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Disability Discrimination Act 2005 [E/S/W]

The Disability Discrimination Act 2005 (""the 2005 Act"") makes substantial amendments to the Disability Discrimination Act 1995 (""the DDA"") building on amendments already made to that Act by other legislation since 1999.



The DDA, as originally enacted, contained provisions making it unlawful to discriminate against a disabled person in relation to employment, the provision of goods, facilities and services, and the disposal and management of premises. It also contained some provisions relating to education; and enabled the Secretary of State for Transport to make regulations with a view to facilitating the accessibility of taxis, public service vehicles and rail vehicles for disabled people.

BACKGROUND

In December 1997, the Government established the Disability Rights Task Force, an independent body comprising members from disability organisations, the private and public sectors and trade unions, to advise it on how best to meet its 1997 manifesto commitment to look at securing comprehensive and enforceable civil rights for disabled people. As a result of the Task Force's first recommendations, the Government established, in April 2000, the Disability Rights Commission. (The constitution and functions of the Commission are set out in the Disability Rights Commission Act 1999.)

In December 1999, the Task Force published its final report to Government: From Exclusion to Inclusion. This recommended a number of major extensions to the DDA's coverage and refinements to its detail.

The Government published an interim response to the Task Force's recommendations in 2000 and, in March 2001, published its final response Towards Inclusion - Civil Rights for Disabled People. That response, which was also a consultation document, set out the Government's proposals for taking forward those of the Task Force's recommendations with which it agreed. One immediate response was to introduce the Special Educational Needs and Disability Act 2001 which extended the DDA so as to make it unlawful to discriminate against disabled pupils and students seeking access to education in schools and colleges.

The Government has already taken forward the main employment proposals set out in Towards Inclusion in the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (""the Amendment Regulations""), made under section 2(2) of the European Communities Act 1972 in order to implement the disability aspects of the EC Employment Directive (2000/78/EC). These Regulations, which came into force on 1 October 2004, make significant changes to the DDA which were also proposed by the Task Force including: ending the exemption of small employers from the scope of the DDA; and bringing within its ambit a number of excluded occupations, such as the police, fire-fighters, prison officers and partners in business partnerships. The Regulations also make other changes not proposed by the Task Force. (See also the Disability Discrimination (Pensions) Regulations 2003, which amend Part 2 DDA to bring its provisions into line with Directive 2000/78/EC in relation to discrimination concerning occupational pension schemes.)

The 2005 Act takes forward the Government's remaining proposals. A draft Bill was published in December 2003 for pre-legislative scrutiny. It was considered by a Joint Committee of both Houses, who reported their findings on 27 May 2004. The Government published its response to the Joint Committee's report on 15 July 2004. Further details can be viewed on the Department for Work and Pensions' disability website. The 2005 Act contains provisions giving effect to many of the Committee's recommendations, as well as new provisions which did not appear in the draft Bill: see in particular sections 6 to 8 (rail vehicles), section 9 (disabled persons' parking badges), section 15 (general qualifications bodies) and section 16 (improvements to let dwelling houses).

TERRITORIAL EXTENT

The 2005 Act extends to Great Britain, save for section 9 and the related disabled persons' ""blue badge"" parking provisions and section 16 (improvements to let dwelling houses), both of which extend only to England and Wales. Provision corresponding to the ""blue badge"" provisions already applies in Scotland, and the Scottish Executive is considering what steps to take in relation to disability-related adaptations to people's homes.

Equal opportunities are in principle reserved to the Westminster Parliament, but the imposition of duties on office-holders in the Scottish administration, on any Scottish public authority with mixed functions or no reserved functions, or on cross-border public authorities in respect of their Scottish functions is an exception to this rule and falls within the devolved competence of the Scottish Parliament 3. Section 3 of the 2005 Act imposes duties on public authorities with the aim of promoting equality of opportunity for disabled people. This therefore falls partly within the competence of the Scottish Parliament. The Scottish Parliament has confirmed (on 24 February 2005) that it is content for Parliament to legislate for Scotland in this devolved area.

The 2005 Act does not extend to Northern Ireland since disability discrimination and transport are ""transferred matters"" under the Northern Ireland Act 1998. As regards Wales, the 2005 Act confers no new powers on the National Assembly to make orders or regulations, save in relation to section 9 (the ""blue badge"" parking provisions).

SUMMARY

Public authorities

  • Section 1: bring councillors, and members of the Greater London Authority, within the scope of the DDA

  • Section 2: ensure that, with some exceptions, functions of public authorities not already covered by the DDA are brought within its scope (so that it would be unlawful for a public authority, without justification, to discriminate against a disabled person when exercising its functions)

  • Section 3: introduce a new duty on public authorities requiring them, when exercising their functions, to have due regard to the need to eliminate harassment of and unlawful discrimination against disabled persons, to promote positive attitudes towards disabled persons, to encourage participation by disabled persons in public life, and to promote equality of opportunity between disabled persons and other persons

  • Section 4: amend section 64A of the DDA so as to clarify who the correct defendant is in the case of a claim of discrimination being made against a police officer under Part 3 of the DDA and authorise payment of compensation from the police fund in relation to such a claim
Transport
  • Section 5: provide that the current exemption from section 19 to 21 of the DDA (which deal with the provision of goods, facilities and services to the public) for transport services extends only to transport vehicles themselves, and create a power to enable that exemption to be lifted for different vehicles at different times and to differing extents

  • Section 6: amend the definition of 'rail vehicle' in Part 5 of the DDA to enable rail vehicle accessibility regulations to be applied to all rail vehicles, enable the regulations to be applied to the refurbishment of rail vehicles, clarify and extend the current power to grant exemptions from the requirements, change the exemption process and include a requirement for the Secretary of State to produce an annual report on the making of exemptions

  • Section 7: introduce new provisions requiring rail vehicle accessibility compliance certificates to be obtained for prescribed rail vehicles

  • Section 8: replace the existing criminal offence for use of a rail vehicle which does not conform with rail vehicle accessibility regulations with a civil enforcement system, and set out the procedure for imposing civil penalties, including a right of appeal to a court

  • Section 9: amend the Chronically Sick and Disabled Persons Act 1970 so as to provide for the recognition in England and Wales of disabled persons' parking badges issued outside Great Britain
Other matters
  • Section 10: amend the DDA's new provision on discriminatory advertisements (section 16B, as inserted by the Amendment Regulations) so as to impose liability on a third party who publishes a discriminatory advertisement (for example, a newspaper) as well as the person placing the advertisement

  • Section 11: amend the DDA in respect of group insurance arrangements

  • Section 12: bring within the scope of Part 3 of the DDA private clubs with 25 or more members

  • Section 13: impose a duty to provide reasonable adjustments on landlords and others who manage rented premises

  • Section 14: confer a power to modify or end the current small dwellings exemption in section 23 and new sections 24B and 24H (as inserted by section 13 of the 2005 Act) of the DDA

  • Section 15: make it unlawful for general qualifications bodies to discriminate against disabled persons in relation to the award of prescribed qualifications

  • Section 16: make provision for cases where a tenant seeks consent to make an improvement to a let dwelling house to facilitate the enjoyment of the premises by a disabled occupier (which could include himself), including provision for the Disability Rights Commission to make available a conciliation service, to provide assistance in legal proceedings in any dispute arising on the landlord's withholding of his consent and to issue codes of practice on consent to such improvements

  • Section 17: extend section 56 of the DDA so as to provide a procedure for questions and replies, not only for claims under Part 2 of the DDA but also for claims under Part 3 of the DDA

  • Section 18: amend the definition of disability in respect of people with mental illnesses; deem people with HIV infection, multiple sclerosis, or cancer to be disabled for the purposes of the DDA; and clarify that there is no implied limitation to the scope of the regulation-making power which enables people to be deemed to be disabled
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