Disabled People and the Rights to Social Citizenship - Essay Example

Disabled People and the Rights to Social Citizenship “Disability is the loss of limitation of opportunities to take part in the normal life of the community on an equal level with others due to physical and social barriers” (Mittler and Mittler, 1994. p. 5). Since the 1960s disability has become an important issue for politicians the world over. The Chronically Sick and Disabled Person’s Act 1970 of the United Kingdom ensured better services for disabled persons. The year 1981 was declared as the International Year of Disabled People by the United Nations. Subsequently, The 22 Standard Rules on the Equalization of Opportunities for Persons with Disabilities were adopted by the United Nations in 1993 (WHO, 2001). The British government has proffered different definitions of a citizen as components of the various solutions proposed in respect of the extant social, economic and political problems and these solutions have affected the rights of individuals (Young, 1985). The Conservative government under John Major introduced a Citizen’s Charter in order to subject public services to market forces. Accordingly, citizens obtained the right to choose. This development in conjunction with privatization was considered to be the panacea for the ills of the inefficient public services. Citizenship can be perceived either by the individualist approach in which the nature of citizenship is determined by individual choice or the structuralist approach in which the determining factors are social and economic in nature. Further, “Choice based theories are exemplified in their purest form by economics…. In this world, individuals seek to maximize their utility by obtaining the highest return at the minimum cost from any course of action which they undertake” (Pattie, Seyd and Whiteley, 2004, pp 138-139). Therefore citizenship results “from the choices which agents make, and these reflect the costs and benefits of the choice situation” (Pattie, Seyd and Whiteley, 2004, p 138). Consequently, “Citizenship is a status bestowed on those who are full members of a community. [and who] …are equal with respect to the rights and duties with which the status is endowed” (Marshall, 1950, p. 28). These rights are of three kinds civil, political or social. The Civil rights are, “liberty of the person, freedom of speech, thought and faith, the right to own property and to conclude valid contracts, and the right to justice” (Marshall, 1950, p. 10). Political rights comprise of “the right to participate in the exercise of political power” and social rights are “the whole range from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in the society” (Marshall, 1950, p. 11). The absence of the disabled person’s perspective in discussions involving citizenship is ubiquitous (Meekosha and Dowse, 1997, pp. 49-72). To achieve equality, disabled citizens need to possess freewill and involvement. Societal impediments rather than the disabling impairment, play havoc with the disabled person’s endeavour to be full and equal citizen. Hence, civil society has been defined as “an arena of uncoerced collective action around shared interests, purposes and values” (Centre for Civil Society, 2004). In order to provide disabled persons with equal access a modicum of restriction has to be enjoined on the freedom of the non-disabled people. The enactment of the Disability Discrimination Act (DDA) on the 8th of November 1995 was the culmination of a protracted battle to enforce the rights of the disabled. This enactment led to several measures being adopted in order to prevent discrimination against disabled people and to grant them additional rights Vis – a – Vis employment, purchase and lease of real estate and access to goods, facilities and services. The DDA has empowered disabled people in quite a few areas and its guidelines in respect of discrimination in employment have been fully implemented. However, the situation is far from sanguine, because in certain areas like services the implementation is far from satisfactory. In respect of public libraries, the DDA has engendered changes in recruitment, selection, staff development and access to services, goods and facilities. Moreover, it is unlawful for public libraries to discriminate against a disabled person by refusing service, providing inferior service or on worse terms or by failing to make reasonable adjustments. Section 21 of the Disability Discrimination Act interprets reasonable adjustments as the modifications that service providers have to implement. These changes have to eradicate practices, policies or procedures which are impossible or unreasonably difficult for disabled people to adopt (National Disability Council, 1999). Most of the libraries have books with large text or audio books for the disabled; however their quality and number have shown a great variance. The situation in respect of videos was that specialized videos incorporating audio-description and sign language interpretation were severely limited in number and were scarce. Furthermore, it would be of immense benefit to the disabled if libraries could provide “auxiliary aids and services that disabled people can use to help them access standard resources in the library” (McCaskill and Goulding, 2001, p 192). Since, learning is an important and continuing activity for the disabled, it is imperative to take cognizance of reports like that tabled by the Adult Learning Inspectorate, which had “found that adults with the most severe disabilities are getting the worst educations. These failures are most evident in provision for those learners who are unlikely ever to be able to live independently” (Hook, 2006, p. FE1). Mittler, the former president of Inclusion International, presented a scholarly work to the UN, namely, the Families and Disability, in which he stated that the process of voluntarism was inherent in the Renaissance vision and that the Renaissance process was in accordance with the Titmuss’ recipe for inclusion, which was “not something that… [could] be bestowed by the powerful onto the powerless” (Lister, 1993, p. 331). In the United Kingdom disability is studied by first, the medical model, which defines disability as sickness, impairment or deviation from normalcy and second, the social model which defines disability “in terms of the environmental and social barriers imposed on disabled people by non-disabled society which limit or remove altogether opportunities to take part in community life” (Altman, 2001, pp 97). Irrespective of the nature and extent of the disability, the right to independent living is a fundamental Human Right. The public sector, while indulging in activities like infrastructure planning, education, transportation, etc, has to accommodate the requirements of the disabled, which should determine service design and implementation. Personal Assistance facilitates individuals with physical, sensory, intellectual and other shortcomings to participate meaningfully in community life and to participate to a greater extent in all human activities, like parenting, education, employment, environmental development, etc. It is essential for persons with impairments to have adequate control over services pertaining to disability and independent living. Some of the areas which require inclusion are “public financing, advocacy, training and peer support for people who may not be able, or wish, to take full control of their lives.” It is indeed unfortunate that a large number of disabled citizens are confined to residential institutions due to the dearth of viable living alternatives in the community. It is essential to understand and accept that independent living support services are indispensable if disabled people are to enjoy basic freedom. In this context, disabled persons in Europe declared that “We, disabled people from all over Europe, do not accept any funding limitations in regards to our basic freedom. If necessary we are ready to challenge these assumptions about the lack of resources” (Disabled Women and Personal Assistance, n.d). The importance of equal rights for disabled people has received increasing recognition and attention in recent years. Most of these rights are contained in the Disability Discrimination Act of 1995, which was enacted in order to curtail the discrimination faced by a large number of disabled persons. Some of these rights are first, the right to fair employment, which is applicable to firms employing not less than fifteen persons and is applicable to recruitment, working terms and conditions, dismissal and redundancy. Second, the right to avail themselves of goods, facilities and services provided to the public. Third, the right to let or sell land or property. Fourth, the right to education and fifth, the right to have reasonable adjustments made to the premises or the work place by the employer. The provisions of the DDA are applicable only if there is physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day to day activities. The implementation of this act was in several stages. Some of these changes relating to shops and supermarkets are that first, since December 1996 it is unlawful to discriminate disabled people by providing them with less favourable treatment in comparison to others because of their disability. Second, since October 1999 reasonable adjustments have to be incorporated so that disabled people can access their services, for instance by providing help and information in Braille. Third, since, October 2004 suitably alteration of shop premises has to be done in order to facilitate the disabled, for example by providing disabled toilets and wheelchair access. The DDA requires an employer to alter the premises to permit wheelchair access; change a disabled employee’s working hours, purchase new equipment or modifies existing equipment. Such modifications should be reasonable and such reasonableness is to be determined by the viability and effectiveness of these adjustments, the costs involved and similar factors. The final arbitrator in this process has to be the courts, which have to determine as to what exactly constitutes a reasonable adjustment. Part II of the DDA was enacted in December 1996. It prohibits employers from according less favourable treatment to disabled persons in comparison to non disabled employees on the basis of their disability. Further, the employer has to make such reasonable adjustments to workplace practices and procedures as will help disabled persons in their work. The DDA is applicable to full time, part time, temporary and permanent employees and encompasses advertisements for jobs, selection of personnel, training of employees, etc. However, the DDA does not prohibit an employer from appointing the best person for the job, nor does it require employers to treat a disabled person more favourably than they treat or would treat others.  The DD Act permits less favourable treatment being accorded to disabled persons if they are unable to do the job concerned, despite employing all possible adjustments. In the absence of knowledge regarding the disability of a person, employers would be unable to make reasonable adjustments. Therefore employers have to make all efforts to determine if any of their employees are disabled. Some instances of reasonable adjustments are first, changes to premises, which include the widening of doorways, providing ramps, changing the position of light switches and door handles, “providing contrasts in decor to aid safe mobility of visually impaired people.” Second, changing the methods used for making assessments and while testing. Third, altering the job content of disabled persons by reallocating such portions of a job as cannot be done by a disabled person to a normal person and by proportionately including other duties which the disabled person can perform. Fourth, making changes to the disabled person’s working hours by permitting such people to have flexible working hours in order to enable them to have additional breaks from work. Fifth, relocating a disabled person from a less convenient to a more convenient working environment. Sixth, permitting disabled persons to avail themselves of longer spells of absence during working hours in order to obtain medical treatment. Seventh, ensuring that disabled people obtain specialized training, which takes into account their disability. Eight, procuring or modifying the existing machinery so as to accommodate disabled workers. Ninth, effecting changes to manuals of instructions and reference manuals not only to cater to the needs of the disabled workers but also to make them available in alternative formats like Braille and audio tapes. Tenth, have in place a reader or an interpreter so that the disabled person can be assisted whenever the situation so warrants.  Eleventh, make provisions for the disabled person to be supervised during work, so that a support worker or a colleague can assist “someone whose disability leads to uncertainty or lack of confidence.” Twelfth, bringing about the transfer of a disabled person to another vacancy so that the disabled person’s services can be utilized optimally. Some of the deciding factors in respect of reasonable adjustment are its effectiveness in reducing the disadvantage to the disabled employee; its practicability, expenditure entailed, the extent of disturbance to the employer’s activities, the resources of the employer, the availability of grants and the extent of the cooperation extended by the disabled person to the employer (Guidelines on employing disabled people in the BBC in line with Part II of the Disability Discrimination Act 1995, 2004). Disability is daunting as evidenced by the example of two disabled adults from the UK who went to a suicide clinic in Switzerland. Although, they were not terminally ill, they became so “depressed about their future lives that they sought medicalised suicide.” It is essential to help a person contemplating suicide or suffering from suicidal depression and as the above example illustrates, medical approaches to disability have to change drastically. In 1999, a global summit on independent living was held in Washington DC and set forth several principles in this context. The main principle recognized in this summit was “that all human life has value and that every human being should have meaningful options to make choices about issues that affect our lives.” (GET A LIFE, 2006). In relation to the education providers like schools, universities and further education colleges, the Special Educational Needs and Disability Act 2001 was formulated in order to extend the Disability Discrimination Act to ensure that disabled students were not discriminated against. Its essential features are first, a disabled person should not be prevented from taking up a course of study nor should a person be awarded less marks merely because that person is dyslexic or deaf. Second, educational institutions have to modify some of their policies and practices with regard to disabled students. Third, auxiliary aids and services are to be made available to disabled students, examples of these being hearing aid loops and specialist software on computers and lastly, educational institutions have to bring about physical adjustments to their premises. The Disability Discrimination Act service provider in the United Kingdom are defined as companies and organizations that provide goods, facilities or services to the public, irrespective of the facts as to whether these are free or paid for. Some examples are Banks, hospitals, cinemas, railway and bus stations, hotels and restaurants, sports centers, football grounds, etc. This act is inapplicable to Public transport, Private clubs and Manufacturers. The Disability Rights Commission, an autonomous body, was established by the Special Educational Needs and Disability Act 2001 in order to enforce the rights of the disabled. Some of its duties are to abolish prejudice against disabled people and bring about equal opportunities; advice and encourage good practice in the treatment of disabled people and to advise the government in respect of disability legislation. Further, this commission can initiate legal action on behalf of a disabled person under the DDA. Some of the cases that have been taken up by this commission are discussed in the sequel. In Kirton v Tetrosyl Ltd (2002), the Appellant who had been diagnosed with prostrate cancer was subjected to radical retro pubic prostatectomy and pelvic node clearance, resulting in urinary incontinence. The Employment Tribunal as well as the EAT refused to concede to the Appellant the status of a disabled person as per the definition in the DDA, because the appellant’s condition had resulted from the adverse effects of the surgical treatment performed on him. However, the Court of Appeal set aside the decisions of the Employment Tribunal and the Employment Appeal Tribunal and held that the adverse effects of treatment resulting from the original condition were to be considered at the time of determining whether a person met the statutory definition of disability or not. An appeal was preferred against the Employment Tribunal’s interpretation of “less favourable treatment for a reason which relates to the disabled person’s disability”; however, the client was unsuccessful at the full Employment Tribunal hearing (DRC/00/282). In this hearing it was decided by the Employment Tribunal that the client, who was schizophrenic, was predisposed to violent behaviour and that such behaviour was unconnected to his disease. Further, due to this contention of the Tribunal, the client’s complaint that he had been treated less favourably was also deemed to be unconnected to his disability. In this case the client’s applications for the post of a volunteer with several citizens' advice bureaux were unsuccessful due to a history of schizophrenia. Since such a voluntary post can result in paid employment, this refusal was tantamount to failure to make adequately adjusted arrangements. However, the Tribunal had accepted that a previous violent act was the result of this mental illness, hence, the client’s appeal was successful and the case was remitted back to the Employment Tribunal for reconsidering the issues of justification and remedy (DRC 025111, 2002). In Jones v Post Office (2001), the Court of Appeal, in respect of medical assessments and recruitment, ruled that tribunals cannot disagree with a properly conducted risk assessment, which has for its basis the opinion of relevant medical professionals if this assessment leads to a rational conclusion. In Vernon v Roper (DRC00212), the client was not permitted to use a motorized golf cart by his golf club. Since, this was a common complaint of disabled golfers the Court held that the golf course had infringed its lawful duty to make an adjustment that would have permitted the client to utilize their services. Moreover, the Court held that allowing the claimant to use his golf buggy in suitable weather would have constituted such a reasonable adjustment. In Glover v Hannah's Café (DRC 026865), the client was visually impaired and therefore used a dog to assist him. When he attempted to enter this café in order to obtain a sandwich for his falling blood sugar level, he was told that there was insufficient space in the café and hence he could not bring his dog inside. The Court held the café to have unlawfully discriminated against the claimant and awarded suitable damages. The United Kingdom government has adopted draft regulations in respect of extending legal protection to all disabled job applicants and employees as necessitated by the European Directive. This regulation protects employees in organizations, which employ less than fifteen employees. The importance of this legislation is that the national legislation was inapplicable to such organizations. Moreover it provides protection to important and vital employees like police, prison and fire officers (Article 13 of the European Employment Directive, 1997). Further, disabled people can invoke the Human Rights Act, which was incorporated into British law in 1998, despite the fact that it contains no specific legislation in respect of disabled people. However, some of its Articles are beneficial to disabled people, for instance, Article 12 which provides the right to marry, permits a disabled person in residential care to enter holy matrimony. Moreover, Article 3 prohibits torture and therefore, a disabled person would also be protected against inhuman and degrading treatment (What rights do disabled people have? 2005). International as well as national instruments containing benefits for the disabled have evolved from the personal approach to the social approach. The Standard Rules have resulted from twenty years of international campaigning for benefits whose implementation is crucial. However, in respect of ushering an era of equality for disabled people the task is far form complete, despite emerging consensus that the environment should accommodate everybody including the disabled. The above discussion indicates that discrimination against the disabled is widespread. Despite, yeoman efforts made by the Disability Rights Commission to promote equal opportunity and to encourage good practices in the treatment of disabled people the results are far from satisfactory. The main cause for this dismal state of affairs is that the term reasonable adjustment is not interpreted comprehensively with the result that proper remedial measures are not adopted. Michael Oliver opined that social citizenship comprises of the right not to be poor or live in fear of poverty, to use social facilities in the same way as everyone else and to have a standard of living or lifestyle compatible with current social expectations; and that in none of these elements can it be argued that disabled people share the rights to social citizenship. His main contribution in this area was in the formulation of the social model of disability. Oliver theorized that disability was the result of specific social and economic formations. Moreover, he was opposed to the theories of disability based on medicine and sociology as were contained in the WHO’s Impairment, Disability and Handicaps proposal. His contention was that it was the social model that depicted the true position in respect of the disabled. This model’s objective is to find solutions to problems faced by the disabled due to being segregated, exploited and discriminated against. In his opinion, only such a stratagem could aid the disabled to participate meaningfully in the mainstream of social, political and economic life (Oliver, 1990). Subsequently, the DRA 1995 came into force, which endeavours to promote equality of opportunity for disabled people, to eliminate discrimination and harassment and to promote positive attitudes towards the disabled people. Therefore, it is not true to contend that the disabled people have been deprived of the rights to social citizenship. Nevertheless, proper and effective implementation of anti discriminatory laws in respect of the disabled has to be ensured so as to enhance the benefits guaranteed by the relevant legislation. References Altman, B. (2001). Disability definitions, models, classification schemes and applications. In G. Albrecht, K. Seelman, & M. Bury (Eds.), Handbook of Disability Studies (pp. 97-122). Thousand Oaks, CA: Sage. Article 13 of the European Employment Directive, 1997. Centre for Civil Society, 2004. Definition of civil society. Available at http://www.lse.ac.uk/collections/CCS/ Disabled Women and Personal Assistance, n.d. available at http://www.dpitalia.org/kit%20UK.pdf DRC 00282 DRC 00212 DRC 025111 DRC 026865. GET A LIFE, Not Dead Yet UK Campaign. Available at http://www.livingwithdignity.info/ndy_getalife.html. Glover v Hannah's Café. County Court Case No: MA202633. Guidelines on employing disabled people in the BBC in line with Part II of the Disability Discrimination Act 1995. Freedom of Information. BBC. 2004. available at http://www.bbc.co.uk/foi/docs/working_at_the_bbc /equal_opportunities_and_diversity/Disability_Guidelines.htm. http://www.drc-gb.org/the_law/drc_legal_cases/impairment /mental_health_service_users_an/appeal_against_employment_trib.aspx#skipsectionnav http://www.drc-gb.org/the_law/drc_legal_cases/impairment /mental_health_service_users_an/appeal_to_the_employment_appea.aspx#skipsectionnav Jones v Post Office. (2001) EWCA Civ 558, (2001) IRLR 384. Kirsty McCaskill, Anne Goulding, English public library services and the Disability Discrimination Act, New Library World. London: 2001.Vol.102, Iss. 6. Kirton v Tetrosyl Ltd (Appeal Number: 2002/2039). Marshall, T.H. 1950. Citizenship and Social Class, Cambridge: Cambridge University Press. Mittler, Peter and Mittler, Helle (1994) Families and Disability, Occasional Papers Series No: 10. Vienna, United Nations. Meekosha, H. and Dowse, H. 1997. ‘Enabling Citizenship: Gender, disability and citizenship in Australia’ Feminist Review, 57, Autumn. National Disability Council, 1999 Oliver, Michael. 1996. The Politics of Disablement, Basingstoke, Macmillan. P. 11. Pattie, C., Seyd, P. and Whiteley, P, 2004. Citizenship in Britain: Values, participation and democracy, Cambridge: Cambridge University Press. Special Educational Needs and Disability Act 2001. Steve Hook, Damning verdict on help for disabled, The Times Educational Supplement. London: March 3, 2006. Iss. 4675. Vernon Roper v  Singing Hills Golf Course Limited, DRC 00 212. What rights do disabled people have? 13 April 2005. BBC Action Network team. Available at http://www.bbc.co.uk/dna/actionnetwork/A1184672. WHO 2001: Rethinking Care from the Perspective of Disabled People: Conference Report and Recommendations. Geneva: World Health Organisations’ Disability and Rehabilitation Team. WHO 1980: The International Classification of Impairments, Disability and Handicaps (ICIDH). Young, H. 1985. ‘Citizens! The cure-all rallying cry’, The Guardian, 22 November. Read More