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Public Bill Committee Debates

Draft Disability Discrimination Act 1995 (Amendment etc.) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations 2007



The Committee consisted of the following Members:

Chairman: Mr. David Amess
Afriyie, Adam (Windsor) (Con)
Ancram, Mr. Michael (Devizes) (Con)
Brooke, Annette (Mid-Dorset and North Poole) (LD)
Caborn, Mr. Richard (Sheffield, Central) (Lab)
Clark, Paul (Gillingham) (Lab)
Clwyd, Ann (Cynon Valley) (Lab)
Drew, Mr. David (Stroud) (Lab/Co-op)
Foster, Mr. Michael (Worcester) (Lab)
Jackson, Mr. Stewart (Peterborough) (Con)
Knight, Jim (Minister for Schools and Learners)
Laws, Mr. David (Yeovil) (LD)
Lepper, David (Brighton, Pavilion) (Lab/Co-op)
Loughton, Tim (East Worthing and Shoreham) (Con)
Moon, Mrs. Madeleine (Bridgend) (Lab)
Pritchard, Mark (The Wrekin) (Con)
Tipping, Paddy (Sherwood) (Lab)
Wyatt, Derek (Sittingbourne and Sheppey) (Lab)
Gordon Clarke, Committee Clerk
† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 17 July 2007

[Mr. David Amess in the Chair]

Draft Disability Discrimination Act 1995 (Amendment etc.) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations 2007

10.30 am
The Minister for Schools and Learners (Jim Knight): I beg to move,
That the Committee has considered the draft Disability Discrimination Act (Amendment etc.) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations 2007.
As ever, what a pleasure it is to serve under your excellent chairmanship, Mr. Amess.
The regulations, which are being made under the Disability Discrimination Act 1995, using provisions inserted by the Disability Discrimination Act 2005, are one of the final steps in making prejudice against disabled people illegal in Great Britain. Much of the substance of the provisions is in the Act itself, or in separate regulations subject to the negative procedure. The principle that we are applying in the regulations is that treating people equally does not mean treating them in the same way.
The regulations seek to eliminate discrimination from the exam system. To do that, we need to focus on the essential elements for assessment, making sure that they are the areas that are being tested. We will be looking to the exam regulators and the awarding bodies to continue that focus, ensuring that the content and curriculum of qualifications offers all candidates the opportunity to demonstrate their knowledge and display their strengths.
These are one of two sets of linked regulations. The other is the Disability Discrimination (General Qualification Bodies) (Relevant Qualifications, Reasonable Steps and Physical Features) Regulations 2007, which were made on 23 June and contain two main provisions. First, they prescribe the list of relevant qualifications covered by the legislation. Secondly, there is a provision making it clear that the practice of exemptions, and therefore the resulting certificate indications, will continue to be lawful after September 2007. They also define “physical feature” and “lease” for the purposes of making reasonable adjustments. Those other regulations are subject to the negative procedure, and I signed them on 23 June 2007.
The regulations before us now cover the enforcement mechanisms for making a claim, and also apply the physical feature duty to make reasonable adjustments to circumstances in which awarding bodies occupy premises under a lease. Awarding bodies already work hard to provide fair opportunities to all students, ensuring that everyone can have confidence in a rigorous and demanding system. In general, the regulations will reinforce the good practice that the awarding bodies have already developed, but where disabled people are not getting a fair deal, they will provide them with a clear legal foundation for their appeals.
Part 1 contains necessary introductory measures. Part 2 of the regulations describes their enforcement. Enforcement of DDA legislation in respect of employment and professional and trade qualifications is conducted through employment tribunals. However, as general academic qualifications do not concern employment matters, we believe that the county court system, or the sheriff court in Scotland, is the most appropriate place to enforce any claims against qualifications bodies. Although the Special Educational Needs and Disability Tribunal or SENDIST was a possible alternative, it does not have power to award financial compensation. Moreover, its jurisdiction is limited to schools in England and Wales. That means that it cannot consider claims from learners in further education institutions, many of whom study for general qualifications. Neither can it hear disputes regarding schools in Scotland. There was therefore only limited support in our consultation on the draft regulations for the use of SENDIST.
Furthermore, resort to the courts will be very much a last resort for claimants, as the Committee would expect. The Joint Council for Qualifications, which represents the awarding bodies offering GCSEs and A-levels, is setting up a resolution procedure, which will aim to settle disputes at an early stage. We also hope that the new Commission for Equality and Human Rights may play a role in offering its conciliation procedures to claimants. We will continue to work with the awarding bodies, the Qualifications and Curriculum Authority and groups that represent the disabled, including the new commission, and the Disability Rights Commission while it is still in existence, on minimising the need for enforcement through the courts.
Regulations 5 and 6 were included at the request of the DRC in the interests of harmonising disability legislation. They relate to circumstances in which the general qualifications bodies occupy premises under a lease. Duties relating to physical features of a building under the Disability Discrimination Act 2005, as they apply to employers, trade organisations, trade and professional qualifications bodies, service providers and post-16 education institutions, all make provisions for circumstances in which premises are occupied under lease. Sometimes those occupying such premises require the landlord’s permission to make reasonable adjustments to premises. Therefore, these provisions specify: the period within which consent should be sought; the information that should be provided; the period within which a response from the landlord should be forthcoming; and the means to challenge unreasonable refusals to give consent, with the possibility of adding the landlord as a party to proceedings, if necessary.
The regulations therefore bring the duties on general qualifications bodies into line with provisions elsewhere in the DDA. I commend the regulations to the House for approval.
10.35 am
Tim Loughton (East Worthing and Shoreham) (Con): I, too, welcome you to the Chair, Mr. Amess—a role that I am sure you will fulfil in your usual amenable and relaxed manner. I congratulate the Minister on explaining in five minutes highly technical regulations in an extremely articulate manner. I shall try to match his brevity.
There will be a good deal of accord on the regulations, which cover two main areas. As the Minister said, we are all in favour of eliminating discrimination from the examinations system. We fully support the sentiments that lie behind the regulations. Disabled people should not be put at a disadvantage when they try to obtain educational qualifications. Significantly, in the QCA’s recent curriculum review, respondents cited constraints imposed by exam boards as an important barrier to inclusion. It is essential that disabled people receive education that meets their need. Bearing that in mind, I am glad to see that the regulations seek to mirror the arrangements already in place for trade and professional qualifications. The DDA should certainly apply in the field of general qualifications too. While that is a logical step, I note that the extension of the arrangements to general qualifications could affect many more people.
We also welcome the Government’s apparent willingness to listen to the views of interested parties, even if the responses to the consultation process were a little disappointing. I gather that they amounted to just 13 in total. Why does the Minister think more responses were not forthcoming? Did that have anything to do with the fact that the consultation was limited to the web and not more extensively distributed via hard copy? Might people have been excluded because of that?
We are particularly glad that the Minister has taken on board the views of the Disability Rights Commission regarding the alteration of leasehold premises occupied by general qualifications bodies. Removing that legal loophole seems a sensible step. Qualifications bodies could hide behind lessors to avoid undertaking necessary alteration. I am satisfied that the regulations contain the necessary safeguards to protect property owners from unreasonable demands in this field.
I note from the relevant regulation that, while a pupil taking an international baccalaureate or a GCSE would be able to seek redress under the new enforcement regulations, that option apparently would not be open to somebody taking one of the new diplomas. In light of the vocational nature of diplomas, is that omission due to their not being regarded as a general qualification? Perhaps the Minister could amplify the point.
For bodies that administer professional or trade qualifications, claims of discrimination are handled by employment tribunals. Disputes with general qualification bodies will be handled by county courts. As I think the Minister said, it would be a last resort to go to the courts, but that may happen in certain circumstances. There are currently 218 county courts and they deal with civil cases ranging through claims of debt, divorce and personal injury. Clearly, we are concerned today with quite a specialised area of law. What extra training has been provided for magistrates and clerks to deal with their new duties of enforcement, including both those new to the courts and established magistrates who have not previously had to handle such cases? As the Minister said, they will be few and far between.
When will the regulatory impact assessment be published? The explanatory notes comment that it has not even been prepared yet. Has the Minister established what the extra cost will be of the financial impact of the increase in administrative burdens that the regulations entail both for the qualifications bodies and enforcement agencies?
After the consultation, the Government made two changes to the regulations, one of which was to make it clear that exemptions and certificate indicators of such exemptions were still lawful. Such exemptions recognise the achievements of those disabled candidates who are unable to complete all the assessment requirements but still receive a certificate. I am aware of constituents with disabilities who have had problems in finishing written exams on time in the format in which able-bodied students would take them. Many disability charities would like further progress in that area. What are the Government doing to work towards a longer-term solution, such as encouraging the availability of oral communicators in examinations for candidates who have a problem with physical writing, especially within time constraints?
The second change after the consultation was to apply the physical feature duty to make reasonable adjustments to circumstances in which awarding bodies occupy premises under a lease. That provision will bring the regulations into line with those governing trade and professional qualifications bodies. Concern has been expressed about what “reasonable adjustments” means. Will the Minister enlighten us on that grey area? Could the regulations have been more specific? Will the meaning of “reasonable adjustments” have to be tested in court, or will further detail be available?
I have slightly run over the time that I allowed myself. Finally, what effect have the regulations had on qualifications bodies since they were implemented originally in 2004? Have they been improved to take account of how they worked in practice before being extended to general qualifications bodies? What assurances can the Minister provide that the general qualifications bodies will not face the same difficulties outlined in the survey that I mentioned earlier? I would be grateful for further clarification. Otherwise, we certainly agree with the thrust of the regulations, and welcome them.
10.41 am
Annette Brooke (Mid-Dorset and North Poole) (LD): It is a pleasure to serve under your chairmanship, Mr. Amess, albeit rather briefly, as I suspect that I shall not take as long as the hon. Member for East Worthing and Shoreham.
I too congratulate the Minister. I wish I was a little clearer about the nature of the requirements regarding leasehold premises. It is true that the regulations are very technical. When I was thinking about the leasehold aspect, it occurred to me that a building that had to be accessed by members of the public would be covered, as it would for anybody who worked in it. It is difficult to think of who would go into one of these offices, so I reasonably conclude that there will be only a few cases. It would be helpful to be given an example.
“It clearly makes no sense at all to have legislation that requires schools to ensure that disabled children and children with learning disabilities or special needs can access the curriculum, and yet allows examination boards to discriminate against such children with impunity”.
In her evidence, she claimed that the examination board said, essentially, that it had no legal obligation to do that. Whatever the rights or wrongs of the case, it seems really important that there are rights for people with disabilities, and that those rights are seen to be addressed. At least the regulations will bring openness and transparency into the equation, and it is sensible to have this resolution procedure, as none of us wants the courts clogged up. It is right that everyone is listening.
I also looked last night at a case that had successfully been brought in relation to trade and professional qualifications, where such measures already apply. It concerned a visually impaired person and involved the Project Management Institute, which argued that what it had offered for the student was perfectly reasonable, because the student had passed the examination by that means. I find that shocking because we know of so many special needs examples where students develop their own coping strategies, but that does not mean that they are reaching or proving their full potential. The fact that such a statement was made in a tribunal this January shows how important it is to widen the application of the Disability Discrimination Act in this way.
I support the regulations, but have concerns about ongoing development in relation to future examination conditions. As there will be more discussion, other avenues might be pursued and issues raised. Recently, I had a case of a visually impaired student for whom the local authority eventually provided everything that was needed at the school, but was not prepared to provide the money for equipment that was needed at home. As we know, students are not at school when they revise for their GCSEs and A-levels. I did not manage a breakthrough with the local authority, but it struck me that it was a form of discrimination not to provide all the tools to help such a student to revise at home.
Today’s brief discussion opens our eyes to what is still going on, even though, on the surface, we think that we are tackling such important issues.
10.46 am
Jim Knight: We have had a helpful, interesting, succinct debate. I am grateful to both Members who spoke for their support in principle for the regulations.
The hon. Member for East Worthing and Shoreham raised a number of questions, which I shall seek to deal with. He rightly said that only 13 responses to the consultation had been received and asked whether more might have been forthcoming if we had used more than the web. The internet is a fairly standard mechanism to use for consultation these days. I suspect that the relatively low level of responses—although they were of good quality—is more a reflection of the discrete and particular nature of the regulations. A lot more correspondence has taken place about the code of practice that the DRC is developing.
The hon. Gentleman’s question about diplomas is a good one. The reason that diplomas are not listed in the regulations is that they are not yet qualifications that are being studied—we cannot regulate for qualifications that do not yet exist. As and when they exist, we will add them to the list, and return to the matter in order to do so.
The hon. Gentleman asked about courts and training. The county courts already deal with disability discrimination claims under part 3 of the DDA and in relation to higher and further education institutions, so we are confident that they are well placed to deal with this work and have the capacity to do so, particularly given that the numbers of pupils are relatively small——in the hundreds. We would hope that the numbers that have a problem and that go so far as to court would be exceedingly small. Given the relative expertise that the courts already have, I think that the issue is manageable.
The hon. Gentleman asked about the regulatory impact assessment. The explanatory notes state that a full RIA has not been produced because any impact on general qualifications bodies will be negligible. I think that the answer is there in that statement. Indeed, the hon. Member for Mid-Dorset and North Poole spoke about trying to imagine circumstances in which the regulations would apply to leasehold premises of qualifications bodies. As we know, the vast majority of examinations are held in examination centres and schools or colleges, as she said, so only one or two such circumstances would arise. For example, an examination body might want to organise a particular examination on its premises or the circumstances concerning a particular pupil might require a particular arrangement to be made. As she said, in almost every conceivable case, employment law or other legislation would already have required the body to carry out the adaptations. Nevertheless, it is important that we specify in law that the adjustments should have been made, for the reasons given in the regulations.
The hon. Member for East Worthing and Shoreham asked what constituted “reasonable adjustments”. That term means what is reasonable in all the circumstances of the particular case in question. Reasonableness is a concept that we regularly debate in rooms such as this. It runs through the Disability Discrimination Act, and guidance will be provided in the code of practice, which will be published later this year. Obviously, the final arbiter will be the court.
Finally, the hon. Gentleman asked whether the previous regulations had secured any improvements and whether we had incorporated them. Obviously, we are looking to build on the best practice that has evolved under the existing regulatory mechanism, and we will have incorporated that and tried to extend it in seeking to ensure that every child receives a fair chance. That is the basis of the regulations, and I commend them to the Committee.
Question put and agreed to.
Resolved,
That the Committee has considered the draft Disability Discrimination Act 1995 (Amendment etc.) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations 2007.
Committee rose at nine minutes to Eleven o’clock.
 
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