Law: Disability Act may finally get some muscle

The disabled have long protested that they have no legal support like that available for cases involving equal opportunities and racial equality. Alison Clarke explains how the Government is promising to change all that.

In its annual report published in July this year, the National Disability Council - an advisory body to the government - called for a commission to be set up to enforce the provisions of the Disability Discrimination Act (DDA), introduced at the end of last year. Although a statutory body, the Council itself has never had any powers to investigate individual complaints nor to monitor the legislation. An omission that has always angered the disability lobby, not least because of the defensive powers given to the Equal Opportunities Commission and the Commission for Racial Equality 20 years ago, when the first equality legislation was introduced.

Richard Exell, TUC Disability Policy Officer, explained that "this has meant that disabled people have had nobody to turn to and have therefore had to rely on themselves to enforce the provisions of the Act". A point underlined by the lack of success of claims brought by disabled applicants so far under the new Act. Of the 500 or so cases heard by industrial tribunals, only a handful of applicants have received awards.

The Act itself has come in for some heavy criticism from disabled groups, mainly because of its limitations and exclusions. For instance, employers with less than 20 workers are exempt, thereby excluding almost a third of the country's workforce from its employment provisions. And some sections of the Act do not come into force until the next century, such as the duty to alter the physical fabric of buildings for disabled customers. Lord Lester, the civil liberties lawyer, is credited with calling it "a colander, rather than a binding code" because it was "riddled with vague, slippery and elusive exceptions".

But the cavalry may finally have arrived. Prior to the election, the Labour Party promised in its manifesto to implement "comprehensive and enforceable civil rights for disabled people". A promise which it has just honoured at this year's annual conference, when it announced a three- point strategy on disability rights. Andrew Smith, Equal Opportunities Minister, told the party faithful that the Government would set up a Disability Rights Commission along with a task force to develop proposals for comprehensive civil rights for the disabled, as well as implementing the last part of the Disability Discrimination Act.

The announcement has been widely welcomed by the disability lobby, despite the lack of detail to the plans. So far, Andrew Smith has promised only that the Disability Rights Commission will be "a body with full powers to enforce, to advise and to promote best practice". No one knows as yet when it will be up and running, how it will be structured or who will sit on it, although it is likely that the Government will issue a consultation document in the near future to seek the views of interested parties. Legislation could then follow in the 1998/99 parliamentary session, with Royal assent given sometime in 1999.

Although delighted by the Government's announcement of a commission for the disabled, David Grayson, chairman of the National Disability Council, has made it clear that he does not want a new commission to copy "the structures that were created more than 20 years ago to fight discrimination on grounds of race and gender".

A view echoed by Susan Scott-Parker, the chief executive of the Employer's Forum on Disability, who said that "the worst thing would be another institution with an adversarial relationship with the employer community".

But the TUC disagrees. Richard Exell reckons that "the most important point about the commission is that it should have the same powers as the Equal Opportunities Commission or Commission for Racial Equality. In other words, it should have the power to investigate, to enforce the legislation and to operate independently of government".

Little more is known about the task force, except that it will be chaired by Alan Howarth, better known to the public at large for his defection from the Conservative Party than for his interest in civil rights for the disabled, although he is a passionate advocate. What he has said so far is that "the task force's membership will represent a wide range of views ... and at least half of the members will be from disability organisations". He has already asked for suggestions for membership of the new task force, which will be limited to 15 to 20 people and which, once constituted, will meet for about 18 months. It will most probably look at the structure of the commission and then consider a package of comprehensive legislation.

The Government has also promised to implement the remaining sections of the Disability Discrimination Act guaranteeing rights of access for disabled people to goods, services and premises, a move welcomed by Susan Scott-Parker. "I am delighted that the Government has resisted the temptation to repeal the DDA and start again", she said. "This would have been very counter-productive for companies who have already spent millions of pounds on implementing changes".

Nor was she concerned at the potential cost of making adjustments to buildings for small and medium-sized employers. She quoted a survey carried out by Marks & Spencer which showed that two-thirds of adjustments cost nothing. In the US, where similar legislation has been in operation since 1990, Sears Roebuck, a major employer of disabled people, found that 97 per cent of adjustments cost little or nothing. In any event, there is, as she pointed out, funding available for employers which can, in certain circumstances, cover up to 100 per cent of their costs.

Although warmly welcoming all the Government's recent announcements, the main concern for Rachel Hurst, the chairwoman of the campaigning organisation Rights Now, is getting new legislation on the statute book by the turn of the century. "All we are asking for, as disabled people, is a reasonable accommodation of our needs. If I go to a shop which is up a flight of stairs, I am not asking them to install an electric stairlift, just a willingness to come down and answer the door. We are not asking people to go broke - just to be reasonable".

The author is an assistant solicitor with Jacksons, solicitors, in Middlesbrough.