A duty to promote equality--not a new approach, but a new way of thinking? Deborah Peel looks at the implications for land use planning of the emerging duty on all public sector authorities to promote disability equality, enshrined in the Disability Discrimination Act 2005.

THE GOVERNMENT has asserted that it wants disabled people to have full opportunities and choices to improve their quality of life and be respected and included as equal members of society by 2025. This forms part of its political ambitions for an 'opportunity society'. (1) As part of this thinking,

Much of the current impetus for change stems from the Disability Rights Task Force, which was set up in 1997 with a remit to recommend how best to secure 'comprehensive and enforceable civil rights for disabled people'. (3) The ensuing catalogue of wide-reaching recommendations encompasses education, travel, local government, health and social services, and participation in public life, as well as aspects of the environment and housing arena.

The commitment to improving the life chances of disabled people is thus clearly acknowledged as extending beyond issues of mobility, to encompass a greater sensitivity to, and awareness of, how accessibility issues can be promoted through a relatively more strategic approach to public policy-making. Indeed, the importance of the role of public sector services in taking 'a lead in promoting the equalisation of opportunities for disabled people' was clearly articulated by the Disability Rights Task Force in 1999. (4) Its recommendation to turn this aspiration into a statutory duty will come into force in December 2006 through the 'disability equality duty', and this duty will demand creative thinking on the part of the planning profession, among others. (5)

However, concern about a 'culture of complacency' and a lack of understanding by the public sector about the new duty has been expressed by the Disability Rights Commission. (6) Certainly imagination, commitment, leadership and appropriate resourcing are necessary if the new duty is to deliver on its expectations.

Promoting a culture of inclusivity

The commitment to breaking down barriers and facilitating access in the built environment has been identified as particularly critical in the context of the planning and development process. (7) For example, it has been argued that fostering flexible and friendly environments can benefit society's diversity of users in a range of ways--here the needs of older people usefully illustrate the point. (8) Such an ethos of inclusion may be considered particularly timely, given changing demographic patterns, but it is also integral to a wider social commitment to facilitate inclusive environments that can be used by all, 'regardless of age, gender or disability'. (9)

This ambition should not be taken lightly. It has been forcibly argued that recent definitions of the concept of 'inclusive design' explicitly omit reference to disabled people. In other words, the term is 'emphatically not a euphemism for more technically convoluted design for disabled people. The inclusive design approach is informed by an understanding that accessibility is about and for everyone.' (10)

More specifically, the recently-revised definition of disability--which has been expanded to include persons diagnosed with HIV, cancer and multiple sclerosis--demands another layer of awareness to contextualising the potentially disabling nature of planned environments. Moreover, the re-definition of disability to better respond to those with mental illness also requires us to question what this might mean for dis-enabling decision-making processes. Significantly, the measures and institutional arrangements put in place by the recent raft of legislation, policy and guidance have been hailed as representing a major advance in civil rights. (11) It is important, then, to consider the implications for the planning profession in responding to these new demands and expectations in terms of delivering the decision-making processes and physical environments that would improve the life-chances of disabled people, and that embody the inclusive design ethos.

Legislative developments--all change?

The Disability Discrimination Act 1995 was amended by a statute of the same name, the Disability Discrimination Act 2005. In practice, the recent disability legislation has been accompanied by parallel regulations and codes of practice, together with a rolling agenda of implementation as the various duties contained in the different parts of the Act have come into force.

While seeking to extend opportunities for active intervention, the intricacies of the recent developments, in part stemming from the EU Equal Rights Directive, have been held to have created a number of myths about the regulatory framework. (12) Here, the Disability Rights Commission has an important role in profiling and clarifying disability issues. Established by an Act of Parliament in 1999, the Commission is an independent non-departmental public body which works to stop discrimination, to promote equality of opportunity for disabled people, and to raise awareness and change attitudes.

While legislation on equal opportunities (including the Disability Discrimination Act) is a reserved matter in Great Britain, responsibilities for land use planning are devolved. It is worth noting, then, that in parallel with the developments in disability legislation, there have been legislative and policy developments in the statutory land use planning systems and building regulations across the devolved landscape.

In England and Wales, the Planning and Compulsory Purchase Act 2004 repealed section 76 of the Town and Country Planning Act 1990 and introduced, with respect to certain planning applications (and applications for listed building consent), a legislative requirement for the submission of an 'access statement', setting out how issues relating to access have been addressed. (7) Accompanying good practice guidance reinforces the underlying intentions of this measure by emphasising the importance of taking inclusive design seriously at the earliest opportunity in the development process. (9) Further, the introduction of 'statements of community involvement' in England was identified as potentially improving opportunities for local access groups to engage in the planning process. (13)

The fundamental objectives, then, are to minimise delays and costs rater on in the development process and to 'mainstream' accessibility issues into the planning system.

In Scotland, the Planning White Paper, Modernising the Planning System, and the subsequent Planning Bill have similarly provided the opportunity for considering how addressing and promoting the needs of disabled people may be taken into account, although whether this has been seized is open to question. (14) A new Planning Advice Note (PAN 78) on Inclusive Design (15) (which includes a comprehensive annex of information and organisations) forms part of the Scottish Executive's commitment to promoting high standards of design. This has further highlighted the importance of inclusive environments. Significantly, it is a joint production between the Planning Division of the Scottish Executive Development Department and the Scottish Building Standards Agency.

Advancing civil rights?

Contemporary thinking about disability is located within a broader political discourse around social justice and social inclusion. It is also integral to ideas around relatively more participative decision-making processes, and to a political objective to promote inclusivity in a wide sense that encompasses inclusion in society, access to the built environment, and active involvement in the economy. (1)

Indeed, a new approach to equality and human rights is being advanced by the Equality Act 2006 under which a Commission for Equality and Human Rights will be established in October 2007, bringing together the remits of the Equal Opportunities Commission and the Disability Rights Commission (in 2007) and the Commission for Racial Equality (in 2009). For the first time, this will provide institutional support for the Human Rights Act. Importantly, these aims are implicitly informed by a particular vision of inclusive planning for the environment that requires a collaborative approach to delivering 'joined-up' and inclusive policy outcomes for society as a whole.

In line with contemporary notions of a culture change and collective responsibility for problem-solving, the design and management of inclusive environments are held to be 'the concern of everyone involved in the development and planning, process.' (9) As a consequence, the spotlight of responsibility falls on a range of stakeholders that extends beyond planning officers with policy formulation, policy implementation, and appeal responsibilities, to include developers, investors and occupiers; architects and designers; elected local authority members; a range of regulatory and advisory officers responsible for such matters as building control, access, highways and safety issues; and statutory bodies, such as English Heritage. (9)

Moreover, the contemporary emphasis on a need to think about inclusive design 'from inception to completion' draws attention to an intricate web of responsibility that interlaces time, place, communities and institutions. It is important, then, to recognise the all-embracing nature of this agenda as it demands inter-professional and inter-sector working if the integrated objectives of inclusive design are to be met. Here, however, it is important not to overlook the dimensions of leadership, co-ordination, monitoring and evaluation.

Indeed, notwithstanding earlier attempts at mainstreaming disability equality, a number of concerns have been highlighted with respect to the 'planning for access' agenda. These have included the building control/planning overlap; the potentially excessive demands placed on local access groups to 'participate' in the planning process; the 'misunderstanding about who is responsible for what, and what the legal powers and limits of planning are'; and, perhaps, a lack of imagination on the part of land use planners themselves. (7,14)

Nonetheless, a lack of creativity has not been confined to the planning profession alone. (16) The contemporary political tactic to assert collective responsibility for promoting equality in imaginative ways may bring a new energy to problem-solving, but it also represents a challenge for creating an inclusive inter-professional culture. It is important to understand the implications of the new approach as it necessitates a new way of thinking.

Disability equality duty

Potentially one of the most significant proposals to result from the Disability Discrimination Act 2005 stems from the wider public sector duty to promote disability equality. Importantly, this is an absolute duty; that is, there is no test of reasonableness. The duty mirrors that set out in the Race Relations Amendment Act, which legislated in 2001 for a race equality duty (RED). It is intended to be followed by a gender equality duty (GED). In practice, the new disability equality duty (DED) is intended to change the mind-set under which public services, including land use planning, are delivered. It does not therefore introduce new rights or entitlements, but seeks to engender a new approach.

It is described by the Disability Rights Commission as forming part of a 'new breed of legislation' that will serve to require all public bodies to build disability equality into the way in which they carry out their business, with the objective of closing the gaps in disabled and non-disabled people's experiences. The DED is therefore represented as a tool for encouraging organisational change and for tackling 'institutionalised discrimination'. In practice, this means having 'due regard' to the need to eliminate discrimination and harassment that is unlawful under the Act; and to the need to promote equal opportunities and positive attitudes towards disabled people.

The new duty comes into force in December 2006, and each public body or authority is required to publish a 'disability equality scheme'. (17) Significantly, the emphasis is on implementation and delivering specific outcomes; this, then, is not intended to result in the tokenistic production of a scheme. Moreover, public bodies have to articulate how disabled people have been involved in producing the scheme and its associated action plan. Further, there is a requirement to report annually on the progress made towards meeting the action plan. This necessitates public bodies setting out how the proposed activities have actually impacted on disabled people--something that will need to be evidenced and assessed. Clearly, such processes raise a number of resource and capacity issues, particularly for the representatives of groups of disabled people who are brought into the process.

The introduction of the new duty has been preceded by the publication of codes of practice--in England and Wales, and in Scotland. This is an important advance on the introduction of the race duty, where the code was produced after the duty. The codes of practice explain the new duty and provide examples of the practical implications. (18)

It is likely that the new duty will impact on planning in a number of ways. For example, with respect to planning policies promoting car-free developments which seek to encourage the use of public transport, account will have to be taken of the potential inaccessibility of public transport for disabled people in the area and the reliance of many disabled people on cars. The new duty would require the authority to consider alternative approaches which would avoid the negative impact on disabled people. This might, for example, require the provision of dedicated parking spaces for disabled people near their property.

The DED is intended to increase the involvement of disabled people in public life and in policy-making, and to increase disabled people's confidence in public services. This will demand better-targeted policies, better involvement, and more participation by service users. This offers an important opportunity to mainstream disability equality and to contribute to the three pillars of equality, human rights, and good relations between and within communities. As an activity at the core of public sector policy-making, planning has a critical role to play in leading by example.

Notes

(1) Improving the Life Chances of Disabled People. Strategy Unit, Cabinet Office, London, 2005

(2) The Office for Disability Issues website is at http://www.officefordisability.gov.uk/

(3) Towards Inclusion--Civil Rights for Disabled People. Government Response to the Disability lights Task Force. Department for Education and Employment, London, 2001

(4) From Exclusion to Inclusion. Final Report of the Disability Rights Task Force, 1999, p.9. Available online at http://www.leeds.ac.uk/disabilitystudies/archiveuk/ disability%20rights%20task%20force/drtf.pdf

(5) Details of the 'Raise your Eq' campaign are available online at http://www.drc.org.uk/employers_and_service_provider/ disability_equality_duty.aspx

(6) 'DRC warns of culture of complacency in public sector'. News release. Disability Rights Commission, London, 20 Dec. 2005. Available online at http://www.drc.orcj.uk/newsroom/news_releases/2005/ drc_warns_of_culture_of_compla.aspx

(7) R. Imrie: 'Can the planning system meet the needs of disabled people?'. Town & Country Planning, 2004, Vol. 73, Sept., pp.252-254

(8) R. Gilroy, 'Making cities friendly to older people'. Town & Country Planning, 2004, Vol. 73, Sept., pp.254-256

(9) Planning and Access for Disabled People: A Good Practice Guide. Office of the Deputy Prime Minister, London, 2003

(10) S. Langton-Lockton: 'What is inclusive design?'. Access by Design, 2004, No. 101, pp.9-11

(11) B. Furner. 'Has the fight been won?', and I. Cook 'The rights way forward'. The Guardian, 2 Dec. 2005

(12) P.J.G. Williams: 'A personal history of the DDA'. Access by Design, 2004, No. 100, pp.6-8; and P.J.G. Williams: 'The Disability Discrimination Act 2005'. Access by Design, 2005, No. 103, pp.6-7

(13) P. Ashford: 'A new planning system'. Access by Design, 2004, 100, pp.30-32

(14) Research Report: Access Improvement Applications to Listed Buildings and the Role of Local Authorities Disability Rights Commission and Historic Scotland, Edinburgh, 2006. Available online at http://www.drc-gb.org/pdf/10_779_DRC%20HS%20Research%20-%20pdf.pdf

(15) Planning and Building Standards Advice Note: Inclusive Design. PAN 78. Scottish Executive Edinburgh, 2006

(16) V. King: 'All in the open'. Access by Design, 2005, 102, pp.14-17

(17) Doing the Duty. An Overview of the Disability Equality Duty for the Public Sector. Disability Right Commission, 2005. Available online at http://www.drcgb.org/pdf/Doing_the_Duty_Focus23.pdf

(18) The Duty to Promote Disability Equality. Statutory Code of Practice. England and Wales. Disability Rights Commission. The Stationery Office, London 2005. Available online at http://www.drcgb.org/PDF/DED_Code_Dec05_pdf.pdf; and The Duty to Promote Disability Equality. Statutory Code of Practice. Scotland. Disability Rights Commission. The Stationery Office, London, 2006. Available online at http://www.drcgb.org/pdf/4008_376_SCOTCON3.pdf

Deborah Peel is based at the Department of Civic Design at the University of Liverpool. She is the RTPI in Scotland representative on the Built Environment Reference Group (BERG) of the Disability Rights Commission in Scotland, and a member of the Learning Inclusive Design (LID) project.