The first edition of these Standards was produced at a time of great change in legislation regarding the rights of disabled people and the structures of Government.
Most notably this included the following:
- devolution and the establishment of the Scottish Parliament,
- the establishment of the Disability Rights Commission,
- the implementation of the Disability Discrimination Act 1995.
This process of change has continued with the following:
- further implementation of the Disability Discrimination Act (DDA) and enhanced rights for disabled people in employment, introduced in October 2004,
- a new Disability Discrimination Act in 2005 which has already made changes to the definition of disability and which will over the next few years make other substantial changes to what is covered by discrimination, as outlined below,
-
a rewriting of education and special educational needs legislation in Scotland with the Additional Support for Learning Act 2005 which introduced changes from November 2004,
-
the new Mental Health (Care and Treatment) (Scotland) Act 2003 coming into force.
The Disability Rights Commission (DRC) officially opened its doors in Scotland in December 2000. Its job is to address the following:
-
eliminate discrimination and work towards equal opportunities for disabled people,
- encourage good practice in the treatment of disabled people,
- review the DDA in practice,
-
investigate and take action in discrimination cases and manage a conciliation service.
The Commission offers a number of services:
-
a website with all the relevant legislation and guidance, all the DRC publications available to download, and up-to-date news
- and information on the work of the Commission – www.drc-gb.org,
-
a helpline which provides advice and information to all callers, whether disabled people or employers and service providers: telephone 08457 622 633, textphone 08457 622 644, email enquiry@drc-gb.org,
- a casework service to help disabled people who feel they have been discriminated against to try to resolve their issues – contact the helpline to access this service,
-
legal representation in courts and tribunals for disabled people whose cases are of strategic importance and will test or change the law.
The Government has announced plans to merge the DRC, the Equal Opportunities Commission (EOC) and the Commission for Racial Equality (CRE) into one Equality and Human Rights Commission, probably in late 2007. It is presently unclear what effect this will have on the service available to disabled people.
The definition of disability was changed on 5 December 2005:
the requirement that mental illness be clinically well recognised was removed,
any person with cancer, HIV infection or multiple sclerosis is deemed to have a disability effectively from the point of diagnosis.
During 2006 the DRC will be consulting on what further changes might be made to the definition of disability.
The Education (Additional Support for Learning) (Scotland) Act 2004 introduced from November 2005 a new framework to replace the previous scheme based on Record of Needs. The term ‘Additional Support Needs’ covers any child or young person who, for whatever reason, needs extra support, long term or short term, to ‘benefit from school education’. The aim is to give children and young people the opportunity to develop personally and help them work to achieve their full potential, and is not just about academic achievement. The new framework includes duties on education authorities to assess and make arrangements for children or young people who have enduring, complex or multiple barriers to learning and who require support from at least one service from outwith education.
These children and young people must have a new statutory Co-ordinated Support Plan. There is a new Additional Support Needs Tribunal to deal with disagreements about Support Plans. The Code of Practice ‘Supporting Children’s Learning’ was published in August 2005 and is available on www.lts.org.uk/inclusiveeducation.
For further and higher education, the duty to make physical alterations came into force in September 2005. Since then, education providers have had to make reasonable adjustments to their premises where there are physical features that are placing disabled students at a substantial disadvantage.
From October 1st 2004 service providers have to have taken reasonable steps to remove, alter, or provide reasonable means of avoiding physical features that make it impossible or unreasonably difficult for disabled people to use a service. What this actually means in practice has not yet been tested in court, although the DRC is supporting a case in which court proceedings have recently been raised.
The Disability Rights Commission has revised the existing Code of Practice, which gives practical guidance on the Disability Discrimination Act to providers of goods, services and facilities to include the new duties on landlords and private clubs which come into force at the end of 2006.
A new Code of Practice explaining the new laws regarding discrimination and transport has now also been issued, with the law coming into force at the end of 2006.
A new questionnaire procedure was introduced from 5th December 2005 for court actions raised under Part III of the DDA, similar to the questionnaire procedure already available in employment tribunals.
From October 2005, direct discrimination has been covered under the employment provisions in the DDA. It is direct discrimination to treat a disabled person less favourably, on grounds of disability, than a person not having a disability whose relevant circumstances including his/her abilities, are the same as, or not materially different from, those of the disabled person. Direct discrimination cannot be justified. Direct discrimination occurs when the reason for the less favourable treatment in question is the disability, while disability related discrimination occurs when the reason relates to the disability but is not the disability itself.
Harassment is now a specific separate head of claim. It is defined as unwanted conduct for a reason relating to the disabled person’s disability which has the purpose or effect of violating the disabled person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Important changes have also been introduced to allow claimants at an employment tribunal to have the burden of proof shifted to the respondent. Such a request can be made if the claimant proves facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has acted in a way which is unlawful.
The DDA 2005 introduces the public sector disability equality duty from December 2006. Under the duty, public bodies will be required to carry out their functions with 'due regard' to the need to: eliminate discrimination against and harassment of disabled people; promote greater equality for disabled people; promote positive attitudes to disabled people; and encourage disabled people to participate in public life. The disability equality duty is broadly similar to the race equality duty already in place. An equivalent gender equality duty will be introduced in 2006.
The Disability Discrimination Act 2005 added a right for tenants in the private rented sector to apply to carry out disability-related work in England and Wales. However, since housing is a devolved matter, this is an issue which the Scottish Parliament have legislated on for Scotland. The Housing (Scotland) Act 2006 has given private tenants in Scotland the right to apply to carry out work needed for the accommodation, welfare (includingg wellbeing), or employment of a disabled occupant. The landlord cannot unreasonably withhold his/her consent to the work. Again, this should come into force at the end of 2006.
Published by the Department of Health, the Social Services Inspectorate and the Scottish Office Social Work Services Group (1991), this guidance is concerned that services should strive to meet the needs of disadvantaged individuals more effectively.
It should be noted that people have a legal right to have access to information held about them by social work departments and health boards etc.
As far as social work files are concerned this is the relevant legislation. It was added to by the Scottish Office Guidance to Local Authorities from the Social Work Services Group (Circular SW2/89).
Under these two pieces of legislation people have a right to see and, if requested, have copies of information held by the Social Work Department, including files, Community Care Assessments etc. There are some restrictions on the type of information, for example, if a third party is identified his/her permission must be obtained before disclosure. The same applies to information provided by other professionals, for example, General Practitioners and others. The Social Work Department must respond within 40 days.
As far as health records are concerned, this is the relevant empowering legislation and specifically in Scotland, Access to Health Records (Steps to secure compliance and complaints procedure) (Scotland) Regulations 1991, Statutory Instrument 1191/2295. Applications have to be in writing and a response should be received within 21 days if it is recent information or 40 days otherwise. It is important to note that people do not have a right to information older than 1st November 1991, the day the Act came into effect.
Anyone who uses any social work service is entitled to be told by the Social Work Department of any other services which the local authority provides which might be relevant to his/her needs. The Department is also expected to inform people about any other services that they are aware other organisations provide.
S1(2)(b) of the Chronically Sick and Disabled Persons Act (Scotland) 1972 as amended by S9 of the Disabled Persons (Services, Consultation and Representation) Act 1986. This is potentially important as it says that there is a clear duty on social work departments to ‘ensure’ that people receive this information (rather than, for example, leaving it up on notice boards).
The Regulations and Guidance to this Act state that local authorities must have published information about relevant services they provide for children, including disabled children, by 1st April 1998. By this date they must also have produced children’s services plans. Information should also include details of services provided by voluntary organisations or others, if those services are ones which the authority has the power to provide.
The Scottish Parliament passed the Freedom of Information (Scotland) Act 2002, and it came into force in January 2005. This means that all Scottish public bodies must provide information to members of the public when it is requested, with very limited exceptions. Where reasonable, there is a duty to provide the information in alternative formats. There is also a specific duty to assist individuals who may need help to make their request and a recognition that not all requests will be in writing.
Under the Data Protection Act 1998 individuals have the right of access to records kept about them, and the right to prevent or stop processing of personal data that is likely to cause damage or distress.
Individuals are entitled to know what information is held about them, how it is used, and who it may be passed to.
Explicit consent is needed to store or process ‘sensitive personal data’. That is, information relating to the following:
- racial or ethnic origin,
- political opinions,
- religious beliefs,
- trade union membership,
- health,
- sexuality and sex life,
- offences and convictions.
Consent is not required to store information that is not classed as ‘sensitive personal data’. For example, name and address, as long as only accurate data that is necessary for a service to be provided is recorded.
Further information on the Data Protection Act is available from the Information Commissioner at www.informationcommissioner.gov.uk
The Scottish Information Commissioner is responsible for enforcing the new right to access public information created by the Freedom of Information (Scotland) Act. Further information is available at www.itspublicknowledge.info
This Act provides rights to disabled people, though in fairly limited circumstances. Perhaps some of the more important are the following:
-
the right to life,
-
the right to private and family life,
-
the prohibition of torture and inhuman and degrading treatment,
- the right to non-discrimination (though this is only triggered where another right exists).
Go to the next page: Assessment
(c) Scottish Accessible Information Forum, 2007
Technology provided by First Digit Ltd