Climate change disproportionately affects disabled people. Marc Willers KC, Esther Loukin and Ollie Persey set out how the Equality Act 2010, including the positive duties under the reasonable adjustments duty and the public sector equality duty, should be used to ensure the participation of disabled people in decision-making and to better anticipate and mitigate the impacts of climate change.
The disproportionate impact of climate change on disabled people is well established. The Office of the UN High Commissioner for Human Rights (OHCHR)
found that disabled people are:
… often among those most adversely affected in an emergency, sustaining disproportionately higher rates of morbidity and mortality, and at the same time being among those least able to have access to emergency support.
By resolution
A/HRC/RES/41/21 of 23 July 2019, the UN Human Rights Council requested the OHCHR to undertake an analytical study of the impacts of climate change on disabled people. The evidence demonstrates the wide-ranging impacts, both direct and indirect.
Rescue plans for extreme weather events that arise from climate change are often not designed with disabled people in mind. For example, Elizabeth Harrington’s
expert evidence to the OHCHR analytical study highlighted the case of Benilda Caixeta, a disabled woman who relied on a wheelchair to access her home. When Hurricane Katrina struck in 2005, Benilda was not rescued and sadly died as the rescue operation had not been designed for wheelchair users.
Extreme weather events can disrupt access to healthcare. Heatwaves pose specific risks to some disabled people who are more susceptible to dehydration and heatstroke. For example, in July 2018, temperatures in Montreal soared to 35.5°C. Of the 61 people whose cause of death was attributed to the heatwave, a quarter had schizophrenia. This represented a 500 times disproportionality. Anti-psychotic medication can reduce tolerance to heat, increasing the risk of heatstroke and severe dehydration and therefore fatality.
1‘Climate change: why are disabled people so affected by the climate crisis?’, BBC News, 4 November 2021.Rising sea levels and coastal flooding impact people and infrastructure in low-lying coastal areas. Disabled people have difficulties securing accessible accommodation
2Forecast for accessible homes 2020, Habinteg, January 2021. and climate change will likely reduce the availability of adequate housing.
Unfortunately, climate change adaptation
3By ‘adaptation’ we mean measures taken to change how we live in a changing climate. and mitigation
4By ‘mitigation’ we mean measures taken to prevent and reduce the impact of climate change. initiatives are often designed without the involvement of disabled people, which can further entrench disability discrimination. The Center for International Environmental Law (CIEL) and Professor Sébastien Jodoin’s joint expert evidence to the OHCHR analytical study noted that:
Equality law
The UK ratified the
Paris Agreement, an international treaty on climate change, in 2016. The Paris Agreement provides that states parties should respect, promote and consider their respective human rights obligations, including the rights of disabled people, when addressing climate change. The
UN Convention on the Rights of Persons with Disabilities (UNCRPD) explicitly requires states parties to take measures to ensure the full participation of disabled people in society.
The Equality Act (EA) 2010 needs to be read harmoniously with the UK’s international obligations, including the Paris Agreement and the UNCRPD. This article focuses on two important anticipatory duties in the EA 2010: the reasonable adjustments duty in ss20 and 21; and the public sector equality duty (PSED) in s149.
The reasonable adjustments duty
The reasonable adjustments duty imposes positive obligations towards disabled people on service providers, associations and those exercising public functions. EA 2010 s20(3) provides that:
… where a provision, criterion or practice [PCP] of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
… should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future such as a policy or criterion that has not yet been applied, as well as a ‘one-off’ or discretionary decision (para 5.6, page 70 (PDF version); page 73 (Word version)).
A ‘substantial disadvantage’ means more than ‘minor or trivial’ (EA 2010 s212(1)). ‘Persons who are not disabled’
has been construed narrowly so as to mean the specific type of disability in question: see
Paulley v FirstGroup Plc [2017] UKSC 4; May 2017
Legal Action 26 at para 33, where a bus operator’s policy of ‘first come, first served’ for the space designated for wheelchair users put ‘disabled wheelchair users’ at a substantial disadvantage.
What constitutes ‘reasonable steps’ is context-specific: see
R (Rowley) v Minister for the Cabinet Office [2021] EWHC 2108 (Admin) at para 29. Paras 7.29–7.30 (pages 107–108 (Word version); pages 97–98 (PDF version)) of the EHRC code of practice explains that relevant factors include practicability, cost, disruption and the provider’s resources. The nature and extent of the disadvantage is also relevant: see
R (Imam) v Croydon LBC (No 2) [2021] EWHC 739 (Admin); May 2021
Legal Action 41 at paras 87 and 89. Importantly, reasonable steps can require significant financial investment to overcome barriers for disabled people.
The reasonable adjustment duty is anticipatory and continuing. The EHRC code of practice explains what anticipatory means in this context at para 7.20 (page 103 (Word version); page 94 (PDF version)):
In relation to all three areas of activity (services, public functions and associations) the duty is anticipatory in the sense that it requires consideration of, and action in relation to, barriers that impede people with one or more kinds of disability prior to an individual disabled person seeking to use the service, avail themselves of a function or participate in the activities of an association.
Achieving climate justice must be an intersectional endeavour and green initiatives must not compound disability discrimination. That requires (at least) two things to happen. First, disabled people must be fully involved in designing strategies to address and mitigate climate change. That means, as a minimum, proactively engaging with disabled people to facilitate their participation in consultation processes and centring their evidence and experiences in the design process.
Second, there must be effective implementation of the EA 2010. Aside from limited exceptions, the reasonable adjustments duty applies to service providers, associations and those exercising public functions. This imposes positive obligations on a broad range of individuals, from bakers to housing ministers. Climate change also affects almost every aspect of daily life. The potential for the reasonable adjustments duty to embed proper consideration of climate change mitigation across society is therefore significant. However, a prerequisite for this is to improve implementation of the EA 2010.
Making the EA 2010 an effective tool requires significant investment in public legal education about the Act, clear statutory guidance setting out the link between climate change and equality duties, and, crucially, improved enforcement for breaches of the Act. That means significantly increasing access to justice for disabled people to challenge discrimination, including the greater availability of discrimination legal aid and costs protection in county court claims.
The public sector equality duty
The PSED is a procedural duty that requires public authorities and those exercising public functions to show ‘due regard’ to the statutory criteria in the PSED. The PSED comprises three limbs, as set out in EA 2010 s149(1):
A public authority must, in the exercise of its functions, have due regard to the need to –
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
Importantly, the PSED includes consideration of taking positive action to address disadvantage experienced by protected groups. EA 2010 s149(3)–(4) provides:
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.
Equality impact assessments (EIAs) are often used by public authorities and those exercising public functions to discharge their duties under the PSED. As the direct and indirect impacts of climate change are so extensive, and there are clear equalities impacts (which are not limited to the protected characteristic of disability), it should be standard practice for consideration of climate change adaptation and mitigation to be built into many public sector EIAs, even in areas that do not obviously seem related to climate change. This would help to embed consideration of climate change adaptation and mitigation at every level of public sector decision-making, and ensure that climate change adaptation and mitigation initiatives are inclusive.
Conclusion
Climate change is the most pressing emergency of our times. The duties to disabled people in the EA 2010 provide a toolkit for ensuring that climate change adaptation and mitigation initiatives are inclusive and embedded across public sector decision-making and society as a whole. Promoting compliance with the EA 2010 must therefore be a priority for everyone who cares about climate change. Disability rights and climate justice are intrinsically linked fights and we must all work together to achieve both.