Equality Bill

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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.
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?
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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