Frequently asked questions: Associates and carers
Is discrimination against carers covered by the DDA?
Yes. The DDA makes it unlawful to discriminate against a person because that person is an associate of a person with a disability. "Associate" is defined to include, but is not limited to
- a spouse or person living with a person with a disability
- a relative or carer or
- a person in a "business, sporting or recreational" relationship with a person with a disability.
Is it unlawful discrimination to charging a fee or fare for the carer or assistant of a person with a disability?
HREOC encourages initiatives to accommodate carers without additional fare or fee, but it is not clear that such initiatives are in all cases required by law.
The lawfulness under the DDA of a fee or fare for an accompanying person appears to depend on the circumstances.
Section 8 of the DDA defines discrimination as occurring if:
"a person (discriminator ) discriminates against another person with a disability ( aggrieved person ) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by: (a) an interpreter; or (b) a reader; or (c) an assistant; or (d) a carer" .
This will obviously cover simple cases like refusal of entry because a person is accompanied by an assistant. It is less clear, however, that it covers cases where the accompanying person is required to pay a fee or fare.
If it is the accompanying person who is required to pay an entry fee or fare, it is not clear that there is in fact any less favourable treatment of the person with a disability - even if the practical consequence may be to disadvantage or even exclude the person with the disability.
Section 8, in other words, is a direct discrimination section, like section 5. The limitations of direct discrimination provisions in dealing with rules or practices which are discriminatory in effect but not in form is why the DDA also contains the indirect discrimination provision, section 6.
Section 6 states that:
"a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply."
If a fee or fare is charged for an assistant or carer, it can be argued that there is a condition or requirement imposed as follows: in order for the person with a disability to be able to travel with only one fare being incurred, he or she must be able to travel, enter or attend unaccompanied. By itself, however, the imposition of a condition or requirement such as this does not mean that there is unlawful discrimination.
For unlawful discrimination to be found, it must also be unreasonable for a fee or fare to be charged for a carer or assistant.
What is reasonable may well vary with the circumstances. Some relevant circumstances might be:
- how well evidenced and readily ascertainable a person's need to be accompanied is, or whether impractically intrusive inquiries into the reasons two people are travelling together would be required in the circumstances; and
- the nature of the service or facility concerned.