Fergus Finlay: Don’t review the Disability Act — put it in the bin, where it belongs

From the very beginning, I've seen this piece of legislation as essentially evil, if not in its intent then certainly in its outcome

Fergus Finlay says the Disability Act 2005 effectively says people with disabilities are entitled to an assessment of needs but zero obligation to do anything about meeting those needs. Picture: iStock 

How did I miss it? That’s the trouble with the holiday season, I suppose. You miss government announcements that matter, especially when they’re carried on an inside page of a government website and completely unaccompanied by any publicity. There was no press release, and therefore no news coverage at all.

So it’s not entirely my fault that I missed it. And I’m guessing I wasn’t the only one.

It was the Government announcing that it had decided to review the Disability Act 2005, a little over 20 years after it had been enacted, essentially, they say, because it’s never been reviewed before. The announcement was made in June this year and the closing date for submissions was September. That has now been extended to October — a sure sign that nobody noticed the original announcement.

Anyway, I have time now, and I’m working away on a submission. Given that it will be a formal document I suppose I’ll have to moderate my language. But my essential point will be the same. This is not an act that should be reviewed.

Any government with any sense of honesty and duty would scrap it in its entirety. They would admit that not only has it failed to improve the lives of people with disabilities and their families, it has made their lives significantly worse.

I’ve always, from the very beginning, seen this piece of legislation as essentially evil, if not in its intent then certainly in its outcome. I know that’s a very bold claim to make, so I need to give you a couple of paragraphs of history, if you’ll bear with me.

Fergus Finlay often covers disability issues in his column. Here are three of his columns, specifically referring to the Disability Act, which were published in 2006, 2016, and 2020

For a lot of our history we treated people with a disability as a burden and a waste of our time and resources. 

We locked them up in institutions, we made them depend on charity, we stigmatised and marginalised them. We ignored such protests as they were able to make. We turned our backs to them, and treated them not as citizens at all but as objects of pity.

Parties accepted 1996 report 

Then in 1996 (not that long ago) the government of the day established Ireland’s first ever Commission on the Status of People with Disabilities. It was modelled on an earlier body that had had a profound effect on the rights of women. Like its predecessor a clear majority of the members were people with disabilities themselves or their families.

It produced a seminal and far-reaching report, with around 400 recommendations. 

One of its key early proposals was the immediate introduction of the Disability Act, setting out the rights of people with disabilities and means of redress for those whose rights are denied; outlawing all discrimination against people with disabilities and requiring public and private bodies, employers, and educators to make reasonable accommodation to meet their specific needs.

Every single political party immediately accepted the report. 

They put it in their manifestos for the next general election, which was won by Bertie Ahern and Fianna Fáil. Minister after minister committed themselves to rights-based legislation. 

2001 bill was transparently awful

And then, in 2001, the first bill was published, by Mary Wallace on behalf of the government. It was transparently awful — containing a clause 47 that said the State could never be sued if it failed to carry out any of its obligations under the bill.

That bill was so bad, that as it was going through the Dáil, the first major protest in the history of the State by people with disabilities themselves took place. 

Protests by people with disabilities 

On a miserable lashing wet night in February 2001, the Mansion House in Dublin was packed by hundreds of people declaring “No Rights, No Bill”.

It forced the government to listen, at least for a while. 

The 2001 bill was withdrawn, and Mary Wallace quietly disappeared, to be replaced, by first, Willie O’Dea and then Frank Fahey, who eventually, after years of difficult consultation, introduced the 2005 bill, which eventually became law.

When he was introducing it, Mr Fahey described it as “probably the most important legislation prepared by the Government in the past seven years”.

You can still read it. It’s still exactly as it was the day it was enacted. 

The word 'rights' absent from 2005 act

Including a couple of schedules, it runs to 52 pages. The word ‘rights’ doesn’t appear once.

What the act does do is it enables a person with a disability to apply for an assessment of their needs. If they do, they will end up eventually with a statement, and that statement will tell them the services they need to live a fuller and more equal life.

That’s where it ends. That’s where the act sticks a high brick wall in front of the person with a disability. There’s a big sign on that wall and it says this, expressed in slightly fancier legal language:

“The law says you’re entitled to an assessment of your needs, and we’ll give you a statement of your needs arising from the assessment. But the law also says we don’t have to meet any of those needs if we decide we don’t have the resources to meet them. Not now, not ever. So you can take your assessment, and your statement of needs that will never be met, and shag off.”

People with disabilities know what supports they need

I don't in any sense want to simplify the needs of people with a disability. But here’s the truth. At the onset of blindness, a person with impaired vision will figure out for themselves what support they need. Similarly with deafness and a range of other physical or sensory disabilities.

When Down syndrome arrives into a family, that family needs emotional support and the child needs guaranteed access to early and sustained education and speech and language therapy. That’s what gives them confidence and enables them to grow.

Yes, there will always be people with complex needs that need careful and detailed assessment (a lot of people with autism do, for example). But not thousands. Not so many that an endless queue has to form.

But that’s what this hollow and hypocritical act has led to. We now have a State system trapped in a vicious circle. They spend thousands of hours, using resources that should be providing constructive services, carrying out assessments that are entirely meaningless to the lives of the people they should be serving.

Many of us tried to warn at the time that this would happen. I did it in this newspaper and elsewhere (and I was attacked for doing it). But (even though nobody is ever going to apologise) surely nobody can deny now that the Disability Act 2005 has done nothing but make the lives of people with disabilities and their families worse.

Things are so bad now that if we start again it would take a 10-year plan to put everything in place to give people with disabilities the basic rights that equal citizenship demands — although it wouldn’t break the bank.

I’ll write the plan for them if they want me to. It would mean starting again, and building the staffing, expertise, and resources from the bottom.

It can be done, and there’s only one condition: Don’t attempt to review this horrible piece of law. Put it in the bin, where it belongs.

• The full text of the Disability Act 2005 is available here, on the Irish Statute Book