Disability Legislation

Disability Act 2005

Disclaimer This information is not comprehensive but is simply a summary for readers. It is not, and should not be taken as, a legal interpretation of the Acts.

Overview of the Disability Act 2005

In short, the Disability Act 2005 places a statutory obligation on public service providers to support access to services and facilities for people with disabilities. Under the Act, people with disabilities are entitled to:

Have their health and educational needs assessed.
Have individual service statements drawn up, setting out what services they should get.
Access independent complaints and appeals procedures.
Access public buildings and public service employment.

The Act also provides for restrictions on genetic testing.

What is the definition of disability under the Act?

Under the Act, the term ‘Disability’, in relation to a person, means a substantial restriction in the capacity of the person to carry out a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment. Substantial restriction means a restriction that is permanent (or likely to be permanent) which results in significant difficulty in communication, learning or mobility and means that the person has a need for services to be provided on a continuous basis.

What is meant by ‘Assessment of Need’?

A person may apply for an independent assessment of need if they think that they have a disability. The objective of the assessment is to establish the person’s health and educational needs and the services required to meet those needs. Assessment officers, appointed by the Health Board, will carry out the assessment. Once this has been done, the person will receive an Assessment Report.

This report will indicate:

If the person has a disability.
The nature and extent of the disability.
The health and educational needs arising from the disability.
The services considered appropriate to meet those needs and the timescale ideally required for their delivery.
When a review of the assessment should be undertaken.

It is important to note that the educational needs of a child can be assessed under the Disability Act 2005 or the Education for Persons with Special Educational Needs Act 2004 (hyperlink to Education for Persons with Special Educational Needs Act 2004 here). If, under the Disability Act, a special educational need is identified for a child, then that aspect of the assessment will be referred to the National Council for Special Education or to the Principal of their school.

What is meant by a ‘Service Statement’?

If a person is found to have a need for disability related services, they will then be given a Service Statement drawn up by a Health Board liaison officer. The Service Statement will indicate the health and educational services that can be provided, taking account of:

The Assessment Report.
Eligibility criteria for services.
Relevant standards and Codes of Practice.
The practicability of providing the service.
The financial resources available.

Unlike the Assessment Report, the Service Report takes cost into account. In addition, the Service Statement does not deal with the educational needs of children as these are dealt with under the Education for Persons with Special Needs Act (2004). Once the Service Statement is drawn up, the delivery of services is arranged for the individual.

What are the Complaints and Appeals procedures?

A person may take a complaint to a Health Board:

If it was found during the assessment that the person does not have a disability.
The assessment was not carried out in accordance with the standards set by the Health Information and Quality Authority (note that the Health Information and Quality Authority, when established, will set appropriate standards for carrying out the assessment process).
Concerning the contents of the service statement
If a service was not provided as specified in the service statement

A person may make an appeal to an appeals officer (who will not be a Health Board employee) against:

A finding or a recommendation of the complaints officer.
The failure of the service provider to implement a complaints officer’s recommendations.

How is access to Public Buildings and Services affected under the Act? Access to Public Buildings

On 31st December 2005, an obligation will be placed on all pubic bodies to make their buildings and services accessible to people with disabilities. All buildings must be in compliance with part M of the Building Regulations by 31st December 2015. The exception however, lies in cases where adaptations or modifications to buildings would either:

Change the nature of the business, profession or trade of the service provider, information or goods.
Constitute a risk to the health, safety or welfare of any person.

Access to Public Services

On 31st December 2005, an obligation will be placed on all public bodies to ensure that services provided to them by third parties, including the supply of goods, are accessible to people with disabilities. The exception however, lies in cases where such access would:

Not be practicable.
Not be justified by the cost involved.
Cause unreasonable delay in making goods and services available to other people.

Heritage Sites

On 31st December 2007, an obligation will be placed on public bodies to ensure that people with disabilities will be able to visit heritage sites with ease and dignity. The exception however, lies in cases where adaptations or modifications to sites would:

Have an adverse effect on the site.

Complaints

A person may make a complaint to the public body:

If it is considered that the public building or goods and services are not accessible.

Centre for Excellence in Universal Design

The Act also deals with the extension of the NDA Act (1999) to set up an Authority within the National Disability Authority (NDA) to be known as the Centre for Excellence in Universal Design. This Centre will promote standards and principles of universal design in the education and training of designers (for example, architects, town planners, transport providers, software designers, systems analysts, engineers) and promote public awareness in this area.

What is meant by Sectoral Plans?

A number of government ministers are required to produce sectoral plans including information on:

Codes of practice or regulations. Complaints procedures. Monitoring and review procedures. Level of access to services outlined in the plan, if appropriate.

The following departments will produce sectoral plans:

Health.
Social Welfare.
Transport.
Communications, Marine and Natural Resources.
Environment, Heritage and Local Government.
Enterprise, Trade and Employment.

What restrictions are in place in relation to genetic testing?

The Act states that people may not process genetic data in relation to:

Employment.
Insurance policies (including life assurance).
Health insurance.
Occupational or other retirement annuities.
Mortgages.

How does the Act affect Public Service Employment?

An obligation will be placed on all public bodies to promote and support the employment of people with disabilities (with the exception of the Gardai, Defence Forces or prison officers). Public bodies must ensure that at least 3% of their workforce are people with disabilities. Furthermore, the level of compliance with these targets must be monitored.

Broadcasting

The Broadcasting Commission of Ireland MAY require that broadcasters promote the enjoyment of programmes for people who are deaf, hearing impaired, blind or partially sighted (e.g. including sign language, teletext, subtitles etc).

Where can I find out more information?

For more information see:

NUI Galway Disability Law and Policy Research Unit http://www.nuigalway.ie/law/disability.html

The Disability Act 2005 http://www.oireachtas.ie/documents/bills28/acts/2005/a1405.pdf

The Equality Authority http://www.equality.ie/