Criticisms of Disability Legislation in the UK

Do you agree that mentally ill and disabled people are the poor relatives of anti-discriminatory thought and practice?

Introduction – Disablism and disability

The introduction of new legislation against discrimination of disabled people in 2005 marks a temporary milestone in the heated debate on appropriate legislative measures.^[1] The last two decades have seen an enormous transformation of anti-discriminatory policy, theoretical and conceptual approach and attempts to solidify these changes in the practices of public life. Arguably the changes have been long overdue, given that antidiscrimination law was hopelessly outdated (1944) and did not reflect the shift in attitudes towards the notions of social justice and inclusion as it affected the relationship between disabled and able-bodied people in society. Whether the most recent proposals for legislative review (2005) redefine the disability agenda in a sufficiently radical manner is debatable. Yet, it seems a shared view in the literature that huge strides have been made towards achieving more equality for disable persons and that the urgency and validity of constant legislative review is recognised by the government.

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This essay explores the extent to which the changes in law, practice and general attitudes of the public reflect sufficiently the needs of disabled people for adequate recognition of their social, economic and domestic needs in modern society. It will focus mainly on the debate that has taken place in the UK following the first significant changes introduced by parliament in 1995 (under the Major government) and leading up to the last round of public consultation under the Blair government. It will look at three distinct but interrelated fields that seem relevant for a comprehensive answer to the question: first, what are the legislative changes and how did they affect the status and societal position of disabled people in Britain. Second, what policies are currently favoured by the government and local authority effectively addressing the problems that originate in widespread discrimination against disabled persons. And third, what are the conceptual difficulties that underlie the legal and practical problems with framing the disability agenda in the UK. The aspects one and three will be discussed in the section below, aspect three will be explored in more detail in the last section of this essay.

Prior to sketching all three fields of inquiry, however, we need to introduce a concept that has informed more recent critical discussion of discrimination and disability. Disablism is supposed to denote a particular constellation of cultural values, forms of personal prejudice and social constraints that result in severe but often unnoticed types of discriminating behaviour. Outlining the structure and content of discrimination therefore would allow us to identify hidden components of the problem that may escape critical consideration. Disablism attempts to redefine the nature of the various barriers that are discriminatory in character but unrecognised since they are part of habitual human conduct. A sociological critique of disablism would enhance out understanding of the underlying patterns of discrimination. Sociologists speak of PCS which stands for the three elements that make up disablist attitudes in public.^[2] Personal prejudice, cultural values and social stratification that originates in disability and the exclusion of disabled people from mainstream public life. Theorists also highlight the complex interaction between concepts of disability and the capitalist economy which emphasises wage labour and the pursuit of profit.^[3] All these various factors act as building blocs for disablism which in turn diminishes the chances of public participation by disabled persons. It fosters an attitude which frames disability as a personal tragedy and de-publicises its impact. Seen as an individual misfortune disablism tends to ignore the social dimension of disability and hence underplays the social and political leverage in alleviating some of the effects of discrimination. It echoes therefore the predominant medical model of disability and rejects any social involvement in rectifying the various instances of discrimination by disabled people.

Law and the concept of disability

Ever since parliament passed the Disability Discrimination Act in 1995, the criticism by academics and practitioners has focused to a large degree on the legal foundations and the conceptual basis of the legislation. Although the literature is fundamentally critical to the implementation of the Act (henceforth DDA) the bulk of the literature deals with the profound conceptual flaws of the law. Since conceptual and legalistic facets go together and combine to detrimental effects, this section of the essay will explore both aspects together rather than separately.

With the ostensible failure of the previous legislation to tackle the problems of discrimination in any consistent fashion, the Major government brought in the new law in 1995 to base anti-discriminatory policies on a updated and more coherent conceptual framework. The shortcomings of this new legislation in the face of numerous challenges for disabled people in modern society however contributed to an almost universal understanding that another consultation process on new legislation was needed and the Blair government anticipates to pass the new DDA this year. The DDA in 1995 marks a significant shift from the original quota requirement to a more regulatory approach which basically emphasises the individual responsibilities of disabled persons in achieving similar status and positions in society. The state acts only as a regulatory body, placing constraints on players in the economic and social domain. This concurs with the broadly liberal theory of society where similar life chances are stressed and any bias against irrelevant aspects of individuals are being removed in considering their abilities to function as social agents. In general, the idea is to minimise subjectivity and standardise any decision-making process. Although the various strategies for intervention take place at different stages in the discriminatory process^[4], legislation focuses on providing the broader framework within which discriminatory behaviour is identified and possibly prosecuted.

Such a liberal notion of individuals and society can accommodate special treatment under certain circumstances for example when equality of opportunity is compromised by the lack of a level playing field. In fact, most of the anti-discrimination legislation of the 1990s has favoured a similar approach and it will be argued later in this essay that such a convergence of approach when dealing with different origins of discrimination is gravely mistaken and enshrines complex conceptual problems into the DDA. (SDA and RRA were drawn up under the Major government and subsequently superseded by more advanced legislation. New legislation on ‘Incitement of racial hatred’ is being debated currently in both houses of parliament. As such the legislative is pretty much in flux).

Let us now look at the problems that the DDA has created for disabled persons in the UK. Practitioners and theorists often locate the main dilemma in what they call the medical model of disability which informs the DDA in its current form. They contrast this medical model with a social model which recognises the social dimension of disability and hence widens the fields of societal responsibilities in combating discrimination considerably. Roulstone remarks:

‘The social construction of when harm occurs is entirely central to discussions about the workings and effectiveness of anti-discrimination legislation.’^[5]

But why is this so? How exactly do the two models differ? Woodhams and Corby outline the problematic nature of the definition of disability in the DDA. The statutory definition identifies somebody as disabled who has

‘a physical or mental impairment which has a substantial and long-term edverse effect on his [sic] ability to carry out normal day-to-day activities.’^[6]

The core problem with this definition extends to three areas. First, it attributes disability to a form of impairment, second, it contrasts disability against a norm of human behaviour which asserts a complete and paradigmatic functioning of body and brain, and third, it articulates a benchmark for validating disability by introducing the notion of substantiality and long-term affliction.^[7] The medical model thus contributes to a certain bias in evaluating the severity of the disability by (a) assuming that disability supposes a lack of ability which spills over into a lack of functioning ‘normally’. It thus presupposes normality as a criterion while failing to define it accurately. The definition enshrines a picture of difference between people who suffer from a disability and those who do not. Impairment becomes tantamount to ‘abnormality’ which is thought to derive from a personal tragedy not to be able to perform certain activities .^[8]

Consequently this medical model asserts (b) the need to assist and help the disabled person and therefore often exacerbates the tendencies for patronising or as Woodhams puts it, ‘the impaired individual remains subservient to the teams of ‘disability experts’ charged with ‘helping’, ‘rectifying’ (pitying and patronising) them.’^[9]

In contrast the social model which some theorists advocate as reflecting more accurately the social dimension of any disability, suggests that the origin of any disability lies in the perception of difference that is prompted by notions of normality. Hence, any anti-discrimination strategy must take into account the cultural values and social construction of normality upon which discriminatory behaviour is built. Woodhams writes:

‘As a result, the territory of ‘correction’ becomes society and the environment, rather than the person with the impairment.’^[10]

Recognising the role of socialisation and perception are central for any serious programme for change. Some theorists even go further and argue that although the social model widens the field of anti-discriminatory policies and correctly acknowledges the responsibility of social attitudes in discrimination against disabled people, it still lacks recognition of another vital element in debasing or derogatory practice. Even the social model, they note, excludes that group of people who may be subject to discriminatory conduct simply because they are being associated with a disabled person or because they are perceived to be disabled.^[11] Additionally, there is a lack to have appreciation for discrimination that ‘may be based on other people’s fears of contracting illness’^[12] such as HIV. In general the DDA fails to acknowledge the varied and complex nature of disabilities and therefore also falls short in grasping the multifaceted character of discriminatory behaviour. Woodhams concludes:

‘Disability…is frequently invisible, indecipherable and unstable.’^[13]

With respect to the way in which the legislator has framed the notion of disability various problems arise. The essay will summarily point to some but will not be able to explore them comprehensively and in detail. The current practice in employment tribunals (henceforth: ET) illustrates some of the crucial shortcomings of the DDA. ET very often lack the expertise to deal with the complex issues that are involved in disability litigation. The small number of cases (only 2% of ET cases deal with infringement of rights by disabled persons) means that there will be no radical change in this situation and ET personnel will for a long time coming still work under conditions of insufficient medical proficiency. Since the DDA clearly locates the burden of proof with the disabled person, claimants often have to procure (frequently heavily contested) medical evidence, a process which is costly and often prohibitive given the divergence of medical assessment and the vagueness of thresholds of ‘impairments’ in defining disability. In effect, it is noted in the literature that a remarkable gap between the legal stipulation and the practical application of the DDA by human resources has already opened up.

Human resources personnel often apply the DDA intuitively and therefore come closer to recognition of impairment than medical experts, consequently undermining the strict and rigorous application of the law.^[14] In practice, it seems also customary to ignore the impact of environmental factors which often contribute to the development and persistence of a disability, while hidden aspects of disabilities are failed to be recognised routinely. Sociologists also point out that the DDA places the claimant in a position where decision-making power is firmly located in the hands of defendants. Successful claims are therefore extremely rare, even when taking into account the number of out of court settlements.

The DDA works with an underdeveloped notion of judicial harm as well as constructs formidable hurdles when it comes to defining the nature and origins of harm. This often diminishes the confidence of claimants to articulate grievances and contributes to the fact that many unseen or contested impairments are underrepresented in claims. Effectively the success rate of disability litigation is very low, ‘not because treatment less favourable is not established, but because specific legal tests are not met.’^[15]

The absence of legal aid in many cases exacerbates the problem for disabled persons who feel their rights have been infringed upon and, consequently many practitioners and theorists propose to introduce a set of prima facie criteria which would make it easier for claimants to get a particular impairment acknowledged. Such a set of criteria would also ensure that an unambiguous acknowledgment of rights and their possible infringement would be easier to obtain in particular cases. The small amount of compensation and the small number of successful cases for such compensation in ET indicates that the DDA still failed to define a clear benchmark for discriminatory behaviour.^[16]

Some sociologists have gone as far as characterising the DDA as being grounded ‘on profoundly social meanings masquerading as pure realms of law.’^[17] We do not need to share this slightly Marxist criticism of the DDA to recognise that the current law is heavily biased against disabled victims of discrimination and rests on incoherent conceptual framework.

Policy and Discrimination

Most policies initiated by the government after the introduction of the DDA in 1995 focuses on the barriers disabled people face in public life and employment. The inbuilt bias of the DDA against disabled persons is exemplified neatly by the underlying motivation for incorporating disabled persons into the competitive labour market. Although participation in the first labour market is as such a desirable intention, it is widely suspected that the government’s motivation to push this agenda forward has more to do with decreasing expenditure than improving the quality of life for disabled people.^[18] It is equally regrettable that for comparative purposes there is still no reliable data on the various groups of disabled people across Europe. The reason why this may be important in the future is that the European Union has, after an initial period of hesitation, become a main driver in anti-discriminatory legislation which has full application in the UK. As the EU becomes a more proactive player in the field and begins to formulate policies that are implemented on a European scale, the conflicts between national and European legislation creates problems.

Hvinden uses the concepts of crowded and vacant policy fields to distinguish between those policy areas that are likely to creatively absorb new legislation from the EU and those that are not. He argues that, in addition to various disability legislation, anti-discrimination policies often have to take into account that victims are subject not simply to singular dimensions of discrimination but that attempts to discriminate against others are often motivated by concepts of normality which rests on multiple aspects of human existence. For example, discrimination against disabled people can carry significant elements of gendered behaviour, which anti-discriminatory practice must recognise to be effective.^[19]

The policy instruments available to European governments differ widely amongst the member states, but there seems to be a sort of convergence emerging when it comes to what Hvinden calls the rights and opportunity discourse.^[20] Although this is something that the DDA failed to appreciate in all its complexity, practitioners have gradually come to understand this dimension as the inevitable core of anti-discriminatory strategy in the field of disability. As the European Commission redefines its role in the fight against discrimination, national governments are gently pushed towards a notion that equal opportunities for disabled people should occupy the heart of any future legislation. While the DDA was still far removed from stipulating full active citizenship and participation in public life as the main objective and following this up with effective policy implementation, the increasing involvement of European lawmakers in this field may exert considerable weight to such an agenda.^[21] Much depends on the future decisions of the European Court of Justice and the articulation of legal competence by this body.^[22]

Conclusion

The DDA was clearly based on a flawed definition of disability, resting it on the medical model which made it difficult for disabled persons to articulate the social dimension of any disability. Policies that were supposed to combat discrimination against disabled people were thus misdirected and neglected the cultural and social component in discriminatory behaviour. Although since 1995, the need for further and more sophisticated legislation is almost universally recognised, the current proposals for consultation must place the social construction of disability at the heart of the debate if it wants to avoid similarly misguided policies and ineffective strategies to combat discrimination.

Bibliography

Bjoern Hvinden. The Uncertain Convergence of Disability Policies in Western Europe, in Social Policy and Administration, Vol. 37, No.6, December 2003, pp.609-624.

Carol Woodhams and Susan Corby. Defining Disability in Theory and Practice: A Critique of the British Disability Discrimination Act 1995, in Journal for Social Policy. Vol. 32, No.2, pp.159-178.

Alan Roulstone. The Legal Road to Rights? Disabling Premises, Obiter Dicta and the Disability Discrimination Act 1995, in Disability and Society, Vol. 18, No.2, 2003, pp.117-131.

Liz Sayce. Beyond Good Intentions. Making Anti-Discrimination Strategies Work, in Disability and Society. Vol.18, No.5, August 2003, pp.625-642.

Neil Thompson. Anti-Discriminatory Practice. Second Edition. Basingstoke: MacMillan 1997.

Rights of People with Intellectual Disabilities. Access to Education and Employment. Monitoring Report United Kingdom. Budapest: Open Society Institute 2005.

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Footnotes

^[1] For an overview of legislation cf. Rights of People with Intellectual Disabilities. Access to Education and Employment. Monitoring Report United Kingdom. Budapest: Open Society Institute 2005, pp.51-58.

^[2] Neil Thompson. Anti-Discriminatory Practice. Second Edition. Basingstoke: MacMillan 1997, p.107-109.

^[3] Thompson, Practice, p.108.

^[4] Liz Sayce. Beyond Good Intentions. Making Anti-Discrimination Strategies Work, in Disability and Society. Vol.18, No.5, August 2003, p.633.

^[5] Alan Roulstone. The Legal Road to Rights? Disabling Premises, Obiter Dicta and the Disability Discrimination Act 1995, in Disability and Society, Vol. 18, No.2, 2003, p.122.

^[6] quoted in Carol Woodhams and Susan Corby. Defining Disability in Theory and Practice: A Critique of the British Disability Discrimination Act 1995, in Journal for Social Policy. Vol. 32, No.2, p.163.

^[7] Woodhams, Defining Disability, p.163.

^[8] Woodhams, Defining Disability, p. 164

^[9] Woodhams, Defining Disability, p.164.

^[10] Woodhams, Defining Disability, p.164.

^[11] Woodhams, Defining Disability, p.164.

^[12] Woodhams, Defining Disability, p.165.

^[13] Woodhams, Defining Disability, p.165.

^[14] Woodhams, Defining Disability, p.168.

^[15] Roulstone, Legal Road, p.124.

^[16] Roulstone, Legal Road, p.126.

^[17] Roulstone, Legal Road, p.129.

^[18] Bjoern Hvinden. The Uncertain Convergence of Disability Policies in Western Europe, in Social Policy and Administration, Vol. 37, No.6, December 2003, p.616.

^[19] Hvinden, Convergence, p. 612.

^[20] Hvinden, Convergence, pp.617-618.

^[21] Hvinden, Convergence, p.620.

^[22] Hvinden, Convergence, p.624.