Well as some of you know i have been looking into the legality of this act and the closing of green lanes from the point of view of a disabled person, mainly looking at how it works with the DDA (Disability Discrimination Act).
I contacted the Disability Rights Commission and this is the response i got (the first is the email i sent to them):
Type of caller :
About : Other
Details : Please specify...
Title : Mr
Name : Dan Hardy
Organisation: -
Email Address: danielbhardy1@aol.com
Address:
Postcode:
Telephone/Textphone:
How old are you? 26
Disability: I have difficulty with walking but dont use a wheelchair or
aid. I am in reciept of higher rate DLA for mobility and am also a Blue
Badge Holder.
Disability lasting 12months: yes
What Happened: In the area i live (The Lake District) there used to be
provision for people with disabilities to see the area how they wanted to.
This was through the use of what are known as Green Lanes. They are only
accessible by 4x4 vehicles (such as Land Rovers etc.....) as they are
generally very rocky and wouldnt not be able to drive a normal vehicle up
them. Recently (1st May 2006) the LDNPA (Lake District National Park
Authority) closed most of these Green Lanes because the NERC act gave them
the right to. Now because of this, i for one, disabled people are
extrememly limited to what they can see through the lakes. Basically if
you cant walk then there is no other way to get to some of these points as
there is no way in hell a wheelchair could make it!
The problem is this is now happenning all over the country and thus is
discriminating against disabled people. These routes were legally
driveable until recently.
The Ramblers Association lobbyed the MP's to get these lanes closed to
promote walking, and everyones general response to "But i cant walk it due
to disability" is TOUGH!
Please help or advise me of someone who can help.
Other Person's Details: Please Specify...
Date it Happened: 1st May 2006
Job Description: Unemployed
Done so far: Contacted yourself as i cant afford legal advice.
Trade Union Member: NO
Country: England
Email Reply: yes
Preferred Format : Telephone
Permission: YES
Find Out: Google Search
Ethnic origin: White
(ethnic) Other: -
Age group: 16 - 39
Their response:
Dear Mr Hardy
Thank you for your recent email to the Disability Rights Commission (DRC)
Helpline regarding the actions taken by the Lake District National Park
Authority. I apologise for the delay in responding to your enquiry. This
is due to the high level of demand for the Helpline's services.
The Helpline will give you initial advice and information. Anything we say
to you is not a statement of your legal position. This is because we cannot
speak to the other party involved to get a full picture of the incident. If
we think you will need further assistance, we will advise you on other
sources of help.
There is a necessity to apply the Definition of Disability to an individual
and their impairment to ascertain if they have protection under the
Disability Discrimination Act (DDA). Based on the information in your email
it seems as though this criterion has been fulfilled due to the adverse
effects of your impairment.
It is likely that a court would hold that Section 19 DDA applies to local
and highway authorities in the management and upkeep of footpaths, cycle
ways, towpaths etc. This means, of course, that, it is more likely than not
that the duty under Section 21(2), in force in October 2004, applies to
highway authorities in the provision of, maintenance of and access to
highways and to all other 'providers' (owners/managers) of roads, footpaths
etc to which the public have access.
A failure to comply with duty would be actionable in the County Court under
Section 19 DDA.
Section 59(1) of the DDA provides that 'nothing in this Act makes unlawful
any act done
(a) in pursuance of any enactment; or
(b) in pursuance of any instrument made by a Minister of the Crown under any
enactment; or
(c) to comply with any condition or requirement imposed by a Minister of the
Crown (whether before or after the passing of this Act) by virtue of any
enactment.'
Case law under the equivalent provisions of the Race Relations Act (Section
41) makes it clear that this exemption is to be narrowly read. The
exemption is confined to acts done in the necessary performance of an
express obligation contained in the instrument under consideration and do
not include acts done in the exercise of a power or discretion conferred by
the instrument (Hampson v Department of Education and Science [1990] IRLR
302 HL).
Thus it is of limited impact and likely to be of very limited impact indeed
(if any) to the issues raised in your email. It would not excuse or
provide a defence to an authority or other provider who opts to impose
certain restrictions, even if that choice is made pursuant to a general
statutory duty to maintain a highway or similar.
The DDA is likely to offer the most convenient and simplest route to
challenging inaccessible paths, highways etc. Claims may arise in respect
of particular highways, footpaths etc under the Highways Act 1980 and the
Human Rights Act 1998 but any such claims are untested and are likely to be
more problematic.
The issue you describe in your email may constitute disability
discrimination by the service provider, you should send a letter, seeking
justification for their actions, explaining what your complaint is and why
you feel what has happened is related to your disability.
You should allow the service provider 2 weeks to respond. If there is no
response or if that which you receive is unsatisfactory, come back to the
Helpline for further advice.
It is important to note that there is a strict time limit of 6 months, less
1 day, from the incident date that applies when taking a case under Part 3
of the DDA.
In addition, you should be aware that the DRC require a minimum of 12 weeks
prior to the limitation date if we are to consider passing details of a case
to our Conciliation Management Unit (CMU).
Please also be aware that there is no guarantee that your case will be
referred to the CMU for consideration, and that referral to the CMU does not
constitute a guarantee of assistance.
You may need further assistance to progress this issue, such as
representation or help filling in forms. We can give you details of
organisations that may be able to assist you, but as an initial measure you
should check whether your household insurance may provide funding for legal
issues.
Please be advised that if you are currently receiving advice from a lawyer
the DRC will be unable to advise you on the issue, as we would not wish to
give conflicting advice.
Please note that the DRC can provide publications in alternative formats,
i.e., Braille, audio, diskette, etc; and ethnic languages. To order or view
a DRC publication please contact the Helpline or order online using this
link:
http://www.drc-gb.org/publicationsandreports/publications.aspI hope this information is useful, however, please do not hesitate to
contact the Helpline once again if you have any further questions or queries
quoting your reference number above.
Kind Regards,
Chris Goodhand
Advisor
DRC Helpline
