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The Disability Discrimination Act -The European dimension

Tony Shipley
May 2000

The DDA is a piece of UK national legislation, with no European counterpart, so there is no European dimension and this will be a very short paper. Well, not quite. As with all national legislation in Member States of the European Union, the DDA has to co-exist with Community laws and it does fit there very well, as I shall hope to show. Whether this is entirely by design, or whether it is to some extent a happy accident is a matter of opinion, but the net effect is that of a powerful move towards the removal of discrimination.

Through the mechanism of decisions, resolutions and communications from the Council of Ministers and the Commission, the EU has frequently stated its intention of preventing discrimination in all its forms, so the absence of a European version of the DDA is perhaps surprising. It is no secret that many disability organisations nurture the objective of seeing such legislation put in place, but it takes a great deal of time to introduce a new European Directive and the Community's more pressing concerns have been to establish the Single Market and the work-place laws which accompany it. Nevertheless, the introductory recitals to European Directives - the lengthy set of clauses commencing with 'whereas' that precedes the Articles - make the policy and principle of non-discrimination abundantly clear. Although these recitals do not have the immediate force of law, they set the context in which the European Court of Justice interprets and decides the cases referred to it. On specific legislation the UK is in the lead with the DDA, but it is clear that the approach is not out of step with the prevailing view in Europe.

I propose to illustrate how the DDA exists in harmony with European law by reference to the sector of telecommunications. This seems an appropriate example to take for several reasons:

All of this adds up to a simple challenge to those who exercise any control over the ways in which ICT is developed and applied.

The EU liberalisation of telecoms commenced in 1986 with moves towards opening up of national networks and the mutual recognition of equipment approvals. It very quickly underlined the principle (already adopted in the UK) of separating provision of services from that of terminal equipment; in other words "the network stops at the socket". The impact of this separation in the context of the DDA is considerable.

You have heard how the DDA treats 'goods and services'. Suppliers of services have to make reasonable adjustments so that disabled people can have access to them. That includes arrangements for the supply of goods - as in retail shops - but not the goods themselves. There is no legal means by which manufacturers can be forced to make products of a particular kind, although there is plenty of legislation bearing on how products are made, once a manufacturer has taken a decision to make them. What the manufacturer does make depends upon his perception of the market.

Disabled people often need terminals with particular features, such as amplified speech or enlarged keys, if they are to be able to access telecommunications services. If market forces alone are not enough to create a ready supply of such products, then disabled people are denied the freedom of choice that other consumers enjoy. They are denied the affordability that market-place competition brings about and they may even be denied access to the basic telecoms services for lack of suitable equipment. Their situation may be no different from that of other people whose needs are poorly catered for, such as those who require unusual sizes of shoes or clothing, but there is little comfort in equal misery. Their exclusion is all the more distressing as it has been made worse as a consequence of de-regulation.

If the telephone companies still supplied terminal equipment as an integral part of the service, then either some regulatory control would still apply or the DDA would require the telcos to offer suitable terminals in the context of reasonable adjustments. We will look at some of the service issues in a moment, because non-discrimination measures additional to the DDA do apply there. De-regulation of the telephones market has brought enormous benefits, which disabled people have shared, in terms of innovation and extension of choice, but it has also brought some problems which are quite difficult to address. The DDA can help to resolve these, but sometimes only by indirect effect as we shall see.

Before turning to specific examples, there is another piece of the legislation framework which we have to bear in mind. It is the issue of priority and subsidiarity. EU Member States are bound by the Treaties which they have signed to accord precedence to European laws. Where there is Community legislation in place, it over-rides any national laws which might conflict. Even where a Member State has failed to enact measures or to repeal others to make way for a new Directive, that Directive is still assumed to take priority. Conversely, the principle of subsidiarity gives Member States the prerogative of making or retaining unharmonised national legislation in sectors, and parts of sectors, where the EU has not legislated. Since the DDA is horizontal, that is it applies across many different sectors, its application will be affected by the presence of European laws. This has both positive and negative consequences for the DDA, as we shall see. I will start with an example of a product that was previously regulated, the PBX.

Until recently, the approvals requirements in this country for PBX equipment specified that consoles for blind switchboard operators had to be available on demand. This reflected and protected long-standing employment opportunities for blind people, and it mirrored similar requirements in other European countries - although in their cases it was applied through employment laws rather than by telecoms regulation. Liberalisation has forced the UK to withdraw the requirement, because Member States are prohibited from making or retaining national rules that would act as barriers to trade in a de-regulated environment. Those States which addressed the topic through their labour laws can continue to do so, however, because they apply pressure on PBX equipment manufacturers through the mechanism of market forces - which is allowed - and not by national regulation of telecoms products - which is not.

The DDA can be expected to produce a corresponding result in the UK for it will oblige employers to make reasonable adjustments, such as obtaining equipment of an appropriate kind for the use of their blind employees. That equipment is available in Europe, even in the absence of the UK's former technical regulation, and PBX manufacturers who decline to produce it will lose markets.

In passing, we might note that this use of employer pressure to create market forces is to be preferred to the use of technical regulation. Technology is bringing significant changes to workplace practices and a flexible and responsive approach that recognises this evolution is better than an attempt to retain obsolete design standards. As the larger PBXs give way to call centres serving a number of office locations, the nature of the operator's task is changing dramatically. The need to retrieve data quickly from a VDU screen may make this type of work unsuited to a blind person, but other employment opportunities will surely arise.

The DDA may prove to be of significant value in ensuring availability of accessible telephone terminals of a more general kind than the PBX. I referred to the problem which disabled users encounter in finding telephones which have the feature sets that they need to alleviate the effects of their particular kind of disability. Many kinds of disability can hinder easy use of telecoms services and these can arise in varying degrees, so that a range of telephone terminals with different features is required to accommodate them. If manufacturers are slow to recognise a market at all for such terminals that much-needed range is going to be unduly restricted, even before we look at other consumer considerations like extent of choice and cost options. PhoneAbility has produced a booklet which sets out the combinations of features which are likely to be of use in various cases. It is intended mainly for designers of telephone terminals but others may find it of interest. It also gives some idea of the numbers involved - but remember that market size is not necessarily related to urgency of need.

Although the numbers of disabled people are very large in aggregate, especially when elderly people with disabilities are included, their diversity makes the market size for any one type of product very much smaller. What is needed is a means of increasing the responsiveness of the market and, in our de-regulated Europe, it is difficult to do this by Directive and impossible to do it by national regulation. As in the case of the PBX, it seems probable that the DDA will come to the rescue. Their obligations to make reasonable accommodation for disabled employees will make employers interested purchasers of appropriate telephone equipment, not just PBXs and other business terminals but also the ordinary terminals for staff at their desks. There may be little or no difference between these desk telephones - especially in smaller businesses - and the domestic telephones that the employees use at home, so a market will be created that encourages the wider availability of such terminals. If the DDA can provide a nucleus for that market in the UK, then the manufacturers can look to the rest of Europe for added sales, for a very positive result of de-regulation is that there is now a single market in telephone apparatus instead of 15 nationally regulated ones. Products that used to be considered as restricted to national niche markets can now be offered for sale anywhere in the EU, and before long in the EEA as well. Approvals tests no longer constitute formidable obstacles and it will be possible for the first time to aggregate demand for fringe products to the extent that the term 'fringe' ceases to be appropriate.

I have emphasised the role of employers in creating market pressure for accessible telephones because they are likely to form the most powerful group, but the obligations of the DDA and the commercial forces that will stem from them are of course not confined to this area. Any service provider who makes telecommunications facilities available for the use of his customers will face similar obligations. That will include managers of hotels and guest houses, and even inn-keepers and shop-keepers who provide a payphone. Payphones in public places are a different matter, however, and that forms part of my next example.

The previous examples have been concerned with subscribers' equipment, which has to be purchased or rented by the telco's customer and is not part of the network because that stops at the socket. The next examples are related to the services offered by the network operators. This is an area where there is still an environment of licensing and national regulation within the European framework, although the emphasis of this regulation is increasingly to avoid anti-competitive practices and the abuse of market dominance.

The concept of universal service has been introduced into the telecoms liberalisation process, to ensure that unprofitable customers and socially desirable services are not abandoned in a market-driven business culture. We need not look at the detail, for it is sufficient to note that similar safeguards are felt to be needed wherever former public utilities are moved out of state control. The elements of universal service in telecoms have been defined by an EU Directive and the details of how it is to be provided are left to Member States, who must therefore make use of the subsidiarity principle to take the necessary action.

One of the defined elements of universal service takes the form of specific measures to ensure equal access for disabled users to fixed public telephone services. In Article 8 of the Revised Voice Telephony Directive, Member States are obliged to take these measures - which are however not specified - where appropriate. This may seem like a classic piece of 'Brussels-speak' but it does in fact both authorise and require the exercise of subsidiarity to ensure accessibility of services. It opens the door for UK national legislation on this topic, through the telecoms Act and the Licence conditions enforced by Oftel, and through the DDA. If we look at some of the measures, which are now made genuinely specific, we can see how the DDA will cover the gaps which are left by the more direct legislation.

Under Regulations which will come into force later this year, the Licences granted to the main fixed line operators under the telecoms Act will be modified. These telcos will be required to provide Directory Information and Service Bills in alternative forms without charge to customers who cannot read print. They will have to ensure that most of the public call boxes which they provide are accessible to wheelchair users and are fitted with features needed by people with hearing difficulties, and they will have to provide certain text messaging services for deaf people. There are other requirements in the proposed Regulations, but I have picked the most prominent ones.

There are gaps - one might say 'loopholes' - in these draft Regulations. telcos who do not fall within this description of 'main fixed line operators', because they operate under other Licence categories, will not be bound by them although disabled people may wish to use their services. Payphones in airports and railway stations, which are especially important to disabled users, are out of the scope of the Regulations because such premises are private property and not unconditionally open to the public.

These are serious gaps but, because of the DDA, they are unlikely to prove of any consequence. If the requirements set out in the Regulations are reasonable for some providers of telephone services, they should be equally reasonable for others, so the DDA provides a means of applying the benchmark service obligations described in the Regulations to other operators. What we should expect to see is the two forms of legislation reinforcing each other, so that a seamless non-discriminatory service eventually results.

This same seamless approach could influence the nature of telecoms services provided by operators who are not themselves telcos, and this is an important consideration in view of the amount of business now conducted by telephone. Any company which operates a telephone help-line or sales centre should be looking at the benchmark service levels prescribed for the public telecoms operators and deciding to what extent they might be read across. Sending out company literature in non-print versions on request might be a starting point, but it gets more difficult when a textphone user calls on a voice line. A human operator might hear the deaf caller asking to be connected to the Minicom, but an automated system will not. Is there a text line? Is its number as well publicised as the voice number? Textphone users are about to enjoy much easier access to the networks, so it seems likely that they will be expecting a comparable level of service from the called number.

Perhaps the main conclusion that we can draw from these examples is that the DDA is very much in tune with the thrust of European legislation as applied to services, and it will act as a useful tool to apply much of the detail. It should foster the sector to sector comparison of benchmark decisions and promote the growth of a unified non-discrimination culture. It is unlikely to be as effective with goods, but it can create both awareness and market pull.

I shall end with a reference to the concept of inclusive design - sometimes not quite accurately called 'Design for All'. This is not a proposal for all products to be accessible to all people which, even if it were possible, would lead to an uncomfortable and uneconomic uniformity. It is a plea for designers and manufacturers to help themselves, as well as their customers, by recognising that each product range could be targeted at a wider cross-section of the population. If manufacturers looked more closely at the profiles of the people whom they expect to purchase and use their products, if they took time to study the spectrum of size, shape and ability of their customers, and not just their spending habits, they might find they could make better, more desirable, items at no greater cost. Manufacturers would gain access to wider markets and people with disabilities would not have to seek special solutions when what they really want is - to put it very simply - good design. The DDA cannot make good design mandatory, but it can help to make all of us aware of the need for it.

This paper was presented at the British Computer Society 'Access for All' Conference on 11th May 2000 by Tony Shipley BSc, ARCS, CPhys. Reproduction of this paper, in whole or in part, without acknowledgement is forbidden.

© Tony Shipley, May 2000


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