The Disability Equality Duty.

I've had some concerns about how the Disability Equality Duty applies to those private/independent/voluntary organisations which statutory authorities (county councils etc) buy in to perform their social and healthcare functions, i.e. private care homes, foster care, domestic help (what used to be home help), drop in centres, substance misuse agencies, day care, etc. etc.

The Disability Equality Duty is a part of the Disability Discrimination Act 2005 which required all statutory bodies to publish a Disability Equality Scheme by December 2006. All service users should obtain a copy of these very important documents (downloadable from county council, PCT websites etc or available in hard copy on request). Those statutory organisations failing to observe the DED can be held legally to account by the Disabilty Rights Commission and, now we have some clarification, I suggest those private/independent/voluntary bodies in breach should be reported to their commissioning body (i.e. the statutory organisation they are under contract to).

Remember, crucially, the Disability Discrimination Act now applies to the majority of people with mental health problems too.

I sent this mail to the Disability Rights Commission today:

Hello.

At the end of July you kindly let me have the advice copied below at the end of this mail.

I have been doing some local (Norfolk) research and I thought it might be helpful to share it with you. Looking at the DED/DES accountability of private/independent/voluntary bodies commissioned by statutory authorities to perform social/healthcare functions, I looked at three main statutory commissioners here: Norfolk Police Authority/Constabulary; Norfolk Primary Care Trust and Norffolk County Council. I now have responses from all of them:

Norfolk Police Authority: The Authority has an existing 31 page Procurement and Disability Equality Duty document, an extract from which says: `Where a contractor is carrying out a public function of behalf of the NPA, the legal liability for the duty in relation to that function remains ours. This means that we will need to build relevant disability equality considerations into the procurement process, to ensure that all the functions meet the requirements of the statutory duty, regardless of who is carrying them out.`

Norfolk PCT: I asked the PCT about their DED commissioning policy and, quite quickly, had this response: `Dear Mike

This is to report that I have updated the DES to incorporate a section on commissioning/procurement.

This was ratified by our equalities steering group earlier this week and it has been incorporated in our scheme (see pages 8 and 13 in attached for your information). This will be published on the website in the next few days.

I am aware that this is a little hasty, so I am discussing this with the commissioners to make them aware and as part of our longer term plans will be reviewing this more thoroughly as part of our single equalities scheme that we are about to start work on…

The paragraph they inserted into their DES is:

`Commissioning and Procurement

Commissioning healthcare services is an inherent part of the day-to-day functions of the PCT and as such, ensuring that the commissioning process meets the Pact’s Disability Equality Duty will often go a long way to ensuring the whole organisation meets its duties.

IMPORTANT; When the PCT commissions another organisation to undertake a function on its behalf, then the commissioned body will attract its own responsibility to meet the general duty in relation to carrying out the public function. This will be the case, even if the commissioned body is not otherwise a public authority, but is, for example, a voluntary organisation or private company. Where a commissioned body is not undertaking a function of the public authority, but merely providing a service, the obligation to comply with the duty in relation to the function remains with the public authority that commissions the function.`

Norfolk CC: It took quite a time and an eventual FoI request for the CC to even acknowledge my query. However, at the end of last week I had a very helpful and knowledgeable phone call from Jo Richardson who said she was new to Norfolk CC. She followed the phone call with this mail:

`Many thanks for your email, and for raising such an important issue. Norfolk County Council is committed to promoting equality through its role as a service provider, employer and commissioner of services, and it is always helpful to clarify our role and responsibilities in this area.

As you so rightly mention, organisations commissioned by the County Council to provide services on its behalf are required by law to comply with a wide range of legislation. Depending on the nature of the contract this may include the Disability Discrimination Act and the Disability Equality duty. However, as we discussed just now on the telephone, the precise responsibilities of a contracted organisation in meeting disability-related legislation will depend on how relevant the legislation is to the contract.

The roles and responsibilities of the Council and organisations delivering services on its behalf are set out in our Procurement Strategy. In addition, County Council contracts contain a standard condition of contract specifying that "...Goods or Services ... must comply with any legislation and any standard required by any applicable European and British standards specification or code of practice current at the date of the contract." Contractors are also expected to observe the County Council's overall commitment to equality and its policies in this area.

It might be helpful to note that although the Disability Equality Scheme is an important element of the Disability Equality Duty, it is essentially a document owned by the local authority in question, and local residents. This is because it is the product of work with disabled people across the county, and sets out the improvements they have advised need to take place to improve access to services and information. Consequently, organisations carrying out services on behalf of the County Council are unlikely to have a role in delivering the Scheme, unless for some reason they are named in the action plan. Therefore, although the Disability Equality Duty may be highly relevant to their operation and practice, the Disability Equality Scheme is less so.

I think however, you make a very important point about the need for clarity around this issue. One way in which to address this would be to include a section on procurement in the Disability Equality Scheme. The County Council's Disability Equality Scheme will be reviewed in the autumn of this year, so if you are happy for me to do so I shall keep a formal record of your comments and ensure they are fed into the review process. In addition, if you are interested in being involved more closely in the review of the Scheme to help us to improve it further, I can keep you updated on planning and consultation events later in the year.

I hope this answers your question. If you have any further questions, or if there is any other information you would like me to provide, please do not hesitate to contact me.

Very best regards

Jo Richardson

Interim Corporate Equality & Diversity Manager
Norfolk County Council`

As you can see there are slight differences in interpretation of responsibility here and while I find the responses from all three very helpful, there surely needs to be national clarification on DED accountability nationwide. As just a small sample as Norfolk PCT and Norfolk CC had not thought originally to include commissioning responsibilities in their DESs, how many other statutory bodies have not taken account of this?

Heddwch

Mike.

Mike Llywelyn Cox
micoxcox@btinternet.com
http://www.ppeyes.org.uk
http://micoxpplog.blogspot.com
A http://www.solnetwork.org.uk member.


On 24 Jul 2007, at 11:44, DRC Team wrote:


Dear Mr Llywelyn-Cox

Thank you for contacting the Disability Rights Commission (DRC) Helpline regarding the Disability Equality Duty and independent bodies' contracted to work by public bodies.

May I apologise for the delayed response; this is due to the high level of demand for the Helpline's services.

The DRC can give advice on the Disability Discrimination Act (DDA) 1995.

To confirm the duty; if a public body or public authority contracts out work to a private sector organisation or an independent contractor then that organisation is likely (when conducting its contractual work supplied by the public authority) to have general duties under the Disability Equality Duty.

It is difficult to understand what you mean by increasing evidence that non compliance with the DED is apparent to you as no specific incidents have been identified.

Please also remember that, if you are accessing the service as a disabled individual you are protected by the Disability Discrimination Act (DDA) duties. The DED does not give you individual rights to complain under whereas the DDA does.

What I mean by this is, if the incident is highlight to be a DDA issue then there may be more scope for you to complain using your individual rights under the Act.

Details of a specific incident would be appreciated so we can advise you correctly on this issue.

Please note that the DRC can provide publications in alternative formats, i.e., Braille, audio, diskette, etc; and ethnic languages. To order or view a DRC publication please contact the Helpline or order online using this link:

http://www.drc.org.uk/library/publications.aspx

I hope this information is useful, however, please do not hesitate to contact the Helpline once again if you have any further questions or queries quoting your reference number above.


Kind Regards,

Andrew Goldsby
Advisor
DRC Helpline

I'm convinced, as part of a concerted approach,this issue should be tied in to that of how the Human Rights Act applies to private/independent/voluntary healthcare resources.