The laws against disability discrimination
There are two laws that seek to promote equality of opportunity for people with disabilities people by banning disability discrimination and which give enforceable legal rights to people with disabilities. They are:
- Disability Discrimination Act 1995
- Special Educational Needs & Disability (NI) Order 2005
Disability Discrimination Act 1995 (DDA)
This is the main disability discrimination law. It bans disability discrimination by employers against disabled job-seekers and employees and by service providers against disabled service-users.
It is most notable for imposing a duty on employers and service providers to make reasonable adjustments for people with disabilities to help them to overcome barriers that they may face in gaining and remaining in employment and in accessing and using goods and services. The main activities covered by the DDA are:
- employment, including access to employment
- access to and use of goods, facilities and services, including access to public buildings, shops and leisure facilities and to healthcare, housing and transport
- certain other functions carried out by public bodies, such as policing and issuing licences
- membership of private clubs and use of their facilities
You can find out more about your DDA rights in different areas of life, including accessing and using the services of shops, cafés and banks from the following pages:
The Equality Commission for Northern Ireland website also has information on disability discrimination.
- Work related disability problems - Equality Commission NI website
- Service related disability problems - Equality Commission NI website
Special Education Needs & Disability (NI) Order 2005 (SENDO)
The DDA does not apply to the provision of education in schools, colleges and universities. Instead, disability discrimination about to those matters is banned by a different law; the Special Educational Needs and Disability (NI) Order 2005, or SENDO.
Like the DDA, SENDO also means that the owners, governors and managers of schools, colleges and universities have to to make reasonable adjustments for disabled children and adults. This will help them to overcome barriers that they may face in gaining access to a particular institution, and in completing their courses of study there. The law also bans disability discrimination by certain qualification awarding bodies.
You can find out more information about you and your children’s SENDO rights from the following page:
Getting a copy of the law
The Act is published on the legislation.gov.uk website:
- Disability Discrimination Act 1995 - legislation.gov.uk website
- Special Educational Needs & Disability (NI) Order 2005 - legislation.gov.uk website
Print versions of the legislation are published by the Stationery Office (TSO) and can be bought. The ISBN number is 0105450952 for the 1995 Act and ISBN 0110800206 for the 2006 Order.
Definition of 'disability'
The law defines the terms 'disability' and 'disabled person' in a special way and a person will benefit from the law only if he or she satisfies that definition. The same definition is used in both the DDA and SENDO.
Not all people who are ill or injured or who have an impairment of some sort will qualify.
The following is only a short and incomplete guide to how this question is to be answered.
Impairments that definitely are qualifying disabilities
Cancer, multiple sclerosis and HIV infection are deemed to be qualifying disabilities from the point in time that a person develops one or other of them.
It does not matter how long a person has the condition or how serious it is at any particular point in time.
Impairments that definitely are not qualifying disabilities
A small number of impairments are deemed by the law not to be qualifying disabilities. These are:
- visual impairments that can be corrected with eye glasses or contact lenses
- hay fever
- addiction to alcohol or nicotine or drugs (except for properly prescribed medications)
- a tendency to steal, or to set fires, or to physically or sexually abuse others
- voyeurism and exhibitionism
All other impairments
For all other impairments, the answer is not as clear cut. There is no official list that specifies whether any other impairment is or is not a qualifying disability. So to decide whether a particular person has a qualifying disability means making an assessment about the length of time and severity of his or her particular impairment and about how it affects his or her daily life.
The relevant test is as follows:
- it must be a physical or mental impairment that has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities
- 'long term' for this purpose means that the substantial adverse effects of the impairment must have lasted, or be likely to last, for at least 12 months
- 'normal day-to-day activities' are simply the things that people generally do on a daily basis, for example walking to a bus stop, shopping, doing the housework, speaking on a telephone or reading a newspaper
Some people will have impairments that obviously satisfy this test, for example, a person who needs a wheelchair to move about or a person who is totally blind or profoundly deaf is clearly a disabled person.
In many other cases it will be less obvious and a person, such as an employer or service provider, may have to make an own assessment based on medical or other expert reports.
Remember, the definition of 'disability' does not only apply to physical impairments. The definition itself notes that mental health impairments are also covered.
Also, both case law and governmental guidance have noted that a wide range of learning disabilities are also covered, including impairments like autism and dyslexia.
The essential test is concerned with the length of time of the impairment and the severity of its impact on a person’s ability to carry out normal day-to-day activities.
Remember, this short guide to the 'disability' definition is incomplete. A fuller description would also note some special rules that apply to impairments that consist of severe disfigurements, progressive conditions (other than cancer, multiple sclerosis and HIV infection) and conditions whose adverse affects fluctuate in severity. It would also note special rules about past disabilities and the effects of medical treatment and some other issues.
Guidance and codes of practice
The government has published statutory guidance, primarily to help adjudicating bodies like courts and tribunals in deciding whether a person has disabilities for the purposes of the DDA.
Help from the Equality Commission for NI
The Equality Commission can provide free and confidential advice to people who believe they have been discriminated against because of their disability. It also provides free general advice to employers and service providers on recommended good practice under the DDA and SENDO.
Public sector disability equality and disability duties
Most public authorities that operate in Northern Ireland, including all departments of the NI Executive, all health and social care trusts, the Housing Executive and all housing associations, all local councils, the Education Authority and the Police Service of NI are, in addition to the general rules against subjecting people with disabilities to disability discrimination, under two other duties which seek to promote equality of opportunity for people with disabilities, amongst others.
Section 75, Northern Ireland Act 1998 and Section 49A, Disability Discrimination Act 1995
Section 75, Northern Ireland Act 1998 and Section 49A, Disability Discrimination Act 1995, as they apply to the subject of disability, require public authorities to have due regard to three particular goals:
- to promote equality of opportunity between people with a disability and people without (Section 75)
- to promote positive attitudes towards people with a disability (Section 49A)
- to encourage the participation of people with a disability in public life (Section 49A)
This means that when carrying out their functions, such as when making decisions and policies and in setting their priorities, public authorities must give serious consideration to these three goals and to consider taking suitable action to achieving them.
In addition to these main duties, each public authority is also required to have a Section 75 'equality scheme' and a Section 49A plan (commonly called a 'disability action plan').
These documents outline the arrangements that each public authority proposes to follow in order to help them meet the main Section 75 and Section 49A duties.
The arrangements outline how and when public authorities will carry out important procedures like equality impact assessments and consultations. They also outline each public authority’s arrangements for training their staff to make sure they are aware of their duties and each public authority’s complaints procedure for dealing with complaints about alleged breaches of the duties.
Finding out more about the Disability Equality Duty and Section 75 equality duty
The Equality Commission for Northern Ireland (ECNI) has responsibility for enforcing these duties. It can investigate alleged breaches of duties.
You can find information about ECNI’s approach to enforcement and further detailed information on these processes on its website:
- Section 75 - the statutory duties - Equality Commission NI website
- Disability duties on Public Authorities - Equality Commission NI website