Examining the Shift in Disability Law: A Critical Perspective Essay

This essay critically discusses the theoretical shift in disability law from the medical model to a social approach, emphasizing non-discrimination and equality. It highlights the limitations of the medical model, which often leads to the exclusion and undervaluation of disabled individuals, and contrasts it with the social model, which aims to transform societal attitudes and remove barriers to participation. The essay references the Equality Act 2010 as a legal framework for respecting human rights and promoting inclusivity. It also examines the influence of international conventions, such as the Convention on the Rights of Persons with Disabilities (CRPD), in shaping disability law and ensuring the protection of disabled individuals from discrimination. The essay further delves into challenges faced by disabled people in the UK, the role of anti-discrimination legislation, and various legal cases that highlight the application and enforcement of disability rights.

Question

Table of Contents
INTRODUCTION...........................................................................................................................1
MAIN BODY ..................................................................................................................................1
Theoretically, disability law has experienced a shift from the medical model to a social
approach, based on non-discrimination and equality in society. Critically discus.................1
CONCLUSION................................................................................................................................7
REFERENCES................................................................................................................................8
BIBLIOGRAPHY............................................................................................................................8

INTRODUCTION
Disability is considered as a problem that exists in human body and requires medical care. The
medical model of disability helps to made distinction between body impairment and disability.
The common problem with medical model made disabled person feels excluded, undervalued
and treated as socially incapacitated. In response to medical model of disability, it underlying the
factors that ensure segregation and discrimination of disabled people. The social model is
introduced to transform the society's attitude towards disabled people to avoid discrimination in
the society. The Equality Act of 2010 provides the legal framework to allow respecting of human
rights and remove the barriers that hinder in effective participation of disabled people in society.
A human right approach implies disabled person to participate in all spheres of society1. This
report will examine the concept of disability law, its application in Internation Conventions and
its affects on disabled person from discrimination in the society.
MAIN BODY
Theoretically, disability law has experienced a shift from the medical model to a social
approach, based on non-discrimination and equality in society. Critically discus
The social model of disability represents socially oppressed disabled person . The medical model
and human rights model has greater influence in monitoring the International Convention on
Right of Persons with Disabilities to protect them from any kind of discrimination. It provides
various kinds of models includes social model, economic model , minority model etc. Exclusion
of disabled person is a serious issue that have a dangerous impact on human rights. The medical
model of disability tries to overcome by the CRPD in regards to disability as an impairment can
be cured, treated and protected. Disability is derive from the disease caused in normal heath
issues. A human right model challenges in implementing the CRPD. The aim of introducing
these convention to enforce the human rights treaty to transform society and their behaviour
towards disabled person2. The provision enshrined under the CRPD deals with the theory and
jurisprudence of equality law and equal protection of law under Article 12 and right to
1 Beaupert, Fleur, Linda Steele and Piers Gooding, "Introduction To Disability, Rights
And Law Reform In Australia: Pushing Beyond Legal Futures" (2018) 35(2) Law in
Context. A Socio-legal Journal
2 Johnston, Dorothy Mary, "CULTURAL COMPETENCE TRAINING IN SYDNEY
LOCAL HEALTH DISTRICT AUSTRALIA" (2017) 07(02) Primary Health Care
Open Access
1

independently in the community under Article 19. It enforces the compulsory obligation on
member state to frame laws and policies to profound changes in disability law. The social model
is based on the moral principle to promote the security of human rights as it is their inherent
right. Also, the International Bill of Human Rights laid down certain principles to secure the
rights of the disabled person. Human rights are also known as fundamental rights that are avail
by birth and are universal in nature . Every human being are subjected to protect under human
right no matter what are their social status , identity and origin , most important things is
humanity. However, the social model favours anti discrimination policy of civil right reforms to
provide more comprehensive form of human rights in many countries 3.The anti discrimination
legislation is introduced to avoid the consequences of inequality and indiscrimination. Thus, anti
discrimination legislation is required for the welfare of the disabled person.
 There are wide range of challenges that a disabled people can face. Taking note of this
challenges facing by disables people in the United Kingdom4. The list of challenges and
problems faced by disabled people over the years prepared by many committee reports
and briefing and identified areas where disabled people do not have access to their basic
rights such as housing , employment support and allowance, education,, transport ,
disability living allowance , income support, incapacity benefit, health benefits and may
more. This reports aims to cover legal framework in order to decide and govern rights of
disabled people in the united kingdom as well as UN Convention on the rights of people
with disabilities.
 Based on reports published on the rights of people with disabilities by UN committee
when compared with UK's provisions for disabled people reflected serious concern that
there exist several challenges for disabled people and requires adequate protection and
support to disabled people,with this UK ratified the UN convention on the rights of the
people. However the government disagree with the committee's findings and observations
and stated that there was more that could be done in order to help concern disabled
people.
3 Wool, Jeffrey and Andrej Jonovic, "The Relationship Between Transnational
Commercial Law Treaties And National Law – A Framework As Applied To The Cape
Town Convention" (2013) 2013(1) Cape Town Convention Journal
4 Curtis, Ashlee, Keith McVilly and Andrew Day, "Looking For A Needle In The
Haystack: Arsonists With Intellectual Disability In Australia" (2014) 22(3) Psychiatry,
Psychology and Law
2

 There are numerous pieces of separate legislation which is derived from the Equality Act
2010 which aims to provide legal framework for protecting individuals from any form of
discrimination. The legislations includes:
 Equal Pay Act 1970;
 Race Relations Act 1976;
 Employment Equality (Religion or Belief ) Regulations 2003;
 Equality Act 2006 ;
 Equality Act (Sexual Orientation ) Regulations 2007;
 Employment Equality (Age) regulations 2003;
 Disability Discrimination Act 1995;
 Sex Discrimination Act 1995.
The Equality Act mentions nine protected grounds on which discrimination is unlawful and
prohibited . They are as follows :age,disability,gender,reassignment and civil partnership,
pregnancy and maternity , race , religion or belief , sex and sexual orientation. The purpose of
law is to support and progress on equality5. The disability law originated from International
Convention and treaties that provides specific provision related to protection of the right of the
disabled person who are physically incapable and suffering from medical inferiority. These
international convention aims to secure their basic rights of equality and right to life that are also
enshrined under Article 3 of the Universal Declaration of Human rights. It is important for the
Australian government to bring transparency in the health care system and ensure safety of life.
The disabled person can enjoy the right to protect from discrimination in the areas of
employment , education etc. The legislative mechanism allows to enforce such rights and
implement them for the betterment of society.
However, anti discrimination law enforces social , economic and civil rights of the people . The
CRPD is the best example to provide preventive measure to disabled person to exercise their
legal claims. Also, ICESCR (International Convention of Economic , Social and Cultural Rights)
ensures right to access certain basic rights to deal with the discrimination against the disabled
person . The social model of disability aims to acknowledge the pain and impairment of the
disabled person. The human right model focuses on dignity of an individual , if founds necessary
5 Hassoun, Nicole, "The Human Right To Health" (2015) 10(4) Philosophy Compass
3

on individual's medical characteristics 6. Another reason of oppression includes sexism and
racism identifies as an important factor in establishing social recognition in the social model of
disability.
CRPD as an Equality Treaty
 The CRPD provides various existing treaties which specifically defines the anti
discrimination instruments to take positive measures in respect to equality or anti
discrimination for the disabled person. The equality protect the individual against
infringement of inherent rights and these rights are to be protected by various
international convention.
Disability based Discrimination concept in other International Convention
 The concept of disability law recognise in the core human right treaties under public
International law. As per Article 3, 7 and 13 of IICPR and ICESCR promotes equality
and describes the word discrimination. Disability based discrimination means any
'exclusion , restriction on the basis of disability in human body considered as the
discrimination of all forms of freedom including political, economic, social and political
or by any other means.
In the year 2009 the United Kingdom has ratified the UN Convention on Rights of Persons with
liability to influence the behaviour of disabled person to demand more progressive social model.
The social model aims to make disabled person equally independent , make free choice of life
and remove the barriers that are against their interest. Later, the model was adopted to formulate
the ideas to achieve further equality in the society. But, the UK failed to implement the
UNCRPD in domestic law to apply the regressive medical model .7 Therefore, the Equality Act,
2010 introduced to provide the anti discrimination legislation to disabled person. Since, Section
6 of the Equality Act defines the term 'disability' includes a person who has mentally or
physically impaired person to carry out the routine day to day activities. It is very restrictive to
satisfy the term disability as it can be assessed after long term impact of the disability.
 Disability under the Equality Act 2010
6 International Labour Law Reports On, Editors, "AUSTRALIA: Federal Court Of
Australia Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing And Allied Services Union Of Australia V. Aurizon Operations Ltd" (2017)
35(1) International Labour Law Reports Online
7 Levy, Michael and Daniel Mogg, "Queensland’S New Human Rights Act And The
Right To Access Health Services" (2021) 214(8) Medical Journal of Australia
4

 In the equality Act 2010 , person with disability is defined as disability with physical or
mental impairment of chronic nature which effect on their ability to carry out day to day
activities.
 According to Section 20 of the Equality Act states to provide reasonable adjustment for
disabled people in relation to service and public events , premises, work , education and
association. Imposed by the Act in various concerned parts.
 In the case of R(VC) versus Secretary of State for the Home Department
 in this case the Court of Appeal held that the Secretary of State had failed to make
reasonable adjustments for those with mental illness detained under the Immigration Act.
Therefore it is an infringement of disabled peoples right according to section 20 of the
Equality Act. The High Court held in case of R (Rowley) Versus Minister for the Cabinet Office that
the UK government had failed to make reasonable adjustment by not providing British
Sign Language (BSL) interpreters for televised Coronavirus data briefing. N versus Packaging Automation in this case a worker having stammering problem was
dismissed and claimed disability discrimination8. However the tribunal denied his
disability within the Equality Act on grounds that stammer sounded only slight thus not a
disability.
 JD and A versus United Kingdom, in this case a claimant cared for her daughter who had
severe disabilities. The housing benefits was reduced due to extra bedroom and this led
highly undesirable for the claimant to move9. The court held that this was potentially
discrimination under Article 14 of the European Convention on Human Rights.
 United Nations Convention on the Rights of Person with Disabilities.
 The UN Department of Economic and Social Affairs convention intended to adopt a
broad section of persons with disabilities and reconsidering that all persons with all types
of disabilities must enjoy all human rights and fundamental freedoms . Further the UN
has emphasised the principles of the convention that the disable people should not be
treated as 'objects' of charity , but rather as 'subjects ' with rights , who are at liberty to
8 Gray, Donald, Jason MacIntyre and Jeffrey Wool, "The Interaction Between Cape Town
Convention Repossession Remedies And Local Procedural Law: A Civil Law Case
Study" (2015) 4(1) Cape Town Convention Journal
9 Took, Andrew, "Book Review: Health Law In Australia" (2011) 40(3) Health
Information Management Journal
5

enjoy all rights and if such rights are violated than claim can be made of those rights and
live with dignity as being active members of the society. The shift from a medical to a social framework is similar with different meanings .
However it is essential to explore these framework of disability behaviour towards
disabled people, policy, professional practice , institution such as hospitals and
rehabilitate centres 10. The social approach on disability is viewed not in terms of the
individuals impairment, but in terms of nature of environment and attitude that infused in
the lives of the disabled people. Impairment means lacking part or all of a limb or having
defective mechanism of the body.
Legislation
As discussed above that the primary piece of legislation in the UK governing disability rights in
the Equality Act 2010 . However , the European Union (EU) has also legislated on disabled
people's rights , including;
 The Employment Equality Directives 2000, member states are directed to prohibit
disability discrimination in employment;
 The Air Passenger Rights Regulation 2006 , assistance to disabled people while travelling
by rail, ship, and coach travel and when travelling by plane in EU and European
Economic Area countries;
 The EU medicinal Products for Human Use Directives 2004;
 The Public Procurement Directives 2014, requires public bodies accessibility in technical
specifications;
 The Public Sector Websites and Mobile Applications Directive 2016, set standards with
easy accessibility for disabled peoples by public sector bodies in order to use their
websites and mobiles.
 As per the position of European Union (Withdrawal) Bill, all prevailing EU legislation ,
including disability laws are preserved in UK law 11. Meaning thereby is that UK still
apply the same laws as it was applying prior to its exit from EU. However, it was
concerned that UK's exit from EU will have a negative impact on the legislative
10 "Children Caught In Conflict - The Child Abduction Convention And Australia*"
(2009) 24(1)
11 "Health Law And Patient Safety" (2012) 19(5)
6

protection for disabled persons . But the government has made it clear that it dose not
intend to make a change to existing legislation governing rights for disabled people.
From a social prospective, government runs various initiatives such as establishment of
Disability Rights Commission to sustained the disabled people is essential to passed on the social
model12. The disability is quite complicated to focus on economic, environmental and cultural
limitation and usually assume them like unattractive and physically impaired.
There are core disabling barriers arises from social model approaches:
 Attitudinal Barriers: The social attitude and behaviour may affect the disabled person
with their discrimination and social exclusion.
 Physical Barriers: This social barriers linked to the external environment that prevent
from access of public places.
 Communication Barriers: These are the barriers involves where lack of information ,
lack of understanding among the people creates social exclusion of many disabled
person.
Discrimination against the disabled person having six types are discussed below:
 Indirect discrimination
 Direct discrimination
 harassment
 victimization
They are allowed to easily access all the rights such as health, education, medical facility, care
etc. to physically and mentally impair them. Due to discrimination in the society, they find
difficulty to come out of the anxiety and stress that they face because of ill treatment and social
exclusion from the society13. Social safety and promotion of the health system is the paramount
duty of the Australian government.
12 Ogle, Greg, "Anti-SLAPP Law Reform In Australia" (2010) 19(1) Review of European
Community & International Environmental Law
13 Meacham, Tony, "The Common Law And Equity: Are England And Australia A World
Apart?" [2019] SSRN Electronic Journal
7

The UK medical model says the disability is caused by way of treatment made by the society,it
includes impairment or indifferences 14. The medical model is developed and structured the
legislation to remove the negative outcomes in relation to disability form the society. The
development of various laws in the United Kingdom significantly based on disability theories to
provide problem to such a situation. According to American with Disabilities Act 1990 provides
directive framework to the EU to made discrimination as an unlawful act . The medical model
defines the deficiency and abnormality that is ground for the discrimination on the basis of race,
gender etc. The medical model empowers remedies with the help of medical care and change the
social prospective between the society and the individual. The medical model helps in
improving the lives of the people and recognise the impact of the society on disabled person.
CONCLUSION
From this above report, it has been concluded that the social model of disability is based upon
the human right model. The human right model indicates civil rights, human rights and political
rights to improve the quality of life for disabled person. The CRPD defines international equality
law a new concept of discrimination for both individual and group. The International convention
helps to overcome the barriers and help to transform the social minds. Human rights model build
on social model to acknowledge the discrimination of any kind. The legislative provision
formulates reasonable accommodation and impair preventive policy to transform society.
14 Taylor, Savitri and Klaus Neumann, "Australia And The Abortive Convention On
Territorial Asylum: A Case Study Of A Cul De Sac In International Refugee And
Human Rights Law" (2020) 32(1) International Journal of Refugee Law
8

REFERENCES
Books and Journals
Beaupert, Fleur, Linda Steele and Piers Gooding, "Introduction To Disability, Rights And Law
Reform In Australia: Pushing Beyond Legal Futures" (2018) 35(2) Law in Context. A
Socio-legal Journal
Hassoun, Nicole, "The Human Right To Health" (2015) 10(4) Philosophy Compass
Wool, Jeffrey and Andrej Jonovic, "The Relationship Between Transnational Commercial Law
Treaties And National Law – A Framework As Applied To The Cape Town
Convention" (2013) 2013(1) Cape Town Convention Journal
Levy, Michael and Daniel Mogg, "Queensland’S New Human Rights Act And The Right To
Access Health Services" (2021) 214(8) Medical Journal of Australia
Gray, Donald, Jason MacIntyre and Jeffrey Wool, "The Interaction Between Cape Town
Convention Repossession Remedies And Local Procedural Law: A Civil Law Case
Study" (2015) 4(1) Cape Town Convention Journal
Ogle, Greg, "Anti-SLAPP Law Reform In Australia" (2010) 19(1) Review of European
Community & International Environmental Law
Meacham, Tony, "The Common Law And Equity: Are England And Australia A World Apart?"
[2019] SSRN Electronic Journal
Johnston, Dorothy Mary, "CULTURAL COMPETENCE TRAINING IN SYDNEY LOCAL
HEALTH DISTRICT AUSTRALIA" (2017) 07(02) Primary Health Care Open Access
Taylor, Savitri and Klaus Neumann, "Australia And The Abortive Convention On Territorial
Asylum: A Case Study Of A Cul De Sac In International Refugee And Human Rights
Law" (2020) 32(1) International Journal of Refugee Law
"Health Law And Patient Safety" (2012) 19(5)
9

BIBLIOGRAPHY
Curtis, Ashlee, Keith McVilly and Andrew Day, "Looking For A Needle In The Haystack:
Arsonists With Intellectual Disability In Australia" (2014) 22(3) Psychiatry,
Psychology and Law
International Labour Law Reports On, Editors, "AUSTRALIA: Federal Court Of Australia
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And
Allied Services Union Of Australia V. Aurizon Operations Ltd" (2017)
35(1) International Labour Law Reports Online
"Children Caught In Conflict - The Child Abduction Convention And Australia*" (2009) 24(1)
Waldeck, Elizabeth and Robert Guthrie, "Disability Discrimination And Immigration In
Australia" (2007) 8(4) International Journal of Discrimination and the Law
"Health Law And Patient Safety" (2012) 19(5)
Took, Andrew, "Book Review: Health Law In Australia" (2011) 40(3) Health Information
Management Journal
10