practice have made it clear that the easiest way of doing something is not always the most effective.
Your DES (Disability Equality Scheme)
All organisations have a DES. It does not necessarily have to apply to all public authorities, but does apply to all of those who are not necessarily a public authority.
Some Law Society regulatory functions are public ones, and therefore are covered under acts as they are being undertaken as public duties. There are several different elements of the DES which are:
• Mainstreaming – to see whether or not a full impact assessment is required
• Gathering and analysing evidence- this is how an organisation knows that what it is doing is effective, so that barriers can be dismantled. This needs to focus not on people’s impairments, but on the barriers that people face ie about communication needs, the physical environment, stress and other factors
• Prioritising remedial actions – it is best not to do everything in one go, because it would show it to be more effective
• Involving disabled people – the DES needs to say how disabled people were involved in developing the scheme
• Public reporting – there has to be some transparency so that it can be seen what people have been doing
As yet, though, organisations have not quite got to grips with the issues.
The involvement process should be more focussed, and clear about where the authority has scope to make any changes, and what resources are available to help them make those changes. Disabled people understand that there are limited resources available, and so we help them try to prioritise their resources so as to make them more effective. Accessible mechanisms (like conferences) should be used, to make it possible for a wide range of disabled people to participate, (involvement people can take advantage of i.e. having palentyping or deaf-blind interpreters.) The approach taken should be proportionate to the size of the authority, as in how influential the public involvement has been, and can, affect public authority plans. Also, to maintain their on-going commitment to disabled people, the disabled need to know that their input has been influential, and not merely tokenistic.
Perhaps it would be sensible for the statement of involvement in the DES to include an indication of any changes made as a result of involving disabled people, (this can also include relevant stakeholders.) Authorities, when drawing up their DES, must consider the views of current and potential service users, staff and the wider community. Their DES’s should all be in place now, but in any case should be reviewed every three years (monitoring being continuous.)
The specific duty needs to be looked at by all organisations covered by a DES, and requires you to set out arrangements for gathering information, the effect on the recruitment, development and retention of its disabled employees; and the extent to which the service it provides and those other functions it performs takes account of the needs of disabled persons. There are two aspects of this: employment and service provision (including education)
In considering whether there is a need to conduct a full impact assessment, you will need to consider whether the policy is a major one in terms of scale or significance for the authority’s activities, OR whether there is a clear indication that, although the policy is minor, it is likely to have an impact on disabled people. If the policy fits into either of these categories, you are likely to need to conduct a full impact assessment.
If the person making the initial assessment does not understand the full range of barriers faced, then they cannot make an initial assessment, so a full assessment is needed. Those doing it need to have specific disability equality training to do it effectively. There can be specific issues raised at board level where they have not understood the full impact.
As a public authority you must, on an annual basis, publish a quite detailed and focussed report, containing a summary of:
• The steps taken to fulfil you DED (the action plan); what has the authority done over the past year to eliminate the discrimination and promote equality of opportunity and is it meeting its targets?
• The results of the information gathering which has been carried out – what evidence has been obtained and what does it indicate?
• What the authority has done with the information gathered – what actions will be taken as a result of what the information indicates?
One issue with public authorities is that sometimes things get lost when action has to be taken. Sometimes they need to be told to keep their eye on the ball.
Public authorities involved in partnerships which aim to better deliver their services, must take the lead in ensuring that the duty is built into the work of the partnership. Even though they have a public service duty, a key part should be to push the DED from just covering the public sector to also include the private sector.
Procurement is absolutely key to this area, especially when dealing with partnerships. As a public authority you must ensure that all of your functions meet the requirements of the DDA, including the general and specific duties, regardless of who is carrying them out. You will need to build relevant disability considerations into the procurement process, to ensure that the public authority is itself meeting the DED. A way of doing this is to promote the DED in contracts.
Staff need to be trained in relation to the duties (this training being quite specific to the job.) basic disability equality training should form part of any training on the duties. Public authorities will need to consider what staff at various levels need to know about the general and specific duties, before giving them the training they need regarding partnerships, procurement and information gathering. This is called tailored disability recognition monitoring. People may think it adequate to give general training across the board, but it is not adequate enough.
Authorities may need to look beyond the specific services which they provide, to working with other authorities, and developing appropriate partnerships, to deliver disability equality. It may be that the organisations need to look at developing partnerships with businesses involving disabled people i.e. in relation to employment.
Q what are the penalties if the public authority does not comply?
A - Equality and Human Rights Commission will take action if a specific duty is not met. If a general duty is not met, then anyone can take action through the courts. Sue was unsure about whether this issue has yet been brought before the courts. The former Disability Rights Commission had previously taken action is cases where a specific duty has not been met.
Birmingham’s new Magistrates Court does not have the correct facilities for disabled people, getting it wrong because they had not involved disabled people in their planning consultation. Confirmation was given that the GSD can support the issue even though the building was not even accessible.
Q does the public duty apply to the BBC?
A - it is specifically covered on certain of its functions. In the beginning the BBC tried to limit the functions to the ones it was covering in the licence fee. Only three or four functions are waiting to be covered in the BBC’s DES, so the answer was yes and no
DWS representative can envisage the DED encompassing private companies, which is essential if they are doing public authority work (it is essential that they get their own house in order.) It could be a marketing tool in the campaign to get more public authority work! As they would be promoting equality, it should make it easier to get public authority work.
Follow-through of the DES needs to not only be in place at the procurement stage, but continuously.
GSD Conference Day One
Gary O'Donoghue - introduction
When I began as a reporter at the BBC 16 years ago, one of the first things that I was involved in, in a political sense, was reporting much of the attempts to bring in anti discrimination legislation and civil rights legislation for disabled people. I am afraid I had the dubious honour of sitting through a number of sessions of hearing the then conservative MP Lady Olga Maitland talk the bills out of parliament time and again.
That was a very long time ago and eventually as you all know, there was a really quite interesting and in some ways bizarre turnaround by the Conservative Government at the time who just almost overnight decided to throw in the towel and to introduce civil rights legislation.
Many of those people involved in that campaign to bring about civil rights legislation are here today and you will be hearing from many of them, some of them this afternoon and many of them to talk to later on so it has been a fairly long haul. It is a genuine privilege to be here and involved in this type of event this afternoon and to see that in many ways the legislation is still evolving.
Andrew Holroyd OBE – President of the Law Society
One of the things that the Law Society needs to do is work together with groups like yours, because we have a lot of shared aims and objectives, and we have a shared agenda for change as well.
Liz Marshall and I were chatting this morning about the figures and there are only 453 LPC holders who have registered a disability. Quite frankly, neither Liz nor I believe those figures. We think that many do not declare their disability, and many perhaps do not have practising certificates, working in the employed sector or with the Government, where perhaps a practising certificate is not required.
We believe that we haven't really begun to reach out to the majority of people with disabilities in the profession. This is a huge challenge for your group, but it is also a huge challenge for a representative Law Society as well.
We know that you are a persuasive and positive voice for change and we are really happy that David Merkel is on our council so that he is a constant irritant in a way for you. I say that to you, in a congratulatory way.
My argument to the profession would be on a business basis, and I would say: Actually, we need to talk about the bottom line here. You are going to be in a very competitive market, moving forward, you think you can do without the best talent that you have got by putting them on the scrap heap? Think again! And firms have to reassess their prejudice, their stereotypes about who are actually contributing well to their organisation and who are not.
Some of you here demonstrate very well how you have, how you burst through those stereotypes, but we all need to demonstrate the business imperative for equality and diversity.
I think we all share the challenges of communication. Making sure that disability is not forgotten.
Dr. Alice Maynard, future inclusion ltd
Doing the duty is potentially onerous. Perhaps I shouldn't say it is, but in many ways it is. If you think about something like doing your disability impact assessment, it takes a significant amount of planning to do it. I have seen the duty since it came in implemented well and implemented not so well. But I am talking about the kind of investment that you need if you want to do it effectively.
It also takes people, you have to put staff into doing, for example, a good disability impact assessment; you have to put time into it; you have to put money into it. If you are going to involve disabled people effectively, you should remunerate them.
I have been a consultant and as a disabled person, if you like, so I have seen both sides of that fence. Either way, it takes a large investment on the part of a public body to do it effectively, so why would you want to bother?
I think that the reason you would want to put all this time and effort into it is because there is real economic value in doing the right thing by disabled people. I don't know how many times you have heard these sorts of phrases: "access for disabled people is good for everybody; enabling disabled people to participate benefits the economy; diverse organisations exhibit superior performance".
It is fine to say these things and I would wholeheartedly believe them and back them, but what actually is the evidence that is out there for this?
Most of that evidence is qualitative at the moment, and some of it, indeed is rather anecdotal. If you want quantitative evidence, it is actually much harder to find. And in particular if you want quantitative evidence from a social model of disability perspective so from a perspective of viewing the barriers in society as being what disables people then that is even harder to find.
When I started doing this a lot of people were hostile because they felt that taking an economic perspective and looking at this issue within an economic framework, was in conflict with the rights framework. I think if you tackle the economic issue head on, it actually strengthens both the rights argument and the economic argument.
A lot of my experience comes out of the transport industry. When I was head of disability strategy at Network Rail, one of the things that really frustrated me was swiveling between a rights approach and an economic approach so what people would say is: Well, its a good thing economically to do this because it is beneficial for the economy, disabled people will get out and spend money and have jobs and so on. When they were challenged by people in the rail industry to produce the evidence, because the rail industry had to make a business case, and therefore they needed the evidence, those people would immediately jump to the rights argument and say: Well, there is evidence but anyway it doesn't matter because what matters is that disabled people should have a right to do this!
So, in effect, they were weakening both those arguments. If we look at the economic issues, I think we strengthen them.
So I decided that it was about time I demonstrated that there was real economic value in the work that we did in the rail industry to make things accessible.
In terms of the actual research programme, what I did was I looked at the practice of transport practitioners and found that the Department for Transport's guidance doesn't tell you what to do with access for disabled people. It doesn't tell you how to treat it. It doesn't really even tell you where to put it, so in the end it tended to end up as a bland statement about benefits for people with mobility impairments in the accessibility slot, but then get ignored.
The other message that I got very strongly from practitioners was that actually money does talk and the economy objective was the only one that really mattered, because actually you had to jump what was called the 'value for money’ hurdle, which meant you had to get at the benefit cost ratio of 2 1. So I looked at all those sorts of issues and picked one that seemed appropriate for disabled people and transport, and applied it to a particular form of getting from one platform to another at a railway station. Then I described the results of that research and looked at what value everybody that I asked found in these particular methods of getting from one platform to another across my whole sample, and I didn't look just at what disabled people wanted, I looked at what everybody wanted. Everybody said there was economic benefit in access that suited disabled people. That was actually quantified in pound signs, well actually it was pence it was 15p for a ramp and stairs and 48p for a lift and stairs per journey.
I also looked at disabled people within a social model framework and for those groups of people, there was more value surprise! But I also looked at people with responsibility for children and people who had responsibility for children under 5 derived more value than across the whole sample. So my conclusions were that there is real evidence of economic, monetary, pound sign value in this stuff.
The pay off to all of this is greater independence for disabled people, it is greater participation for disabled people, it is much better directed investment and it is this broader economic benefit at least that is my argument, but there still isn't enough evidence.
Baroness Campbell of Surbiton DBE 
Disability will be championed from now on by the new Equality and Human Rights Commission. But it won’t be championed in the same way. It will be different.
I am going to tell you like it is and by the end I hope you will be felling a bit more confident and reassured. But first I thought I would start with a brief reflection on the DRC impact and legacy. I always think it is really important to reflect upon our past so that we can truly understand where we are going in the future.
Less than 10 years ago, in 1999, there was no DRC. The DDA was in its infancy, and did not comprehensively covered education, transport, housing, public functions such as highways and planning, services and facilities. Nor did we have a Disability Equality Duty.
The Disability Rights Task Force can be credited with setting out an agenda to close all these gaps, but these gaps would not have been plugged as well as they have been without the DRC. Nor would legislation have been followed up with codes, guidance, promotion, enforcement and litigation. Partnerships would not have been forged across the sector to ensure rights became a reality. Disabled people, especially those not connected with the disability movement and their families, would not have had anything like the levels of awareness of their rights without DRC campaigns and media activity. The DRC led the way in using the Human Rights Act to reach the parts that the DDA did not.
The DRC was led by disabled people and staffed by people committed to Disability Rights, many of whom were disabled themselves. It may have been a public body, but it was also resolutely a disability organisation.
That is why it was not satisfactory to simply implement the Government agenda. It put equal stock in seeking to shape the agenda, as well as helping to bring about the 2005 Disability Discrimination Act amendment, the Commission was successful amongst other things in influencing changes to planning law to promote accessibility, health policy, investigation into health inequalities and taking on issues where other people might have shown the way, like assisted dying, and in its last 18 months it helped see in the Disability Equality Duty.
But all good things have to come to an end.
Some of us feel it was too early for the DRC to hand over the mantle, and I am sure there are people in this room who still feel that way.
However, there were others, and I count myself amongst those people, that were becoming increasingly interested in taking disability equality into a more inclusive equality journey. And here we are. We will exchange ideas about where to go and what to do on the way. Our shared experience will enhance our ability to understand how to build a fairer society, which does not put people in to boxes, but understand multiple identities.
Think for a moment how we tackle the duality of race and disability discrimination? For instance, in households of disabled Bangladeshi parents, where their children have an 83 per cent risk of growing up in poverty, or the growing crisis in our threadbare social care system, which cannot meet the basic human rights of older disabled people. This is where integrated conversations at the Equality and Human Rights Commission take on a new vitality and a new power.
I can perfectly understand people's anxieties about the demise of the DRC, and the advent of the Equality and Human Rights. We haven't 520 people solely dedicated to disability issues in the new EHRC. Our delivery on disability will be very different, but that does not mean it will be poorer.
So, let me try to offer some reassurance.
Firstly, we have a statutory disability committee, 90 per cent of whom are disabled people. The Committee is unique in so far as the various strands of equality within the EHRC are concerned.
It is the only strand which enjoys a decision making authority. The Commission has a duty to consult the Committee wherever disability is affected by a decision.
We have just commissioned a review concerning violence and hate crime against disabled people. This review will help us determine how we can best intervene to ensure public authorities act to eliminate and provide effective redress for such incidents.
The Commission is continuing with the enforcement work started by the Disability Rights Commission: In October around 70 active cases were brought forward from the DRC to the EHRC.
Finally, we want creatively to use the duties to achieve specific policy aims. For example, by challenging public authorities to eliminate harassment and promote positive attitudes as a route to tackling bullying and negative behaviour.
So that is in our first 4 months! And we haven't even started on what we call 'lift off phase’. I don't think that is too bad for the fact that for the first month we couldn't get the computers to start, and no one had a telephone...!
So I guess I am asking a little bit for your patience, but I'm also asking for your imagination of what things can look like. And I also ask you to have faith when I say that in my view, Disability Rights has not been lost with the advent of the EHRC, it has reached the next stage of being found.
Gala Dinner
The GSD conference gala dinner commenced at 6.30pm with a drinks reception. After an introduction and welcome from Sue Maynard Campbell MBE, Andrew Holroyd, President of the Law Society said grace. Our toastmaster was Law Society regular, Howard Robbins. There was a collection for the Alliance for Inclusive Education, a campaign group to remove the legal conditions which limit the rights of children with Special Educational Needs to secure a supported mainstream placement, during the dinner which raised at total of £400
Sir John Wall provided us with the Loyal Toast.
Our main After-Dinner speaker was Dame Tanni Grey Thompson DBE, Britain’s best-known Paralympic athlete. Tanni spoke of the defining moments in her career, from her childhood in a home without adaptations, to her successes on the athletics track and finally to her current media career and recollections of her young daughter Carys, who has given Tanni many new perceptives and sobering observations on the nature of disability discrimination today.
Following Tanni we were entertained by two comedians with impairments. Gareth Berliner spoke of the electronic hydrating backpack he uses in the treatment of Chohns disease which unintentionally causes panic when he checks on it during airline flights. Laurence Clarke provided us with entertaining video evidence that the general public will toss money into a bucket held by him in a wheelchair no matter how preposterous the cause or how much he protests for them not to do so.
During the gala dinner there was no incidental music which can often limit conversations, particularly for those with hearing impairments, the tables were widely spaced to allow for wheelchair access and there was no “top table”. Sue observed that GSD “did things differently” to allow access for all.
Following the entertainment, drinks were served at the bar.
GSD Conference – Day Two - Workshops
Workshop A – Solicitors Regulation Authority
The Solicitors Regulation Authority are the regulation arm of the Law Society, and has functions connected with the code of conduct of how solicitors behave, train and the provision of professional development.
Consider the work of the SRA with regards to deaf and the disabled with regards to access to services
1. What are the key barriers faced by the disabled when using solicitors?
Key issues being the access to the solicitor, access to the building housing the practice, and any necessary adjustments i.e. supplying of interpreters.
• More important is the access to services for instructees (clients)
• Code of conduct govern the solicitors and their practice, with code 6 (the practice rule which places obligations on solicitors to do their duty) to promote equality in the profession
• Where clients do get access, it is debatable as to what barriers they do still face once they have got through the first
Rule 6 in relation to the DDA
• This is very close to discrimination legislation
• When the DDA came in, the rule was adapted so as to include age
• It included a duty to make reasonable adjustments
• Before any ruling could be made as to whether any adjustment was reasonable, someone would need to make a complaint
• The issues would need to be addressed in any review
• Any complaint made under the DDA would deal with conduct complaints rather than services (the demarcation between the two is unclear)
• The SRA is a dedicated resource for complaints for discrimination
Under the DDA there are now obligations on service providers to give clients access to services. Although the firm should be aware of the DDA, there is a hope that the SRA would not give burdens that are heavier than under the DDA.
It also relates to when a client is instructing the solicitor. It is not reasonable for a solicitor on first interview for a blind client to make adjustments, because it is not easy to know what requirements if any need to be made. Should the person instructing give a list of requirements so that the service could be adequate or will that be imposing unnecessary burdens? The SRA are not inflexible, and will endeavour to make reasonable adjustments and find that they also need to be made.
2. What information do members of the public have about the SRA?
• There need to be a look at consumer engagement, and discussions undertaken as to how help is to be provided
• If a lawyer is requires, and information is given (if deaf and have learning difficulties), it is important to make information more accessible. Members of the public may not know what rule 6 is, so how are they to know about access to the legal profession if the information is not in an accessible format
• It can be hard to make sense of what the SRA requires and the complaints process i.e. in simple language about where and whom to complain to
• It could be important to think about changing the information given to clients, making it less complicated than that given to the profession
• There is also a need to make sure that any information given is jargon free, easier for even able-bodied people. This is not easy to get understandable information from the public point of view
• There is large confusion as to where to go when a complaint needs to be made (Legal Services Commission (part of Law Society) have a website)
• It may be possible to have a visible standard on the front door or in a company advert – where a client can see that the solicitor ahs been given an award or certificate by the Law Society that they give the best advice to disabled people
3. Consider 3 issues or priorities for the SRA to promote disability equality
• With regards to access to services, it would be good if the SRA have documents accessible via technology (see alternativeformats.co.uk?)
• Disability discrimination may be becoming better known
• Cannot access computer as quickly
• One of the SRA jobs is to make sure that the solicitor is properly trained to deal with disability claims
• The question of training has been raised recently, and needs to be an ongoing process with i.e. a quality standard mark
• Disabled people just do not get the help that they require ie sliding doors. As a profession, the law are not seen as doing enough to train the solicitors, and have a duty to provide that training. It is no good to pass every question that we cannot answer or deal with to the CAB (no legislation and not many are legally qualified)
Workshop B - Disability Hate Crime – Crown Prosecution Service
CHAIR: Okay so I am going to start off with an overview of hate crime policy, a bit about the law and then we are going to look at some case studies. I would like to start off with the research context that this policy and how the policy for disabled people operates. You may have heard of the report “Living in fear” by Mencap published in 1999 where people with learning difficulties who took part in the study reported widespread violence and harassment in the community. It was called bullying but if you read the report you will see that a lot of what was reported were quite serious criminal offences, assault, criminal damage, being spat at, having bottles thrown at people, having their heads banged against the wall. So that was the First National study and actually the last national study we have had on violence against disabled people and that actually only involve people with learning difficulties.
The Disability Rights Commission produced the attitudes and awareness survey that reported that 22 per cent of people involved in the survey experienced harassment in public because of their impairment so that is a wider study of disabled people, not just people with learning difficulties but actually everyone who gets into this field realises that there is very little research and evidence in studies to look at the extent of crime experienced by disabled people. Of course there is also violence and crime that happens in people's homes, whether it is abuse in a care setting or whether it is domestic violence and that is also the context and one of the reasons why the CPS felt it was very important to publish, develop and publish a policy on disability hate crime. The CPS single equality scheme sets out our position and policy and the actions we are going to take in relation to our duties for race and gender and gender identity, disability, age, religion or belief and sexuality. And linked to that single equality scheme is a single equality scheme action plan and specifically it sets out how we will fulfil our obligations under the disability equality duty. So as part of the single equality scheme action plan there are two specific actions that relate to this work, to produce a disability hate crime policy which we did in February 2007 and to monitor our performance in relation to disability hate crime which we began starting base lining our performance from in March 2007. The key outcomes for our disability hate crime policy are in relation to the duty, are promoting equality of opportunity, elimination of discrimination and elimination of harassment and of course the bottom line for us is to increase our success in prosecuting disability hate crime. We want the people affected by disability hate crime to know that we take these crimes seriously and that we are committed to meeting the standards that are set out by the policies. We also want people to know that we will continue to work in partnership with groups, with disabled people themselves, to develop and also review our policy and that we will monitor and publish a report on our performance. Actually this autumn we will be publishing our first hate crime Annual Report which we will bring together our performance across the strands of hate crime so just to tell you what those strands are, race, religion, homophobic, disability, domestic violence.
Basically section 146 of the Criminal Justice Act provides for where a crime is seen to be motivated by hostility towards a person because of their disability then the sentencing court must treat the fact that the offence was committed in any of these circumstances as an aggravating factor when they are sentencing and that they must state that in open court that the offence was committed in such circumstances. What we also needed was a definition of a disability hate incident; because this will help inform how we treat crimes involving aspects of disability hate crime.
So the definition of a disability hate incident is any incident which is perceived to be based on a person's disability or so perceived by the victim or any other person. The key thing about this definition is that we share it with the police. So that when a police identifies an incident as a disability hate incident we can work with them to gather, to build the case if it is possible to, for a section 146 case when it comes to the sentencing court. The policy also sets out the role of the Crown Prosecution Service and in relation to the role of the police so while the police are responsible for investigating allegations of crime and for gathering evidence, the statutory charging provisions sets out the CPS role in deciding charges in all but the most minor cases and also it is our role to recognise and provide for support needs wherever possible so that people can come forward and help us bring offences to justice.
I am going to talk more about the victim and witness support that is available. The police as I mentioned use the same definition of a disability incident and of course at the early identification of this incidents will approve our response and help us identify any needs that might be arising in this case from impairment that will help in order to support people to come and report their incident.
In order for the Crown Prosecution Service to actually take forward and prosecute an offence the evidence and the situation, the circumstances must meet the code for Crown prosecutors. The first test is the evidential test where the prosecutor must be satisfied that there is a realistic prospect of conviction on each charge for each defendant. And the very important thing to remember is that if this test is not met the case cannot go forward, no matter how serious it is or how much in the public interest it is, the evidential test must be met. The second test is the public interest test; the prosecutor needs to know is it in the public interest to prosecute this particular case? And what our policy says is that the public interest in disability hate crime will almost always be in favour of a prosecution because we view these crimes as particularly serious.
Another thing we need to think about is support for disabled victims and witnesses. There is a Code of Practice for victims of crime which actually applies to all victims and which sets out victim’s rights to be informed, kept informed about the progress of their case, including when charges are dropped. There is no witness, no justice which has set up witness care units which do a needs assessment and which will lead to providing support to victims and witnesses if they actually give evidence and then there are a range of special measures which are set out by the youth justice and Criminal Evidence Act where people, for example, if they are feeling particularly intimidated may be able to give their evidence from behind a screen, may be able to give evidence from a different room, over live link or even remotely from a different place altogether and I have written down intermediaries here because possibly disabled people with learning difficulties, people with particular communication impairments the role of the intermediary was recently described to me as a human bridge and the idea is that they will help people to give their evidence to the court and help the person understand what is going on in court and court processes. And there are definitely cases involving people that would not have gone ahead if the intermediary scheme didn't exist.
I want to talk a little bit about the distinction between disability hate crimes and for want of a better way of saying it the crimes committed against disabled people that are not disability hate crimes. We have mentioned already that the key element in the section 146 provision is that hostility towards the person was demonstrated or the person was motivated by it. We are going to do case studies so I am not going to get into too much the detail of the particular cases that might involve. There are also cases where people might say that someone is perceived to be vulnerable or someone has an unequal access to safety, for example someone living in a care home may have less access to safety than someone living in the community or in their own home there may be barriers to them to access the police and then the criminal justice system.
So in disability hate crime obviously section 146 sentencing provisions apply whereas other crimes might be covered by, for example, the sentencing guideline Council guidelines on seriousness. Where the level of culpability is considered higher where the offender deliberately targets a vulnerable victim.
Finally then we have half an hour of case studies. I want to explain a little bit about monitoring as I mention we have been flagging cases which fall into the remit of a disability incident which I explained above. We record them and we monitor our performance, how are we doing with cases that are flagged as a disability incident. Are they coming forward through to successful prosecutions? Are they failing? Are they dropping out at a particular stage? And we are going to report how we are doing to society and specifically to affected communities? There will be hate crimes scrutiny panels where we are in the process of rolling out a model where people affected by hate crime come together and actually scrutinise particular cases that we have worked on and help us see where we might have gone wrong and look at how we are performing in a particular case so people are actually looking at the files and scrutinising our decision making process and performance and then every year they will review what the issues are that have come out for the scrutiny panels and those issues will help us develop and improve our policies.
There is a copy of our policy on our Website which is http://www.cps.gov.uk Now I am going to hand over to Chris and Alyson who are going to plug any gaps I have missed and also look at some case studies.
Hello, I am Alyson Sproat, the Chair of the CPS disabled staff network. I am a lawyer based within the CPS. I work in Newcastle upon Tyne and the majority of my work is involved working in a police station. I have appointment system with police officers that bring evidence in to me to consider whether there is sufficient there to charge a person or persons with an offence and on if you want to say a few words.
Chris Riley. Treasurer of the CPS disabled staff network. I am also a lawyer. I work on CPS direct which is the fairly new department where lawyers work out of hours, giving free of charge authority to police officers for certain levels of offences. I work at home. Officers telephone us for authority.
Through my role as a disability hate crime co ordinator I actively promote awareness of the policy with police officers and we are actively seeking to raise awareness as best we can and the best way to do that is to have community officers out on the beat and that is something that the Crown Prosecution Service is actively doing through our community work with disability groups.
The case studies – now, these aren't based on real cases but we have tried to draft them so that they hit on the main points of the 146 and the policy guidance so here we have the Bob and Liz scenario. Bob is disabled, he is using the disabled parking bays and obviously Dave takes issue with that. 146 is split into two parts where first of all it is an offence to be to commit an offence which motivated against a disabled person and the second limb is to demonstrate hostility towards a disabled person. And find that motivation is always the hardest for them to prove. If a person is committing an a public order type offence or say a violence offence against a disabled person and by their words demonstrating a hatred, hostility towards that person based on their disability then that is comparatively easy to put before a court and in that case it will be prosecuted on demonstrating hostility towards a disabled person based on their actual or perceived disability. If a person does not actually use words or conduct and say that they have demonstrated in the offence hostility it is possible to say that the offence was motivated by hostility towards a disabled person based on the actual or perceived disability. We have tried to incorporate in the parking bay scenario that Dave has been abusive towards Bob although he has not specifically said that it is in respect of his disability. In that type of case that came up we have evidence that he has been actively encouraging the non use of disabled parking bays so therefore evidence as background could be that the actions were motivated by hostility towards disabled persons so we are trying to bring in that even though you can't demonstrate possibly from the actual offence that there is a demonstration of hostility towards a person their disability it can be motivated by that.
In respect of Elaine's although she is not herself a disabled person the section 146 can be used to prosecute where the victim of the offence is although not disabled themselves, they are associated with a disabled person by the carer, the parent of a disabled child, the child the disabled parents so like racially aggravated offences the person who was the victim does not have to be a disabled person themselves.
So on to the Jack and Vera scenario. Obviously the offences are threats, that type of offending, a very clear case of demonstration of hostility towards both Jack and Vera. Jack is obviously within the section 146 as having physical impairments which is the definition under the Act.
HIV and AIDS are included in the Disability Discrimination Act, that is a much wider version of disability than that in the Criminal Justice Act, 146 which is mental or physical impairment. So 146 would not extend to HIV or AIDS but if the case against Vera which would have been like a section 5 or section 4 order type of offence it could be presented at court as being, as having aggravating feature of target in the condition although not included in 146 it would be a little bit like the visually impaired person having their hand bag stolen, it could be presented as being conduct adverse conduct towards a person in the street aggravated by the fact that it has been targeted towards having HIV AIDS so although it wouldn't be strictly within a 146 it could be presented as being aggravating feature.
Finally we can discuss the John Smith scenario .The first consideration of the lawyer when we decide to charge sum up with an offence is has a criminal offence been made and only where the criminal offence is made do you then go on to consider is this a disability hate crime. John Smith age 24, has learning difficulties, it is not right to make assumptions as to what learning difficulties are and from the CPS point of view we would always explore what does that mean, what does it mean in practice? How, does it infer that we could communicate? Is there impact of the communication? Is it a possibility that he may need assistance in reading, writing, procedures and through there as well is there is an availability of expert assistance to witnesses, witness profiling is available and as is the use of intermediaries. John could possibly be viewed as a vulnerable victim and the offence was committed in the presence of a child so there is the special measures provisions for achieving best evidence or accessible in the Magistrates Court and the Crown Court and the prosecution service would take a proactive stance with regards to section 146 to see if we could find any evidence within the facts of the case to establish the offence was motivated by reason of hostility. Special measures would be available for intermediaries, communication aids and the witness required to give evidence we would explore what is the best way to get the best evidence from this witness and that could be through having frequent breaks, use of an intermediary and tailored with the support and we always offer all witnesses the opportunity to see the prosecutor before the case goes to court so they can discuss anything they have.
Workshop C - Reasonable adjustments – Equal Ability CIC, Sue Maynard Campbell MBE
Employers generally think about expensive things, whereas sometimes the inexpensive things are what would help the most i.e.:
• Support worker (PA) paid for by Access To Work and is a business benefit – this would be a main reasonable adjustment
• Timing for meetings – making them slightly later for those people who might be i.e. staying in an unfamiliar place
• Longer breaks between things
• Informal adjustments (i.e. to make tea, and cannot because of disability)
• Firm paying for a taxi to and from work if more stressful because of the disability. It could be more successful to have door to door service, although it can be an issue. The bottom line would be whether or not a person could use public transport
• Access to work would only apply after reasonable adjustments have been made
• Access to work provides funding, support for disabled to work when adjustments have not been made, grants for any additional equipment required, support worker, community support for an interview, access to the building etc
• Access to work grants are there – it means looking at the most effective means of getting to and from work i.e. a carer, driver or, if travelling on public transport, a travel buddy
• Parking spaces are not always included, so it may be best to have one included in the employment contract
• An objective of access to work is, if the job description involves filing and the person has a physical difficulty so is unable to file, it may be necessary to see if it would be possible to take that part of the job specification out
• Sometimes the way a need is worded says whether or not any help or assistance is granted. You have to be real as to what you are asking for, what you can do in that job, and what issues are created by your disability or condition
• Accessibility –
o Whether it is an issue for members of staff
o It may or may not be supported
o If access issues are covered as they should be, and disabled staff have issues, access to work can support them
• In a lot of situations it is not sensible to allow staff not to work at their full potential, as, if any support was given, it would be better than having someone not working to their full capacity (in practice this may not always work)
• Sometimes it takes an issue to be raised before any action is taken
• In order to persuade employers, there are a number of routes that could be taken (i.e. if adjustment would save money):
o Business side
o Health and safety
o DDA – the right to reasonable adjustments
• There is not a lot of case law in this area, it mainly covers adjustments and the question of disability
• If there is a breach of the DDA, it is up to the victim to complain. ERIC (have a strategy of the types of cases they would wish to support) will support the victim so as to change the area from being grey to being black and white
• Here is a lack of knowledge on the student’s behalf. The teaching staff may not understand, and external staff may not know what to apply for
• There are some thing that employers may think are so small that they do not matter, but can be a make or break issue
• There is a huge amount of education needed in the academia and the legal world by employers and employees, because the line managers normally adapt to the circumstances, whereas the higher managers might be the ones with the issue
• What the GSD can do to help
o If there is a situation, come to the GSD to ask if it is reasonable to ask for access. The person my think that this is fair. The starting point is to advocate on someone’s behalf or give them the information to advocate for themselves
• It can be invidious to sue your own employer
• There are at least 10,000 disabled solicitors but only approx 453 have practicing certificates. The GSD have 365 members who are not all solicitors. It is their job to get a disabled solicitor to admit that they have a disability so that they can get the help and advice that they need
• It is important to try not to label people with their disability.
Workshop D: Disability and the media – Laurence Clarke, Comedian
This workshop was designed to highlight the stereotypes that performance media (Film and Television) create to characterise people with impairments. During the workshop, Laurence played a series of media clips from recent film, television drama and news reporting which attending delegates judged against a checklist of stereotypes provided. Following each clip, delegates discussed their findings in pairs before reporting back. There was a concluding plenary session in which negative stereotyping of people with impairments by the media was discussed in greater detail.
Workshop E - GSD Workshops – How the GSD serves its membership, students/trainees and the wider community as a whole
These three workshops, run by the Group for Solicitors with Disabilities (GSD), were designed to provide information on GSD services and activities, but also to be participatory for delegates wishing to raise issues about how these services could be improved and activities increased.
During the workshop for the membership, Liz Marshall spoke both in general terms about how the GSD provide a support network and social networking base for members and also more specifically how previously the GSD took part in consultation with a view to influence the initial legislation of the DDA and how the GSD continues to be involved in general consultation with the government on relevant areas.
Liz also discussed the purpose of the group in supporting solicitors and in trying to flag up issues with may be of general concern to disabled people, both legal employees and clients, including the mentoring scheme. Feedback was positive on services the GSD currently offers to people, with particular reference to the effort made in putting GSD information on the internet on a regular basis and also through articles in the GSD journal “The Bridge”
During the workshop for legal trainees and student members, David Merkel outlined some of the issues of concern and provided members with the opportunity to air their problems openly. Many students expressed disquiet about the apparent mismatch between what the SRA is saying about reasonable adjustments and how college providers interpret this. Some students also refuse to acknowledge that they have a special need, sometimes because of a lack of awareness, and sometimes because of a fear of disclosure. A lecturer at the University of the West of England agreed that if the colleges were not informed on application stage it made it harder to put systems in place for students later. In these cases GSD could and does assist with mentoring and general advice but it was felt that the SRA and Colleges could still be more proactive.
During the final session on the GSD and its role in the wider community, Sir John Wall led a very interesting discussion session. His group felt that, with their considerable expertise and knowledge of current systems in place, that they could provide advice on reasonable adjustments and communicate this knowledge and awareness more comprehensively with membership, such as postings in “Abridged”, our website, and “The Bridge”.
The group looked at access to buildings and noted that clients wished to visit not only solicitors but counsel and that counsel should go to solicitor’s offices to meet clients when access was difficult. The group felt that GSD because of its legal expertise of its members could and should look at government consultations such as the disability equality duty and make responses as a whole.
Finally, the group concluded that the Law Society should be more proactive, not only with regards to their own staff but also informing firms of solicitors in terms of assisting their disabled staff and disseminating good practice.
Experience of Mike Forrester of the Legal Services Commission, volunteering to “buddy” one of our GSD members at the conference
I found Saturday to be a very useful and rewarding experience. It was interesting accompanying Richard to the various workshops and finding out about the type of information that he might have difficulties with and need a more 'Plain English' explanation of.
As well as assisting Richard I learnt a great deal from him in terms of what might constitute a reasonable adjustment for somebody with a learning disability. He also told me about a website for the Commission for Social Care Inspection (CSCI), which he had helped improve to make it more accessible to people with disabilities. I have chatted to Kirstie [Adams] since, and we are considering making similar amendments to our own websites using the CSCI model.
Saturday was also useful in that it gave us a list of contacts at organisations such as Equal Ability and First Step. We intend to invite guest speakers to attend the Commission (Kirstie and our Equality & Diversity Team are taking this forward) over the coming months to raise awareness regarding access needs and the different formats in which it might be useful for us to present our information.