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Sixth Report Session 1998-99

Volume 2
OCTOBER 1998 - MARCH 1999

The full report of selected cases

Summary of selected cases

DEPARTMENT FOR EDUCATION AND EMPLOYMENT
 
Case No. C.63/96

Quota arrangements for the employment of registered disabled persons

2.1 Mr D complained that the Employment Service (ES), an executive agency of the Department for Education and Employment (the Department), had issued permits allowing employers who had not filled their quotas of registered disabled persons to engage a specified number of persons not registered as disabled without committing an offence, and that they had done so without having taken into account that he was a registered disabled person suitable for employment in some of the jobs involved. He felt that, as a consequence, he had been unable to obtain employment for which he was suitably qualified.

2.2 My investigation into Mr D's complaints began in October 1996 once the Ombudsman's predecessor had obtained comments from the then Chief Executive of ES after the Member's referral of the complaint. In August 1997 the Ombudsman obtained comments from ES's Director of Finance and Planning on a further related complaint by Mr D. I have not put into this report every detail investigated by the Ombudsman's staff; but I am satisfied that no matter of significance has been overlooked. Appendix A sets out the main events surrounding Mr D's complaints. A glossary of the terms used in this report, and the meaning of the initials used, is at appendix B.

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Background

2.3 Under the Disabled Persons Employment Acts 1944 and 1958 employers with 20 or more employees had a statutory duty to employ a quota of 3% registered disabled persons provided that disabled applicants were suitable for the jobs on offer. It was not necessarily an offence for an individual employer to be below quota, but it was an offence for an employer, when under quota, to engage or to offer to engage a person who was not registered disabled without a permit to do so. The Act gave the Minister (in practice ES) discretion to issue a permit, sometimes known as a bulk permit, to employers allowing them to engage able-bodied applicants for vacancies where there were no suitable, or an insufficient number of, registered disabled persons. Section 11 of the Act stated:

"(1) On an application in that behalf being made in the prescribed manner by any person to whom section nine of this Act applies, the Minister may grant a permit .... if it appears to him to be expedient so to do having regard to the nature of the work for which the applicant desires to take a person or persons into his employment and the qualifications and the suitability for the work of any person or persons registered as handicapped by disablement who may be available therefor, or if he is satisfied that there is no such person or an insufficient number of such persons available therefor.

(2) A permit may be granted either unconditionally or subject to any conditions relating to the employment of the person or persons to whom the permit relates, and may be granted as respects the employment either of one or more persons specified or described therein or of a specified number of persons."

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A decision to refuse a permit application carried a right of appeal to an independent local disablement committee; in such an appeal an employer could argue that particular persons were not suitable and it was for ES to show that they were suitable and that the refusal of a permit was reasonable (the Act did not define "suitable"). In exercising their discretion ES took an employer's judgment of suitability into account.

2.4 The Disabled Persons (Designated Employments) Order 1946 provided for the Minister to designate certain classes of employment as specially suitable for disabled persons. Two classes were subsequently so designated: passenger electric lift attendant and car park attendant. The classification of car park attendant was described as "employment in all or any of the following duties, namely - (1) taking care of motor vehicles in a car park; (2) taking care of the contents of any such vehicles; (3) issuing tickets to persons using the car park; (4) collecting fees from the persons using the car park." Section 12(3) of the Act stipulated that the permit system could still apply to designated classes of employment.

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2.5 The issue of bulk permits allowed employers who were below quota to engage a specified number of able-bodied persons required to start work within the following six months. When a permit was issued the employer still had a duty to employ the quota but was relieved of any criminal offence when engaging, while under quota, a person who was not registered as disabled. An employer would estimate the number of vacancies likely to arise, using previous staff turnover figures where necessary. In recent decades permits were issued regularly because of the difficulty employers had in meeting the quota due to the consistently low level of persons registered as disabled. According to ES, an "understanding" governing the issue of bulk permits was that an employer should notify all vacancies to the ES Jobcentre during the currency of the permit and "consider sympathetically" the engagement of any registered disabled person who might be available when vacancies occurred. In general, before authorising a permit, an ES disability employment adviser (DEA) had to consider whether any of the jobs so covered were within the capabilities of disabled persons on the register. A Government consultative document published in 1990 noted the view of Parliament's Public Accounts Committee that the quota scheme was "ineffective, outdated and unenforceable". Nevertheless it remained in force for a number of years afterwards.

2.6 All quota and registration provisions of the two Acts were eventually repealed by the Disability Discrimination Act 1995 with effect from 2 December 1996. (ES were able to consider complaints about those provisions for a further year; and those who, like Mr D, were registered on 12 January 1995 - the date the new bill was introduced to Parliament - and on 2 December 1996, are deemed disabled under the new Act for a period of three years, after which time the position can be reviewed.) The 1995 Act made it unlawful to discriminate against disabled persons in matters relating to employment, the provision of goods, facilities and services or the disposal or management of premises. Employers should not treat a disabled person less favourably than someone else unless they can show such treatment to be justified. The Act covers all employment matters including recruitment, training, access to company pension scheme, promotion and dismissal; it also requires employers to make reasonable adjustments to the workplace and to employment arrangements so that a disabled employee, or disabled job applicant, is not at any substantial disadvantage. Where a person feels that he has been a victim of discrimination he may take his complaint to an Industrial Tribunal and may ask the Advisory, Conciliation and Arbitration Service for help. The Act embodies a statutory code of practice for employers which replaced the voluntary code under the previous legislation. Among those exempted from the new Act are employers with fewer than 20 employees.

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2.7 ES have some 60 Placement, Assessment, and Counselling Teams (PACTs) based in Jobcentres throughout the country. Each team consists of a manager and DEAs whose function is to assist disabled persons and employers to secure training or to help place their disabled clients in suitable vacancies. Each DEA has a caseload of clients, not all of whom may have been formerly registered disabled. PACTs also oversee the practical and financial support offered by the various schemes and programmes available to people already in work. The training for work programme is delivered by local Training and Enterprise Councils and is available to a range of persons including those who are unemployed and disabled. At the outset the person agrees with the training provider an individual training plan which may be reviewed or revised as required.

Departmental instructions

2.8 Internal departmental instructions about the operation of the quota system remained virtually unchanged from July 1956 when the bulk permit arrangements were introduced. In the light of possible judicial review action by Mr D (see appendix A entries for 28 February and 29 March 1994) ES's Deputy Chief Executive wrote in May 1994 to all ES regional directors saying that employers below quota should be reminded of the need to obtain permits, and that it was particularly important for employers to complete applications in the form required by the legislation. He added:

"The conditions which ES must apply in considering whether to issue a permit require us to know the number and nature of occupations and the place where the work will be done. Without this information we cannot take account of the availability of registered disabled people for work".

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Jurisdiction

2.9 Local authorities, private employers, the findings of Industrial Tribunals, and decisions about the pursuit of legal remedies through the courts are not within the Ombudsman's jurisdiction. I refer to them in this report only to set in context those actions of the Department which are the subject to my investigation. Under paragraph 6 of Schedule 3 to the Parliamentary Commissioner Act 1967 the Ombudsman is precluded from investigating the commencement or conduct of civil or criminal proceedings before any court of law in the United Kingdom. (That includes a decision not to institute such proceedings.)

Investigation

2.10 The key facts are as follows.

Mr D was registered disabled in 1992 following an industrial injury to his back. Thereafter he was in regular contact with a DEA at his local Jobcentre who was able to organise an employment rehabilitation course. In early 1994 Mr D complained about the issue of bulk permits to large employers and in particular to the district council, following his failure to obtain a job as a telephonist/receptionist. Mr D did not pursue a formal complaint but the manager of the PACT undertook to take steps to correct what he believed to be the district council's misinterpretation of the quota regulations. Following representations on Mr D's behalf by the Member, Ministers acknowledged that the quota arrangements were not working effectively and were under review. In January 1996 Mr D complained that the district council had wrongly refused his application for a job as a car park attendant which was a designated employment (paragraph 2.3); he asked for criminal proceedings to be taken against the council, but ES refused. In January 1997 Mr D complained that a magistrates' court committee had failed to consider his application (made on or after 31 May 1996) for the post of court usher at a time when they held no permit - a matter which he had raised in correspondence with a DEA in the summer of 1996. After taking legal advice ES decided not to prosecute the court committee. In attempting to obtain documentation for an Industrial Tribunal action against a further potential employer Mr D learned in June 1997 that in 1993 ES had failed to computerise the records for that employer relating to quotas and registration; and that, as a consequence, they had not reminded the employer of their quota responsibilities.

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The ES comments on the complaint

2.11 In his comments the then Chief Executive said there had been practical difficulties in administering the quota provisions of the 1944 and 1958 Acts. At the time the 1995 Act had come into force there were some 366,000 on the disabled persons register (not all of whom would have been "economically active"). That level was such that it was not arithmetically possible for all employers to meet the quota set at 3%: overall, employers could not meet a quota set even at 1%. The Chief Executive accepted that local staff had not adhered to the departmental guidance relating to the issue of bulk permits (to the district council) when Mr D had made his application for the post of telephonist/receptionist in September 1993; but he concluded on balance that failures in the way bulk permits had been administered had not been the cause of Mr D's failure to find work. The Chief Executive apologised if the problems in administering quotas he had acknowledged had caused Mr D distress and difficulty, and for the delays in answering Mr D's letters of February 1994 and February 1995. He said that his staff were continuing to do their best for Mr D. An extract from the Chief Executive's report, dealing with the role of ES and a summary in the case, is at appendix C.

2.12 For his part ES's Director of Finance and Planning reported that two actions by Mr D before an Industrial Tribunal had been dismissed. The decision not to prosecute the court committee had been taken after the benefit of legal advice, and properly reflected the principles concerning the public interest as set out in the Code for Crown Prosecutors. ES considered that a genuine misunderstanding had taken place between the court committee and the relevant county council; but had concluded that the inclusion of the court committee in the county council's permit application had made no material difference to Mr D's application for the post of court usher.

Registered disabled persons employed by the county council and district council.

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2.13 I understand that the quota position of the county and district councils concerned from the summer of 1992 onward was:

Note* the final published figures before the quota system was abolished

Interview with Mr D

2.14 One of the Ombudsman's staff interviewed Mr D at his home. Mr D believed that the district council's views as expressed to the local councillor on 21 January 1994 (see appendix A entry) were correct: a bulk permit allowed employers to do as they liked, and the so called understanding (paragraph 2.5) attached to their issue by ES was meaningless. Mr D challenged the very notion of bulk permits. Mr D drew attention to written advice he had received from the Trades Union Congress who agreed with Mr D's argument that the issue of such permits showed that he was not suitably qualified for a range of (what turned out to be) unassuming work. According to the Trades Union Congress, the use of bulk permits on the ground that there were insufficient registered disabled persons to meet quota requirements stretched the interpretation of the 1944 Act "beyond destruction". Mr D considered that it was for ES to decide a person's suitability for a particular post.

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Interviews with ES staff

2.15 The Ombudsman's officer also interviewed the current DEA and the Jobcentre manager. (The three members of the PACT who had been principally involved in the issue of bulk permits at the relevant time had all retired.) Both ES staff stressed the importance they attached to offering practical help with training, acquisition of qualifications and work experience for disabled clients; and to promoting effective recruitment and retention practices among employers. They considered that they had done their best to help Mr D but in their view he had seemed more interested in pursuing legal arguments. In their view a prospective employer had to be the final arbiter of suitability for a particular post, although ES would seek to press their own estimation of a disabled person's qualities on an individual case basis.

Findings

2.16 From my examination of the available papers (some having been destroyed routinely) I am satisfied that there were a number of serious errors in the handling of the matters about which Mr D complained. I consider first, because of the implications of the Designated Employments Order (paragraph 2.4), his application for the post of car park attendant with the district council (see appendix A entry for 5 January 1996). On the face of it, the advertised job met (the modern equivalent to) the third and fourth duties listed in the Order. There is no evidence of the considerations that led the PACT to take a contrary view (see appendix A entry for 7 February 1996); but I understand from ES that the officials concerned regarded the legal definition as being quite narrow. I conclude that the PACT's decision was wrong. The outcome of enquiries made by the Ombudsman's staff strengthens me in that view; the Department said that ES headquarters had received legal advice on 22 March 1996 to the effect that, where part of a job involved one or more of the designated employment provisions (as in this case) the job should be so designated. What was Mr D told? ES's letter of 26 March 1996 said simply that they did not intend to prosecute the district council. Following further queries from Mr D ES headquarters wrote to him at greater length on 27 November; and on 17 December the PACT manager wrote to the Member. I find it misleading that the letter to the Member should have said that the Department had taken legal advice, without saying that such advice (in effect) supported Mr D's contentions concerning designation. When I put that point to the present Chief Executive he said that the PACT manager's letter had been cleared with ES's legal adviser and had followed their normal practice of not giving reasons for a decision not to prosecute. Their legal advice that the employment was subject to the designated employment provisions made no difference to the decision not to prosecute. Also, their legal advice was that the employer's breach of the provisions of the 1944 Act had effectively been condoned as a result of the PACT's misunderstanding of the definition of a car park under the designated employment scheme; that had inhibited a successful prosecution.

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2.17 At the time of their advertisement for a car park attendant the district council held a bulk exemption permit (see appendix A entry for 28 September 1995). A list attached to the permit showed the sections - including car parks - within the council where vacancies would occur. Although section 12(3) of the 1944 Act allowed for designated employment to be covered by permits (paragraph 2.4) there is no evidence that the PACT properly considered the implications of including car parks; nor that ES staff were properly examining the availability of registered disabled persons, as urged by the Department in their earlier instructions of 1994 and 1995 (paragraph 2.8) and as required by law. A closer scrutiny of the district council's permit applications should also have been prompted earlier by the discovery in April 1994 of misconceptions on their part about the application of the quota regulations. The Chief Executive told me that the problem had been a misunderstanding of the definition of a car park under the designated employment scheme. ES had understood legal advice to say that all four elements in the Order (paragraph 2.4) had to be present and for at least 50% of the working time. After Mr D had raised the issue in 1994, legal advice had corrected that misunderstanding. Unfortunately, the PACT had still had an erroneous view of the law and had included car parks in the bulk permit. I criticise ES accordingly.

2.18 Did maladministration by ES in that instance cause Mr D to suffer an unremedied injustice? Had ES paid greater attention to the relevant bulk permit application, the district council would have been unlikely to have had any option but to give priority under the 1944 Act to registered disabled applicants; Mr D should then have been offered the post provided that he was regarded as suitable and there was no other registered disabled applicant. In addition ES were at fault by failing to give the district council directions about the proper operation of the regulations on designated employment. While I note that Mr D, who was clearly aware of those regulations himself, did not let the DEA know of his interest in the job of car park attendant at the time of his application, and that had he done so (even though there was no such obligation upon him) it is possible that the DEA might have been able to offer specific practical help, I consider that the shortcomings by ES which I have identified led to Mr D being denied a likely opportunity of being offered the post of car park attendant.

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2.19 In the summer of 1996 Mr D asked the DEA to intervene with the court committee over the refusal to interview him for the post of court usher. He had gone to see the DEA to express an interest in it on the closing date (31 May) for applications, having arranged to do so the previous day. I can see no grounds for criticising the DEA's letter of 25 June which explained that ES had not been able to influence the court committee's decision not to consider late applications. (I understand that, because the prospective employer was in another county, the DEA had had to liaise with another PACT, so that they could attempt to intervene.) Although Mr D remained dissatisfied, the DEA clearly regarded her subsequent letter of 30 August as providing a final answer to him; in that respect Mr D was mistaken in believing that the DEA had referred his complaint to a higher authority - see appendix A entry for 17 January 1997. Nevertheless Mr D's persistence exposed a further weakness in ES's application of the quota regulations in that the court committee should have been applying for permits in their own right, rather than through the county council. Departmental instructions state that the staff of magistrates courts' committees should not be counted as local authority staff; had local ES staff examined the county council's permit applications more thoroughly they would have been able to alert the parties to the correct procedures. To my mind ES should have picked up the error at a much earlier stage. If the system had worked properly there would have been no risk that Mr D might have suffered an injustice with regard to vacancies with the court committee.

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2.20 Mr D's request in June 1997 for papers to assist his action against the third potential employer also led ES to discover their failure, from 1993, to computerise their papers on that employer. The last bulk permit for which the employer had applied was apparently in September 1993 for a total of 60 posts (no breakdown given) at the employer's regional offices (locations not specified). Although the application was clearly not in the required format ES had nevertheless approved it the following month. Given the paucity of detail the local Jobcentres clearly could not have considered properly the position of disabled persons. I criticise ES accordingly. I understand that the effect of ES's failure to computerise the employer's papers, which I accept was an oversight, was that ES failed to send annual reminders to the employer about their obligations under the quota scheme. That omission did not, of course, remove from the employer their obligations under the 1944 Act. Whether in the absence of ES's failure Mr D would have obtained a post with that employer can only be a matter of speculation now.

2.21 More generally, although not all the papers relating to bulk permit applications remain in existence there is nevertheless considerable evidence (in addition to that already mentioned in paragraphs 2.17 and 2.20) of persisting and possibly widespread maladministration by ES over the issue of exemption permits to the district and county councils. On 11 August 1994 the county council applied for a bulk permit for 500 "administrative, clerical, professional, technical and manual posts." On 23 February 1995 the county council made a further application in identical terms. On 28 September 1995 the PACT issued a bulk permit to the district council to engage 100 persons not registered as disabled. On 20 February 1996 the county council applied for a bulk permit to engage 500 persons not registered as disabled. On 9 September and 5 November 1996 the second PACT approved further applications from the county council respectively to engage 352 persons and 161 persons who were not registered as disabled. Although none of those applications was in the required format, ES nevertheless issued permits, and there is no evidence that they attempted to consider whether there were any suitable registered disabled persons available. On 11 June 1996 the second PACT approved an application from the county council which contained much fuller information about 56 different job types and their locations, but even so there is no evidence that that information was used to test the suitability of any registered disabled person who might have been available. Mr D was a disabled person registered with ES and had specifically told them on 27 August 1993 that he was available for work; and they were, of course, well aware from their subsequent dealings with him that he was totally dissatisfied with the way in which the operation of the bulk permit system was hindering his opportunities to get a job. I criticise ES for not giving the position of Mr D (and perhaps other registered disabled persons) due consideration when administering the permit applications.

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2.22 Whether in the absence of maladministration Mr D would have obtained a job, and if so what job, with either of the councils can only be a matter for speculation, but it is hard to imagine that there was not a post among the many hundreds on offer during the prolonged period over which maladministration occurred for which Mr D would not have been considered suitable and available. I note that the county council told the Member on 8 July 1997 that Mr D had met the minimum requirements for posts on offer on two occasions (in September 1995 and July 1996) out of the ten applications he had made for jobs with them. In addition, Mr D appears to have been found suitable for the post of telephonist with the district council (see appendix A entries for 21 January and 21 February 1994).

2.23 That leads me on to the steps taken by ES to consider and act on the complaints which Mr D and the Member made on a number of occasions, both about Mr D's failure to be considered for, and to be successful in obtaining, specific vacancies; and about the bulk permit scheme in general. Mr D also supplied ES with the letter which the district council had sent to him on 21 February 1994. On 19 April 1994 the then Parliamentary Under Secretary of State, and on 25 April 1995 the then Minister of State wrote to the Member detailing the difficulties of operating the quota system but no attempt was made to acknowledge that ES had been in any way at fault over the operation of the system. I criticise those who drafted the replies for the omission. I also criticise ES for the fact that no attempt appears to have been made to correct the district council's mistaken view that they were obliged only to "consider sympathetically" applications from registered disabled persons. Indeed on 13 September 1995 ES headquarters wrote to Mr D saying that a bulk permit was issued only on "the express understanding that the employer considers sympathetically the engagement of any suitable registered disabled person who is available when a particular vacancy arises." The letter went on to say "Failure to honour that understanding, and indeed failure on the part of such an employer to do everything possible to improve their quota position, is taken into account when considering any future application for a permit covering estimated engagements", but there is no evidence that ES made that clear to the district council. On 15 January 1996 ES headquarters wrote to Mr D saying that employers could not be compelled to engage a particular applicant for vacancies under either the quota or designated employment schemes. I accept that ES were faced with a difficult task in seeking to ensure that the provisions of the 1944 Act were adhered to, but it seems to me that employers who were under quota should have been required to appoint suitable available registered disabled persons, irrespective of whether or not such employers were in possession of a bulk permit. It also seems to me that ES's letters often reflected misconceptions which were common within ES at that time; and are indicative of a widespread and regrettable failure to comprehend and implement the requirements of the then existing legislation. Had that legislation not since been repealed that would have been worrying indeed. When I put my views to the Chief Executive he said that the 1944 Act placed a duty on employers to employ a quota of registered disabled persons; it also gave employers the right to seek a permit. There were criminal sanctions for engaging, in the absence of a permit, a person who was not registered as disabled, but neither that nor any other power of enforcement enabled ES to compel an employer to engage any particular person.

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2.24 I accept that local DEAs strove to help and encourage Mr D in practical ways, some of which were referred to in the Department's letter of 9 July 1997 to the Member. I find, however, that that was all within a climate of persistent failures by ES to operate the quota system properly, and a persisting perception that an employer had to be the arbiter on a disabled person's suitability for a post, whereas section 11(1) of the 1944 Act (paragraph 2.3) required ES themselves to have regard to issues of suitability.

2.25 In summary, the salient facts as I see them are:

(i) Mr D was registered as a disabled person throughout the period covered by my investigation.

(ii) ES appear to have known when he was and was not available for work, and so should have been able to reach views on his suitability and availability for particular types of work, to which they were required to have regard in connection with their use of the discretionary powers to issue bulk permits.

(iii) Notwithstanding some of the statements made by ES, when considering the use of those powers it was ES who were to be the arbiters on Mr D's suitability and availability (subject to any appeal by the employer - paragraph 2.3).

(iv) There is clear, and admitted, evidence of persisting and widespread fault on the part of ES in their administration of applications for bulk permits.

My conclusion is that, if ES had had proper regard to the obligations on them when applying sections 11(2) and 12(3) of the 1944 Act and had acted in the way they should, Mr D would have had every prospect of obtaining appointment to some of the posts covered by various of the permit exemptions which ES approved. I find that Mr D has been disadvantaged by repeated acts of maladministration. I therefore invited the present Chief Executive of ES to consider compensating Mr D accordingly. In his reply the Chief Executive accepted that in various instances ES staff had not followed the instructions on the issue of bulk permits and had issued permits too readily; as a consequence some employers had been able to avoid their statutory duty to employ registered disabled persons up to the quota without effective challenge. The Chief Executive acknowledged that my findings provided evidence that Mr D had lost opportunities. He said that it was difficult to quantify the level of financial loss which Mr D might have suffered given that he had lost the opportunity to be considered for work, rather than work itself. It was also uncertain how much work might have been offered or for how long. Following a meeting between the Ombudsman's staff and ES officials, the Chief Executive told me that, having looked at the kinds of posts which had been serious possibilities for Mr D, and having taken account of the frustration and distress which Mr D had suffered during the prolonged period of his correspondence, he was willing to offer Mr D compensation of £20,000. I welcomed that offer.

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Conclusion

2.26 There were widespread failures by ES properly to administer the (now repealed) quota/bulk permit arrangements and Mr D did not receive the standard of service he had a right to expect. I regard the then Chief Executive's apologies, which I pass on to Mr D through this report, and the ex gratia payment of £20,000 as a suitable outcome to a justified complaint.

Appendix A

Chronology of the main events

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Appendix B

Initials used and their meanings

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Appendix C

Edited extracts from a report by ES

The role of ES

1. The main objectives of administering and enforcing the provisions of the quota scheme were always to make employers aware of their duties and obligations and to get them to comply with the law.

2. A major difficulty experienced in administering quota was the matching of registered disabled persons against the occupations sought by employers applying for permits. The statutorily prescribed form of entry on the register contained the disabled person's address, occupation and employment status (ie employed or unemployed) at the time the application to register was made. The period of registration was usually from one to ten years although it could have been longer. There was no provision for a person on the register to keep ES informed of changes of address, occupation or employment status, and the information on the register therefore became outdated.

3. When the 1944 Act was first introduced, there were war-time regulations (replaced after the war by a Control of Engagements Order) requiring employers to notify vacancies to employment exchanges. There was also a statutory requirement under social security legislation for unemployed jobseekers who claimed unemployment benefit to register also for employment with the employment exchanges which kept a register of unemployed persons by occupation. The statutory requirement for unemployed claimants to register for work was repealed in 1982, reflecting changes in the labour market and in services such as the growth of private agencies and of self-service displays in Jobcentres.

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4. After October 1982 there was no register of unemployment claimant jobseekers held by Jobcentres. Since then the only records of persons seeking work in particular occupations have been those seeking additional help to get work, for example, disabled persons on DEAs' caseloads. The abolition of the statutory requirement to register for work meant that Jobcentres thus lost a more complete source of information on those with disabilities by occupation and their employment status.

Summary

5. The operation of the provisions of the 1944 Act was less effective than was intended in the original legislation as a result of the fall in the numbers of registered disabled persons and of changes in the labour market and in public attitudes.

6. Various departmental and Government reviews and consultation exercises did not find practical ways of making quota work more effectively. Parliament made provision for quota to be repealed and replaced with new employment rights sections of the Disability Discrimination Act. These provisions took place when the Act came into force on 2 December 1996.

7. On receipt of Mr D's complaint in 1994, ES took steps to identify, and reduce as far as possible, shortcomings in the issue of permits by PACTS. The original guidance given in the Disabled Persons Code was reinforced by messages from ES senior management to Regional Directors. It was supplemented by a circular issued in March 1995 which advised on practical ways to administer quota and stressed the need to continue to administer it up to repeal.

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8. ES accept that permit applications were not properly handled by the first PACT and regret any effect they may have had on Mr D's application to the district council. However, respecting Mr D's wishes at the time, no formal investigation of the rejection of his application by the district council was undertaken. A contributory element seems to have been the council's misunderstanding of local authority legislation. (Section 7 of the Local Government and Housing Act 1989 says that the requirement of a local authority to appoint staff on merit is subject, among other things, to quota and reserved employment requirements of the 1944 Act.)

9. Although Mr D was registered as disabled that status did not automatically guarantee him an interview with an employer, regardless of his suitability. The 1944 Act did not require that of employers or ES.

10. ES have offered Mr D the usual range of help available to registered disabled persons, some of which Mr D took up. Accordingly, following his complaint which led ES to realise Mr D was facing particular difficulties, the PACT and their DEAs increased their effort to find him a job.

11. There were regrettable delays in replying to two of Mr D's letters written at the end of February 1994 and in February 1995. The full reply to the 28 February 1994 letter was delayed because of the need to investigate Mr D's complaint concerning the district council and for the PACT to seek legal advice on Mr D's stated intention to consider judicial review. The written reply to Mr D's letter of 28 February 1995 about the probation service was also delayed although the second PACT manager did manage to pursue the vacancy for Mr D and telephone contact had been made with him.

12. Within the limitations of the 1944 Act ES have tried to operate the quota system to support both the employment of registered disabled persons known to their DEAs and of disabled persons more widely.

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Last updated: 19 April 2006