This is an important and timely conference. The Disability Equality Duty (DED) came into effect almost two years ago. It is an appropriate moment to take stock, to reflect on what has worked, to learn the appropriate lessons, and most importantly to ensure the original aims and ambitions of the DED can be fully realised in the years ahead. There is a particular role here for government, particularly regarding the new equality legislation, but also for the Equality and Human Rights Commission as the chief custodian of the DED inherited from its predecessor body, the Disability Rights Commission.
I want to begin by setting out why the DED is rightly regarded as a fundamentally important statutory instrument, one of the most vital in the equalities toolbox, and elaborate on the underlying philosophical and practical rationale of the duty. There are at least four reasons why the duty should be at the heart of the Commission’s strategy for achieving change in public services that will lead to improved outcomes for disabled people and for communities as a whole.
First, the DED recognises the fundamental role of the public sector in helping to secure more equal outcomes, particularly for the most disadvantaged. As one commentator recently remarked, “fairness is not an additional cost on the public sector. Fairness is why we have a public sector”. There is an important synergy between the objectives of the DED and the increasing emphasis in public service delivery on evaluating performance according to equity objectives, for example floor targets and narrowing attainment gaps. Increasingly, the success of public bodies depends on their ability to narrow gaps in outcomes across their local populations.
Second, the DED rightly emphasises the importance of involving service users in decisions about planning, delivery and policy in public services. This challenges the traditional paternalistic ethos that arose in some parts of the public sector and the post-war welfare state. On a positive note, disabled people have championed approaches to the delivery of public services that are now at the heart of the government’s agenda, such as ‘co-production’, ‘personalisation’ and ‘empowerment’. These might be fashionable buzzwords, but they express something powerful about the imperative for service providers and users to collaborate, work together, share expertise and forge shared solutions that work for the individual in meeting their particular needs.
Third, the DED puts the focus on the systems and processes at work in public institutions, shifting the emphasis from the individual ‘victim’ and their need to seek redress, to the responsibility of the public authority to facilitate the achievement of equality for disabled people. That notion enshrined in the 1995 Disability Discrimination Act effectively turned three decades of anti-discrimination law on its head, away from retrospective remedy towards pro-active prevention and promotion.
Finally, the DED is important because it gives expression to the shift from ‘equal treatment’ and ‘reasonable adjustment’ to emphasising equality of outcome and equality of experience. It is not only necessary for individual public bodies to pay due regard to the needs of disabled people, essential though that is, but for public authorities as a whole to take a holistic approach to disability, ensuring that public services enable the effective inclusion of disabled people on equal terms. That emphasises the need for strategic delivery and ‘joined-up’ services.
These points have hopefully served to emphasise the reach and scope of the DED, the scale of its ambition, and the implications for public sector bodies. But it also raises a fundamentally important question: what has the DED in the first two years actually achieved in the public sector, and what outcomes has it helped to deliver for disabled people?
There are numerous examples of effective practice, some of which are detailed on the Commission’s website. The 2007 report produced by the Office for Public Management highlighted where public sector organisations have been able to design and deliver better public services by strengthening involvement processes and outcomes, and improving levels of trust, as well as becoming better employers. Research recently undertaken for the Commission has also illuminated what makes the specific disability equality duties effective. It found that:
These findings are corroborated by similar research recently carried out for the Office for Disability Issues (ODI).
So there is no doubt that the DED is helping to create better public services, but we recognise there is a lot more to do. Very crudely, we would categorise the performance of public bodies in respect of all three equality duties for disability, race and gender on a three-point spectrum. There are leaders or ‘trailblazers’ who have led the way in effectively implementing the DED and putting it at the heart of effective delivery. Then there are ‘fence-sitters’ who may comply fully or partially with the letter of the law, but are often reluctant and treat the equality duties as an ‘add-on’ rather than a strategic opportunity to improve the delivery of public services to the whole community. Finally, there are ‘laggards’ who are often non-compliant, formally in breach of their statutory responsibilities, and in denial of their equality obligations.
The Equality and Human Rights Commission needs an approach to the DED that deals effectively with leaders, fence-sitters and laggards, while making best strategic use of our enforcement and promotional powers.
For that reason, there will always be a major role for partnership working between the Commission and the public sector, including the promotion of best practice as well as the celebration of excellence. In helping public bodies to determine what positive steps they should take to promote equality for disabled people, the Commission has to explain clearly and robustly what adjustments might be necessary and how ‘reasonableness’ can be achieved in practice. We have to send a coherent message about what is expected, and what public bodies need to do to fulfil their obligations: in short, spelling out in practice what good looks like. That requires accessible and practical guidance through our website and supporting materials, alongside effective collaboration with sector bodies, regulators and inspectorates to ensure that equality is at the core of improvements in service standards.
Finally, we will make the performance of public bodies in respect of race, gender and disability equality more transparent and accessible to the public and service users. We will trial a new interactive data collection website enabling the Commission to monitor the compliance of all 44,000 public authorities in England, giving greater visibility to the implementation of the DED throughout the public sector.
None of this obviates the need for tough enforcement where necessary. Breaches of the law will have consequences, and we remain very concerned about the extent of current non-compliance with the DED. In fact, public bodies who are compliant with the DED want the Commission to maintain a tough stance with those authorities that are clearly in breach of the law. We have recently launched a new taskforce encompassing our Policy and Legal teams to achieve greater momentum towards enforcement of the duties. The Commission has already demonstrated what it can achieve, for example in the case of the Southall Black Sisters where we intervened to prevent the loss of funding to an important public facility providing services to women who have suffered domestic violence, invoking the equality duties against the local authority concerned.
We are currently in the process of entering into legal proceedings against three major Whitehall departments, and have compliance actions on the DED underway in relation to a range of strategic public bodies including three Whitehall agencies, two unitary local authorities, three District Councils, two NHS trusts and one Scottish local authority with other cases in the pipeline. We want to deliver a far greater number of strategic legal cases and interventions in 2009, testing the scope and reach of the equality duties ever further.
Meanwhile, the new equality legislation provides a further opportunity, both in protecting and strengthening current disability equality legislation, and in giving the Commission new powers to pursue compliance and enforcement. I would briefly emphasise three particular areas in relation to disability equality:
First, the need to strengthen the current public duties and to deliver an effective single duty. That means transposing key features of the DED into the new duty, not only in relation to involvement and reasonable adjustments, but also:
The single duty should enable us to tackle multiple discrimination and disadvantage more effectively, for example high levels of child poverty in Bangladeshi families where there is a disabled parent.
Second, remedying the House of Lords decision in Malcolm. The Government has proposed the extension of indirect discrimination uniformly across all equality strands, including disability. Our concern is that these proposals rely on a theoretical opinion of how indirect discrimination ought to be applied, and that it would be preferable to provide a disability-related discrimination provision in addition to the indirect discrimination model that has been proposed.
Finally, we would also like to see the Bill address key areas related to disability discrimination that are omitted from current proposals, including a prohibition on genetic predisposition discrimination, the removal of the exemption on auxiliary aids and services in pre-16 education, and for children under the age of 16 in England and Wales to be able to take discrimination claims in their own name.
There are several other important areas that are central to the discussion at this Conference that I will briefly touch on. The first is the relationship between the equality duties and the positive obligations placed on public bodies by the Human Rights Act. The Commission’s Human Rights Inquiry, due to report in April this year, will set out how a human-rights based approach is being operationalized in the public sector, both in promoting culture change in institutions and enabling individuals to seek redress where wrongs have occurred.
The second issue concerns the potential for achieving equality at the local level, and the role of the ‘place-shaping’ agenda in achieving equality outcomes. This is ever-more necessary to reflect the needs and aspirations of increasingly diverse local communities and areas. As I mentioned previously, the DED places an obligation on public bodies to ensure that disability equality is promoted holistically throughout the public services. This ought to be channelled through local councils and the local delivery of services, as well as local data collection and monitoring of key indicators.
Two years on, the DED remains a potent instrument for realising key equality objectives, and for ensuring that the public sector takes positive steps to promote disability equality. The Commission itself is under a statutory obligation to ensure that failure and non-compliance are challenged, that public bodies are incentivised and helped to improve their performance on equality, and that excellence is recognised and rewarded as part of our regulatory approach.
It is of course essential to keep in mind the ultimate prize afforded by the DED, that is sustainable improvements in equality outcomes for disabled people. As other commentators have noted, the picture remains very mixed in respect of employment, education, poverty, and transport.
Of particular concern has to be the differential education and health outcomes experienced by disabled people in relation to their non-disabled peers. For example, disabled people between the ages of 16 and 24 are almost twice as likely to have no formal educational qualifications as their non-disabled counterparts. Such differential outcomes must not be allowed to persist indefinitely. A recent report for the Commission also highlighted the extent of workplace harassment and bullying experienced by disabled people, and the barriers created in accessing the labour market. This further highlights the importance of an outcome-focused public duty.
Increasingly, we have to make the argument that improvements in equality outcomes for disabled people benefit the whole community, that equality is a public good, and that equality legislation is intended to fulfil the public interest. That is all the more necessary in a difficult economic climate where we have to promote and protect the interests of the most disadvantaged groups. For public policy as a whole, sustained improvements in child poverty rates, or education and health inequalities, will depend on paying careful attention to the disability-related aspects of these agendas. At the same time, delivering equality for disabled people must be at the core of the purpose and mission of modern public services.