Appendix C

Outline principles of a disabilities act

The Commission gave consideration to the problem of discrimination in Irish society against people with disabilities. It came to a very specific and definite conclusion namely:

Specific legislation will be required to effectively eradicate discrimination against people with disabilities.

In the context of the Commission's conclusions a person with a disability means:

  • A person with a physical, mental, intellectual, emotional or sensory impairment and who, due to a lack of receptiveness and adaptability in existing social structures and otherwise, encounters obstacles to participation on equal and equally effective terms with all others in all aspects of the life of the community

Or

  • A person with a record of such impairment

Or

  • A person who is so regarded by third parties.

The term also includes:

  • A person who has such an impairment but whose condition is controlled by medication
  • Persons who are substance abusers, but who are currently enrolled in rehabilitation programmes.

"Discrimination" means any distinction, exclusion, restriction or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of rights, liberties, and privileges of the person concerned including the provision of different or separate services to persons with disabilities unless such provision is absolutely necessary to provide such person with services that are as effective as those provided to others.

Discrimination also refers to indirect discrimination which includes requiring a person with a disability to comply with a condition or a requirement

  • With which a substantially higher proportion of persons without the disability comply or are able to comply
  • Is not reasonable in all circumstances and
  • Is one with which the aggrieved person does not or is not able to comply.

The Commission identified five main areas in which discrimination was manifest or where it quite frequently occurred. Those areas were:

  1. The provision of services to the public by Departments of State, Statutory Local Authorities, Statutory Boards, semi-state companies, other State agencies and delegated agents.
  2. Private amenities including commercial, leisure and sporting concerns (whether operated by individuals or corporate bodies) which offer services to the public at large.
  3. Insurance and assurance companies which offer to provide insurance and assurance facilities to members of the public.
  4. The employer/employee relationship.
  5. Education and the provision of educational opportunities.

In relation to these five areas and others the Commission goal is:

  • To see discrimination against any person with a disability outlawed.
  • To see in place an effective sanction for those who are in breach of antidiscrimination legislation.

Discrimination by departments of state, statutory or local authorities, statutory boards, semi-state companies and other state agencies/bodies providing services to the public, including people with disabilities

These bodies provide services to the public, including people with disabilities, over a wide range of activities. These activities include:

  • The need to visit offices or premises of such bodies in relation to private and commercial affairs
  • The use of telecommunication services
  • The use of public transport, access to health clinics or the offices of various social welfare agencies and other public amenities such as beaches and parks
  • The exercising of the right to use the services provided by the civil and criminal courts and other relevant administrative bodies for ventilating or defending rights or privileges.
  • Participating in the administration of justice by acting on juries
  • Exercising their franchise in local, national and European elections.

The Commission has found that discrimination has arisen from the failure of such bodies to make reasonable accommodation in the provision of their services, to ensure that a person with a disability could make use of or participate in and enjoy the benefits of such services. For example, there is little point, as far as a person with a disability is concerned, in having a public telephone service provided which he or she cannot use by reason of it being above the height to which he/she can reach or in a telephone box which they cannot enter or which, by reason of their disability, has inadequate facilities to enable them to use it. There is also little point in a person with a disability going to a health centre which, by reason of his or her particular disability, they cannot enter because of the physical approach and access. There is also a failure in providing persons with sensory impairments with information in appropriate forms.

To put it very simply, the Commission sees a need to make all services accessible and usable by persons with disabilities.

The Commission would wish to see the authorities concerned:

  • Carry out a self evaluation of the quality and status of existing services within a period of two years from the commencement of a Disability Discrimination Act. Such evaluation should be based on compliance with guidelines prescribed by such Act.
  • Carry out modifications necessary to comply with the said guidelines within a clear cut statutory timescale.
  • Conduct audits at regular intervals to ensure continued compliance with the guidelines prescribed by statute.

The Commission also wishes to ensure that failure to comply with the guidelines should give rise to the sanctions prescribed by the Act and that the sanctions be such as to maximise compliance with the law.

Discrimination by private amenities

The Commission found major areas of discrimination in the private commercial world. These amenities include:

  • Hotels, motels and places of lodging
  • Establishments serving food and drink including restaurants, bars and fast-food outlets
  • Places of exhibition, entertainment including theatres, cinemas, concert halls and sports stadiums
  • Places of public gathering including auditoriums and conference centres
  • Retail establishments including shopping centres, department stores, shops and grocery stores
  • Services including automatic teller machines, offices of physicians, pharmacies, banks, insurance offices, petrol stations
  • Places of public display such as art galleries
  • Places of private education including pre-schools, colleges and other learning centres
  • Places of recreation including bowling alleys, private commercial beaches and the like
  • Places of exercise including gymnasiums and fitness centres.
  • Places of worship.

The Commission is of the view that it is necessary by statutory provision to require the proprietors of such establishments and services to make them user friendly to persons with disabilities with a result that they are, to the maximum extent feasible, readily accessible to and by persons with disabilities. Again the Commission would wish to see this state of affairs achieved within a timescale and in accordance with guidelines established under the Discrimination Act.

Insurance and assurance - providing insurance and assurance to the public

The third area in which the Commission identified discrimination was in relation to the terms in which insurance and assurance cover is provided to persons with disabilities. In the view of the Commission no person or company providing insurance/assurance should be entitled to refuse cover outright or effectively outright to any person or class of persons, on the basis of disability. The mere existence of disability should not be a ground to require premiums in excess of those required from other members of the public where the same or like cover is required. In the view of the Commission cover for specific disabilities and in relation to specific benefits may be excluded or provided at a higher charge if the party providing insurance cover can establish that such exclusion, higher charge or limitation is

  • Based on sound and current actuarial data or
  • Necessary for the realisation of the fair and reasonable rate of return on investment by the party providing insurance.

Subject to the foregoing provisions, insurers should be obliged by law to deal with people with disabilities on the same basis as other members of the community.

Discrimination in relation to contracts and terms of employment

In the Commission's view where a person with a disability can, with or without reasonable accommodation, perform the essential functions of the job, or such person holds or desires to hold it, it should be unlawful to discriminate against that person either

  • When a person applies for a job or
  • In relation to promotion within employment or other terms and conditions.

The "essential functions" of any given job means the fundamental job/duties of the employment/position which the person with a disability holds or seeks to hold. The term does not include the marginal functions of the position.

The Commission would see any pre-selection system which is adapted to screening out persons with disabilities or tests likely to render people with disabilities ineligible (whether for appointment or for promotion) in a job as discrimination.

The Commission would see it as reasonable accommodation to

  • Allow a qualified employee with disability to bring and use his own aid, assistive devices, guide dogs, hearing assistance dogs or other trained animals on the job
  • Provide such ancillary aids and services as may be reasonable and necessary to facilitate the employee with disability in performing the essential functions of the job
  • Move all physical barriers so that any relevant work space is readily accessible to and usable by the person with a disability. The Commission would see it appropriate that within a period of time from the date of commencement of the Act an appropriate authority should prescribe, after due consultation with employer organisations, standards of good practice.

The Commission considers that there should be ready access to a rights officer with a right to appeal to a tribunal and to the circuit or high court on the lines of the procedures which apply to the Employment Appeals Tribunal and its ancillary services. It should be possible to extend the jurisdiction of the Employment Appeals Tribunal to cover discrimination against people with disabilities. This system is a simple, prompt and effective remedy. It could be adapted for the purpose envisaged in this situation.

Education and educational opportunities

The Commission believes that all children and adults with disabilities have an equal right to education and related services as all others. In this context related services means any service which is necessary to allow access to education and includes:

  • Speech and occupational therapy
  • Physical education
  • Support and counselling for parents
  • Psychological support
  • Technical aids and supports
  • Communications support
  • School transport, including escort where necessary
  • Classroom assistants
  • Resource and remedial teaching
  • Personal assistants.

It shall be presumed that all children with disabilities shall be placed in mainstream schools and within mainstream classes of such schools unless the parents or guardians request otherwise or unless it can be shown that such placement is inappropriate.

All decisions on placement shall be taken by the school authorities concerned together with the child's parents or guardians, all relevant independent professionals and the child himself or herself wherever appropriate.

The onus of proof for showing that placement, or continued placement, in mainstream schools and classes is inappropriate rests with the school authorities concerned. This presumption may only be rebutted by adducing clear and concrete evidence that either

  • Such placement would be impossible due to the kind and quantum of related
  • Services needed and after making all reasonable efforts to obtain technical assistance and advice from all relevant State, semi-State and private agencies, or
  • Such placement would not be in the best educational interests of the child concerned and that such has been independently verified, or
  • Such placement would objectively hinder the advancement of the educational needs and rights of the other children in the class and where no reasonable arrangements can be found after all due enquiries to meet them.

Examples of discriminatory behaviour would in the opinion of the Commission include the following:

  • Insisting on conditions for entry and participation that generally apply but which cannot be met by the child in question and for which he/she should not reasonably be expected to comply
  • The imposition of conditions for entry and participation which do not ordinarily apply and which cannot be objectively justified
  • Failing to admit the physical presence and use of the child's technical aids and assistive devices including guide dogs, hearing assistance dogs and other trained animals
  • Failing to provide such ancillary aids and services as are reasonable and may be necessary and appropriate to ensure that the child concerned can benefit from the full range of educational opportunities as are available to others
  • Failing to remove architectural barriers where such are readily removable
  • Failing to adequately involve the parents in all discussions affecting entry, placement, suspension, dismissal as well as in the formulation, review and revision (if any) of the individual education plan in relation to the child
  • Failing to provide related services where such are necessary to enable the child to enjoy meaningful education.

The Commission gave consideration to the mode and manner in which such legislation would be enforced.

The Commission takes the view that the complaints procedure should be simple and accessible and made known to all parents. In default of an appropriate response the Minister for Equality and Law Reform or his successor should have a statutory obligation, after all conciliatory efforts have proved negative, to take proceedings against the Department of Education for an order of mandamus to provide a suitable educational plan in respect of the child concerned.

Finally, where a Department, Statutory Authority, Local Authority, semi-state body, individual or corporate entity is required to carry out some act or activity in a given timescale prescribed in the statute aimed at eliminating an area of discrimination the purpose of any sanction to obey the law must be positive. It must be aimed at getting the act required to be in fact carried out and not merely to penalise the offending party. An appropriate range of remedies should be provided within the statute including the right to apply to the High Court for an order of mandamus.