A GUIDE TO THE DISABILITY BILL 2004

0
879

References to sections in this text are references to sections of the Disability Bill as published on 21 September, 2004.

Disability Bill 2004

Background

The Disability Bill 2004 is part of a framework of measures which supports social inclusion. Other essential elements in the legislative framework are –

  • the Employment Equality Act 1998
  • the Equal Status Act 2000
  • the Equality Act 2004
  • the Education for Persons with Special Educational Needs Act 2004
  • the Comhairle (Amendment) Bill 2004.

The Disability Bill 2004 is a positive action measure designed to advance and underpin participation by people with disabilities in everyday life. It establishes a statutory basis for mainstreaming. Mainstreaming places an obligation on public service providers to support access to services and facilities for people with disabilities, as well as other citizens, to the greatest practicable extent.

The focus on mainstreaming and social inclusion is given particular emphasis through the Sectoral Plans provided for in Part 3 of the Bill.

Disability Bill Overview

The Bill establishes a statutory basis for –

  • an independent assessment of individual needs and a related service statement
  • access to public buildings, services and information
  • Sectoral Plans for six key Departments which will ensure that access for people with disabilities will become an integral part of service planning and provision
  • an obligation on public bodies to be pro-active in employing people with disabilities
  • restricting the use of information from genetic testing for employment and insurance purposes
  • a Centre for Excellence in Universal Design.
PART 1: PRELIMINARY AND GENERAL

This Part (sections 1–5) deals with the definition of some important terms used in the Bill. It also sets out the arrangements for resourcing the provisions of the Bill and deals with routine legal matters, including the short title of the Bill, its commencement, orders and regulations.

This part sets out the approach that each Minister must take to finance the services provided under the Bill. Ministers should budget effectively using the resources available in any year to respond to the financial demands which arise from the Disability Bill, while taking account of the financial demands of their other functions and responsibilities.

Important terms defined in the Bill (section 2)

“disability”, in relation to a person, means a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment.

“public body” includes Government Departments, local authorities, health boards and semi-state bodies, as well as most other state organisations.

“service” means a service or facility provided to the public by a public body. It includes the use of a public amenity or place, the provision of information, a scheme, allowance or other benefit, a cultural or heritage service and any service provided by a court or tribunal.

PART 2: ASSESSMENT OF NEED, SERVICE STATEMENTS AND REDRESS

Part 2 establishes a system for the assessment of individual health and education needs. People with disabilities (or their representatives) will have a statutory entitlement to –

  • apply for an independent assessment of their health and education needs
  • a statement of the services (Service Statement) which it is proposed to provide
  • pursue a complaint about the failure to provide these entitlements through an independent redress mechanism.

The Bill also allows for a health board to initiate an assessment of need in certain circumstances.

Important terms defined in Part 2 (section 6)

Persons with a disability entitled to the services in Part 2 are those with a “substantial restriction” which is permanent or likely to be permanent, results in a significant learning, communication or mobility difficulty and requires the provision of services on a continuous basis.

“health services” in Part 2 are services provided by or on behalf of a health board and include personal social services.

“education services” covered by Part 2 are education services for persons with disabilities over 18 years. They include schools covered by the Education Act 1998 or certain educational facilities specified by the Minister for Education and Science.

Purpose of the independent assessment (sections 7-9)

Any person who considers that he or she may have a disability is entitled to apply for an independent assessment of need. The assessment will be undertaken without regard to cost or to capacity to provide any services identified in the assessment. Arising from the assessment, the person concerned will be given an Assessment Report.

The Assessment Report will indicate –

  • whether a person has a disability
  • the nature and extent of the disability
  • the health and education needs arising from the disability
  • the services considered appropriate to meet those needs and the timescale ideally required for their delivery
  • when a review of the assessment should be undertaken.

There is provision for a relative, guardian or personal advocate to apply for an assessment on behalf of a person with a disability. Each person with a disability will be encouraged to participate in their own assessment, while taking account of the nature of their disability and their age.

The Health Information and Quality Authority, a body to be established in the new health infrastructure, will set appropriate standards for carrying out the assessment process.

Service Statements (sections 10-11)

Each person found to have a need for disability related services, as a result of the Assessment Report, will be given a Service Statement. The Service Statement will set out the health and education services that can be provided to the person taking account of –

  • the Assessment Report
  • eligibility criteria for services
  • relevant standards and Codes of Practice
  • the practicability of providing the service
  • the financial resources available.

A Service Statement may be amended because of a change in the circumstances of the person or a change in any of the above considerations upon which the statement is based.

There is provision for informing, with the necessary consent of the person concerned, other service providers about the contents of an Assessment Report so as to facilitate access to services outside the health and education sectors.

Educational needs of a child

A child who has a disability may be assessed under the Disability Bill or under the Education for Persons with Special Educational Needs Act 2004. If a special educational need is identified as a result of the assessment of a child under the Disability Bill, that aspect of the assessment will be referred to the National Council for Special Education or to the Principal of his or her school. Health needs identified in an assessment under the Education for Persons with Special Educational Needs Act 2004 will be dealt with in a Service Statement under the Disability Bill.

Planning (section 12)

To assist with ongoing planning and improvement of services, health boards will keep records of assessments and services provided. The maintenance of these records will be in accordance with the requirements of data protection legislation.

Independent Redress

Complaints, appeals and enforcement procedures are established under Part 2 so as to provide individual means of redress.

Complaints (sections 13-14)

A person may make a complaint to a health board about –

  • a finding that he or she does not have a disability
  • the failure of the assessment to meet the standards set by the Health Information and Quality Authority
  • the contents of the Service Statement
  • the failure of a health or education service provider to provide a service set out in the Service Statement or to provide it within any timeframes prescribed.

Complaints will be heard by a complaints officer (see page 8). The complaint will be resolved informally, if possible. If informal resolution is not possible, the complaint will be investigated and a recommendation will issue. The recommendation will have regard to the outcome of the investigation as well as other considerations, including the eligibility of the person for the service, the practicality of providing the service and the resources available to the service provider.

The legislation requires that the recommendation must be implemented by the Chief Executive Officer (CEO) of the health board concerned (or by the head of the relevant education service provider, as appropriate) unless he or she is of the opinion that services cannot be provided for reasons related to eligibility, practicality or available resources. In these circumstances, the CEO (or head of an education service provider) must issue a written opinion to this effect and send it to the applicant, among others.

Appeals (sections 15-19)

A person may lodge an appeal against –

  • a recommendation of a complaints officer
  • a written opinion of the CEO of a health board (or head of an education service provider).

Appeals will be investigated by an independent appeals officer (see opposite). If the parties to the appeal agree, an appeal may be resolved by mediation. Otherwise, an appeal hearing will take place and a formal determination will issue.

The appeals officer’s determination is final and may only be appealed on a point of law to the High Court.

A determination and a mediated settlement can both be enforced in the same manner.

Enforcement (sections 21-22)

Where a recommendation, a mediated settlement, or an appeals officer’s determination are not implemented, the applicant or the appeals officer can apply to the Circuit Court for an enforcement order. The Circuit Court may then order the CEO of a health board (or the head of an education service provider) to implement the relevant decision.

Regulations (section 20)

The Minister for Health and Children may, by regulation, establish procedures relating to the matters covered in Part 2, including the assessment process, Service Statements and the redress procedure.

How will the new system be managed?

Statutory officers will be appointed to carry out the principal functions in Part 2.

Assessment officers, appointed by the health board, will arrange for assessments of need and will be independent in carrying out their statutory functions.

Liaison officers, appointed by the health board, will draw up Service Statements and manage their delivery. They will make contact, if requested, with the providers of public services outside the health and education sectors.

Complaints officers, appointed by the health board, will be independent in carrying out their investigative functions and will try to resolve a complaint informally or, if this is not possible, will make a written recommendation to the CEO of the health board (or the head of an education service provider).

An appeals officer will be appointed by the Minister for Health and Children. The appeals officer will provide independent mediation, appeals and enforcement under Part 2. The appeals officer will have substantial statutory powers to summon witnesses, to enter premises and to obtain information. He or she will head up an independent office and will have a budget and staff to support him or her in undertaking these statutory functions.

PART 3: ACCESS TO BUILDINGS AND SERVICES AND SECTORAL PLANS

Part 3 places an obligation on public bodies to make their public buildings and services accessible and requires the preparation of Sectoral Plans to support continued improvements in six key areas of public service provision. There are complaints procedures with a right of appeal to the Ombudsman.

Public buildings other than heritage sites (section 23)

Public bodies are required to make their public buildings accessible to people with disabilities by 2015. This will require the re-fitting of older public buildings so that they comply with Part M of the Building Regulations.

A Minister may exclude a public building from the scope of these requirements if he is satisfied that the building –

  • is being used as a public building on a temporary basis
  • will no longer be used as a public building after three years or
  • would not justify refurbishment on cost grounds because of its infrequency of use by people with disabilities.

The Minister for Justice, Equality and Law Reform may ask the National Disability Authority to draw up a Code of Practice to assist public bodies in making buildings accessible. Public bodies will have to take account of the Code as far as possible at the time of new construction, material alteration or extension of a public building or where it would be cost effective for the purpose of giving access to a greater number of people.

Mainstream public services (section 24)

From 31 December, 2005 there will be a statutory requirement on public bodies to integrate, where practical and appropriate, their services for people with disabilities with those for other citizens. In some cases, assistance to access the service will be available to people with disabilities, following a request. “Access officers” will be appointed in each public body to co-ordinate these arrangements.

Contracted-in public services (section 25)

On commencement of the legislation, public bodies will be required to ensure that goods or services purchased are accessible, unless it would not be practicable, justifiable on cost grounds or would result in an unreasonable delay.

Communications (section 26)

From 31 December, 2005 communications by a public body to a person with a hearing or visual impairment must, as far as practicable, be provided in an accessible format, following a request. Information provided electronically must, as far as practicable, be compatible with adaptive technology.

Heritage sites[1] (section 27)

From 31 December, 2007 heritage sites under public ownership, management or control and open to the public, must be accessible to people with disabilities. This requirement will not apply if the works involved in making the site accessible would have an adverse impact on the conservation of the site.

Codes of Practice (section 28)

The Minister for Justice, Equality and Law Reform may request the National Disability Authority (NDA) to prepare Codes of Practice specifying what public bodies must do to comply with their obligation to make their mainstream services, information resources and heritage sites properly accessible.

Sectoral Plans (sections 29-35)

Sectoral Plans give information on the services, facilities and activities which come within the remit of each of six Departments. The plans highlight how the functions of the Departments, and the key bodies which they oversee, serve the needs of people with disabilities and set out a programme for future development. Each plan must include arrangements for complaints, monitoring and review procedures.

Outline plans are being published in draft form along with the Disability Bill to allow a period of consultation and discussion before they are finalised. Each outline plan is contained in a separate booklet.

Under the legislation six Ministers are required to draw up Sectoral Plans as follows –

  • the Minister for Health and Children
  • the Minister for Social and Family Affairs
  • the Minister for Transport
  • the Minister for the Environment, Heritage and Local Government
  • the Minister for Communications, Marine and Natural Resources
  • the Minister for Enterprise, Trade and Employment.

The legislation requires each Minister to publish a plan and lay it before the Dáil within a year of the commencement of Part 3. A plan will come into effect only after a resolution approving it has been passed by the Dáil. A Minister may amend, replace or revoke a plan, approval for which will be subject to a Dáil resolution on each occasion.

Complaints and the Ombudsman (sections 36–38)

Public bodies must appoint “inquiry officers” to process complaints about any failure by a public body to provide access as required by sections 23 to 28 of the Bill. Each Sectoral Plan must establish a complaints mechanism for individuals who have not been able to access a service specified in the plan.

Any person who is not satisfied with the outcome of a complaint made in relation to Part 3 may appeal to the Ombudsman. Under the legislation the Ombudsman will be given new powers to investigate any failure by a public body to comply with the access requirements of Part 3 or any commitment made in a Sectoral Plan.

PART 4: GENETIC TESTING
Genetic testing (sections 39–43)

This Part provides safeguards for the use of information obtained from genetic testing. The provisions aim to ensure that people who may be affected by genetic disorders will not be subject to any unreasonable requirements from an employer or an insurance or mortgage provider. The protections provided are in addition to the substantial safeguards for the use of personal information contained in the Data Protection Acts. These new safeguards will be reviewed in 2014.

The safeguards provide that –

  • genetic testing may only take place with a person’s consent, in accordance with the Data Protection Acts
  • the results of a genetic test can’t be used in relation to insurance, a mortgage, a personal pension or employment
  • the person being tested must be made aware of the intended use of the test results and must, as far as possible, be informed about the possible outcomes of the test
  • the use of a person’s family history for insurance purposes may be regulated by the Minister after consultation with other relevant Ministers, the Data Protection Commissioner and other interested bodies or groups.
PART 5: PUBLIC SERVICE EMPLOYMENT

For many years public bodies have pursued a positive action measure which set a 3% target for the employment of people with disabilities in the public service.

The new system (sections 44-45)

Part 5 gives the 3% target legal status and goes further by –

  • allowing each Minister to expand the range of positive actions which public bodies, within his or her area of responsibility, must take for the employment of people with disabilities
  • giving a special role to the NDA in monitoring compliance and ensuring implementation.

Ministers may also ask the NDA to prepare Codes of Practice to assist public bodies. New structures are also established to ensure greater accountability by public bodies.

New structures (sections 46–49)

These sections provide that –

  • each Minister will establish a monitoring committee for their area of responsibility
  • each committee will include staff and employer interests and representatives of people with disabilities
  • the NDA, together with the relevant Minister, can specify measures which public bodies must take to meet their employment obligations under Part 5
  • monitoring committees will make an annual report to the relevant Minister and the NDA
  • the NDA will make an overall report on compliance to the Minister for Justice, Equality and Law Reform annually and the annual report will be placed before the Houses of the Oireachtas.
Exceptions

These provisions will not apply to the Defence Forces, the Garda Síochána and Prison Officers.

PART 6: CENTRE FOR EXCELLENCE IN UNIVERSAL DESIGN
Creation and functions of the Centre (section 50)

Universal Design is an approach to design and construction aimed at making products and the built environment accessible and usable for everyone, especially people with disabilities. Part 6 provides for the establishment of a Centre for Excellence in Universal Design within the NDA.

It will promote best practice in the design of buildings and products, including computers and other electronic systems. The Centre will also have an important role in supporting the inclusion of the principles of universal design in professional examinations for engineers, architects and other persons involved with the design and construction of our physical and electronic infrastructure.

PART 7: MISCELLANEOUS

This Part includes some standard sections and some technical and procedural provisions.

Covenants in leases (section 51)

This section provides that –

  • where the terms of a lease prevent, or limit, the making of alterations to a building required under the terms of the Bill, the landlord may not withhold consent to the alteration without good reason,
  • no additional rental or other costs arising from the alterations may be levied, apart from legal expenses connected with the consent.
Broadcasting (section 52)

This section requires that the Broadcasting Commission of Ireland makes rules to ensure that audio-visual broadcast material is accessible to people who are deaf or hearing impaired and to those who are blind or visually impaired. The section builds on and enhances existing provisions in the Broadcasting Act 2001.

Offences (sections 53–54)

These sections specify persons who may be prosecuted for offences committed under the Bill, by whom they may be prosecuted (e.g. the relevant Minister) and the penalties that may be imposed.

National Disability Authority (section 55)

This section provides that the size of the board of the NDA is to be reduced from 20 to 12 members and makes provision to allow payments to board members. It also allows the Minister to appoint to the first NDA board formed after enactment serving NDA board members who have served 2 terms.

Repeals (section 56)

This section repeals sections 17 and 18 of the Equal Status Act in relation to regulations for public vehicles and bus and rail facilities.

Exclusions (section 57)

This section excludes from the scope of the Bill any adaptation or modification that would fundamentally alter the nature of the service being provided by a public body.

THE SCHEDULE

The Schedule to the Bill deals with the terms and conditions of appointment of the appeals officer (to be appointed by the Minister for Health and Children under Part 2) and his or her staff.

[1] A heritage site includes a historic monument, building or garden, a natural park or a nature reserve owned by the State.

LEAVE A REPLY

Please enter your comment!
Please enter your name here