House of Commons - Explanatory Note
Disability Discrimination Bill [HL] - continued          House of Commons

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New section 21E: Making of adjustments by public authorities

47.     New section 21E imposes, on public authorities carrying out functions, duties equivalent to those imposed on service providers by section 21 of the DDA. In broad terms, new section 21E puts public authorities under a duty to make reasonable adjustments for disabled persons (such as adjustments to procedures, alterations to the physical features of buildings or the provision of an auxiliary service such as a BSL interpreter), where such persons are - by reason of their disability - disadvantaged in some way by, or in relation to, the carrying-out of the function. The duty requires public authorities to anticipate the requirements of disabled persons and the adjustments that may need to be made for them.

48.     For the purposes of this section, two different aspects of public functions are considered separately:

  • First, the possibility that the exercise of a function may confer benefits on people affected by the exercise of the function. For example, that would be the case where a local authority is making grants to members of the public. In these cases, the provisions require public authorities to make reasonable adjustments when failing to make such an adjustment would make it 'impossible or unreasonably difficult' for a disabled person to receive such a benefit.

  • Second, the possibility that the exercise of a function may subject people affected by its exercise to a detriment. For example, that would be the case where a law enforcement agency exercises a power to arrest or detain members of the public. In these cases, the provisions require public authorities to make reasonable adjustments in order to avoid making it 'unreasonably adverse' for disabled people to experience being subjected to the detriment.

49.     The so-called trigger for the duty to make a reasonable adjustment will therefore depend on whether the carrying-out of the function is capable of conferring a benefit or subjecting a person to a detriment.

50.     When the relevant trigger is met, new section 21E(1) and (2) places a duty on a public body to take reasonable steps to change policies, practices or procedures (such as waiving a requirement in certain circumstances to fill out a form in writing). This duty is analogous to section 21(1) of the DDA.

51.     When the relevant trigger is met, new section 21E(3) and (4) places a duty on a public body to take reasonable steps to deal with a physical feature (for example, installing a ramp as an alternative to steps). This duty is analogous to section 21(2) of the DDA.

52.     New section 21E(5)(a) allows regulations to prescribe matters that can be taken into account when deciding whether the means of avoiding a physical feature (new section 21E(4)(c)) or an alternative method of carrying out the function (new section 21E(4)(d)) is reasonable. New section 21E(5)(b) gives a regulation-making power to allow categories of public bodies to be specified to which the duty to make reasonable adjustments to physical features in section 21E(4) does not apply.

53.     When the relevant trigger is met, new section 21E(6) and (7) places a duty on public authorities to take reasonable steps to provide auxiliary aids or services (such as notification of a decision on audio tape). This duty is intended to be analogous to section 21(4) of the DDA.

54.     New section 21E(10) makes it clear that a breach of a duty imposed by section 21E is not actionable as such. Rather the duties are for the purposes of determining whether a public body has discriminated against a disabled person for the purposes of section 21B(1).

Clause 3: Duties of Public Authorities

55.     This clause amends the DDA by inserting a new Part 5A following section 49. The effect of this is to introduce into the Act provisions which impose on public authorities duties relating to disabled people that are similar to those imposed by section 71 of the Race Relations Act 1976 (as substituted by the Race Relations (Amendment) Act 2000, section 2).

56.     The new Part 5A is intended to ensure that bodies which exercise public functions "mainstream" disability rights issues when exercising those functions. This means, in broad terms, that public bodies, when making decisions, or when developing or implementing a new policy, must make consideration of the needs of disabled people an integral part of the policy-making or decision-making process with a view to eliminating discrimination and harassment and to improving opportunities for, and promoting positive attitudes towards, disabled people. In addition, when exercising functions, bodies must take account of the need to encourage disabled people to take part in public life.

New section 49A: General Duty

57.     New section 49A(1) sets out the six prongs of the duty. It requires a public authority, as defined in section 49B, to have due regard, when carrying out its functions, to the need to eliminate unlawful discrimination against disabled people, the need to eliminate disability-related harassment of disabled people, the need to improve equality of opportunity for disabled people, the need to promote positive attitudes towards disabled people, and the need to encourage participation by disabled people in public life. The duty will be enforceable through judicial review.

58.     New section 49A(1)(d) requires public authorities to have due regard to the need to take steps to take account of disabled persons' disabilities or, in effect, to have due regard to the need to take steps to overcome the effects of disabilities. This underlines that 'equality of opportunity' cannot be achieved simply by treating disabled and non-disabled people alike, and recognises the long-standing principle that it is sometimes necessary to take positive steps to overcome the barriers faced by disabled people by making reasonable adjustments (such as providing information in different formats) or by making special provision for disabled people's needs (such as providing specialist transport services when public transport is inaccessible).

59.     New section 49A(2) makes it clear that compliance with the general duty in section 49A(1) will not detract from a public authority's obligations to comply with other provisions of the DDA.

New section 49B: Meaning of "public authority" in Part 5A

60.     New section 49B(1) defines "public authority" for the purposes of section 49A. The definition in new section 49B(1)(a) is the same as the definition used in new section 21B(2) (to be inserted by clause 2).

61.     The definition of "public authority" in new section 49B(1)(a) is also the same as that used in section 6(3)(b) of the Human Rights Act 1998. It is subject to the proviso in new section 49B(2), which provides that a body will not be a public authority if the nature of the act being carried out is private. For example, the Law Society is likely to be covered in respect of its statutory functions such as those relating to the regulation of solicitors, but not its private functions - for example the representation of the interests of the profession in dealings with Government.

62.     The list of bodies subject to the equivalent race duties (see Schedule 1A to the Race Relations Act 1976, as inserted by the Race Relations (Amendment) Act 2000) was compiled with regard to the Human Rights Act definition of "public authority", and so it is expected that the range of bodies covered by the definition in new section 49B will be similar. The definition will certainly include Government Departments, local authorities, the police and other governmental organisations.

63.     New section 49B(1)(b) excludes certain bodies from the definition of public authority, in particular the Scottish Parliament and the bodies listed in section 21B(3) (see clause 2), for example the Houses of Parliament and the intelligence agencies.

64.     New section 49B(3) provides a power, by regulations, to exclude certain bodies from the definition of public authority for the purposes of Part 5A. It could be used, for example, to clarify the situation where there was doubt as to whether a body was covered or not, or to exclude bodies altogether where there were good policy reasons as to why they should not be covered by the section 49A(1) duty.

New section 49C: Exceptions from section 49A(1)

65.     New section 49C(1) to (3) set out certain acts which are not subject to the duties in section 49A(1) such as judicial acts, legislative acts, and acts relating to employment in the armed forces.

66.     New section 49C(4) provides a power to define in regulations other acts in relation to which duties under section 49A(1) will not apply. This would enable, for example, regulations to clarify the situation where there was doubt as to whether an act was covered or not, or to exclude particular types of act from those duties where there would be good policy reasons as to why they should not be covered.

New section 49D: Power to impose specific duties

67.     New section 49D(1) to (4) will provide powers for the Secretary of State, in respect of all bodies other than certain Scottish bodies, and for the Scottish Ministers in respect of those Scottish bodies, to impose by regulations specific duties on bodies to assist the bodies in the performance of their duties under section 49A(1). Such duties may involve, for example, some organisations having to produce disability equality schemes, or carry out certain types of monitoring.

68.     In the case of cross-border public authorities (within the meaning of section 88(5) of the Scotland Act 1998), the Secretary of State may impose, by regulations, duties in respect of their functions which are not Scottish functions, and the Scottish Ministers may impose, by regulations, duties in respect of their Scottish functions. New section 49D(8) requires that, before placing cross-border public authorities under specific duties, the Secretary of State must consult the Scottish Ministers. Similarly, new section 49D(9) requires that, before placing cross-border public authorities under specific duties, the Scottish Ministers must consult the Secretary of State.

69.     New section 49D(5) to (7) provide for other consultation requirements in relation to regulations under section 49D(1) to (4).

New section 49E: Compliance notices

70.     New section 49E sets out the framework for the enforcement of specific duties imposed by regulations under new section 49D. The Disability Rights Commission may serve a compliance notice on a public authority where it is satisfied that the authority is not complying with any specific duty imposed by such regulations. A compliance notice would require the public authority to comply with the duty concerned and also to inform the Disability Rights Commission of the steps it has taken (or is taking) to do so. It could also require the public authority to give the Disability Rights Commission other information that may be required in order to verify that the duty has been complied with.

New section 49F: Enforcement of compliance notices

71.     New section 49F contains provisions about the enforcement of compliance notices. New section 49F(1) and (2) enable the Disability Rights Commission to apply to a county court, or in the case of Scotland a sheriff court, for an order to supply information where it believes that a public authority has not provided, or intends not to provide, information requested under section 49E, and for the court to grant such an order where the relevant conditions are met.

72.     New section 49F(3) and (4) enable the Disability Rights Commission, at the end of the time specified in a compliance notice issued under section 49E, to apply to a county court, or in the case of Scotland a sheriff court, for an order that the public authority concerned must comply with a duty imposed by regulations made under new section 49D. The court has powers to grant such an order where it is satisfied that the duty has not been complied with.

73.     New section 49F(5) makes it clear that the only sanctions for not complying with a duty under section 49D are those set out in sections 49E and 49F.

Clause 4: Police

74.     Clause 4 amends section 64A of the DDA (inserted into the DDA with effect from 1 October 2004 by the Amendment Regulations) so as to insert provisions analogous to those contained in section 76A(4) to (6) of the Race Relations Act 1976 (as inserted by the Race Relations (Amendment) Act 2000, section 4). As amended by clause 4, section 64A will set out who the correct defendant is in the case of a claim of discrimination being made against a police officer under Part 3 of the DDA (for example, where it is alleged that a police officer has discriminated against a disabled person when carrying out a function). The clause also authorises payment from the police fund of compensation or of costs of settlement in relation to such a claim.

Clause 5: Application of sections 19 to 21 of the 1995 Act to transport vehicles

75.     Clause 5 inserts a new section 21ZA into the DDA. Paragraph 13(3) of Schedule 1 to the Bill removes the existing exclusion of transport services from sections 19 to 21 of the DDA. This is replaced by the more precise exclusion in new section 21ZA(1) and (2), i.e. one relating only to transport services consisting of the provision and use of a vehicle. Section 21ZA(3) then confers a regulation-making power to enable such services to be brought within the scope of those sections (which make it unlawful to discriminate against a disabled person in the provision of goods, facilities and services). This will enable those sections to be applied in whole or in part to different transport vehicles at different times.

76.     Section 21ZA(1) excludes, subject to section 21ZA(3), transport services which involve the provision or use of a vehicle from the provisions of section 19(1)(a), (c) or (d) of the DDA. Under section 21ZA(1)(a), discrimination is excluded if it arises through the provision, or non-provision, of a vehicle. Under section 21ZA(1)(b), discrimination is excluded if it arises through the provision, or non-provision, of services to a person whilst travelling in a vehicle. This would, for example, apply to the sale of tickets on board a train.

77.     Section 21ZA(2) excludes, subject to section 21ZA(3), transport services which involve the provision or use of a vehicle from the provisions of section 21(1), (2) and (4) of the DDA (duty to provide adjustments). It specifies that it will not be reasonable for the service provider to have to take steps which would involve altering or removing a physical feature of a transport vehicle. It also specifies that it will not be reasonable to require a transport operator to have to take steps affecting whether vehicles are provided or what type of vehicle is provided, or to have to take steps affecting the services provided within a vehicle.

78.     Section 21ZA(3) provides a power to make regulations to disapply the exclusion in sections 21ZA(1) and (2). This power will enable the exclusion to be lifted in respect of different types of vehicle at different times. Furthermore, it will enable the exclusion to be lifted for particular types of service within generic modes of transport at different times. For example, the exclusion could be lifted for all public transport vehicles at a particular time, but applied to aviation and marine vehicles at a later date if considered necessary.

Clause 6: Rail vehicles: application of accessibility regulations

79.      Section 46 in Part 5 of the DDA gives the Secretary of State power to make rail vehicle accessibility regulations ("RVAR") for the purposes of securing that it is possible for disabled persons to get on and off regulated rail vehicles in safety and without unreasonable difficulty, and to be carried in such vehicles in safety and in reasonable comfort. Clause 6(1) inserts a new sub-section (4A) into section 46, the effect of which is to require the Secretary of State to exercise the power in section 46(1) to make accessibility regulations so as to ensure that all rail vehicles are regulated, i.e. subject to provisions of the RVAR, no later than 1st January 2020. This requirement does not disturb the power under section 46(5) of the DDA under which RVAR may make different provision for different vehicles, the same types of vehicles used in different circumstances, or in different circumstances. Neither does it affect the power under section 47(1) to exempt vehicles from requirements of RVAR or prevent such orders being made or having effect after 1st January 2020.

80.     Section 46(6) defines a "rail vehicle" for the purposes of the section as a vehicle "constructed or adapted to carry passengers on any railway, tramway or prescribed system; and first brought into use, or belonging to a class of vehicle first brought into use, after 31st December 1998". Clause 6(2) replaces this definition by removing the second part of it, so that there is no 'start date'. This change enables the Secretary of State to achieve his policy objective of applying RVAR to rail vehicles first brought into use before 1st January 1999, and also to newer vehicles which are of the same type as ones first used before RVAR came into force on 1st January 1999. This change of definition will enable the Secretary of State to set the date in RVAR by which time all rail vehicles must comply with requirements of the regulations, although that date may not be later than 1st January 2020. Together with the power in the existing section 46(5), it also means that the Secretary of State can provide for RVAR to apply to rail vehicles which are not currently regulated (i.e. not subject to RVAR) when they are refurbished, and prescribe the extent to which they must conform.

81.     Clause 6(3) replaces existing section 47(1) of the DDA. Section 47(1) currently allows the Secretary of State to make exemption orders, authorising regulated rail vehicles to be used for carriage even though they do not comply with requirements of the RVAR which they are required to comply with. The new provision continues to allow the Secretary of State to make exemption orders in respect of regulated rail vehicles, but clarifies the law by specifically allowing exemptions from the operational requirements of RVAR as well as construction requirements. As well as restating the power to exempt the use of any rail vehicle of a specified description, or the use of any rail vehicle in specified circumstances, it expressly confers power to exempt the use of vehicles of a specified description in specified circumstances. So, for example, all the vehicles used on a particular railway, for example a heritage railway, could be exempted from some or all of the requirements of the RVAR.

82.     New section 67(5A), which is inserted into the DDA by paragraph 33 of Schedule 1 to this Bill, provides that exemption orders made under section 47(1) DDA may, at the discretion of the Secretary of State, be subject to either the draft affirmative or the negative resolution procedure. Clause 6(4) inserts new section 67A into the DDA, which sets out the procedure for the exercise of this discretion. New section 67A(3) empowers the Secretary of State to make regulations setting out the criteria for the exercise of this discretion. The Secretary of State is required to consult the Disabled Persons Transport Advisory Committee, and other appropriate bodies, before making such regulations, which will be subject to the draft affirmative procedure. Until regulations made under new section 67A(3) are in force, exemption orders made under section 47(1) DDA will be subject to the draft affirmative resolution procedure. This will give greater parliamentary scrutiny over the making of exemption orders under section 47(1).

83.     Clause 6(5) inserts new section 67B into the DDA to require the Secretary of State to produce an annual report on rail vehicle exemption orders. The report will be produced for each calendar year, and must contain details of exemption orders made under section 47(1). It must also contain information about the consultation on both applications for exemption orders and the exercise of the discretion as to whether such orders should be subject to the negative or affirmative resolution procedure. The report may also include other information, for example, information about applications for exemption which have been rejected or only granted in part. The report is required to be laid before both Houses of Parliament.

Clause 7: Rail vehicles: accessibility compliance certificates

84.     This clause inserts new sections 47A to 47C into the DDA, the effect of which will be to require prescribed rail vehicles to have a rail vehicle accessibility compliance certificate. It is intended that the requirement to have a certificate will apply to all new rail vehicles and vehicles that are refurbished. It also makes consequential amendments to sections 49 of the DDA (forgery and false statements) and 68(1) of the DDA (interpretation). The effect of these new sections, and corresponding changes to existing provisions, is to set up a RVAR certification scheme. The provisions include power for the Secretary of State to make regulations providing for the appointment of independent assessors who will be responsible for checking regulated rail vehicles for compliance against each RVAR requirement to which that vehicle is required to conform. They also empower the Secretary of State to make regulations setting out the procedure for obtaining certificates, including provisions for assessors to charge fees, and a mechanism for disputes between assessors and applicants for certificates to be referred to the Secretary of State. It is expected that for most rail vehicles (excluding trams and light rail systems) the RVAR compliance assessment will generally be carried out by the 'notified bodies' with responsibility for assessing vehicles under the high speed interoperability regime (Directive 96/48/EC, implemented by S.I. 2002/1166). The assessment of vehicles for RVAR compliance will be an integral part of the work of notified bodies in checking against the technical standards applied under that Directive.

New section 47A: Rail vehicle accessibility compliance certificates

85.     Section 47A(1) prohibits a regulated rail vehicle from being used for carriage unless a valid compliance certificate has been issued for that vehicle. It should be noted that this subsection applies only to vehicles prescribed in regulations made under subsection (2).

86.     Subsection (2) is a regulation-making power which enables the Secretary of State to prescribe vehicles which will require a certificate. If, as intended, the power is exercised to prescribe new rail vehicles and rail vehicles that are refurbished, the power will also enable regulations to set a date from which time those vehicles will have to be certified.

87.     Subsection (3) describes a rail vehicle accessibility compliance certificate. A certificate's purpose is to indicate that the Secretary of State is satisfied that a rail vehicle is compliant with those provisions of RVAR with which it is required to conform. The provisions with which vehicles are required to conform will be prescribed in the RVAR, including different requirements in the case of refurbished vehicles where, depending on the extent of the refurbishment work, not all the provisions may apply.

88.     Subsection (4) provides a general power to enable certificates to be made subject to conditions. For example, an operator could be required to inform the Secretary of State if there was a change in the operating company or if the vehicle was used on a different service.

89.     Subsections (5) and (6) make provision in respect of the refusal of the Secretary of State to issue a certificate. An applicant can ask the Secretary of State, within a timescale to be set in regulations, to review his decision. A fee can be charged for such a review. The Secretary of State must review the decision taking into account any written representations submitted by the applicant within the timescale set in regulations.

New section 47B: Rail vehicle accessibility compliance certificates: supplementary

90.     Section 47B(1) empowers the Secretary of State to make regulations with respect to compliance certificates, and other subsections set out examples of the provisions that may be included in such regulations. These relate in particular to the procedure relating to the application for and granting of certificates, and the conditions to which they may be made subject, together with provisions as to who may apply, and in what form.

91.     Subsection (3)(c) enables regulations to specify the information that is to accompany an application for a certificate. In particular, the regulations may require an application to be accompanied by a report of a compliance assessment. Subsection (4) defines a "compliance assessment" as being an assessment of a rail vehicle against those provisions of RVAR with which it is required to conform. Subsection (5) stipulates that the regulations may provide for such assessments to be carried out by a person appointed by the Secretary of State, known as an "appointed assessor".

92.     Subsection (6) applies in the event that regulations under subsection (1) do in fact require that an application for a certificate be accompanied by a report of a compliance assessment carried out by an appointed assessor. It provides that regulations made under subsection (1) may include provisions about the appointment by the Secretary of State of appointed assessors and, under subsection (6)(b), the regulations may make provision for such assessors to charge fees in connection with their work in compiling a compliance assessment or a pre-assessment. Subsection (6)(d) requires the regulations to include provision for referral to the Secretary of State of any dispute between an appointed assessor and a person who requested a compliance assessment about what provisions of RVAR a vehicle should be assessed against or whether or not a vehicle complies with any particular requirement of RVAR.

93.     Subsection (7) defines "compliance assessment" in subsection (6)(b) to (d) as including pre-assessment work, for example, giving an advance opinion on the final compliance of a new design feature. This will enable prospective applicants for compliance certificates to obtain a view from an appointed assessor as to the likely compliance of a particular design before embarking on the construction of the feature.

 
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