The Equality Act (2010)
Under the Equality Act, disability is one of nine ‘protected characteristics’; these include Race, Age, Religion and Sexual orientation.
Definition of disability
The definition of a person with a disability established by the Disability Discrimination Act (1995 onwards) has been carried over into the Equality Act. It runs as follows:
'a person has a disability if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities.'
The key issues are that the disability has to have a substantial, long termadverse effect on the person’s ability to carry out normal day to day activities. Long term is defined as at least 12 months or lasting for the rest of the person’s life. Substantial implies severe dyslexia and it must have an adverse effect on normal day to day activities. Therefore dyslexia and other SpLDs are not always covered under the definition of disability.
There is a duty to make reasonable adjustments to remove barriers for disabled people; this applies in situations where a disabled person would otherwise be placed at a substantial disadvantage compared with people who are not disabled.
The duty is broken down into three requirements:
The first requirement is changing the way things are done (the law refers to changing a provision, criterion or practice).
Organisations are challenged to consider whether they have rules, whether written or unwritten, that present barriers to disabled people and put them at a disadvantage to when accessing their services. It might be reasonable for them to stop the practice completely, or to change it so that it no longer acts as a barrier.
Relevance to SPLDs
Courts are ‘service providers’ and some of the practices cause disability-related difficulties to people with SPLDs, for example: a person with a short attention span being expected to remain ‘on task’ during sessions of several hours. Someone with a poor working memory being expected to cope with complicated questioning.
The second requirement relates to making changes to overcome barriers created by the physical features of premises which open to the public or a section of the public.
Reasonable steps must be taken if disabled people using a service are put at a substantial disadvantage; these are listed as; removing the feature, altering it so that it no longer has that effect; providing a reasonable means of avoiding the feature, or providing a reasonable alternative method of making the service available to disabled people.
Relevance to SPLDs
Some people with SPLDs are hyper-sensitive to bright or florescent lighting. Some may need to sit rather than stand. However, on the whole, SPLD requirements will relate more to how the hearing is conducted.
The third requirement involves providing extra aids or equipment and providing additional or alternative services. The law refers to these as auxiliary aids or auxiliary services and stipulates that reasonable steps must be taken to provide them if they would enable (or make it easier for) disabled people to make use of the services of the organisation.
Relevance to SPLDs
Equality & Human Rights Commission guidance comments that ‘sometimes a person offering assistance will be what is needed’. Human assistance in completing documentation, helping locating the correct space within a large court complex is the most appropriate auxiliary service.
It is also worth noting that an important aspect of Part lV of the Disability Discrimination Act has become embedded in the Equality Act, namely that the duties are anticipatory. Organisations are advised that they should not wait until a disabled person wants to use their services, but consider in advance (and on an on-going basis) what disabled people with a range of impairments might reasonably need and put measures in place pro-actively. The examples are given of people with visual, hearing or mobility impairments or a learning disability. As usual specific learning difficulties are not mentioned.
To summarise the disability provisions of the Equality Act: public organisations have a positive and proactive duty to take steps to remove or prevent obstacles that hinder people with disabilities using their services. Please note that Court and Tribunal judgements are specifically excluded from the obligation to make reasonable adjustments.