Mind – Written Evidence (EQD0147)
Who we are
We're Mind, the mental health charity for England and Wales. We believe no one should have to face a mental health problem alone. We provide advice and support to empower anyone experiencing a mental health problem. We campaign to improve services, raise awareness and promote understanding.
We work in partnership with our network of over 150 local Minds to provide a range of services tailored to the needs of their local community. Each local Mind is an independent charity run by local people, for local people. Each is responsible for its own funding and the services it provides, but all are affiliated to Mind. Local Mind services include supported housing, crisis help lines, drop-in centres, counselling, befriending and advocacy, employment and training schemes. In 2014, local Minds supported more than 400,000 people across England and Wales.
Introduction
Mind welcomes the opportunity to respond to this call for evidence as it covers important issues that have a huge impact on the daily lives of people experiencing a mental health problem. We will respond under the headings of the committee’s questions. Our response is based on the expertise of our Legal and Policy & Campaigns teams; the policy work we have carried out in key areas, such as employment; and the experience of staff on our legal advice line.
General
Has the Equality Act 2010 achieved the aim of strengthening and harmonising disability discrimination law?
There are some areas where the Equality Act 2010 has strengthened and harmonised disability discrimination law. Positive changes include: broadening the definition of disability from the definition in the Disability Discrimination Act (DDA) 1995 to better reflect mental health; including disability in indirect discrimination and the single 'objective justification' test to replace the different tests previously used; and the new concept of 'perceived disability' for direct discrimination and harassment.
While there have been some improvements to how the law is codified, our experience is that these gains haven’t always carried through ‘on the ground’ for people with mental health problems.
We believe this opportunity could still be more fully realised with some adjustments and improvements to how the Act is enforced and promoted. When operating effectively, the Act, and in particular the equality duty, can promote the delivery of better public services which understand and meet the needs of the entire community, as well as help public bodies make fairer decisions about the allocation of resources. We’re keen to not lose sight of this rich potential and risk ‘throwing the baby out with the bath water’.
A major reason for the Act’s failure to achieve its full potential is how it has been rolled out and put into practice. The Equality Act is an ambitious piece of legislation which had the aim of getting public bodies onto the front foot by encouraging a positive, proactive approach to equality. Its aim was to change cultures in public services by fundamentally altering how public bodies think about and approach the design and delivery of their services – so as to place equality right at the heart of this process. For this reason the need for senior leadership within public bodies to drive forward this change is particularly important.
However, since the introduction of the Act we feel that government has often articulated and enacted an approach to equality that runs contrary to the previous direction of travel and purpose of the Act. After the 2010 General Election, moves were made to water down key provisions of the Equality Act and to repeal and/or shelve a number of key pieces of equalities legislation, many enacted through the Act. Central to this was a significant weakening of the initial set of specific duties intended to support the Equality Duty. The net impact of these changes has been to further devolve responsibility to progress equality away from the state and public bodies.
What government has said about the Equality Act could be as important as what it has done. The ‘mood music’ from the Coalition may have undermined the necessary buy-in and senior leadership, and weakened the reach and impact of the Act by confusing and watering down the message being sent to public bodies and their leaders. Repeated pronouncements from government that characterised equality considerations largely as bureaucratic red tape undermined the effective implementation of the Act as a whole and particularly the equality duty. For example, the value of undertaking Equality Impact Assessments (EIAs) has been called into doubt and dismissed by a number voices in government – including the Prime Minister.
Additionally there are a lack of data in some areas to reliably measure the impact of the Act, e.g. statistics on the types of discrimination cases brought and the outcome of legal aid cases. This limits the ability of the government and other agencies to monitor the effectiveness of the act and understand where improvements might be required.
Specific issues with employment
Staff on Mind’s Legal Line have noticed an increase over the past few years in calls relating to employment and people being treated unfairly or discriminated against. We frequently hear from people who have been bullied, demoted or dismissed because of their mental health problems. But with huge cuts to legal aid, legal advice and information is now much harder to access. Combined with the introduction of tribunal fees, this means most people simply don’t feel able to challenge this treatment so discrimination is going unrecorded and unchallenged.
We also know from calls to our Legal Line that there is a great deal of confusion among employees, employers and managers about about what an employer’s legal duties are under the Equality Act and how this applies to mental health. Despite the existence of some guidance, the application of the Equality Act is still substandard by employers in practice in relation to mental health.
This picture is further compounded by the huge stigma around mental health. Outdated and damaging views about the impact a mental health problem can have on somebody’s ability to carry out their role are all too common. We know that fewer than four in ten employers would knowingly employ someone with a mental health problem and 40 per cent of employers view workers with mental health problems as a ‘significant risk’. It’s not surprising that many people feel unable to open up about their mental health in work, which in turn creates a culture of silence. In this context health needs are often not explored when an employee is underperforming.
Are there gaps in the law on disability and equality not covered by the Equality Act 2010 or other legislation?
There are a number of gaps that mean people with mental health problems far too often do not benefit from full protection under the Act. These include: confusion among employers about how the Act applies to mental health; the definition of disability; and the fact that many people do not feel able to be open about their mental health status with their employer. The reality ‘on the ground’ is that many people simply do not get the benefit of protection and ultimately some are forced out of their jobs because of their mental health problem.
It is very positive that the definition of disability focuses on the effect of illness rather than the diagnosis. However, the definition excludes someone who has been unwell but does not meet the long term requirement of 12 months, for example, a person could experience a one-off debilitating episode and be off work for 10 months but not be included in the definition and therefore not entitled to reasonable adjustments. This could mean that someone does not get the support or adjustments that they need, despite experiencing just as, or even more, debilitating effects than someone who is covered by the act.
Reasonable adjustment
Are the reasonable adjustment duties known and understood by disabled people, employers, service providers and others who have duties under them?
How does this apply in the specific cases of public transport, taxis, education and access to sports grounds?
It is very difficult to get reliable data about people’s experiences of reasonable adjustments in different areas of life. Because there has not been a significant communication strategy to help people understand the Equality Act or the reasonable adjustment duties it is unlikely that many people have felt empowered to request an adjustment. However, anecdotally we know that there is a real lack of understanding of mental health as a disability because it is not ‘visible’ in the same way as a physical disability. For example we have heard a number of cases of people on public transport using a disabled travel pass being challenged by staff because they ‘don’t look disabled’.
In the workplace, our experience is that there is confusion among employers and managers about whether people experiencing a mental health problem qualify for adjustments (see answer to previous question about some of the ‘gaps’ for our beneficiaries). For example, staff on our Legal line report regularly hearing from people who’ve been told by their employer that they cannot make adjustments for them because they are not physically disabled. There is also sometimes an incorrect perception among employers that making changes to policies, practices and procedures to support an individual might mean treating others unfairly (i.e. those without disabilities), and this is sometimes given as a reason to refuse a request for a reasonable adjustment.
Often the focus from employers and managers is only about determining whether someone qualifies for adjustments under the Act rather than beginning an open conversation with the employee to understand what aspects of their role they are struggling with and what type of support they feel would help them. This minimum compliance approach has been shaped by pronouncements from government that have tended to focus largely on compliance and on telling employers what they don’t need to do rather than more positive messaging to build their confidence to have a conversation with employees and listen to their needs. Mind has attempted to address this gap with guidance (http://www.mind.org.uk/media/550657/resource4.pdf) for employers which takes a more positive and collaborative approach to adjustments.
Alongside this confusion there is also a lack of imagination and often a high degree of inflexibility from employers about what type of adjustment might be appropriate to support someone experiencing a mental health problem. Mind’s Legal Line staff report that while most callers have a good idea of the type of adjustment or support that they need, many report that their employer or manager is not prepared to listen to their suggestions and people often have their suggestions refused. Our experience is that beyond making changes to working hours or to disability absence policies, employers are often quite resistant to other adjustments. Clearly there is a role for improved guidance for employers in this area to help them think more positively about adjustments and to better understand their duties to disabled staff.
Should the law be more explicit on what constitutes a reasonable adjustment? If so, in what way?
There are arguments for and against making the law more explicit on what constitutes a reasonable adjustment. However, it is Mind’s view that, on balance, more guidance would be very helpful. This is because among individuals, employers, service providers and others who have duties under the Equality Act there’s currently such an obvious lack of confidence and understanding about what an adjustment could look like for someone living with a mental health problem. However, we feel strongly that any guidance would need to make clear that the suggestions are not exhaustive and that listening to the individual is often the best approach to shaping an appropriate adjustment. Guidance could also be used to challenge misunderstandings and myths that may exist about what reasonable adjustments might constitute.
Public Sector Equality Duty
How effective has the public sector equality duty been in practice?
How do you assess its contribution to the aims of the Equality Act 2010?
When used proactively by public bodies in the way it was intended, there’s no doubt the duty can lead to better services and save our public services money. The duty can do this by enabling informed decisions about policies and services that meet real rather than perceived need. It can also lead to fairer decisions about the allocation of resources and promote the delivery of public services which understand and meet the needs of the entire community.
However, we feel that the duty’s effectiveness has been undermined by the reduction and weakening of the specific duties that has occurred. It was also decided that the new Equality Duty would not be supported by any statutory code of practice as originally intended. In light of the weakened specific duties the role of statutory guidance became even more vital.
Taken together these two decisions were therefore extremely damaging to the potential effectiveness of the duty. The phrasing of the duty as a need to have ‘due regard’ is also problematic and has encouraged a “tick-box” approach that emphasises procedures rather than outcomes. This issue has been further exacerbated by pronouncements from government that have had we believe have served to play down the requirements on public bodies - for example through comments referenced previously that have undermined the use of Equality Impact Assessments.
However, when assessing the Equality Duty’s effectiveness it is important to acknowledge that this sort of tool, or method of working, will always take time to become embedded within the working processes of any organisation. Addressing institutional discrimination and barriers, and changing institutional practice, are long term projects requiring a gradual improvement in working methods. The Equality Duty must therefore be seen as a work in progress which develops with continuous improvements: the more it can be embedded within the existing procedures of an organisation, the easier it will be to operate. The easier it is to operate, the better it will work.
Diluting the specific duties
The initial specific duties intended to support the Equality Duty were changed significantly following the 2010 General Election to reduce obligations on the state and public bodies. The final specific duties were much weaker than originally intended - just two remained: a requirement to publish some equality information and a requirement to publish at least one equality objective. Vital specific duties related to engagement and the analysis of equality impact were lost (even though both are generally considered necessary to show 'due regard'). The omission of any specific duty on engagement was a particular loss for people with mental health problems who had previously benefited from a strong specific duty to involve disabled people under the former disability equality duty, by it being ensured that their views would be heard.
No statutory code of practice
The new Equality Duty was to be supported by a statutory code of practice prepared by the EHRC, as previous duties had been. Without detailed specific duties to guide public authorities and the courts on what the Equality Duty required, the code was expected to be of even greater value and significance than earlier codes. However, in spring 2012, it was decided that ‘further statutory guidance may place too much of a burden on public bodies' and the government scrapped the plan.
This omission of statutory guidance was significant. We believe that rather than creating regulatory burden, statutory codes have a valuable role to play in making clearer to everyone what is and is not needed to comply with the Equality Act.
We are also concerned that some guidance that has been produced, including guidance from government departments, focuses too much on what public bodies do not need to do and not enough on what they do need to do. Whilst it is helpful to ensure public bodies are clear about the limits of their duties, guidance that is framed largely in negative terms does not promote effective performance and tends to send the message that the Equality Duty is about bureaucratic processes rather than about improving outcomes.
Due regard
Due regard, which is central to the duty, is an inherently proportional concept. It requires public bodies to consider equalities issues in a proportionate manner and not in an excessive or irrelevant way. However, there is confusion about what it means in practice, and this has been exacerbated by Government comments about what equality impact assessment means and whether it is beneficial or required. For example, it is becoming common to paraphrase ‘due regard’ as ‘giving consideration to equality’ even though case law indicates that the general duty ‘requires more than simply giving consideration to the issue’.
However, it is our experience that this positive, proactive approach is not universally understood by public bodies and that many often fail to understand that they are required to abide by these provisions. This means they don’t collect and analyse the necessary information required to ensure their decisions and actions are in line with the Duty. In particular the PSED is often perceived as simply meaning that public bodies cannot discriminate against protected groups, when in fact it requires them to proactively “advance equality of opportunity” and “foster good relations”.
Furthermore we feel the specific wording of the Act may have encouraged a “tick-box” approach, with an emphasis on procedure rather than outcome. Consequently, it is enough for the authority to consider the equality impact but then to move on, without taking any action to achieve fairer representation. We believe it would have been better to replace “due regard” with an obligation to “take such steps as are necessary and proportionate for the progressive realisation of equality.”
What has been the impact of the different approaches in England, Wales and Scotland to the specific duties designed to support the general public sector equality duty?
Have the specific duties supported implementation for disabled people?
Since Mind does not cover Scotland, we cannot comment on implementation there. However, our experience in Wales is that additional provision around reporting and monitoring/assessing the impact of the Act, and greater clarity around the duties contained in the Act, have led to better outcomes and a more embedded approach to equality.
However, as in England, we have ongoing concerns that the primary focus is on physical rather than mental health, and that the duty does not go far enough in increasing representation in workplace or indeed public sector boards and positions.
Oversight and enforcement
How effective has the Equality and Human Rights Commission been in exercising its regulation and enforcement powers?
What contribution has this made to the impact of the Equality Act 2010 on people with disabilities?
The EHRC is good at producing a range of guidelines aimed at a variety of different audiences, for example, employers and service providers. We would have liked to have seen statutory guidance to support the PSED. The EHRC also appears to have been less effective in undertaking investigations, inquiries and assessments on the implementation and operation of the Act.
While there is a disability committee within the EHRC, the emphasis on disability (as compared with when there was a separate disability rights committee pre-EHRC) as a focus area, has reduced. The powers that exist are not used as strategically and usefully as they could. Furthermore, within the disability field there is very limited focus on mental health specifically. This is particularly surprising given, for example, the cuts to budgets for the provision of mental health services and information coming to light about local authorities’ limited spending on mental health services.
There have only been two inquiries that relate to mental health (one specifically, the second tangentially): (1) Preventing Deaths in Detention of Adults with Mental Health Conditions; and (2) Disability-related harassment. As such, mental health does not seem to be a priority area, as we believe it should be.
Could other regulatory bodies with a role in the effective implementation of the Equality Act 2010, such as inspectorates and ombudsmen, play a more significant part?
There can be no doubt that the Act is most effective when incorporated into existing inspection regimes such that how well a public authorities meets the duty becomes part of the inspection process. This is crucial to ensuring that equality is at the core of improvements in the quality of services. A strong case can be made for further strengthening the role of the regulatory or inspection bodies in monitoring compliance and outcomes on disability equality.
The EHRC and its functions are hugely important and should not be further diluted by reduced funding or limiting its powers. However, introducing an ombudsman for individual complaints about organisations might fill a gap that seems to be missing in the system. The complete independence of an ombudsman is also of value.
Are the current enforcement mechanisms available to private individuals (through Employment Tribunals, County Courts and, in Scotland, Sheriff Courts) accessible and effective for people with disabilities, employers and providers of goods, facilities and services?
Changes to legal aid have made Tribunals less accessible for people with mental health problems. Due to a number of factors, but particularly as a result of fees being introduced, the number of claims has been reduced significantly.
Discrimination legal aid has only been available through a telephone gateway since April 2013. We have heard a number of issues with this new system, including:
• Low levels of awareness of the gateway
• Issues with accessibility, such as the content of the call and the types of questions asked; and communication barriers, including difficulty establishing trust
• Non-legal specialists manning phones so incorrect advice given and high turnover of staff leading to loss of developed expertise
• No review of the quality of advice given so limited ability to improve the service
Are there other legislative or non-legislative measures that would improve implementation of the Equality Act 2010 in respect of disability?
It is disappointing that there are parts of the Act that have not been brought into force or have been repealed despite the Act being in its infancy, for example, the socio-economic duty under section 1 and the statutory questionnaires.
There is a need to address misunderstandings about how discrimination law relates to mental health and what the duties of employers are, as well as to the entitlements of someone with a protected characteristic. The experience of staff on our Legal line suggests there continues to be considerable misunderstanding here.
Mind believes this is necessary legislation for an equal and inclusive society and with a proper framework for implementation, assessment and monitoring could provide a strong and effective opportunity to realise this aspiration.
9 September 2015