Feb 2008
NeuroDiversity and DDA 2005
*** Pro-forma standard letter of complaints to all public bodies and service providers:-
*** This letter can be adapted easily for all ‘impairments’, including those experience living mental health issues and other conditions defined under the ‘Act’ ***
Colin Revell the author of this letter gives you permission to use this letter for your own purpose and for others too under ‘copy-left’ law.
Dear ,
You are being presented with this letter by a NeuroDiverse disabled person who is experiencing living with an Autistic Spectrum Conditions, Tourettes Syndrome, AD(H)D, Dyslexia and other co-morbid conditions and mental health issues because I believe that you have not complied with your duty under the 'Act'. The Disability Discrimination Act 2005 (Amendments to DDA Act 1995) [DDA]; came into legal force on 4th December 2006.
http://www.opsi.gov.uk/acts/acts2005/ukpga_20050013_en_6#sch1-pt1
A public body and service provider must do all they reasonably can to find out if a person has a disability. The Act defines a disabled person as "someone with a physical or mental impairment which has a substantial and long term adverse effect on his/her ability to carry out normal day to day activities". Long term means likely to last for at least 12 months. Normal day to day activities include mobility, manual dexterity, physical co ordination, continence, ability to lift, carry, move everyday objects, speech, hearing, eyesight, memory or ability to concentrate, learn or understand, perception of risk or physical danger.
Where a treatment alleviates a condition for the duration of the treatment, the impairment is taken to have the effect it would have had without such treatment. Adjustments: physical adjustments to working environment, equipment, provision of specialist aids, adaptations and assistive technology, additional support (including advocacy and personal assistants/support workers), adjustments to working arrangements e.g. time to recover or adapt, adaptation of duties, hours, availability of financial assistance, help with personal care, redeployment priority.
Section 18 -21:- goods, facilities and services provision In Respect to Goods and Services:- s.18 is entitled "Meaning of 'disability'" and is in force from 5th December 2005. This is covered by Part III of the DDA, and this discrimination is defined in s.20 (1) in the following terms “a provider of services discriminates against a disabled person if-- (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified.”
In addition, “(2) For the purposes of section 19, a provider of services also discriminates against a disabled person if - (a) he fails to comply with a section 21 duty [to make adjustments] imposed on him in relation to the disabled person; and (b) he cannot show that his failure to comply with that duty is justified Since December 1996 you have had an obligation under the above Act not to discriminate against disabled people (i.e. treat them less favourably). As from 1 October 1999, you have had a duty to make “reasonable adjustments” to make your service more accessible to disabled people.
***Although some NeuroDiverse people experiencing living with Autistic Spectrum Disorders and co-morbid conditions may not consider themselves to be disabled, especially under the social model of ‘NeuroDiversity’, they are nevertheless protected by this Act.
The Disability Discrimination Act (s.21) states that you must: i. take reasonable steps to change any policies, practices or procedures which make it impossible or unreasonably difficult for disabled people to make use of your service. ii. take reasonable steps to provide an alternative means of service where a physical feature makes it impossible or unreasonably difficult for a disabled people to make use of your service. iii. provide auxiliary aids and services where they would enable or facilitate the use of your service by a disabled person.
The Government issued a Code of Practice about these obligations in June 1999. All service providers are advised to obtain a copy of this document so that they are aware of their obligations.
Service Providers:- On 1 October 2004 extensions to the Disability Discrimination Act (DDA) made it illegal with the introduction of Part III of the DDA also means that companies providing a service to the public have to make 'reasonable adjustments' to allow disabled people to access their premises and services unhindered.
If disabled people believe they are being discriminated against they can make legal claims against the business concerned. Any organisation which provides a service to the public or a section of the public is a service provider. Examples are leisure firms, retailers, hotels and restaurants. Such businesses are required to make 'reasonable adjustments' so that there are no physical barriers stopping or making it unreasonably difficult for disabled people to use the service.
The list of physical features covered by the legislation is extensive I also inform you of your statutory duties when a disabled customer makes complaints s55: DDA 2005 (amended DDA 1995) The duty to promote equality of opportunities for disabled people.
Services must be seen to be actively promoting equality and eliminating discrimination and harassment for disabled people as a provider of services Disability related discrimination This occurs where a person is treated less favourably for a disability related reason than someone who did not have the disability related reason and it cannot be justified.
Less favourable treatment can be justified in two limited circumstances only: § It must be material and substantial for example material health and safety reasons, § when it is in the application of a defined competence standard before deciding on whether the less favourable treatment is justified for a material reason, the education provider must first have complied with the duty to make reasonable adjustments.
The treatment with regard to competency standards is only justified where it is applied equally and where applying it is proportionate to its aim. The treatment of the NeuroDiverse disabled person must be compared to treatment of a person to whom the disability related reason does not apply.
Can less favourable treatment be permitted in any circumstances?
Less favourable treatment can be justified in two limited circumstances. First, where the justified treatment is material to the particular case and also substantial, for example, for material health and safety reasons), or second, where the less favourable treatment is in the application of a defined competence standard.
Material and substantial justification
Before deciding whether the less favourable treatment is justified for a material reason, the public body and service provider must first have complied with the duty to make reasonable adjustments i.e. if it had made a reasonable adjustment at the outset in carrying out and not delaying appropriate assessments and diagnoses (multi-agency), implementation of all social, clinical(health), housing and educational and other multi-agency reports then it may not now be treating the disabled person in a discriminatory manner.
For example, reasonable adjustments may reduce the health and safety risks to such a level that they are neither material nor substantial.
Competency standards justification
The treatment with regard to competency standards is only justified where it is applied equally to persons who do not have the disability and where applying it is proportionate to its legitimate aim. The specific purpose of the competence standard needs to be looked at objectively as it may be possible to apply the standard in another way to achieve this legitimate purpose whilst also avoiding an adverse impact on a disabled person. i.e. Disability Impact Assessments for all NeuroDiverse disabled people.
Victimisation and harassment
It is an offence for a responsible body to discriminate under the DDA by victimising a person whether disabled or not. Harassment for a reason which relates to a disability is also an offence. S.55 of the DDA states that it is an offence for a responsible body to discriminate by victimising a person whether they are disabled or not:- “It is unlawful to treat a person less favourably than others because the victim has complained and/ or brought or given evidence or information in connection with complaints and court actions under the DDA, or has done anything else under or referencing the DDA or made allegations that someone else has contravened the DDA or because the person believes that the victim has done or intends to do so.”
Harassment for a reason which relates to a disability under the DDA 2005 is an offence where the responsible body acts in a manner:- “Violating the disabled person's dignity or creating an intimidating hostile humiliating or offensive environment for him”
If actions take place with intention of achieving these effects, it is irrelevant what the actual effect is on the disabled person, it amounts to harassment. If there is no intent, the actual effect will be looked at to ascertain whether the conduct has amounted to harassment.”
Disability Equality Duty The Disability Equality Duty (DED) applies to UK to all public bodies (1) General duty
A public authority must be proactive in looking at ways of making sure that disabled people are treated equally and have equal opportunity with non-disabled people with regard to all activities and functions.
(2) Specific Duty
The main duty is to produce and publish a disability equality scheme. The Disability Equality duty is an ongoing duty which requires regular review. I would ask that you address this complaint and ensure that you are complying with your obligations under the Act. Failure to comply with the Act could mean that you will be taken to court by me and that you will be ordered to pay compensation.
Providing the same standard of service to all
The DDA affects anyone who provides goods, facilities or services to members of the public, whether paid for or free. It is illegal: · To refuse to serve someone who is disabled · To offer a disabled person a service which is not as good as the service that is offered to other people · To provide a service to a disabled person on terms which are different from the terms provided to others
Making changes to the way goods, facilities and services are provided
It is against the law for someone to run a service, or provide goods or facilities, in a way which makes it impossible or unreasonably difficult for a disabled person to use the service or goods. For example refusing entry to a facility for a NeuroDiverse disabled person without personal assistants/support workers and all service-provisions in place that makes it easy for the NeuroDiverse disabled person accessing ‘the-service’.
Public bodies and service providers have to provide all ‘service-provisions’ to the NeuroDiverse disabled person in providing support and assistance, aids equipment and assistive-technology which make it easier for disabled people to use their service, if it is reasonable to do so.
If there are physical obstructions to using a service, public bodies and service providers must provide other ways of letting disabled people use their services, if it is reasonable to do so. Public bodies and service providers must make alterations to physical features, if it is reasonable to do so; to make sure NeuroDiverse disabled people can use their service. Physical features including buildings and the surrounding area, car parking, fixtures and fittings and so on. Service providers cannot charge a NeuroDiverse disabled person more to meet the cost of making it easier for them to use their service.
Yours, Colin Revell
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