This edition of The Bridge is also available in Adobe Acrobat (PDF) format: The Bridge Spring 2008
The Bridge Spring 2008
Online edition
Introduction
Hello and welcome to the Spring copy of “The Bridge”. This is a bumper issue including summaries of all of the important speeches and workshops which took place during our inaugural conference “Doing your duty” which was held at the Holiday Inn, Bloomsbury on the 22nd and 23rd February. To those of you who attended, I hope that you had an interesting and thought-provoking experience and to those of you that didn’t, I hope that these summaries give you a taste of what you missed and hopefully we’ll see you all for our conference in 2009!
Also in this edition, we have my interview with SRA Chief Executive, Antony Townsend in which I pose some straight questions and get some straight answers, and a new feature from our GSD editor with due deference to the Law Society Gazette’s “Obiter” section. Finally we have a fitting tribute to the memory of one of our long standing GSD members, Tim Berner, from GSD council member, David Merkel.
We are also keen to ensure that the articles we produce in “The Bridge” are thought-provoking and inspire you to make comments which we will investigate and, with your permission, publish in subsequent issues. If you feel that any of the articles in our magazine warrant a response, then please feel free to email our editor with your comments at: judith.mcdermott@lawsociety.org
Sue Maynard Campbell
“Wake-up” call for firms on disability
Law firms face a 'wake-up' call on their disability practices as momentum gathered last week for a sector-wide investigation of the profession by the Equality and Human Rights Commission (EHRC).
The Group for Solicitors with Disabilities (GSD) said firms may find themselves facing an 'equality audit' which, if failed, could expose them to prosecution under the Disability Discrimination Act 1995.
It could also disqualify firms from acting for public bodies, which must implement the 'general duty' to promote disability equality within their organisations.
Baroness Campbell of Surbiton, EHRC commissioner and chairwoman of its disability committee, told delegates at the GSD annual conference that the committee would champion all disability issues - including any future 'sectoral investigation into the legal profession.' A spokesman for her office added: 'The commission would use its enforcement powers to guarantee equality where necessary.'
GSD vice-chairman David Merkel said he would welcome any EHRC equality audit. 'It would be a wake-up call to the profession and to the Solicitors Regulation Authority (SRA),' he said.
GSD chairwoman Sue Maynard Campbell added: 'There are just 453 practising certificate holders with a registered disability and yet, according to national statistics, there should be 10,000 or more as a proportion of the country's 120,000 solicitors. Are disabled solicitors hiding their condition or simply not getting on the career ladder?'
Some Legal Practice Course (LPC) providers also came under fire at the conference. Speaking from the floor, retired judge and GSD secretary Sir John Wall - the first blind judge since the 18th Century - called some providers 'bloody-minded' in refusing to allow disabled students 'reasonable adjustments' such as extra time to do their coursework.
Emma Whewell, senior law lecturer at the University of the West of England, said prospective students were encouraged to disclose any disability on their application forms so that the faculty could, where
practical, make reasonable adjustments before the course started. When students made the disclosure after enrolment, the law school worked with them to find solutions, she said.
SRA education and training manager Tim Pearce said it monitored LPC providers and had recently informed them of their responsibilities to disabled students. 'There is no excuse for confusion,' he added.
Jonathan Rayner, Law Society Gazette 28th February 2008. Reproduced with kind permission and all acknowledgements to Law Society Gazette.
Interview with Antony Townsend, Chief Executive Solicitors Regulatory Authority by Sue Maynard Campbell 11.01.2008
Question 1:
SMC: Were you aware of the work of the Group for Solicitors with Disabilities (GSD) before we approached you?
AT: Yes, but probably not as aware as I would have liked. We were aware of the existence of the group and the fact that the group has been involved with the regulatory work of the Law Society. I was aware that you were involved in the preparation of the Disability Equality Scheme and prior to that, some work on the legal practice course and that David Merkel (GSD committee member) was on the training committee. So we are well aware of the group we are also aware that we’d like to involve you in some of the ground work of some of our policy development in additional to more standard response to consultation which is the easier bit but we’d very much like to have involvement of the group from the start.
SMC: You’re talking my language! Involvement is one of those words which sit totally within the Disability Equality Duty and it’s a key part of that so I’m very pleased to hear that.
Question 2:
SMC: GSD is of course focused on disability in relation to the law and lawyers. Do you bring to the work of the SRA any specific experience of disability or of promoting disability equality in another arena?
AT: My background for a long time has been professional regulations, since 1990 in fact. I regulated doctors, then dentists and before that I worked for the Home Office.
The area of biggest overlap in terms of disability was an issue that came up both at the General Medical Council and the General Dental Council that I think has a relevance to the work I’m now doing in the SRA. In medicine and dentistry the issue came up of what should Universities with medical and dental schools be doing to enable people who have disabilities to become doctors and dentists.
What we all stumbled across was the problem that the traditional medical and dental course was predicated upon two things – that people adapted to the system rather than the system adapting to them but the second particularly interesting element that there was an assumption that in medical and dental training that everyone had to do everything if they wished to become a doctor or a dentist, and so we were faced with encouraging medical and dental schools to make reasonable adjustments and that in a sense was the easier bit to articulate but the second and more difficult one was to say “hang on a minute supposing despite the adjustments that some people can’t do everything, should that really prevent them from becoming a doctor or a dentist?” because there may be all kinds of medical or dental work that they could do and although the issue no remotely completed by the time I left healthcare regulation what we were looking to say was that the old model which said everybody has got to be able to do everything really wasn’t strictly true in terms of public safety and so could we not adjust the initial requirement so we weren’t putting an unnecessary barrier in people’s way.
SMC: That’s a very interesting background. There are some knotty issues around adjustments that need resolving and I’m sure our readers will be very interested.
Question 3:
SMC: Our particular focus in this issue of the Bridge, you have kindly agreed to be interviewed for, is the duty to promote disability equality under the Disability Discrimination Act (the Duty). Obviously, the SRA in its public functions is covered by the Duty as set out in the Law Society’s Disability Equality Scheme. Can you explain how the SRA, through the way it undertakes its functions, strives to promote disability equality?
AT: Perhaps I could do it on three levels. There are some very specific projects that we are undertaking which are, to a certain extent, the easy bits. For example, making sure that our website is properly accessible to people with disabilities. We brought in the RNIB in order to train our web writers. At the second level, our equalities and diversity officer has been training people to undertake impact analyses, one or two of which we have published. The aim of these is to get staff properly conscious of equality and diversity issues including disability issues and try to use them during the course of policy development rather than tacking them on at the end. It is quite a big educational and cultural issue but we have made some headway in devising a system and beginning to publish these and we very much welcome any comments that GSD members might have on those and further areas where we may being doing such analysis.
SMC: How can we get access to this information?
AT: We can certainly arrange information to be forwarded to yourself and your members.
The final thing refers to the Law Society’s Disability Equality Scheme. We have a work plan but we also want to develop our own SRA strategy because regulation is a huge area – more than 50% of the Law Society’s resources and there are very particular regulatory issues that arise for the SRA and one of the things that I was hoping was that GSD might be involved in developing that work with us at the start.
SMC: Well I’m sure that we would be very interested in that, yes.
AT: So that’s work that really just about to launch, to build upon the work that’s already been done of course and we’re to doing it from a standing start but we want a regulation focused strategy.
SMC: Excellent. That makes sense because the three parts of the Law Society now are so different really in focus that to have your own because yours is more the “thou shalt not” sort of area.
AT: We like to say that we’re supportive though – we’re not just the bad guys! There will of course be common areas with other parts of the LS group including areas like employment but there are obvious differences of focus as well.
Question 4
SMC: On the promoting of disability equality, we are relying for instance in certain situations where LPC providers are asked to make reasonable adjustments, and we’ve got a couple of cases at the moment where mentees are struggling with issues. We wondered how the SRA has developed its skills in order to supervise this aspect of disability equality.
AT: Yes and I think that my answer to this is a bit vague and I do apologise for that but it’s not an area that I know very well. I know that there was a working group two or three years back that had done slightly more which looked at the impact of the DDA upon the Legal Practice Course and I think that was taken forward. My colleagues in the education part of my Empire are about to revisit those findings to see in a sense how the LPC providers are getting along. We are keen to encourage LPC providers to make the reasonable adjustments. Ultimately compliance with the law is strictly a matter between them and the courts but we want to play our part as the quality assurance agency in encouraging them in the right direction so I think we probably ultimately we are not an enforcer but we are certainly a very strong encourager and where we do discover that an LPC provider was persistently failing then we would obviously want to enter into a discussion with them.
SMC: I think we have two examples of where they give the excuse of saying “Well the SRA won’t let us”
AT: Well I think I’d like to look at those. In a sense if the adjustment is a reasonable one I can’t see why the SRA would stand in the way. There might be example where an adjustment was so unreasonable that it conflicted with our public interest duty at the most gross extreme.
SMC: Yes well I can understand that.
AT: In the final analysis the public interest takes priority but that should not be used as an excuse for not making reasonable adjustments.
SMC: I entirely agree. That’s really helpful.
Question 4:
SMC: In promoting equality for disabled people understanding the access needs of the various stakeholder groups – solicitors, trainees, law students, clients – seems to us to be a prerequisite. However it seems to us that there are very few “known knowns”, to steal a phrase from Donald Rumsfeld, when it comes to the needs or even numbers of disabled people. Are there plans in hand to improve this situation as required under the Duty? For instance, does the SRA know how many disabled employees it has, or how many reasonable adjustments it has made for its staff?
AT: Yes, the answer to that is we know how many people have declared themselves disabled and course there are a number of examples where reasonable adjustments have been made for staff. I don’t have the data on that. One of the problems we have which applies to solicitors more widely is that there isn’t a requirement for solicitors to provide the data so we reply upon voluntary surveys. We are in fact aiming to do another one this year to try and improve the data we have on solicitors with disabilities. So I think the data probably still is patchy.
SMC: That would be very useful and interesting actually and one of the things that we like to talk to people about is what data you gather and how you gather it – moving from using “categories of impairment” to more social model focused data gathering so I think there’s something we’d like to assist you with.
AT: If you have expertise you can give us then that would be gratefully received.
Question 5:
SMC: Relating to that, is the SRA aware of the social model approach? We believe this approach, upon which the Duty has been built, which focuses on the barriers people face which disable them rather than their impairment which any organisation cannot change. Does the SRA’s staff have an understanding of how working to this model should inform their activities?
AT: Yes I mean I’m aware of it. I can’t pretend to have been trained in any great detail but I think that I am aware of the principles i.e. that you start with the design of society rather than the disability of the individual, put crudely if I’ve understood it correctly.
SMC: That is correct.
AT: There are numerous examples where after a great deal of hullabaloo people discover it’s quite easy to redesign something and the world doesn’t come to an end and it actually benefits everybody.
SMC: Yes and it’s also the softer issues, the policies and procedures that need to be redesigned as well. It’s a whole range and people’s attitudes to disability also need to be assisted. You can’t change attitudes but you can assist them in a change process.
AT: Yes, absolutely. We have done some training to staff on issues in particular relation to students. We do also when we do our practice standards unit visits to solicitors firms, one of the things that we ask is for details of their compliance with Disability Discrimination Legislation. If it appears that a solicitors firm is not complying them we will give them advice on how they should comply. Just to give you an anonymous anecdote I went on a visit to a firm whose response to the question “Do you have proper access arrangement for people with disabilities” was “Well, no-one with a disability who has insisted upon coming into the building has ever been prevented from doing so” which struck me as possibly coming from the wrong end of the problem!
SMC: I think you would have got that answer on more occasions had you been around the country. People attitudes are “Disabled people don’t apply” or “Disabled people don’t want to come”
AT: Yes, I was slightly amazed at this answer, not because I was amazed at the attitude but that I was amazed to be honest that the senior partners could be so open in the attitude.
SMC: So the training that your staff have in relation to the specifics and giving advice, is that particular staff?
AT: Yes, it depends. I mean, for example staff who go out on practice standards unit visits are trained in the requirements of the Disability Discrimination Legislation. There is some general equal opportunities training but that is really at a very high level, then people get advice from our equalities and diversity officer and the people that she brings in for more targeted work in that way. So, for example the RNIB are brought in to help our web designers.
Question 6:
SMC: So, final question is actually where we started I think.
The one thing that we are very clear about is the element of the Duty that requires disabled people to be involved. By this we (and the law makers!) don’t mean just consulting disabled people once a course of action has been laid out. Our understanding is that it means involving disabled people in developing a proposed course of action that aims to remove barriers to their equality, or which might, indeed, have the potential to increase barriers. So, my question which you partially answered at the beginning actually is how has the SRA involved disabled people to date, and how do you propose to in the future?
AT: Yes and I think our answer would be not enough. There has been historical involvement in the kind of continuing regulatory work and, as I mentioned at the start, there’s been what I would call a standard consultation involvement, but we would very much welcome at the start of looking at our own strategy, the involvement of disabled people and groups in working up the strategy. If we can find a way to do that and this telephone conversation might well be the beginnings of that, then that would be absolutely marvellous.
SMC: Ok, well thank you very much for your time.
AT: No, not at all it was a great pleasure. Goodbye.
Reasonable adjustments when taking examinations
On 10 May, 2007, The EMPLOYMENT APPEAL TRIBUNAL handed down its judgment in the case of PMI V. Latif: Appeal No. UKEAT/0028/07CEA.
The Appellant was a qualifying body, within the meaning of s. 14 of the Disability Discrimination Act. The Tribunal against whose decision PMI were appealing found that it had failed to make a reasonable adjustment in the arrangements it made for sitting an examination. The EAT found that in so doing the Tribunal had misdirected itself on certain aspects of law. However, the EAT held that these misdirections were not material to the tribunal's conclusion. Their findings were such that it was plain that they would have found a breach of the duty even had they directed themselves properly. The EAT made Observations on the burden of proof in reasonable adjustment cases.
Ms Latif was registered blind and is a disabled person within the meaning of the Disability Discrimination Act 1995. In September 2004 she became a member of Project Management Institute (“PMI”), the appellant in the appeal, and she registered to take the Project Management Professional (PMP) credential examination in May 2005. PMI is a not for profit corporation, based in Pennsylvania, USA. It is a qualifications body within the meaning of s 14 of the 1995 Act, inter alia because it confers a project management qualification.
Ms Latif wanted certain adjustments to be made to facilitate her ability to prepare for and take the examination. Specifically, she sought accommodations in the examination arrangements. She made certain suggestions as to how this might be done. She asked that she be allowed to take the examination on her own laptop computer in the Examination Centre or, alternatively, that her screen reading software should be installed in the Examination Centre computer. She asked for a reader to support her in order to explain diagrams.
Some adjustments were permitted with respect to her taking the examination. PMI allowed a reader/recorder and gave her twice the usual time to sit the examination. She was not, however, allowed to take in her own computer. She passed the examination.
Space (more accurately shortage of space) prevents me from elaborating on the judgment of the EAT, which runs too twenty pages. Suffice it to say that the case should be studied by those responsible for setting qualifying examinations for solicitors - the Solicitors Regulation Authority and LPC providers. Ms. Latif won!
John Wall
A free drink
I had an interesting experience in January, visiting one of those eateries which belongs to a chain - this one near Holborn Viaduct in London for a light lunch. I am blind. I went there with a young sighted woman law student. She found an empty table, and sat me at it. She then went to the counter, and asked for a menu to read to me. They didn't have one - the list of sandwiches, etc. was displayed on the wall near the counter. Like a good law student, she had a note pad with her: she jotted down the fillings for sandwiches, brought it to the table, and read it to me. So that, in a way, solved the problem.
However, the law student had also read the D.D.A. She gave the manager a short briefing on reasonable adjustments, telling him that they should have print menus which could be taken to tables occupied by visually impaired customers - or by wheelchair users, for that matter.
Result: he agreed, and said he would talk to the regional manager about having printed menus. He gave my companion and me a voucher each for a free drink! In the circumstances, drinks at the chain of eateries being expensive, I thought the voucher was adequate compensation for failure to make a reasonable adjustment!
John Wall
New publications from the Crown Prosecution Service: “Millie the Witness” and “Jerome: a witness in court”
These two new leaflets from the CPS (November 2007) are designed for adults to help children and young people understand the process and importance of testifying in court proceedings.
“Millie the witness”, aimed at younger children, features clear and simple language and places an emphasis on making children comfortable with the actual process of giving evidence, stressing smiling and friendly police and court staff who are happy to help and explain things, and familiar surroundings with books and toys. Each page features large colourful drawings which create a storybook quality, making it familiar and non-threatening to very young children. Although a drawing of a burglary is featured, the actual crime itself and the outcome of the court is minimised to reduce the child’s fears. “Millie the witness” is a very effective piece of informative literature with an emphasis on friendliness and fun, even featuring a colouring-in game on the back page.
Whereas “Millie the Witness” naturally assumes that giving evidence to help parents and other grown-ups is an intrinsically good thing, “Jerome: a witness in court” is aimed at teenagers and young people who may need convincing to give testimony against peer pressure. This document therefore has a more difficult task to achieve. As with “Millie the Witness”, the leaflet goes through the crime and the process of testimony chronologically, but places additional emphasis on the need to testify against people who commit crimes (a violent crime is pictured, rather than the less threatening house theft featured in “Millie”) Wisely, the authors use photography rather than the storybook-style line drawings of “Mille”, but sadly with more mixed results. Some of the photographs, like the victim who needs Jerome’s help, are excellent whereas others, such as Jerome’s support, look superimposed and are less convincing. However, on the whole the text itself helps to answer the sort of questions teenagers and young people might ask, and are arranged so that boxes and bullet-points break up text making it easier to read.
Both texts are in large print and would make useful easy-read guides for people with learning difficulties/disabilities. Free copies are available in English and Welsh from the Crown Prosecution Service either electronically downloadable (in PDF format) at http://www.cps.gov.uk/victims_witnesses/further_info.html
In remembrance
Tim Berner passed away on Friday 23rd November 2007.
Tim was an active member of the old GSD committee for a number of years, notably during the late 1990s whilst he was still working and only ceased coming to meetings when his motor neurons progressed after 2001. He bore his illness with dignity and courage and was always a joy to be in his company. I personally have interesting memories of being given lifts back to Wimbledon station from Chancery Lane with Tim whilst he was still able to drive. He will be sadly missed and is survived by his wife Elizabeth and three children Dominic, Juliet and Gabriel.
David Merkel
Vice Chair and Council Member
Conference 2008
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
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, 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.
The Bridge: Review of the year 2007
GSD members will be aware that The Bridge was re-launched last year under a new editor. To date, we have received over fifty communications regarding these editions, from both members and professional contacts – all either praising GSD for their insightful news content or requesting further information for assistance in the production of other professional journals, generally with the disability and general diversity fields.
Some of our news stories have triggered particular interest and it is worthwhile to mention them here:
Edition 8 – Summer/Autumn 2007
• Our article on the identity theft of 30,000 recipients of the Independent Living Fund resulting from a raid on a transfer contractor had a dreadful prediction at the end of November when two data disks from HM Revenue and Customs went missing on their way to the National Audit Office.
• The internet and social software article was quoted at the online information exhibition held at London Olympia in December. In particular, the usefulness of social software to run a “virtual” law firm where geographic and economic barriers prevented the creation of site office was viewed as the way forward for many budding enterprises in the 21st century.
• Our two part “Mind your language” article, which was featured in both issue 8 and 9, was one of many citing the example of Conservative MP Anthony Steen who responded to criticism of parking in a disabled bay at Devon Railway Station with very outdated language. The second part of the article was more exclusive, being one of the very few to pick up on the groundbreaking Hiscox survey of small and medium enterprises which revealed the preponderance of staff to use inappropriate language and “banter” and of managers to ignore complaints from staff with disabilities who found such remarks offensive.
Edition 9 - Winter 2007
• Our article on hackney carriages, featuring an interview with Clive Stephenson, the now Chief Liaison Officer of the Sheffield City Council licensing department was very highly praised by a number of regional and disability specific publications who had not been aware of the unique experiment carried out by this city, resulting in an explosion of newer accessible taxis.
• The article on disability hate crime was very much at the vanguard of current research; with both “Disability Now” and “New Bulletin” echoing our concerns a month after our own publication was produced. In January, “Disability Now” progressed further, launching a disability hate crime campaign. In addition, a number of city councils are beginning to take disability hate crime very seriously and are holding training sessions to identify and identify methods to tackle it. Equal Ability CIC, the not-for-profit consultancy which administers the GSD has provided such training to a local authority in March of this year.
• Finally my article on the accessibility of the Law Society library brought the most responses of all our magazine articles from GSD members themselves. Many had occasion to write to me about this article, expressing their interest in the progress made by library staff thus far, and the need to keep pressing forward with new IT software and services in the future. There was a great deal of praise for the Law Society Library’s suggestions book, which is replied to on each opportunity by a member of the library staff and a number of calls for this suggestions book function to be made available electronically so that members with difficulties accessing the library on a regular basis could also input their constructive suggestions.
So, as we advance further into 2008, it looks as though “The Bridge” has a strong and progressive future, thanks to GSD members with their extremely helpful and constructive suggestions and contributions.
Daniel Park