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Session 2008 - 09
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General Committee Debates
Equality Bill

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


[Mr. Joe Benton in the Chair]

Equality BillWritten 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—
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.
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