Disability: policy context

Definitions

In policy terms, two important definitions of disability are those provided by the Equality Act 2010 (see below) and the International Classification of Functioning, Disability and Health (ICF). The former defines disability as 'a physical or mental impairment which has a substantial and long term adverse effect on his/her ability to carry out normal day to day activities'. It therefore reflects the individual model of disability as the emphasis is on impairment and 'normal' functioning. It does not, however, consider contextual factors such as physical or social barriers. The ICF definition represents a more rounded view of disability due to its recognition of impairment and environmental factors; it defines disability as 'an umbrella term of impairments, activity limitations or participation restrictions'. The UN Convention on the Rights of Persons with Disabilities (see below) uses a definition that includes aspects covering both dimensions: 'Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others'.

Legislation to prohibit disability discrimination and promote equality

The Human Rights Act 1998 prohibits discrimination and widens the extent to which a disabled person can seek redress through the law. However, the most important legislation relating to people with disabilities is contained within the Equality Act 2010. It provides a cross-cutting legislative framework to protect the rights of individuals and advance equality of opportunity for all. The act was a major simplification of existing discrimination legislation (including the Disability Discrimination Act 1995 and Disability Discrimination Act 2005), and brought in new provisions relating to indirect discrimination of disabled people and discrimination arising from disability.

The 2010 Equality Act introduced a public sector equality duty (which replaced a number of pre-existing duties, including the Disability Equality Duty). Bodies that are subject to the general equality duty must have due regard to the need to: eliminate unlawful discrimination, harassment and victimisation; advance equality of opportunity between different groups; and foster good relations between different groups. A wide range of bodies is covered by the regulations and the Scottish Government has the authority to add to the list set out in the 2010 Act. The most recent update to the regulations in Scotland took place in 2015. A full list of the bodies in Scotland covered by the duty is available here.

Progress resulting from the above legislation is monitored by the Equality and Human Rights Commission (EHRC) which was established in 2007 when it brought together the Disability Rights Commission (DRC), Equal Opportunities Commission and the Commission for Racial Equality. Further details are available from the Disability pages of the Equality and Human Rights Commission website.

Disability and human rights

The UK has been a signatory of the UN Convention on the Rights of Persons with Disabilities since 2009. Article 1 of the Convention sets out its purpose: to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. The Scottish Human Rights Commission has designated status as the Independent Monitoring Mechanism for the Convention in Scotland (working alongside the EHRC).

The Scottish Government adopted a human rights-focused approach in its 2013 Keys to Life strategy to improve the quality of life for people with learning disabilities (more details are provided here).

Welfare reform and new Social Security Agency for Scotland

The Welfare Reform Act 2012 became law on 8 March 2012 and introduced a wide range of reforms to the benefits and tax credits system. This included the replacement of Disability Living Allowance with a new Personal Independence Payment (PIP) for working age disabled starting from April 2013. More information on the Welfare Reform Act and how it might affect people in Scotland is provided in the welfare reform section of the Scottish Government website. 

The Scotland Act 2016 was enacted on 23 March 2016. It devolved responsibility for a number of disability-related benefits to the Scottish Parliament and enables new benefits for working-age people to be created. In response, the Scottish Government announced its intention to create a new Social Security Agency for Scotland. Draft legislation to create this agency, and setting out how these new powers will be used, will be introduced in the 2016-2021 parliamentary session. A public consultation about the new social security system took place in autumn 2016. An overview of the benefits being devolved is provided in the social security section of the Scottish Government website. 

In November 2016, the UK Government published a consultation paper, Improving Lives, which aims to halve the employment gap between disabled and non-disabled working-age people. It invites views on improving employment support to all those on ESA, including those currently in the support group.