New section 47C: Rail vehicle accessibility compliance certificates: fees

94.     Section 47C(1) empowers the Secretary of State to make regulations prescribing that fees should be charged for the carrying out of certain administrative tasks relating to the issuing of compliance certificates. Subsection (2) stipulates that any fees received by the Secretary of State under subsection (1) must be paid to the Consolidated Fund. Before making such regulations, the Secretary of State must consult representative organisations.

95.     Clause 7(2) inserts into section 49 of the DDA a new subsection (1)(e) and amends subsection (4). The effect of these amendments is to make it a criminal offence for a person, with intent to deceive, to forge, alter, use, lend, or allow another person to use a rail vehicle accessibility compliance certificate, or to make or have in his possession a document which resembles such a certificate. The amendment to section 49(4) makes it an offence to knowingly make a false statement in order to obtain a rail vehicle accessibility compliance certificate.

Clause 8: Enforcement and penalties

96.     Clause 8(1) inserts new sections 47D to 47M into the DDA. The effect is to replace the criminal sanctions in existing section 46(3) and (4) for non-compliance with the RVAR (which are repealed - see paragraph 27(a) of Schedule 1 to the Bill) with a civil enforcement regime which enables penalties to be levied. The new sections will enable the Secretary of State to issue an operator with an improvement notice, which sets a deadline for a non-compliance to be rectified. If the non-compliance continues after the improvement deadline, a final notice can be issued. If the final deadline is missed the Secretary of State can impose a penalty. An operator can lodge an objection with the Secretary of State against either the imposition or level of a penalty. The provisions also provide a right of appeal to the court.

New section 47D: Penalty for using rail vehicle without accessibility compliance certificate

97.     New section 47D allows the Secretary of State to require an operator to pay a penalty if he uses a regulated rail vehicle that does not have a valid accessibility compliance certificate issued under section 47A to carry passengers. New sections 47J to 47L contain detailed provision about penalties.

New section 47E: Penalty for using rail vehicle that does not conform with accessibility regulations

98.     This section sets out the procedure to be followed by the Secretary of State in respect of an operator of a regulated rail vehicle which appears not to comply with the construction requirements of the RVAR. The procedure involves the issuing of two notices (an improvement notice and a final notice) and, if the vehicle is used despite still being non-compliant with the RVAR, the Secretary of State may impose a penalty. The various timescales leading up to the imposition of the penalty are to be set out in regulations, but the Government has suggested in consultation that the final notice period should be two weeks.

New section 47F: Penalty for using rail vehicle otherwise than in conformity with accessibility regulations

99.     This section makes similar provisions to section 47E but in respect of vehicles used in a way which does not comply with the operational, rather than technical, requirements of RVAR. This might apply, for example, where the vehicle has the appropriate equipment to assist a disabled person in getting on or off the vehicle, but no member of staff is available to operate it.

New section 47G: Sections 47E and 47F: inspection of rail vehicles

100.     This section sets out new powers of inspection, to be available where the Secretary of State has reasonable grounds for suspecting that a regulated rail vehicle does not conform with those provisions of RVAR with which it is required to conform. The section also grants similar powers of inspection following the issuing of notices under section 47E(1) or (4). The Secretary of State may authorise an 'inspector' to examine and test such vehicles and, for the purposes of exercising these powers, the inspector is empowered to enter premises at which he believes the vehicle to be kept, and to enter the vehicle. If an inspector is obstructed in the exercise of these powers the Secretary of State may, in certain circumstances, impose a penalty on the operator.

New section 47H: Sections 47E and 47F: supplementary powers

101.     Subsection (1) enables the Secretary of State to issue a notice to an operator requiring him to provide information by a specified deadline to enable a rail vehicle which is described in that notice to be identified. This may be necessary, for example, where a member of the public reports a technical breach of the RVAR and knows the time and route of the journey on which the vehicle was being used but not the vehicle's fleet number. Under subsection (3), the Secretary of State may impose a penalty on the recipient of a notice under subsection (1) if they fail to provide the information required by the deadline, which must be a minimum of 14 days from the date on which the notice is given.

New section 47J: Penalties under sections 47D to 47H: amount, due date and recovery

102.     This section sets out the detail in terms of amount, due date and recovery with regard to penalties imposed under sections 47D to 47H. It stipulates that the maximum penalty cannot exceed the amount prescribed in regulations and that it also cannot exceed 10% of the turnover of the operator subject to the penalty. "Turnover", for the purposes of subsection (2), must be determined in accordance with provisions set out in regulations. Subsection (5) enables the Secretary of State to start court proceedings to recover any penalty payable to him.

103.     Subsection (8) requires the Secretary of State to issue a code of practice setting out matters that will be considered in determining the level of a penalty. For example, the code could specify a sliding scale of penalty levels so that a first 'offence' warranted a lower penalty. The Secretary of State is required to take account of the code when imposing a penalty under these provisions, as is a court in considering an appeal against the penalty under sections 47L: see section 47L(3). Before issuing either the first or a revised code, the Secretary of State must lay a draft before Parliament.

New section 47K: Penalties under sections 47D to 47H: procedure

104.     This section sets out the procedure for the imposition of penalties under sections 47D to 47H. Subsections (4) and (5) set out the operator's right to object to a penalty either because he does not think he is liable for such a penalty, or because he thinks the amount is too high. The Secretary of State is then under an obligation to consider the objection and take appropriate action.

New section 47L: Penalties under sections 47D to 47H: appeals

105.     This section sets out the right of an operator subject to a penalty under these provisions to appeal to a court on the grounds that either they are not liable to a penalty, or that the level is too high. An appeal under this section is a re-hearing of the Secretary of State's original decision to impose a penalty and may be brought whether or not the operator has given a notice of objection under section 47K(4), or the Secretary of State has already reduced a penalty.

New section 47M: Sections 46 to 47H: interpretation

106.     Subsection (1) defines an "operator" for the purposes of sections 46 to 47H as the person having the management of a rail vehicle, and subsection (2) defines, for the purposes of sections 46 to 47H, the use of a vehicle for carriage as use for the carriage of passengers. The existing definitions of these terms in section 46 of the DDA are repealed under Schedule 2 to the Bill.

107.     Subsection (3) provides that where an exemption order under section 47 is in place, the references in sections 47A to 47G to the provisions of RVAR with which the vehicle is required to conform do not include a provision in respect of which an exemption order has been made.

108.      Clause 8(2) inserts into section 49 of the DDA a new subsection (5) making it a criminal offence for a person to impersonate an inspector authorised by the Secretary of State for the purposes of section 47G.

Clause 9: Recognition of disabled persons' badges issued outside Great Britain

109.     This clause amends the Chronically Sick and Disabled Persons Act 1970 ("CSDPA 1970") which established the disabled persons' parking badge ("blue badge") scheme. This scheme provides for certain parking concessions to operate in favour of disabled people whose vehicles display blue badges. This clause (which extends to England and Wales only) introduces new sections 21A to 21C into CSDPA 1970. The principal effect of the new provisions is to provide that the holders of foreign disabled persons' badges be afforded the same concessions as holders of domestic "blue badges" in respect of parking concessions. The clause makes provision to formalise existing (non-statutory) recognition of parking badges issued in the EU or in certain other European countries (for which there is reciprocal recognition), and to extend this recognition to badges issued in other countries.

New section 21A of CSDPA 1970: Recognition of badges issued outside Great Britain

110.     New section 21A provides for the recognition of non-GB disabled persons' badges ("recognised badges"). Disabled persons' badges issued in Northern Ireland (new section 21A(1)(a)) will be recognised badges, as will badges issued under those provisions of foreign laws which the Secretary of State (for England) and the National Assembly (for Wales) will specify in regulations. Such regulations will also provide for the manner in which a recognised badge must be displayed (new section 21A(3)).

111.     Section 21A(4) to (9) make provision in respect of non-GB recognised badges corresponding to existing provisions in respect of British blue badges. These provisions are intended to criminalise, and aid the detection of, the fraudulent use of purportedly genuine badges. The offence in new section 21A(4) mirrors section 21(4E) of CSDPA 1970 which relates to domestic badges. The power to inspect recognised badges (in section 21A(6)) and the following, consequential, subsections mirror the power and provisions in respect of British blue badges contained in section 94 of the Traffic Management Act 2004.

New section 21B of CSDPA 1970: Recognised badges treated as badges under section 21 for certain purposes

112.     New section 21B provides for, or enables, concessions which currently apply in respect of GB blue badges to apply in respect of recognised badges. Those concessions may be concessions in or by virtue of local authority orders which would otherwise restrict parking or waiting (to which orders, among others, section 21B(2)(a) relates), or orders designating parking places for the use of disabled people (to which orders, among others, section 21B(2)(b) relates).

113.     New section 21B(3) will enable this equality of treatment between GB and recognised badge holders to be extended for such other purposes as may be prescribed: this may extend to provisions which grant concessions in respect of road use as well as those which grant concessions in respect of parking.

New section 21C of CSDPA 1970: Sections 21A and 21B: regulations and interpretation

114.     This new section contains provision supplementary to the various regulation-making powers conferred on the Secretary of State or National Assembly for Wales by new sections 21A and 21B.

115.     Note that Part 2 of Schedule 1 (the effects of which are explained below in the context of the notes to that Schedule) makes minor or consequential changes pursuant to the recognition of non-GB badges.

Clause 10: Discriminatory advertisements

116.     Section 16B is inserted into the DDA by regulation 15(1) of the Amendment Regulations with effect from 1 October 2004. This provision makes it unlawful for employers and others covered by the newly extended scope of Part 2 of the DDA (employment field) to publish or cause to be published a discriminatory advertisement inviting applications for a job, training or other relevant benefit. Section 17B of the DDA (as inserted by the Amendment Regulations) provides for enforcement of section 16B. It confers powers on the Disability Rights Commission to seek a declaration from an employment tribunal and, in some circumstances, to apply to a county court for an injunction (or, in Scotland, to a sheriff court for an interdict).

117.     As it currently stands, section 16B(1) does not prohibit third parties (such as newspapers) from publishing discriminatory advertisements on behalf of the person placing the advertisement. In order to fill this gap, clause 10(2) replaces section 16B(1) with new subsection (1), which extends the scope of the prohibition to cover third party publishers who publish a discriminatory advertisement on behalf of another. (It also makes it clear that section 16B applies so that it covers advertisements which indicate an intention to discriminate against a person who has had a disability, as well as a person who has a disability.)

118.     New subsection (2A), as inserted by clause 10(3), exempts a third party publisher from liability under subsection (1) if he can prove that, in publishing the advertisement, he relied on a statement made by the person who placed the advertisement (such as an employer) to the effect that publication of the advertisement would not be unlawful, and that it was reasonable for him to rely on that statement.

119.     New subsection (2B) makes it an offence for a person knowingly or recklessly to make a false or misleading statement about the lawfulness of an advertisement as described in new subsection (2A). The offence carries a fine not exceeding level 5 on the standard scale (currently £5000) on summary conviction.

Clause 11: Group insurance

120.     Clause 11(1) repeals the provisions concerning group insurance schemes presently contained in Part 2 of the DDA, section 18. That section applies where a provider of insurance services (for example, a medical expenses insurer) enters into arrangements with an employer under which the employer's employees receive services provided by that insurer. The effect of section 18 is that an act of discrimination by such an insurer against a disabled employee is treated as discrimination falling within Part 2 of the DDA, where the act would be unlawful under Part 3 of the DDA if the service concerned were to be provided to the employee as a member of the public. (Sections 19 to 21 of Part 3 make it unlawful for a service provider to discriminate in certain circumstances as regards the provision of goods, facilities or services to the public or a section of the public.) The practical effect of section 18 is that cases to which it applies are dealt with by the employment tribunal.

121.     It is considered that section 18 is unnecessary and confusing. Following the repeal of the section, it will be clear that a person who provides group insurance services to employees of particular employers would be regarded as a "provider of services ⁵" for the purposes of sections 19 to 21, and consequently liable for an act of discrimination contrary to section 19(1) which they may commit against disabled persons employed by those employers. (An act of discrimination by an employer in relation to a group insurance scheme, e.g. refusing for discriminatory reasons to permit a disabled employee to have access to the scheme, will fall within Part 2 of the DDA, sections 4 and 4A - as substituted by the Amendment Regulations.)

⁵ A person is "a provider of services" for the purposes of sections 19 to 21 if he is concerned with the provision, in the United Kingdom, of services to the public or a section of the public: see section 19(2)(b).

122.     Clause 11(2) inserts a new subsection (6A) into section 25 (enforcement, remedies and procedure) of the DDA. This new subsection ensures that claims of discrimination against an insurer concerning the provision of group insurance services are not subject to the Part 3 procedures and remedies set out in section 25 of the DDA - under which a victim of discrimination may bring proceedings in the county court or sheriff court claiming damages, an injunction or other relief. The provision should be read with paragraph 21 of Schedule 1 to the Bill, which amends section 25(8) to ensure that employment tribunals will have jurisdiction to consider such claims.

123.     Subsection (3) inserts a definition of group insurance arrangements into section 68(1) (interpretation). This goes a little wider than the definition currently in section 18(3) in that it covers all types of group insurance schemes, not just those relating to: termination of service; retirement, old age or death; or accident, injury, sickness or invalidity.

Clause 12: Private clubs etc.

124.     Under the DDA, private members' clubs (referred to as "associations" in the new provisions) are not prohibited from discriminating against their members. Associations are only prevented from discriminating against disabled people in their capacity as employers (under Part 2 of the DDA) or providers of services to members of the public (under Part 3 of the DDA).

125.     Clause 12 inserts new sections 21F to 21J into Part 3 of the DDA and will make it unlawful for associations with 25 or more members to discriminate against disabled members, applicants for membership, associates and guests in certain circumstances. (The new sections are modelled on the provisions of section 25 of the Race Relations Act 1976.) As with other provisions in Part 3 of the DDA, a victim of discrimination contrary to new sections 21F to 21J could bring enforcement proceedings under section 25.

126.     Section 21F applies to any incorporated or unincorporated association with 25 or more members where admission to membership is regulated by its constitution (which may be written or oral) and is so conducted that its members do not constitute a section of the general public (section 21F(1)). In practice, this last requirement means that an association must operate a genuine policy of membership selection based on personal criteria so as to distinguish between members of the association and members of the public. Examples of a club which would be covered by this new section 21F include a golf club or a gentlemen's club, to which applicants for membership are required to make a personal application, be sponsored by other members as to their good character and then go through some kind of selection process, such as voting by existing members. A club which does not operate such a policy of membership selection is already covered by sections 19 to 21 of the DDA where it provides services to the public or a section of the public (whether for profit or not). Examples here would include social clubs, where payment of the requisite membership fee is all that is required to secure admittance to membership.

127.     New section 21F(2) to (5) set out the circumstances in which an act of discrimination by an association will be unlawful against the following: an applicant for membership (new subsection (2)); a member or associate of the association (new subsection (3)): a guest of the association (new subsection (4)); and an intended guest of the association (new subsection (5)).

128.     New subsection (2) protects a disabled applicant for membership from discrimination in relation to a refusal by a club to admit him as a member or the terms on which membership is granted.

129.     New subsection (3) prohibits discrimination against a disabled member (as defined in new section 21J(1)(a)) or a disabled associate (as defined in new section 21J(1)(b)) in the following ways: in relation to the way in which he is granted access to a benefit, facility or service provided by the club; where he is refused access to a benefit, facility or service; where he is deprived of membership or his rights as an associate; where his terms of membership or rights as an associate are varied; or where he is subjected to any other detriment.

130.     New subsection (4) prohibits discrimination by an association against a disabled guest (as defined in new section 21J(2)): in the way in which he is afforded access to a benefit, facility or service provided by the club; where he is refused access to a benefit, facility or service; or where he is subjected to any other detriment.

131.     New subsection (5) prevents an association from discriminating against a disabled person where the association (or one of its members or associates) intends to invite him to be a guest of the association. It does so by making it unlawful for an association to discriminate against a disabled person: in the terms on which it is prepared to invite him or permit him to be invited by a member or associate to be a guest of the association; by refusing or deliberately omitting to invite him to be a guest; or by refusing to grant a member or associate permission to invite him as a guest.

132.     New subsection (5) will ensure that an association cannot avoid liability for discriminating against a disabled person by omitting to invite him, or by refusing or withdrawing an invitation by one of its members or associates, to an event to which he would have been invited but for his disability. For example, a decision by an association refusing to allow a member to invite his disabled wife to attend an annual dinner held by the association which was open to all members' spouses, because she was a wheelchair user, would be caught by new subsection (5).

133.     New section 21F(6) would make it unlawful for an association to discriminate against a disabled person by failing to comply with any duty to make reasonable adjustments imposed on the association by regulations made under section 21H (as to which, see the commentary below).

134.     New section 21G sets out the meaning of discrimination. Under new section 21G, unlawful discrimination for the purposes of new section 21F is defined as less favourable treatment of a disabled person for a disability-related reason in circumstances in which that treatment cannot be justified. Less favourable treatment will only be capable of justification under new section 21G(2) where the association holds the opinion that one of the conditions in new section 21G(3) is satisfied, and it is reasonable for it to hold that opinion.

135.     The conditions set out in new section 21G(3) broadly correspond to those found in section 20(4) of the DDA in relation to service providers, but have been adapted to suit the circumstances of private clubs. Subsection (4) provides that any cost of affording a disabled person access to a benefit, facility or service which results from a duty under section 21H shall be disregarded for the purposes of subsection (3)(e), (f) and (g). Under new subsection (5), the Secretary of State may, by regulations, add to, amend or omit any of the conditions set out in new subsection (3) or provide for them not to apply in prescribed circumstances. This power is intended to enable the Secretary of State to adapt the conditions, should this prove necessary, following consultation.

136.     New section 21G(6) provides that an association also discriminates against a disabled person if it fails to comply with a duty to make adjustments imposed on it by new section 21H and it cannot show that such a failure is justified. New section 21H(1) and (2) enable the Secretary of State to make regulations prescribing the circumstances in which associations will be under a duty to make reasonable adjustments (which could include the alteration of physical features or the provision of an auxiliary aid). The first exercise of that regulation-making power will be subject to the affirmative resolution procedure (see paragraph 33(5) of Schedule 1 described below).

137.     As the Secretary of State is consulting ("Consultation on private clubs; premises; the definition of disability and the questions procedure", December 2004, Cm 6402) before imposing such duties, the Bill's provisions set out only the framework of this duty. It is not expected that the duties to be imposed by regulations made under new section 21H will go further than those which providers of goods, services or facilities are under by reason of section 21 of the DDA. In addition, it is expected that regulations will make provision for failure to make a reasonable adjustment to be justified in circumstances corresponding to circumstances set out in new section 21G(3).

138.     New section 21J defines "member", "associate" and "guest" for the purposes of sections 21F to 21H. A member is a person who belongs to the association by virtue of his admission to membership as provided for by its constitution. An associate is defined as a person who, although not a member of the association, has some or all of the rights enjoyed by members under its constitution.

139.     Subsection (2) provides that a guest of an association includes a person who is invited by a member or associate of the association with the permission of the association. The following are examples of persons who might be considered to be guests of an association: a disabled partner of a member invited to a club's annual dinner or other festive occasion; a member's adult son who has a severe learning disability and who joins his parents for a drink in a social club on a Saturday night. It is not intended to include a person who is invited onto the premises by the association in the course of their trade, such as a food and drink delivery-van driver or a plumber.

140.     Subsection (3) enables the Secretary of State to make regulations setting out the circumstances in which a person is to be treated as being, or not to be treated as being, a guest of the association for the purposes of sections 21F to 21H. The power might be used, for example, in the case of associations which operate over the Internet in order to define what is meant by a "guest" should this prove problematic in practice.