Section 242 and the Disability Equality Duty – Making a Happy Marriage

We do not get many comments on the blog so we were delighted when Michelle Valentine, the author of the piece that follows, was sufficiently interested by an entry that Andrew Craig wrote in March on complying with Section 242 to note in our comment box “This new duty could be quite a powerful lever for disabled people, and it will be interesting to see how this duty will be implemented alongside the duties imposed by the DDA 2005 to involve disabled people. I would welcome a discussion about this.” This was rather unwise of Michelle because of course we immediately invited her to kick off such a discussion. Her article follows.

Michelle has her own consultancy Disability Forward Ltd and we know her from her work with the BSI Consumer and Public Interest Network. You can reach her at michelle@disabilityfwd.co.uk

Section 242 is shorthand for the general legal duty on the NHS to consult and involve service users in everything to do with planning, provision and delivery of services, which has applied since 1st April this year. The Disability Equality Duty, which applied to all public bodies including the NHS from December 2006, requires it to pay due regard to the need to:

  • Eliminate unlawful discrimination;
  • Promote equal opportunities;
  • Eliminate disability related harassment;
  • Promote positive attitudes towards disabled persons;
  • Take steps to take account of disadvantage experienced by disabled people even where this involves treating them more favourably
  • Encourage participation by disabled persons in public life;

NHS bodies also have to meet the specific duty which requires them to:

  • Develop, publish, and monitor progress against a disability equality scheme
  • Involve disabled people in the development and evaluation of schemes
  • Produce single equality schemes but they MUST show how they meet the DED specifically

The two most important aspects of the Duty which should dovetail with the Section 242 obligations are the need to take a strategic approach which addresses the causes of inequality and lack of access to services at a macro level, using the social model of disability, and the duty to effectively involve disabled people in policy scoping and policy decision making as well as monitoring policy implementation at the coal face.

So, taking a strategic approach that uses the social model of disability, what does that mean here? Let me use an example in relation to social services, An individual complains that the accessible lift fitted in their home by social services has been working intermittently for several months. Another individual complains that they have not used the equipment provided to them by social services because they ‘manage as they are’.

Firstly what’s the link between these two cases? To answer this NHS bodies need to go back to their procurement strategy and your contract processes for equipment and adaptations for older and disabled people and ask:

  1. Has the procurement strategy effectively involved disabled people and industry representatives?
  2. How has their input influenced the strategy?
  3. Has the strategy been equality impact assessed, properly?
  4. Have the contract arrangements ensured that there is a proactive and effective equipment maintenance process which does not rely on the disabled person dealing with lots of different companies?
  5. Is there ongoing support for people who have equipment provided, but may be fearful or reluctant to use it without ongoing support and advice from someone, or may have felt that they were given something that they didn’t want and weren’t given what they did want?

But what about the social model of disability? Some readers may not have heard of this so I will put it in very crude terms. There are basically two ways of understanding how disabled people are viewed by society. The medical model basically means that society sees disabled people as the problem because we have ‘something wrong with us’ and who need medical and other interventions to make us more like non-disabled people, i.e. more ‘normal’. However, those who operate within the medical model and the NHS is really still doing this, will focus on the disabled person as the one that needs help and assistance. The social model turns this on its head and states that it’s society which is the problem, because it has not designed itself to include disabled people, whether in terms of the physical built environment or in terms of employment, services or any aspect of civil life. So the focus for change is on organisations, employers, service providers, government etc. Of course, reality is never so clear cut. As a visually impaired person I carry a symbol (white) cane so that others are aware I cannot see well, and I also have adaptive technology to make computer use much easier. I wouldn’t be without these, any more than a person with Diabetes would be without their insulin, but I still expect employers and service providers to meet their legal duties and involve us to enable them to make sensible decisions about how to improve things.

So to go back to the faulty lift and the unused equipment, it would be tempting for the authority to see both cases as unconnected and related to those individuals, but if they answered the questions above and got a no, or a ‘we can’t evidence that one way or another, or it’s supposed to happen but we are not sure it does’ then how can they say the problem is related to that individual?

A much better understanding of what a strategic and thorough approach to equality really means has to be developed in Section 242 and the Duty are going to be effective.

Secondly, In order to ensure effective implementation of both duties there area couple of other things that NHS bodies MUST address:

  1. They must understand the difference between consultation and involvement. Often the two terms are used interchangeably and this should not be the case. Disability Forward would suggest the following definitions:
    • Consultation – a passive process where the agenda has already been set by the consulting body and where there is often no clear evidence of how consultation responses have influenced thinking
    • Involvement – a professional process of engagement and in-depth working between disabled people and organisations, and which delivers tangible benefits and outcomes for BOTH parties.

    The Disability Rights Commission (now replaced by the Equality and Human Rights Commission) has produced guidance on involving disabled people, which is a good start but is only that.

  2. Understand what ‘representative group’ means
    Disability is a complex issue, not all people with visual impairments have the same access requirements, some people have multiple impairments, and some people may have access requirements but don’t see themselves as disabled people. Therefore any attempt to work with ‘representative groups’ needs to be much more sophisticated than it has been generally to date.

Overall I think as they say on TV Section 242 and the DED were ‘made for eachother’ but as well all know few marriages work without give and take and understanding.

Michelle Valentine
Director
Disability Forward Limited (contact information)

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