1. The disability equality duty

2. Introduction
The Disability Discrimination Act 2005 amended the
Disability Discrimination Act 1995 (the DDA) by introducing
a new duty - the ‘disability equality duty’ - into the Act.
It is supposed to ensure that organisations which are
‘public authorities’ incorporate disability equality into all
they do.
The disability equality duty has two parts: the ‘general’
duty and the ‘specific’ duty (or specific duties).
We start with the general duty.

3. What is the general disability equality duty?
Section 49A of the DDA sets out the general duty.
It says public authorities must, when carrying out their
functions, have due regard in relation to disabled people
to the need to:
 eliminate discrimination against them that is unlawful
under the Act
 eliminate harassment that is related to their disability
 promote positive attitudes towards disabled people
 promote equality of opportunity for disabled people
 encourage their participation in public life
 take steps to meet disabled people’s needs, even if this
requires more favourable treatment.

4. What are the specific duties?
The DDA also gives the Secretary of State the power to
introduce regulations containing more specific duties to
ensure that public authorities meet their general duty.
These ‘specific duties’ are set out in the Disability
Discrimination (Public Authorities) (Statutory Duty)
Regulations 2005 (SI 2005 No. 2966) – for England and
Wales.
The content of the specific duties is essentially a
requirement to produce a class of document - a ‘Disability
Equality Scheme’.

5. What organisations are subject to the duties?
There is no list of organisations which are subject to the
general duty. Rather it applies to any organisation which
falls within the DDA’s definition of a ‘public authority’. The
definition follows that in the Human Rights Act 1998.
The specific duties on the other hand, apply only to
organisations which are listed in the regulations.

6. What does the definition of a public authority
include?
For the purpose of deciding whether the general duty
applies, a ‘public authority’ includes:
• government departments, executive agencies, and
ministers
• local authorities
• governing bodies of colleges and universities and
schools, NHS trusts and boards
• police and fire authorities
• the CPS and Crown Office inspection and audit bodies
• certain publicly-funded museums.
In addition the definition includes private organisations
in so far as they carry out public functions

7. When did the disability equality duty come into
force?
• The general duty came into force on 4 December
2006.
• As to the specific duties, most public authorities
subject to them had to publish their Disability Equality
Schemes by 4 December 2006 (schools had a little
longer).

8. What does having ‘due regard’ to the general duty
mean?
The general duty requires public authorities to have ‘due
regard’ to the six parts of the general duty.
What is ‘due regard’ is hard to say, but it depends on two
things: proportionality and relevance.
‘Proportionality’ involves balancing how much benefit will
flow to disabled people from changing a policy or function
against other considerations.
‘Relevance’ is the extent to which the policy or function has
an impact on disabled people.

9. What exactly do the specific duties require?
The specific duties require those public authorities listed in
the regulations to:
• publish a Disability Equality Scheme
• involve disabled people in the development of
this scheme
• review the scheme every three years.

10. What goes into a Disability Equality Scheme
document?
The scheme should include a statement of:
• how disabled people have been involved in developing it
• the steps the authority will take to fulfil its general duty
(the action plan)
• the arrangements made for gathering information about
its performance on disability equality
• the arrangements made for assessing and improving the
impact of its activities on disability equality (impact
assessments)
• the arrangements for using gathered information in
evaluating its action plan and preparing future schemes.

11. Is a Disability Equality Scheme just a piece of
paper?
Perhaps in practice, a lot of the time. But note that a
public authority must also:
• take the steps set out in its action plan
• put into effect its arrangements for gathering and
making use of information
and …
• publish an annual report on its scheme! This report
should say what it has done to involve disabled people in
developing the scheme, the result of its information
gathering, and the use it has made of the information
gathered.

12. Can the disability equality duty be enforced?
• The general duty can be ‘enforced’ against a public
authority by an application for judicial review as would
apply for breach of any other statutory duty.
• The specific duties can be enforced by the Commission
for Human Rights and Equality, which can issue a
compliance notice requiring a public authority to meet its
specific duties and to tell the Commission what it is
doing to comply with them. The notice can also request
information regarding the authority’s performance and
can be enforced in the county court.

13. How can lawyers acting for disabled people use
the duty?
Firstly, to gather evidence.
Lawyers bringing a claim for discrimination against a public
authority could ask for a copy of its Disability Equality
Scheme either by means of a questionnaire or as part of
disclosure in court or tribunal proceedings.
The objective would be to show that the authority has not
complied in some way with its own scheme for ensuring
disability equality.
Additionally disclosure might be sought of evidence derived
from the public authority’s own information gathering
carried pursuant to its specific duties, which might reveal
patterns of disadvantage amongst disabled groups.

14. How can lawyers acting for disabled people use
the duty?
Secondly, to challenge legislation and policy decisions.
In the area of public law, the duty might be cited to
challenge potentially discriminatory legislation. See the
case involving the similar duty in relation to race of Elias v
Secretary of State [IRLR] 2005 788.
In relation to local government, claims against a local
authority for a breach of statutory duty to assist a disabled
person in the home may involve showing a failure to
promote disability equality - and thus a breach of the
disability equality duty as well as of duties under the NHS
and Community Care Act 1990.

15. This concludes your presentation
Thank you for the attention