Disability Discrimination Bill [HL]

House of Commons

Session 2004 - 05
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Other Bills before Parliament

Disability Discrimination Bill [HL]

Disability Discrimination Bill [HL]
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General qualifications bodies
In Part 4 of the 1995 Act (education), after Chapter 2 there is inserted—
“Chapter 2A
General qualifications bodies
31AA
General qualifications bodies: discrimination and harassment
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(1)
It is unlawful for a general qualifications body to discriminate against
a disabled person—
(a)
in the arrangements which it makes for the purpose of
determining upon whom to confer a relevant qualification;
(b)
in the terms on which it is prepared to confer a relevant
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qualification on him;
(c)
by refusing or deliberately omitting to grant any application by
him for such a qualification; or
(d)
by withdrawing such a qualification from him or varying the
terms on which he holds it.
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(2)
It is also unlawful for a general qualifications body, in relation to a
relevant qualification conferred by it, to subject to harassment a
disabled person who holds or applies for such a qualification.
(3)
In the case of an act which constitutes discrimination by virtue of
section 55, this section also applies to discrimination against a person
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who is not disabled.
(4)
In this section and section 31AD, “relevant qualification” means an
authorisation, qualification, approval or certification of a prescribed
description.
(5)
But an authorisation, qualification, approval or certification may not be
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prescribed under subsection (4) if it is a professional or trade
qualification (within the meaning given by section 14A(5)).
(6)
In this Chapter—
(a)
“general qualifications body” means any authority or body
which can confer a relevant qualification, but it does not
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include—
(i)
a responsible body (within the meaning of Chapter 1 or
2 of this Part),
(ii)
a local education authority in England or Wales,
(iii)
an education authority (within the meaning of section
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135(1) of the Education (Scotland) Act 1980), or
(iv)
an authority or body of a prescribed description or in
prescribed circumstances;
(b)
references (however expressed) to the conferment of a
qualification on a person include—
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(i)
the renewal or extension of a qualification, and
(ii)
the authentication of a qualification awarded to him by
another person.

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31AB
Meaning of “discrimination”
(1)
For the purposes of section 31AA, a body discriminates against a
disabled person if—
(a)
for a reason which relates to the disabled person’s disability, it
treats him less favourably than it treats or would treat others to
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whom that reason does not or would not apply; and
(b)
it cannot show that the treatment in question is justified.
(2)
For the purposes of section 31AA, a body also discriminates against a
disabled person if it fails to comply with a duty imposed on it by section
31AD in relation to the disabled person.
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(3)
Treatment, other than the application of a competence standard, is
(subject to subsections (5) to (7)) justified for the purposes of subsection
(1)(b) if, but only if, the reason for it is both material to the
circumstances of the particular case and substantial.
(4)
The application by a body of a competence standard to a disabled
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person is (subject to subsections (6) and (7)) justified for the purposes of
subsection (1)(b) if, but only if, the body can show that—
(a)
the standard is, or would be, applied equally to persons who do
not have his particular disability; and
(b)
its application is a proportionate means of achieving a
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legitimate aim.
(5)
If, in a case falling within subsection (1) other than a case where the
treatment is the application of a competence standard, a body is under
a duty under section 31AD in relation to the disabled person but fails to
comply with that duty, its treatment of that person cannot be justified
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under subsection (3) unless it would have been justified even if the
body had complied with that duty.
(6)
Regulations may make provision, for purposes of this section, as to
circumstances in which treatment is, or as to circumstances in which
treatment is not, to be taken to be justified (but see subsection (7)).
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(7)
Treatment of a disabled person cannot be justified under subsection (3),
(4) or (6) if it amounts to direct discrimination falling within subsection
(8).
(8)
A body directly discriminates against a disabled person if, on the
ground of the disabled person’s disability, it treats the disabled person
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less favourably than it treats or would treat a person not having that
particular disability whose relevant circumstances, including his
abilities, are the same as, or not materially different from, those of the
disabled person.
(9)
In this section, “competence standard” means an academic, medical or
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other standard applied by or on behalf of a general qualifications body
for the purpose of determining whether or not a person has a particular
level of competence or ability.
31AC
Meaning of “harassment”
(1)
For the purposes of section 31AA, a body subjects a disabled person to
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harassment where, for a reason which relates to the disabled person’s

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disability, the body engages in unwanted conduct which has the
purpose or effect of—
(a)
violating the disabled person’s dignity; or
(b)
creating an intimidating, hostile, degrading, humiliating or
offensive environment for him.
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(2)
Conduct shall be regarded as having the effect referred to in paragraph
(a) or (b) of subsection (1) only if, having regard to all the
circumstances, including in particular the perception of the disabled
person, it should reasonably be considered as having that effect.
31AD
General qualifications bodies: duty to make adjustments
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(1)
Where—
(a)
a provision, criterion or practice, other than a competence
standard, is applied by or on behalf of a general qualifications
body,
(b)
it is a provision, criterion or practice for determining on whom
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a relevant qualification is to be conferred,
(c)
a disabled person is, or has notified the body that he may be, an
applicant for the conferment of that qualification, and
(d)
the provision, criterion or practice places the disabled person at
a substantial disadvantage in comparison with persons who are
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not disabled,

it is the duty of the body to take such steps as it is reasonable, in all the
circumstances of the case, for it to have to take in order to prevent the
provision, criterion or practice having that effect.
(2)
Where—
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(a)
a provision, criterion or practice, other than a competence
standard, is applied by or on behalf of a general qualifications
body,
(b)
it is a provision, criterion or practice other than one for
determining on whom a relevant qualification is to be
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conferred, and
(c)
it places a disabled person who—
(i)
holds a relevant qualification conferred by the body, or
(ii)
applies for a relevant qualification which the body
confers,
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at a substantial disadvantage in comparison with persons who
are not disabled,

it is the duty of the body to take such steps as it is reasonable, in all the
circumstances of the case, for it to have to take in order to prevent the
provision, criterion or practice having that effect.
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(3)
Where any physical feature of premises occupied by a general
qualifications body places a disabled person who—
(a)
holds a relevant qualification conferred by the body, or
(b)
applies for a relevant qualification which the body confers,

at a substantial disadvantage in comparison with persons who are not
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disabled, it is the duty of the body to take such steps as it is reasonable,
in all the circumstances of the case, for it to have to take in order to
prevent the feature having that effect.

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(4)
Nothing in subsection (1), (2) or (3) imposes a duty on a general
qualifications body in relation to a disabled person if the body does not
know, and could not reasonably be expected to know—
(a)
in the case of an applicant or potential applicant for the
conferment of a relevant qualification, that the disabled person
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concerned is, or may be, such an applicant; or
(b)
in any case, that that person has a disability and is likely to be
affected in the way mentioned in that subsection.
(5)
In this section—
(a)
“provision, criterion or practice” includes (subject to any
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provision under subsection (6)(e)) any arrangements;
(b)
“competence standard” has the meaning given by section
31AB(9).
(6)
Regulations may make provision, for purposes of this section—
(a)
as to circumstances in which a provision, criterion or practice is
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to be taken to have, or as to circumstances in which a provision,
criterion or practice is to be taken not to have, the effect
mentioned in subsection (1)(d) or (2)(c);
(b)
as to circumstances in which a physical feature is to be taken to
have, or as to circumstances in which a physical feature is to be
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taken not to have, the effect mentioned in subsection (3);
(c)
as to circumstances in which it is, or as to circumstances in
which it is not, reasonable for a body to have to take steps of a
prescribed description;
(d)
as to steps which it is always, or as to steps which it is never,
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reasonable for a body to have to take;
(e)
as to what is, or as to what is not, to be included within the
meaning of “provision, criterion or practice”;
(f)
as to things which are, or as to things which are not, to be
treated as physical features.
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(7)
This section imposes duties only for the purpose of determining
whether a body has, for the purposes of section 31AA, discriminated
against a disabled person; and accordingly a breach of any such duty is
not actionable as such.
31AE
Chapter 2A: claims, leased premises and certain agreements
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(1)
Regulations may make provision for, or in connection with, the making
of a claim by a person—
(a)
that a general qualifications body has discriminated against
him, or subjected him to harassment, in a way which is
unlawful under this Chapter;
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(b)
that a general qualifications body is by virtue of section 57 or 58
to be treated as having done so; or
(c)
that a person is by virtue of section 57 to be treated as having
done so.
(2)
Regulations may, in relation to a case where premises are occupied by
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a general qualifications body under a lease—
(a)
make provision modifying the lease, or make provision for its
modification, in connection with the making of alterations to

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the premises in pursuance of a duty imposed on the body by
section 31AD;
(b)
make provision in connection with the determination of
questions that are about the body’s compliance with any such
duty and are related to the making of alterations to the
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premises.
(3)
Any term in a contract or other agreement made by or on behalf of a
general qualifications body is void so far as it purports to—
(a)
require a person to do anything which would contravene any
provision of, or made under, this Chapter;
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(b)
exclude or limit the operation of any provision of, or made
under, this Chapter; or
(c)
prevent any person making a claim of a kind mentioned in
subsection (1).
(4)
Regulations may—
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(a)
make provision for subsection (3)(b) or (c) not to apply to an
agreement settling a claim of a kind mentioned in subsection
(1);
(b)
make provision modifying an agreement to which subsection
(3) applies, or make provision for the modification of such an
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agreement, in order to take account of the effect of that
subsection.
(5)
The provision that may be made under subsection (1), (2) or (4) includes
(in particular)—
(a)
provision as to the court or tribunal to which a claim, or an
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application in connection with a modification, may be made;
(b)
provision for the determination of claims or matters otherwise
than by the bringing of proceedings before a court or tribunal;
(c)
provision for a person who is a lessor in relation to a lease under
which a general qualifications body occupies premises to be
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made a party to proceedings;
(d)
provision as to remedies;
(e)
provision as to procedure;
(f)
provision as to appeals;
(g)
provision as to time limits;
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(h)
provision as to evidence;
(i)
provision as to costs or expenses.
(6)
Provision under subsection (1), (2) or (4) may take the form of
amendments of this Act.
(7)
Regulations may make provision as to the meaning of “lease” or
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“lessor” in this section.
(8)
Except as provided in regulations under subsection (1), no civil or
criminal proceedings may be brought against any person in respect of
an act merely because the act is unlawful under this Chapter.
(9)
Subsection (8) does not prevent the making of an application for
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judicial review.