Q
53John
Howell: Thank you. My last question is about the meaning
of disability. We have seen that quite a debate takes place between the
medical and social models, and we have a sort of hybrid in the Bill.
Does it deal adequately with the differences between those and, if you
do not think so, where would you like to see the boundary
shifted? Ruth
Scott: We still have concerns. I represent the
Disability Charities Consortium, which is an informal coalition of
seven major disability organisations. We still have concerns that the
“long term” requirement in the definition excludes
significant numbers of disabled people from the protection that
legislation provides. We, and particularly colleagues working with
people with mental health conditions, talked about the issue of
depression during the passage of the DDAs in 1995 and 2005. There was
discussion about how we could overcome the 12-month requirement to
prove that a condition or impairment was long standing. Depression is
one of those conditions that tend to fluctuate, and people find it
difficult to reach the requirement or threshold for proving that they
qualify under the terms of the Bill. Disability Rights Commission
research suggested that one in four disability discrimination cases
failed as a result of people not meeting the definition, so such
consideration is
important. On
the other hand—we would like to see the matter resolved—I
do not think that it is possible to remove the long-standing
requirement because it is reflected in the UN convention on the rights
of persons with disabilities and other existing human rights
legislation. However, clarifying the term “long term” so
that it includes fluctuating conditions would introduce a specific
recognition that that term would cover somebody whose impairment
fluctuated and was not necessarily able to demonstrate that they met
the terms of the Bill for a consecutive 12-month period. That would
open a way of capturing and including that group of people who are
particularly vulnerable to
discrimination. We
would like to see the definition of “substantial”
included in the Bill. We know that the intention of the definition of
“substantial” is to be defined as more than minor or
trivial, but we have concerns that the way that is interpreted by the
courts can often be considered much more significant than more than
minor or trivial. We would like to see that stated explicitly to ensure
that there are no inconsistencies of interpretation, which could impact
negatively on disabled people’s ability to claim their
rights.
John
Howell: Thank you. Does anyone else want to chip
in? Caroline
Gooding: We support both those
points.
John
Howell: I thought you
might.
Q
54Mr.
Boswell: May I first ask Ruth to say a little more about
the interaction of a positive action taken by anyone, and whether the
disability equality duty is adequately reflected in the new duty?
Dealing with that
point first, I take it that it would be all right if public authorities
used positive action to achieve an equality of outcome. The inference
of your earlier evidence was that there was some concern that public
authorities might think that they were entitled to opt out of positive
action. Do you read it that nobody is suggesting that you must take
positive action if that may not be the best way, but that you should
take it if it produces the
outcome? Ruth
Scott: There are two concerns. The first is that, in
terms of the public sector equality duty, the duty to treat more
favourably is now worded in a way that suggests that it is
discretionary, as opposed to it being something that you should do, if
that is the best way of achieving the outcome that you want. That is
problematic because, essentially, it leaves the decision as to whether
or not that is a justified course of action to the duty holder, as
opposed to making a very clear statement that that is what they should
provide. Secondly, the positive action
clause—clause 152—specifically talks about where positive
action might be permitted. Our concern is that that muddies the water
in relation to the asymmetry of disability discrimination legislation,
which is required to allow us to treat disabled people differently or
more favourably in order to achieve the appropriate outcome. People
might look at clause 152 and think that the way in which they can treat
disabled people is restricted in the same way as it is restricted to
other grounds and characteristics. That will result in people becoming
quite confused and assuming that there are restrictions on the level of
positive discrimination and positive action that they are able to
undertake.
Q
55Mr.
Boswell: That is helpful, because you just used the phrase
“in order to achieve the appropriate outcome”. Presumably
some kind of clarificatory amendment along those lines might be the way
of taking the trick. I do not think that anyone doubts the intention
behind the proposal, but we need to ensure that we do not impose
restriction by
accident. Ruth
Scott: We support the creation of a more streamlined
and harmonised Bill that is simpler to understand, but our major
concern is that, in harmonising, we should not lose the really
important and unique distinctiveness of disability discrimination
provision. The ability to treat people differently and more favourably
is fundamental to being able to achieve the outcome that disabled
people
need.
Q
56Mr.
Boswell: May I turn to a more general issue about
outcomes? Inevitably, and partly because of the long history of this
and the fact that there are two different regimes in relation to gender
discrimination, issues such as equal pay come up quite a lot. Some of
us are equally concerned about disability
discrimination—functional discrimination—regarding both
pay levels and outcomes. We all appreciate that you cannot wish those
away through an Act of Parliament, but is there anything else that we
can do in the Bill to beef up that provision without imposing
unreasonable burdens on employers who would have to make the reasonable
adjustments to do it?
Ruth
Scott: I have noted that there is an amendment on
extending the duty to report on equal pay for disabled people, which is
something that we are interested in. However, our major
concern—it is disappointing for us that it is a major
concern—is to ensure that there is no regression on the rights
that disabled people currently enjoy under the DDA. The
coalition’s focus is to ensure that those rights are reflected
as clearly and uncontroversially as possible in the new Bill to ensure
that judgments such as Malcolm cannot occur again. However, I agree
that there is a need to look at the issue of unequal pay and unequal
promotion—the glass
ceiling.
Q
57Mr.
Boswell: So might that be reporting or other demonstrative
action to show that employers are being
compliant? Ruth
Scott:
Yes. Caroline
Gooding: There are elements within the present public
sector duty requirements of reporting in relation to employment that
might, if adequately enforced, give that sort of transparency about the
proportion of disabled people at the higher levels of an organisation
as opposed to at the lower end, for example. We would not want to see
those requirements
lost.
Mr.
Boswell: So there is no question of their being
diluted—at least in the terms of the Bill as drafted—but
they might not be as effective as you would have liked in terms of
achieving an outcome in the public sector, because the position there
seems to be as bad as it is in the private sector.
Caroline
Gooding: There might be a chance that those
requirements will be diluted because they are in the specific duty
regulations. We are waiting for the consultation on those regulations,
so we will need to have a look at that to see whether there is a danger
that we may go backwards in relation to transparency on the employment
of disabled
people. Ruth
Scott: One of the issues in relation to the DDA that
the coalition has been looking at for a number of years is the
possibility of including volunteers within its scope in some way.
Volunteering is obviously a particularly useful route into paid
employment for some disabled
people.
Mr.
Boswell: Particularly if there is a mental
illness. Ruth
Scott: Indeed. We would be interested in considering
any ways in which we could improve opportunities, through
anti-discrimination provision, for disabled people to access
volunteering opportunities that could lead into paid work
opportunities. Andrew
Harrop: May I endorse that? There is a similar issue
regarding volunteering for older people. Both the age lobby and the
disability lobby would really like to see some measures in the Bill
taking account of the widespread evidence of discrimination in
volunteering.
Q
58John
Mason: Going back to young people, would your argument be
that we should just do away with the 18 limit altogether? If we could
push it down to 16, would that be a step in the right
direction? Mike
Lindsay: That is not the case that we are arguing. We
argue that children and young people should be included in the
protections that are provided within
legislation. We were talking before about positive discrimination.
Perhaps children are the greatest example in this country of positive
discrimination, particularly in relation to going to school. We have to
discriminate in their favour to provide them with such services as free
education. Also, we are not arguing against the use of classifications,
such as in relation to cinema and alcohol and all the other things that
are very specifically not in children’s interests.
Part of the
reason why we are making the case, and why we would encourage you to
look again at the aspects and implications for children, particularly
around how the public sector equality duty applies to children in
schools and children’s homes, is that there is a strong argument
for saying that it should apply to children in schools. We would like
to encourage children as citizens in their own right, and as aspiring
adult citizens, to have equal regard for each other in terms of worth
and value.
In relation
to children’s homes, there is something slightly incompatible
between the provisions in the Bill and those only recently set out in
the Children and Young Persons Act 2008. The Government are trying to
encourage greater stability in the placements for children in the care
system and trying to encourage more placements with siblings in care,
but that could be undermined if children’s homes are encouraged
to think that it is okay to make decisions based on age discrimination.
For argument’s sake, it is possible, perversely, for any
children’s home in this country to decide that a 14-year-old is
apparently too old to continue to live in a children’s home,
which means that they have to move on.
We will
encourage you to look at some of those incompatibilities. There are
incompatibilities with the provisions of the Childcare Act 2006, which
makes a stronger commitment in relation to children in the
determination of these issues. That is broadly the case that we are
trying to make. We do not believe that there is a case for arguing that
a burden is attached to this. The vast majority of schools and
children’s homes in this country already positively encourage
the fostering of good relations. Again, this is most explicitly
demonstrated by children’s homes. Fostering good relations in
children’s homes has been the bedrock on which all guidance
issued by Government on permissible forms of control and good behaviour
management has been based for decades or
generations.
Q
59John
Mason: I take the point you are making. However, I wonder
if we should not move on the 16 to 18-year-old age group, which most
people would consider to be pretty much an adult age group. Do you feel
it has to be all or
nothing? Mike
Lindsay: There are good examples in relation to 16 to
18-year-olds. Are they children or adults in relation to child
protection legislation, their entitlement to receive services under
mental health provision and their entitlement to independent
accommodation, particularly if they are care leavers or without goods
and provisions? There a number of young people in this country who,
because of age alone, fall between too many gaps in services that they
should be entitled to. Our argument is that most of those services
should not be dependent on age-related guidelines that are often
arbitrarily
contrived. We
have a perverse situation that for a children’s home to be
registered in this country, it has to agree the conditions under which
it will be registered. That includes
age, which could be limited to between 10 and 14. By definition, that
would split up siblings and force children and young people to leave
those facilities for no better reason than
age. Our
argument is that children’s needs should be judged, based and
assessed purely on merit. Generally, whether they need mental health
services, children’s social care services and a number of other
services should be based on an assessment of their needs. The merits of
children’s needs should not be based on the rather crude
criterion of
age.
Q
60John
Mason: Thank you. My other point is more on disability.
The word “reasonable” is used a lot. Clause 19 speaks of
making “reasonable adjustments”. I wonder if that word is
too weak in practice. Do you think that it is the ideal word or the
best we can come up with? A lot of organisations have been at the
slower end of reasonable. It is a vague word in my
mind. Caroline
Gooding: I have looked at a lot of evidence relating
to a large number of cases that have been brought under the Disability
Discrimination Act and to people who have not brought cases because
they have managed to resolve things amicably. The word
“reasonable” is not usually the stumbling block. As Ruth
said in relation to employment, the stumbling block has been the
fixation on the “Are you disabled or not?” issue, rather
than whether it is reasonable. The guidance that has been put out over
the years and good sense in many cases have been adequate to deal with
reasonableness. The
other stumbling block which means that the law is not implemented,
particularly in terms of goods and services, is enforcement. There is a
very weak and difficult enforcement regime. The Employers Forum on
Disability gave evidence to the Work and Pensions Committee. There is a
risk that the part of the Disability Discrimination Act relating to
services will be discredited because there simply is no real sanction
at the
moment. There
is no risk of a service provider being taken to court, apart from in
very unusual cases in which the Equality and Human Rights Commission
gets involved. It has been involved in some cases, which is very
welcome, but it is simply not possible for it to support all the people
who need to be supported. The barriers to justice in that regard are
too great at the moment. That is much more of a stumbling block than
the word “reasonable”, which has worked relatively
well. Ruth
Scott: I absolutely concur with Caroline on the
difficulty of enforcing access to goods, facilities and services. The
word “reasonable” seems to provide the necessary
flexibility and understandability. People can judge what is reasonable
and what is
not. We
are concerned that under the current drafting, clause 19 on the duty to
make adjustments has changed the emphasis from removing barriers to
avoiding barriers. We are concerned that that represents regression in
relation to the level of protection that we have with the Disability
Discrimination Act, so that duty holders can now almost work their way
around a physical or service barrier, as opposed to first and foremost
being required to remove that barrier, and then taking some alternative
steps if that is not reasonable. We would like to see that issue
addressed and the strength of the DDA duty to remove barriers
reinstated.
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