Public Authorities

Functions

The Disability Discrimination (NI) Order (DDO) prohibits public authorities from discriminating against disabled people when carrying out all public functions other than (in broad terms) those of legislation, prosecution, judicial acts and state security. It therefore covers decisions by Ministers, district councils, police and other governmental organisations.

The DDO makes it unlawful for a public authority to discriminate against a disabled person in carrying out its functions. The public authority cannot treat a disabled person less favourably for a reason relating to their disability unless they can justify this treatment in accordance with one of the specified grounds of justification. There is also a duty to make reasonable adjustments for disabled people in relation to the carrying out of public functions.

Public Authorities covered by DDO

Every public authority is covered by the DDO unless it is specifically exempted.
Public authorities are for example:

• Members of Parliament, Ministers in the Assembly, members of the Assembly, government departments, Home office,
• Local councils in NI
• Governing bodies of Further and Higher Education Institutions, colleges and universities
• NHS trusts and health boards
• Chief Officer of the Police Service for NI, the Ombudsman and the Criminal Injuries Compensation Board
• Courts and tribunals (see exceptions)
• Housing Executive
• Other publicly funded organisations

The excluded persons are as follows:

• Either house of parliament
• Person exercising functions in connection with proceedings in parliament
• The Assembly
• Person exercising functions in connection with proceedings in the Assembly
• The security service
• Government communications HQ
• Unit or part of unit of any of the naval, military or air forces of the Crown

What is function?

A function is the term used to describe activities such as the employment of staff, budgeting or decisions on entitlements to the payment of benefits. These functions must be of a public nature. There are certain exceptions:

• Judicial act;
• Act done on instructions or on behalf of person acting in a judicial capacity; and
• Decision not to institute or not to continue criminal proceedings and acts done in relation to decisions.

These functions do not impact on public authorities duties if they are covered by any other part of the DDA (as amended) such as services to the public. In order to determine whether or not the public authority function duties apply to a particular action (or failure to act), there are three questions to be asked:

• Is the organisation a public authority for the purposes of the DDA and not explicitly excluded from the public authority provisions?
• Is the activity a function of the authority and one that is not explicitly exempt from the DDA?
• Is the activity covered by another section or part of the DDA?

Examples of public functions include assessing a benefit claim, issuing a licence, adoption or carrying out an arrest. This is not an exhaustive list.

What is unlawful?

The DDO makes it unlawful for a public authority to discriminate against a disabled person when carrying out its functions. Discrimination is when a person is treated unfairly because of their disability and the public authority cannot show it is justified on one of the specified grounds.

A public authority also discriminates if it fails to comply with a duty to make reasonable adjustments. The two tests are unreasonable difficult or impossible, or unreasonably adverse for disabled person to experience any detriment.

Less favourable treatment would be:

• The refusal to allow a disabled person to benefit from the exercise of a function.

For example - A father who is visually impaired applies to court for a residence order in respect of his child. The court refuses his application. He believes that this is because of his disability. As the decision of the court amounts to a judicial act, he cannot bring a claim relating to the decision (although he may be able to use the usual appeal routes) under the DDO..

• Treated differently in the way a function is performed

For example - A disabled person who is claiming a social security benefit is asked to attend an interview about his claim. The interviewing officer is extremely offensive to the disabled person, making derogatory comments about his disability. This is less favourable treatment for a reason relating to his disability and is likely to be unlawful.This would be covered under section 19 of the DDA.

• Benefits being conferred in a more restrictive manner

A public authority has a duty to make reasonable adjustments where a policy, practice or procedure makes it impossible or unreasonably difficult, or if it has an unreasonably adverse effect. This duty also covers auxiliary aids and services and physical features.

For example, this will mean the police might need to amend the policy of not carrying any dogs in police cars so that assistance dogs are allowed in the cars with disabled people.

Another example would be providing assistance to a person with mobility and learning disability when they are filling in the application form for a disability facilities grant from the Housing Executive. The duty requires public authorities to anticipate the requirements of disabled people and the adjustments that may be needed.

An example of altering a feature would be: The interview rooms at a police station have narrow doors which do not allow a wheelchair to get through. The police station widens the doorways to ensure that wheelchair users can get into the interview rooms. This is likely to be a reasonable step for it to have to take.

This extension to public functions brings the DDA in line with changes to the race discrimination legislation. The prohibition does not apply where a public authority is exercising a statutory power and has no discretion about whether or how to exercise that power, or no discretion about how to perform its duties.

Please note that public authorities already have duties under Part 3 of the DDA (goods, facilities, services & premises provisions) in relation to services they provide to the public or a section of the public.

Can less favourable treatment be justified?

Public authorities should not be looking for excuses or resons to discriminate against disabled people who wish to benefit from a public function. However, there are limited circumstances where the DDO allows less favourable treatment.

The two conditions of justification are health and safety and incapacity to contract. It is advisable to consult the regulations and the code of practice on access to Goods, Facilities and Services and Premises. The other approaches to justification  applicable only to public functions are:

• Substantial extra costs;
• Protecting the rights and freedoms of others;
• Proportionate means of achieving a legitimate aim; and
• Specific limitations of public authority function provisions e.g. no power to take steps
  

The Disability Equality Duty

From 1 January 2007 the DDO placed new duties on public authorities to have due regard, when carrying out their functions, to the need to promote positive attitudes towards disabled people and the need to encourage participation by disabled people in public life. These are referred to as the “disability duties”. Public authorities had to submit to the Equality Commission an action plan indicating how they proposed to fulfil the duties. The Commission must keep under review the effectiveness of these duties. The enforcement procedure relating to Section 75 of the Northern Ireland Act does not apply to these new duties. The Equality Commission has produced a “Guide for Public Authorities” which can be downloaded from our website – www.equalityni.org.