The
Committee consisted of the following
Members:
Chairmen: †
Mr.
Joe Benton,
John
Bercow,
David
Taylor,
Ann
Winterton
†
Abbott,
Ms Diane
(Hackney, North and Stoke Newington)
(Lab)
†
Baird,
Vera
(Solicitor-General)†
Baron,
Mr. John
(Billericay)
(Con)
†
Boswell,
Mr. Tim
(Daventry)
(Con)
†
Brown,
Lyn
(West Ham) (Lab)
†
Drew,
Mr. David
(Stroud)
(Lab/Co-op)
†
Featherstone,
Lynne
(Hornsey and Wood Green)
(LD)
†
Foster,
Michael Jabez
(Parliamentary Secretary, Government Equalities
Office)†
Griffith,
Nia
(Llanelli) (Lab)
†
Harper,
Mr. Mark
(Forest of Dean)
(Con)
†
Harris,
Dr. Evan
(Oxford, West and Abingdon)
(LD)
†
Hesford,
Stephen
(Wirral, West)
(Lab)
†
Howell,
John
(Henley) (Con)
†
Mason,
John
(Glasgow, East)
(SNP)
†
Osborne,
Sandra
(Ayr, Carrick and Cumnock)
(Lab)
†
Penrose,
John
(Weston-super-Mare)
(Con)
†
Sheridan,
Jim
(Paisley and Renfrewshire, North)
(Lab)
†
Thornberry,
Emily
(Islington, South and Finsbury)
(Lab)
Alan Sandall, Eliot Wilson,
Committee Clerks
† attended
the Committee
Public
Bill Committee
Thursday
18 June
2009
(Morning)
[Mr.
Joe Benton in the
Chair]
Equality
Bill
Written
evidence to be reported to the
House
E47
National Union of Students
Clause
19
Duty to make
adjustments
9
am
Mr.
Mark Harper (Forest of Dean) (Con): I beg to move
amendment 170, in clause 19, page 14,
line 4, leave out ‘in comparison with persons who
are not
disabled’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 171, in clause 19, page 14,
line 7, leave out ‘in comparison with persons who
are not
disabled’.
Amendment
172, in
clause 19, page 14, line 10, leave
out subsection (5) and
insert—
‘(5) The third
requirement is a requirement to provide an auxiliary aid or service
where it would enable disabled persons to make use of, or facilitate
the use by disabled persons, of a service or other relevant matter, and
to take such steps as it is reasonable to have to take to provide the
auxiliary
aid.’.
Amendment
173, in
clause 19, page 14, line 12, leave
out ‘in comparison with persons who are not
disabled’.
Amendment
174, in
clause 19, page 14, line 13, at
end insert—
‘(5A) For the
purposes of the application of Parts 3 (services and public functions)
and 6 (education), the requirements set out in subsections (3), (4) and
(5) apply where disabled persons generally are or may be put at a
substantial disadvantage in relation to a relevant matter in comparison
with persons who are not
disabled.’.
Amendment
154, in
clause 19, page 14, line 15, at
end insert—
‘(6A) In taking
reasonable steps to avoid the disadvantage, A must take such steps as
afford disabled people equal access or, if that is not practicable, to
approximate access to, that enjoyed by the rest of the public, to the
matter in the applicable schedule to which the duty to make adjustments
applies.’.
This
amendment will clarify that duty holders must implement the
most inclusive solution—subject to the usual
test of ‘reasonableness’ —in order to
comply with the duty to make reasonable
adjustments.
Clause
stand
part.
Amendment
155, in
clause 22, page 15, line 26, leave
out ‘, 18 or 19’ and insert ‘or
18’.
This amendment
removes what is an additional ‘like for like’ comparator
test from the duty to make reasonable
adjustments.
Amendment
176, in schedule 2, page 147, leave out
lines 32 to 34 and insert—
‘“(a) to remove the feature,
or
(b) to alter the feature,
or
(c) to provide a reasonable
means of avoiding the feature,
or
(d) to adopt a reasonable
method of providing the service or exercising the
function.”’.
Amendment
234, in
clause 195, page 138, line 44, at
end insert—
‘(i) regulations
under section 21
(regulations).’.
An
amendment to require regulations in relation to reasonable adjustment
to be made under the affirmative
procedure.
Mr.
Harper: It is a pleasure to serve under your chairmanship,
Mr. Benton. I shall try to brief, although there are quite a
number of amendments to explain, some of which are linked. They
concentrate primarily on disability. Amendments 170, 171 and 173 are
related to the duty to make reasonable adjustments under clause 19 and
the comparator that focuses on persons who are not disabled. Our
amendments are supported by the Disability Charities Consortium. I want
to probe the Minister on such
matters.
The
consortium believes that the comparator provisions under the clause are
undesirable and should be removed as they could lead to serious
problems for disabled people when trying to enforce their rights in
respect of goods, services and auxiliary aids, where
the comparator concept does not currently exist under the
Disability Discrimination Acts. Although we understand the
Government’s desire to provide consistency across reasonable
adjustment provision, my understanding and that of the DCC is that they
are doing so by introducing comparators in areas of disability
discrimination legislation where they did not previously exist.
Therefore, the worry is that such provisions will be
weakened.
The
problem with the comparator is whether we would then have a rerun of
the problems in the Malcolm case. Under clause 19(3), (4) and (5) a
reasonable adjustment is required only when a disabled person is put at
a substantial disadvantage in comparison with people who are not
disabled. The use of a comparator is not new in disability
discrimination legislation generally. The same language exists in the
employment provisions of the DDA, but the comparator is not used in
part 3 for goods, facilities and services when an anticipatory duty is
owed to disabled persons as a whole, and nor is it used in relation to
the duty to provide auxiliary aids and
services.
The
reason for the concern is that comparators were brought to light in the
Malcolm case when the concept of related discrimination was undermined
through the Law Lords’ reinterpretation of how the comparator in
a case should be decided. That had previously been established in the
case of Clark v. Novacold. Indeed, that problem has been
recognised in the Bill in provisions that would put the legislation
back to where we thought it was prior to the Malcolm
case.
Amendment
172 inserts at the end of the clause new wording that would require
providers of goods and services to provide auxiliary aids and services
when that would facilitate the use of such services by disabled people.
Such a provision would remove the requirement for a comparator. Will
the Minister clarify the effect of the change in wording in the Bill,
compared with that in the DDA? In part 3 of the DDA, service providers
already have to provide auxiliary aids when reasonable, if those aids
would facilitate or enable disabled people to make use of services. The
threshold—or trigger—for providing the aid is when it
would otherwise be impossible or unreasonably difficult for the
disabled person to make use of such services. A comparator would not be
needed to establish that discrimination has taken
place.
The
Bill provides that the aid should be provided when disabled people have
a substantial disadvantage in comparison with those who are not
disabled, and the DCC is concerned that that substantial disadvantage
must be determined through the use of a comparator. It considers that
that might weaken the legal protection that disabled people already
have under the DDA. The amendment would, in similar language, put the
threshold found in part 3 of the DDA back into the Bill. I seek an
explanation from the Minister of the changes and their effect in order
to ascertain whether the amendment is
required.
Amendment
174 would explicitly include the anticipatory nature of reasonable
adjustments. As I said, part 3 of the DDA says that the providers of
goods and services must anticipate the needs of disabled people,
ensuring that the services that they provide are accessible. They must
think about such matters in advance, not wait for problems to arise or
to be contacted by someone who has had a problem obtaining goods or
services. The anticipatory nature of the reasonable adjustment duty is
essential to its working. Again, the DCC, on behalf of a range of
disability organisations, wants to ensure that that aspect is
maintained in the Bill. We believe that the amendment would achieve
that.
Amendment
176, to schedule 2, deals with physical features. We wish to retain the
approach laid down in the DDA, which is that the focus must be on
removing or altering physical features that cause a barrier for
disabled people before considering other means that do not involve
eliminating it. One cannot just think of a way around the
problem—a work-around. One must first consider whether the
barrier should be removed. Only if that was unreasonable could one fall
back on going around it.
The amendment
would omit paragraphs (3)(a) and (3)(b) of the schedule, replacing them
with four new sub-paragraphs. The first is on whether the feature can
be removed; the second is on whether it can be altered; the third is
about providing a reasonable means of avoiding it; the last is about
reasonable methods of providing the service or exercising the function
in a different way. However, that order must be followed, so that one
first thinks about making it as easy as possible. The amendment would
provide a clearer and more systematic approach for service providers,
which would be an improvement. Will the Minister say how that compares
with the Bill, which is effectively different from the
DDA?
I
hope that the Committee will forgive me for speaking at such length on
these wide-ranging amendments. I look forward to hearing the
Solicitor-General’s comments.
Lynne
Featherstone (Hornsey and Wood Green) (LD): Welcome back
to the Chair, Mr. Benton.
I wish to
speak to amendments 154, 155 and 234, tabled by me and my hon. Friend
the Member for Oxford, West and Abingdon. The hon. Member for Forest of
Dean made some interesting points, and I shall listen carefully to the
Solicitor-General’s response.
Through
amendment 154, we seek clarification from the Minister. The amendment
would emphasise that duty holders must not only make reasonable
adjustments, but that the asymmetry applied to those with disabilities
under discrimination law must be preserved, so that optimum reasonable
adjustments are made that are inclusive and a long-term solution,
rather than just a temporary one. An example of the latter would be if
a disabled customer wanted to enter a bank that had steps but no ramp,
and the bank’s reasonable adjustment was to put up a doorbell
allowing the customer to ring for someone to get the wheelchair up the
steps. In our view, the optimum reasonable adjustment would be for the
bank to build a ramp to facilitate the same
service.
Mr.
Tim Boswell (Daventry) (Con): In no sense do I wish to
subvert the substance of what the hon. Lady says, as I agree that it is
important that service providers should make the best possible
provision. Indeed, it is often in their own interests. Nevertheless,
does she not think that in legal terms it is slightly quaint to impose
a double duty—to be both reasonable and optimal? One can meet
one without the other. I believe that she is hoping for people to meet
the optimum test. In that case, we need to change the law and should
say so.
Lynne
Featherstone: I thank the hon. Gentleman. That may be a
helpful intervention, as I am not a legal expert. I am probing the
Minister on which is the best wording to arrive at an optimum solution
that maintains the asymmetry for people with
disabilities.
John
Mason (Glasgow, East) (SNP): Following on from the
previous intervention, many people would consider it quite unreasonable
just to put a bell in and expect that to be the answer. It might not be
optimal, but we are trying to achieve the reasonable, and a bell seems
absolutely
minimal.
Lynne
Featherstone: That may or may not be the case. It would
have to be argued in law, but the purpose of the amendment is to try to
ensure that the reasonable adjustment is not simply cosmetic, but
affords equal access or access that is as near to equal as possible. In
particular, adjustments must be made to secure equal participation in
society. It is critical to disabled people that the duty is not diluted
in any way so as to reduce that participation. We should not be happy
with a minimum or a rudimentary gesture towards adjustment, and that is
what the amendment says. I am more than happy for the Minister to
adjust the wording if she thinks that I am making a point that is worth
responding
to.
The
Equality and Human Rights Commission supports the amendment. It
welcomes the introduction of the single substantial disadvantage
trigger, but it is concerned that the duty is constructed so that its
primary focus is avoiding disadvantage, rather than removing barriers
that prevent disabled people’s full participation. The amendment
would have the twin benefits of consistency and clarity of approach and
would make it clear in the Bill that, for example, a service should,
wherever possible, be provided to a disabled person in the same way as
for a non-disabled person, and that might, could and sometimes should
deliver asymmetric effort.
Amendment 155
relates to the comparison by reference to circumstances, in relation to
reasonable adjustment. We want to remove the like-for-like comparator.
I shall give an example. We want to make it explicit—there were
comments from the Conservatives along these lines—that one
should compare a blind person with a guide dog going into a restaurant
with a seeing person who has no dog. The defence is not, “We do
not allow dogs.” The comparison is with someone who is sighted,
and a reasonable adjustment should be made. Therefore, there can be a
material difference between the circumstances, because again we come
back to the asymmetric nature of the protected
characteristic.
Amendment
234 relates to clause 195, page 138, line 44, which deals
with the regulations that apply to the provision. They are extremely
important regulations that deal with what is probably one of the most
fundamental real-world effects or changes that will enable people with
disabilities to get something that they need changed for the better.
However, that has been left out of the list of orders and regulations
in subsection (5), which require the affirmative procedure. Should
there be a change to the regulations, it is vital that that they are
subject the affirmative procedure; there should be debate and the
measure should go before both Houses. I shall be interested to hear the
Minister’s response to those
points.
