First ever disability-specific law

Did any of the Australian's pass? I doubt it!!

Sheena

I am surprised you ask, after the recent expose of politician's fraud.

Just a few examples:

77% of shoppers claim not to have owned up to getting too much change. 40% of shoppers have walked out without paying for goods. 77% returned clothes after wearing them. 77% lied about a child's age in order to get a reduced price. Mitchell VW, Chan JKL. Investigating UK consumers' unethical attitudes and behaviours. Journal of Marketing Management 2002. 18:5-26.

80% of Australian undergraduates admitted to cheating including coping material from the internet, textbooks and sharing work with other students. The Times Higher Educational Supplement 2003.

70% of Britons believe VAT evasion for a home repair bill is wrong, but 71%are prepared to do it. Park A et al. British Social Attitudes Survey 18th report. Sage Publications, London 2001.

The biggest problem for those who have mental health problems is those who claim they do when they don't. Others see them and say 'they seem quite happy watching the TV, going to the pub and going shopping, there is nothing wrong with them... they must all be faking it'. I have great problems explaining to managers that employees are actually genuinely very ill, because these managers have seen too much fraud to take any of it seriously. And yes, I have been hoodwinked many a time too.

It will only change if the whole of society decides to tackle it, rather as we did with drink-driving a couple of decades ago.

Tony

Studies show that 75% of the population will exaggerate or even lie for gain if they think they can get away with it.

Please give details of these studies.

God help the 25% of us who do not. As the Mother of an Aspergers sufferer I know that part of the problem is their total honesty. Aspergers people do not hype up their symptoms and I can assure you that any parent or carer does not need to there is enough going on anyway.

Just goes to prove how little people understand mental health. If it cannot be seen it is ignored.

Noel is correct, the law is best served by criteria and tests rather than definitive outlines, save for very few cases. Your friendly lawyer.

We should always be mindful that well intentioned people pass laws and give definitions of conditions. I always feel for those who inevitably find themselves with a foot on either side of whatever line is drawn.Sometimes it is better to have "grey areas".

The heart of this problem lies with the legal definition of disability, which is medically based. The other equality legislation didn't define anything - it just gave people equality. The disability legislation should have done the same. Those of us who were campaigning for equality legislation for disabled people pointed that out before the DDA came on line.
I don't need to 'exaggerate' my gender to get equality.
All disabled people experience a wide range of complex access barriers - that's what disables us. Those barriers can be physical, environmental or organisational (institutional). Some people are more affected by physical barriers - if they are removed, then they can participate fully. Other people (such as people with sensory impairments, experience of mental distress, health issues, hidden impairments) are more affected by environmental or organisational barriers. The disability is the same, though. 'Special' legislation for 'special' impairment groups just force us further apart, and entrench the discrimination against us all, by causing in fighting between the different groups of disabled people. I could, if I chose, argue very coherently that deaf people with a history of epilepsy (my own personal experience) experience specific barriers and have specific requirements. But I also know, because I mix almost exclusively with disabled people (with a vast range of impairments and life experiences) that every disabled person could argue the same. If the (physical/environmental/institutional) barriers are removed then we will no longer be disabled. That utopian situation is not going to occur at any point while we have the narrow, medical definition of disability that is currently enshrined in law.

Rachel, Lisa, Carole

We saw a clear need to legislate for equal rights towards the end of the last century, and the early leglislation was groundbreaking. Largely as a result of its success we have seen a frenzy of equal rights and employment rights legislation over the last two decades driven by an increasingly confident equal rights lobby. This has not been without its problems. Laws have to be clearly thought through, and a part of this process requires open and honest debate.

A review of the debates prior to the early laws passing through Parliament (you can access much of the detail from Hansard online) shows that the debate was open and honest. More recently the passage of bills has been marked by a singular lack of debate. I spoke recently to a senior politician about disability legislation who put it very simply: 'disability issues are out of bounds, we can't debate them because it is too politically incorrect for us to do so'. That can lead to bad law. Arguably it has already done so as the DDA has opened up so widely that it can be applied to almost everyone. Everyone wants a 'slice of the cake' and there is only a limited amount to go around.

This comes to a subject close to my heart as an Occupational Physician; the role of OH. We are at the crossroads, or perhaps in the crossfire. The antagonism that surfaces regularly on this forum is a measure of this. We cannot please everyone all the time so we are bound to find ourselves facing conflict from time to time. This is usually over who gets a slice of the cake and how big the slice should be.

While the decision may apparently be very simple, when it comes to mental illness it is not. Mental illness, as suggested above, is not clearly visible. Any diagnosis is based almost entirely on what the patient tells the doctor, and how they behave in front of the doctor. Symptoms are easy to mask or exaggerate. If we do not have some objective measures incorporated into law (the list of eight categories of disability) then the assessment of disability will become meaningless. If someone wants to be considered disabled, they will automatically qualify.

Studies show that 75% of the population will exaggerate or even lie for gain if they think they can get away with it. This suggests that if we widened the criteria for mental health problems, a very high percentage of those claiming support would be lying or exaggerating at the expense of those who were genuine, with NO OBJECTIVE TEST to distinguish the two groups. If we are to be non-judgemental about those with disabilities, should we be non-judgemental about those cheating the system and just allow them to get away with it?

So for Rachel, the greatest problem with increasing support for those with Autism is that many individuals and carers will exaggerate or invent symptoms and signs to get a slice of the cake, and Rachel may find even less support for her genuine needs.

I and Lisa will be stuck in the middle, sticking to objective evidence and having to challenge all subjective evidence, with the inevitable complaints that will follow. It isn't easy, and I feel the pendulum has swung about as far as it can do, and will start swinging back (look at Incapacity Benefit plans). This will not be an easy ride. There should be no one group to blame, just human nature.

Tony

This post has been removed because it contravened our guidelines.

The "reasonable" is always there to be tested as is being done in Baker -V- Quantum Clothes where the appeal found "liability for 'any risk' that would give rise to injury" and not just "reasonably forseeable" as previously held.

Maybe over time in the difficult painful transition from 'sick-note' to 'well-note' it will be accepted that the spectrum of functionality will also include normal or functional so that charactorisation maybe turned on it's head by defining by the degrees of "functionality" instead of or rather than solely descriminating between people by the level or degree of "disability".

Oh boy a moment of lucidity and clarity better have my meds and go lie down.

Some may say that is just a mind-set but until we are truly nonjudgmental and inclusive a society we shall individually continue to measure ourselves against others in order to establish some sense of approval and status in the community to which we believe we belong.

Lisa I agree with Rachel. Once again I think its a case of here we go again with over inflated egos of OH people thinking that what they do is the be all and end all and everyone else follows in line....surprise surprise they DONT!!!

You may tow the line Lisa and well done if you do but so may others fight to have their conditions recognised under the DDA. Believe it or not there are a lot of companies that dont follow the advice of your wonderful occupation when you tell an employer that somebody should be covered by the DDA and that certain reasonable adjustments should take place. We ALL know they should but they dont.

I can point you in the direction of many forums thick with the comments of people suffering from conditions who have not been treated properly. So unfortunately it perhaps is you that is talking about sweeping statements!

Rachel Baxter-As an Occupational Health Manager in a large organisation who deals with individuals' needs who are covered under the DDA on a daily basis and as a person who also has Dyslexia-I think you need to avoid making sweeping statements of who and who may not be covered by the DDA when having a debate.

Promotion of social inclusion and prevention of discrimination are key principles of EC (and UK) law, yet the idea that discrimination may be permissible is surely in opposition.

We've been 'lucky' in that my son fits so many of the 'fashionable' criteria that there was never any doubt as to his rights under existing legislation, at least while he is still a minor. The problem many carers face is convincing the appropriate services that help is needed, particularly for those at the 'milder' end of the autism spectrum. Higher functioning individuals in particular (it sounds like Nigel's friend's son is one of these) may have to fight for years. Perhaps Nigel is already familiar with the scenario of an autistic child placed in a mainstream school that has neither the understanding nor the resources to offer proper support. The problem is compounded by the fact that what support services there are for children are usually separate from Adult Services, and referral is not always automatic. Again, this is where the Autism Act should be able to assist.

Tailored legislation may seem unnecessary, but people with autism require very specific support which is unlike that needed for other disabilities. I'm not convinced broadly drafted discrimination law is a viable alternative - and I also perceive other problems with this idea. Under DDA employers only have a duty to make 'reasonable' adjustment, but even this can be avoided if the adjustment is considered too expensive or not practicable. If the 'disability' criteria were expanded to cover more conditions (and DDA's remit is already large), meaning more requests, I fear employers would more readily make excuses along these lines.

I still like the 'All persons shall be free from unjustified acts of discrimination' approach. I think thats called promoting social inclusion in newspeak. Nigel and Rachel I appreciate the points you both make, but the way the anti discrimination laws are framed have essentially created a hierarchy of fashionable criteria. That remark in no way denigrates the people who are luck enough to be covered, rather reflects sadly that we need to specify groups that have protections rather than ensuring equality, ie that all have protections (except where a justification can be made). Essentially we legislate exclusively rather than inclusively. Dont even start me on legal process, time limits and the disconnect from rights.
Have as good a weekend as is possible in the current circumstances.
Cheers
Dan

Could this be similar to when I did some work for a UK Top 100 Commercial Law firm and told the then Managing Partner that I had to give them top marks, initially, 'for understanding legal limitations or fully consolidated reports and procedures' ?
He understood and appreciated the comment but was put in the unfortunate position of having to explain it to the partners that didn't!

This post has been removed because it contravened our guidelines.

Well you should be as the state does everything it can to avoid providing support services for the socio-economically and psycho-physiologically disabled across the spectrum and whether a member of Scope or any other network all to often the parent is the one experiencing mental health problems as they try to protect their child from the worst affects of systemic failures to support.

Hounded by the Job centre to get a job when already a full-time carer, advocate and/or facilitator and PA as the child grows up past the age of consent when often excluded from the decission making process in which the disabled individual may not be able to fully participate without advocacy.

Being statemented is no protection from systemic failure and the constant battle for funding service that are individual "needs based" and not system "wants" based in order to fit them into some handy pigeon hole.

Too many parent/facilitators are descriminated against by the system and pressumed to be de-frauding the benefits system and should get a job..

My friends son, who was written off by the spanish inquasition age three, has just gained a Masters Degree in Software Engineering and is now working for an educational software company - but Mum has paid a price......

Well said Rachel!

And no, I'm not angry! :)

As a law student, Mum of a child with autism and severe learning difficulties, (and also a company Director) I feel qualified to respond.

As a general point:
It is true the DDA appears woefully inadequate in addressing the needs of those with a mental disability. However, the Act actually defines disability as "a physical or mental impairment which has a substantial and long-term adverse effect on [the] ability to carry out normal day-to-day activities" and specifically includes conditions affecting "continence, speech, memory, ability to concentrate, learn, or understand, or perception of danger". The disability must have existed for at least 12 months and be expected to last for a further 12 months, or be a lifelong condition.

The root of the problem lies in the wider perception of disability as a primarily physical condition - and DDA is often interpreted accordingly, particularly where services are concerned. For example, an 'accessible' bathroom means my son has 'access' to attractive blue cleaning fluid, an easy to reach emergency cord that makes a great noise, and a poorly secured door for easy escape. There has been no s.6 'reasonable adjustment' for his needs!



In response to Nigel's comments:

The Autism Act is far from 'tokenistic tabloid legislation', a comment suggesting you have little understanding of the challenges faced by those with mental disabilities.

It is thought around 70,000 adults have an autistic spectrum disorder and a learning disability, and about twice that number have Asperger syndrome.
61% of adults with autism rely on their family financially and 40% live with their parents. At least 1 in 3 adults with autism are experiencing mental health difficulties due to a lack of support, and 92% of parents are worried about their son’s or daughter’s future when they are no longer able to care for them.

I strongly doubt these findings would be replicated in people with dyslexia, MSDs or ADHD, which may not qualify as disabilities under DDA in any case.

The Autism Act applies ONLY to State bodies such as the NHS, PCTs and local authorities. It is hoped the Act will address the isolation, discrimination and inequality experienced by many adults with autism, by imposing a legal duty on State bodies to provide diagnosis, assessment and support services (including training).

Businesses will continue to be bound by DDA, which also includes associative
discrimination following the ECJ decision in Coleman v Attridge law (2008). As before, employers MAY be able to plead justifiable defence in indirect discrimination; there is no defence to direct discrimination.

I hope this has helped clarify the situation for you.

Soo, doe's this mean that the DDA, Equall Opportunities, Human Rights etc. etc. all meaningless in terms of their affects being resonably foreseeable and reasonably mitigative or preventive in compliance or just accepting tokenistic tabloid legislation to meet with whateveer dot gov spin needed at the time ?

What is the smallest number required to justify it's own legislation ?

What about those that represent 20% of working population ?

Or 58% of DSE operators where 40% debilitated by MSD's ?

Or 10% known or should be known to experience Dyslexia ?

Then, of course, we have ADHD, sorry can't remember number of those, and shed load of others with socio-psychological and/or physiological disabilities.

Sensory / emotional / personality disorders in addition to learning difficulties or whateveeer or perhaps it's just a question of belonging to a club that has the lobbying clout to foster or promote your cause to overcome injustice of inequity ?

It is a sad reflection on the Disability Discrimination Act that it is necessary to create a specific piece of legislation to do for people with autism what the DDA should do for them. Now we need a specific Act for every other disability, since the DDA is clearly not doing its job.