House of COMMONS
MINUTES OF EVIDENCE
WORK AND PENSIONS Committee
to achieve greater equality?
MONDAY 19 January 2009
MS CATHERINE CASSERLEY, MR NEIL CROWTHER,
MR BRIAN LAMB and MR DAVID CONGDON
MR YUSEF AZAD, MR ANDREW HARROP and MS EMILY HOLZHAUSEN
USE OF THE TRANSCRIPT
Taken before the Work and Pensions Committee
on Monday 19 January 2009
Mr Terry Rooney, in the Chair
Miss Anne Begg
Michael Jabez Foster
Mr Oliver Heald
Mrs Joan Humble
Witnesses: Ms Catherine Casserley, Barrister, Cloisters Chambers and Chair of the Discrimination Law Association, Mr Neil Crowther, Disability Programme Director, Commission for Equality and Human Rights, Mr Brian Lamb, Executive Director of Advocacy and Policy, RNID and Mr David Congdon, Head of Campaigns and Policy, Mencap on behalf of Disability Charities Consortium, gave evidence.
Q1 Chairman: Good afternoon everybody. Welcome to our first evidence session of our inquiry into the Equality Bill. Welcome to our witnesses; it is good to have you with us and we appreciate your time today. I am going to start off with a nice, easy question: how does disability fit within an equality bill?
Mr Crowther: I think one of the key things to acknowledge is that disability discrimination law, if you like, has come from a different place and on a different journey. The challenge really is to bring it within that broad family of equality law whilst recognising those key differences. I think the most fundamental difference between our current approach to disability discrimination and other equality law is that rather than being based on the idea of treating people in the same way - equal treatment - it is really predicated on the idea that we need to treat people differently to accord people equal opportunities. That needs to be reflected both in the way we define discrimination in a new equality bill but also in other important areas like the design of a new single public sector duty. That would be my opening statement.
Q2 Chairman: We will have further questions on public duty so I do not want to go there just at the moment.
Mr Lamb: Making a slightly broader point, I think one of the ways it fits is that you have to look at the broader overall prongs of both equality and equality legislation, where that is going and where that fits with the whole rights and responsibilities agenda that the Government currently has. This Committee will be well aware and used to dealing with some of the proposals that have come out on the welfare reform side and I think it has been seen by the sector that there is a balance between rights and responsibilities and responsibilities being picked up very much within the welfare reform agenda and the rights being seen as very much part of the disability equality agenda and the moving from one grounds of disability within disability rights to a more general set of rights. I think there is a kind of trade off there and one of the concerns as we go through this is to ensure that as it moves into this more general equality framework that the rights that we have had through the disability discrimination law are protected and indeed in some areas enhanced. It is a balance between those two elements and if we found that the rights element was being lost within that move towards more general equality that would be a problem.
Q3 Chairman: In the light of those two responses, what lessons should the Government draw from the Malcolm case and how should that be reflected in the Equality Bill?
Mr Crowther: The Office of Disability Issues has consulted on how to fix the problem that the Malcolm judgment created before Christmas and they proposed a model of indirect discrimination which would essentially be the same as for the other grounds of equality. Both the Court of Human Rights Commission and a significant number of stakeholders - not just in the disability field but in business and elsewhere - felt that that was not going to work, that we needed something different which reflected the points I made at the beginning about this decision about different treatment. Whilst we think there are benefits for harmonising where effective - so indirect discrimination would be useful - our assessment is that we need something else in the Equality Bill which builds on the model that was there before the Malcolm judgment but is an added area of the discrimination law.
Ms Casserley: Indirect discrimination as a concept is a very powerful tool dealing with group disadvantage but it is not going to deal very easily with the sorts of situations that were covered prior to the Malcolm decision. Essentially less favourable treatment of disabled people as a result of the consequences of disability as opposed to on the grounds of disability itself, indirect discrimination is a very complex tool and it is also very unpredictable, particularly in relation to disability. The importance of the Equality Bill is actually making sure that we get to a position that we were in prior to Malcolm and that the consequences of disability and less favourable treatment based on those is actually addressed by the bill itself and not as indirect indiscrimination. Prio to Malcolm knowledge had never been a feature of disability related discrimination; knowledge was dealt with in the context of justification. I think it is very important to preserve that aspect of what was called disability related discrimination. It is important that employers and others think about the consequences of what they do when they are treating someone differently because of what is in essence a consequence of their disability. We would certainly think it is important that in the Equality Bill the issue of knowledge was addressed and it was made clear that you do not have to have knowledge of someone's disability in order for you to potentially discriminate, not necessarily definitely discriminate, potentially discriminate. It is particularly important given how people are often reluctant to disclose their disabilities both in the recruitment context but also when someone is in a job because of fear of the adverse consequences if they do disclose.
Mr Crowther: That is of critical importance in terms of the overall impact of the legislation, certainly in employment where we know mental health counts for so much of unemployment amongst disabled people and is a highly stigmatised condition that many people are uncomfortable about revealing.
Mr Lamb: Also on that, we have had recent examples where a deaf man, for example, was not able to take a case post-Malcolm because it all depended on prior knowledge on the part of the employer for the case to succeed. So we already have examples of where Malcolm is making a substantial impact in terms of people's ability to take and win cases.
Q4 Chairman: I think I am right that all four of you in your evidence said you are in favour of the social model of disability. How can that be made to work in practice? Would that not in fact of itself widen and broaden the legislation and consequences to that?
Mr Crowther: There have always been perceived problems with the definition of disability in the DDA; it is primarily that which we have been interested in. The Disability Rights Commission was asked by the Scrutiny Committee of the Disability Discrimination Act in 2005 to look into this issue, to consult stakeholders and to propose an alternative. The alternative they proposed was that people should be able to bring claims of discrimination in relation to their impairment and that we did not need this hugely complex definition because of the problems that it caused. It is right potentially that broadens the reach of the Act but what it does really is focus the attention onto the barrier or the discrimination of somebody's experience rather than interrogation of the impairment they have. Clearly it still provides safeguards against unrealistic claims or the legislation being abused. Similarly with the reasonably adjustments duty and where, in order to bring a claim, somebody would have to prove that they experience substantial disadvantage. By way of illustration, we were referred a situation by an MP of a constituent who had one eye and wanted to join the fire service in his local area. He was aware that there were serving firemen and women with such impairments but he failed the fitness test and he wanted to bring a claim of discrimination. The paradox in the Act was that they would have had to have proved that having one eye meant that he had a substantial and adverse effect on his ability to perform a normal, day to day activity and would undermine the whole basis of the claim that he was making. There are a number of other problems with it but I think that illustrates one of the key ones well.
Ms Casserley: The way that the definition is structured at the moment, because you have to go through so many different aspects of it - you have to show that there is a substantial adverse effect, it has to be long term - if, as a lawyer, you are advising employers and service providers and it is not what you might call an obvious disability, then you will advise them naturally to dispute the definition of disability. That is the first thing you would say to them; it is not clear that this person has a disability so what you need to say is that you do not accept they are disabled and then they will have to prove it. That is one of the difficulties with the current definition whereas if you have a definition that is based on impairment what you do is get to the heart of the matter which is the treatment and whether or not the treatment was justified if it is disability related, for example, or whether it was on the grounds of someone's disability. That should be the focus of anti-discrimination legislation.
Q5 Oliver Heald: We have had a lot of reports from the Citizen Advice Bureau, the Chartered Institute for Personnel and Development, the TUC and others to the effect that really twelve years after the disability legislation in employment there has been very little improvement. Mencap have even gone so far as to say that the number of people with a learning disability in employment has not increased at all. Why do you think that is the case and where are we going wrong?
Mr Congdon: Perhaps I could say just a few words on this. There is no doubt that employment for people with a learning disability has not improved certainly since 1995 (it may even be before, the date is a bit sketchy). There are two figures that are quoted: one in ten people known to social services with a learning disability are in work and many of them only work a few hours a week, many of them on very low pay. If you take the broader definition of learning disability it is round about 17 per cent but again with some caveats as to exactly how many hours people are working. One of the reasons is that in order to recruit people with a learning disability you do need to make reasonable adjustments. In fact you need to use the concept that was mentioned earlier by Neil of favourable treatment. One of the things very clearly in that is about giving people the opportunity to have what is called a work trial with the expectation that if they do well in that they will get a job. One of the realities is that with a learning disability if people go for the standard interview of answering questions, if they have communications difficulties et cetera they are liable to fail at that stage. It is also why we are very, very keen (I know we will broaden out to this a little bit later) in terms of the public sector duty saying to public bodies, "You need to look not just at your employment record but also how you provide services but in the field of employment. What are you doing in terms of employing people with a learning disability? Are you monitoring it? Do you know how many people with a learning disability you are employing and are you taking steps to try to increase the percentage?" So it is about those sorts of adjustments. It is fair to say that even within the last couple of months we have had enquiries from local authorities saying, "Can we do this? Are we allowed by law to give more favourable treatment?" The answer is "Yes, please go on and do it and you then you will succeed in employing more people with a learning disability".
Q6 Oliver Heald: Does anyone else have a perspective on this?
Mr Lamb: I think this position is obviously very complex; it depends how far back you go. For about ten years the participation rate of disabled people in the labour market was 38 per cent; it is up to about 48 per cent now but that has been tapering off in terms of a rise over the last three or four years with a very slight rise between this year and last year. How much of that general improvement before and after implementation can you ascribe to the Act versus the general improvement in the economy is, I think, always going to be a slightly moot point. I think what is important to recognise, however, is that the requirements around many of those employment measures have made a fundamental difference from the perception of those of us that run employment services that are trying to get disabled people into employment; it has given us a completely different context within which to work both at the level of individual rights and in terms of some of the general duties that David is talking about and the way that employers are beginning to respond to that. I think it is very difficult in any direct causal sense to look at the Act and say that this has had this definitive impact, but I am sure some of that rise in employment participation rate, although it is nowhere near good enough, has actually been down to the general context of the legislation and certainly in terms of the way we have been working with employers it would be very difficult to see some of the things we have been able to do being done without that protection and without that more general context to work within.
Q7 Oliver Heald: A third of CIPD members were prepared to say that they excluded people with a history of long term sickness or incapacity. The TUC was reporting a figure of 60 per cent of employers saying they disregarded applications from people with particular problems, including mental health. Is this a cultural problem or is it more one of enforcement? Why are people prepared to admit that they behave in that way?
Mr Lamb: Colleagues may want to come in on this but I think it is a problem both of culture and of enforcement. I certainly think enforcement could be stronger but I also think there is a cultural issue and cultural issues take an awfully long time to shift and therefore in terms of the longevity of the Act I would say we are still in the earlier stages of shifting that culture of it being okay to discriminate against disabled people in general. Partly that is going to be a continuation of pushing away at the culture and part of it is going to be about easier and better enforcement.
Mr Crowther: I think the first thing is to not divorce enforcement from culture change; I think it is an overall culture change we are looking for and the legislation helps us with that process. Just to reflect on your first question, I think the other big change over the last ten years is a growing awareness of the complexity and diversity of who disabled people are. Ten years ago many people would have been thinking about wheelchair users or people with visual impairment, now what dominates the debate around employment is mental health. You cannot look at the DDA in isolation or the welfare reform programmes. Perhaps in the earlier part of that it was looking at, for want of a better phrase, the kind of lowest hanging fruit, the people nearest the job market. As we have moved through that current process we have found that Jobcentre Plus services have not been sufficiently personalised to reach people with complex needs. The most disadvantaged groups we are talking about are often the clients of multiple public services, not all of which are necessarily geared to supporting them into employment and very often antagonise that objective as well. People may require adjustments that are less tangible and more difficult to understand. I think we have a job of work to do to refresh our approach and make sure it reflects that added complexity about who it is that we are now actually dealing with, in addition to enforcement. I would echo what Brian said, I think what you have seen over the last ten years is a complete change in the context and the expectations. We have a Welfare Reform Bill in front of us that frankly ten years ago large sections of the disability community would have probably rejected out of hand and that debate has moved on quite radically. We have seen a big shift in terms of the expectation that disabled people should and can work with the right support, but we still have a long way to go to build on that.
Q8 Oliver Heald: Are enough court cases or tribunal cases being taken?
Ms Casserley: Discrimination cases generally are very hard to win because it is very rare that someone will overtly discriminate. In the recruitment context it is even more difficult because there is no on-going relationship, there is no personnel file that you can look at and often, in my experience, it is often the eighth or ninth time that somebody has been rejected for a job that they begin to wonder why they were not shortlisted or interviewed, maybe there is a case of discrimination. People can use what is called a questionnaire procedure to get information about why they were treated in the way they were treated. Those sorts of questionnaires are very underused and they are a very useful tool for people. I think one of the other issues as well is that when someone brings a claim it is often quite a difficult process and there is often not the support or the advice there; there is no legal aid available for employment tribunals. If someone wins a recruitment case the tribunal cannot make any recommendations about what the employers should do because they are only allowed to make recommendations that will affect the individual person. They cannot say, for example, "We think that the recruitment process was discriminatory, we think you should change it". They cannot do that at all so it is quite difficult for individuals to look at that process and think that that is something they should go through because something good will come out at the end of it; that is not always the case.
Q9 Oliver Heald: In terms of the support individuals get are you saying that you think more representative actions or support of some kind is needed in that way?
Ms Casserley: Certainly representative actions would be a very useful tool and the ability to make recommendations beyond the individual situation so that if an individual brings a claim about recruitment the employer has to do something to address that situation and to address the future for other people.
Q10 Oliver Heald: The evidence we have seen so far seems to suggest a bit of a mismatch between what is actually happening in the tribunals and the perception of people with disabilities that recruitment and employment is pretty unfair, but the results in the tribunals do not seem to fit in with that. Why would you say that is, is it just the difficulty of taking these cases?
Ms Casserley: I think it is because people do not bring them. They will think they have been discriminated against, they will know there is something not right, but all they get is perhaps a letter saying, "Sorry, you have not been shortlisted" and what do they do then? If they do not know about the questionnaire procedure, for example, they will not think there is any way of them getting hold of that information. If they do bring a claim again the burden is on the individual to show that they have been discriminated against and unless, for example, they get hold of all the notes of those shortlisted and those sorts of things, then it will still be very difficult for them to bring that claim. I think representative actions would be useful. A greater awareness of the questionnaire procedure as well would be useful and, broadly speaking, better knowledge of employers' obligations that they cannot discriminate.
Mr Lamb: I think one other thing that would be very helpful here - it is a recommendation that goes right back to the original disability rights taskforce - is actually tackling pre-employment questionnaires around disability and having to say that you have a disability at that stage. There is a lot of very good evidence stretching back a long time that this will often deter people from applying in the first place and it gives employers evidence that they can use either for good or for evil and there are ways round being able to get to whether somebody needs reasonable accommodation at a later stage in the application process. By actually stopping those questionnaires at that point not only helps the individual but it creates a different climate for disabled people when applying for jobs. I think that would make a substantial difference to the amount of people applying in the first place and the transparency around the process. It is something the disability rights taskforce looked at right at the beginning of the whole process. It was one of the few recommendations (apart from including things like the MoD) that was never taken up in subsequent legislation.
Q11 Oliver Heald: The accommodations would come up once you have the job.
Mr Lamb: Yes.
Q12 Miss Begg: Going back to what you were saying, David, about the fact that the numbers with learning disabilities in work have not gone up, I was just wondering to what extent that may be because the nature of work has changed over the last couple of decades. There are fewer straightforward manual labour jobs. Even for a job that does not require someone to read and write you still have to have a CV, you still have to have a formal interview; gone are the days where you went to a factory with your dad and he got you the job. I am just wondering whether there are barriers that have been put in the way of people with learning difficulties to get jobs that did not exist 20 years ago.
Mr Congdon: I think that is a very good question and of course it is quite difficult to prove. I think I would agree with you that there will have been changes in the labour market that would have created some of those difficulties, but I think the interesting thing is that if you get an employer who wants to take a very positive approach and says, "I do want to recruit more people with a learning disability" then there are creative ways of overcoming that, for instance there is the concept of job carving where you look at the sorts of jobs you have and take bits of different jobs to create a role that would really work for the individual. You CAN get a very positive approach from an organisation and one of the examples I would always give is that years ago when I first started work you had these enormous photocopying machines and the only people who could do photocopying were in the photocopying department. That does not go on any more but you can recreate things partially like that where you give people roles that have added together some of those tasks and they will do them very well or you can take the equally positive approach that a council like Sutton will take where they have a lot of people with a learning disability working for them. If an employer is prepared to take a positive approach towards employment they can do it. However, I come back to the other point, if an employer simply goes through the normal recruitment processes then sadly, and almost inevitably, many people with a learning disability will not get a job because they will fall foul of the quite tough interview processes that are followed through and that is why the concept of giving people a trial - I do not mean work experience followed by work experience followed by work experience which can be an abuse with people not being paid for it - with an expectation that providing they demonstrate that they can do the job they will be taken on. That is working very well indeed. Where employers are taking a positive approach they are employing people with a learning disability.
Q13 Mrs Humble: I have a series of questions about equality in goods, facilities and services, but can I just press you, David, on this very important point again because we have had a debate about culture and cultural changes and there has been a huge cultural change over the past 20 years. When I look back to my early dealings with people with learning disabilities they were cocooned in adult training centres and their parents wanted them to remain cocooned because they were fearful of them going out into the big wide world, but over the past 15 to 20 years schools have encouraged young people with learning disabilities to aim higher, to get out into the community, use community facilities and also engage in the labour market. Do we have a whole group of people out there whose expectations have been raised only to be dashed by employers who will not look at them and will not take them on?
Mr Congdon: There is no doubt that expectations have improved and society's attitudes have improved for the better but sadly, in terms of the figures of numbers of people being employed, they have not significantly changed and that is clearly a major problem. I would not want to pretend that those are the only problems; there are problems around perceptions that people with a learning disability themselves have so some of them will still say to you that there are major problems in the benefit system which I do not want to get into today because it is quite complicated. If people believe that the chances of getting a job are not going to be that great and also your friends are telling you that actually there might be some problems with benefits, you can easily get to a situation - particularly if you go for an interview for a job and do not get it - where you can easily start to lower your expectations. There is still a lot to do about raising expectations so that people do feel they can get a job because you are right, the changes that have occurred have been significant but we have still not delivered on the employment front. From Mencap's point of view we are very much looking forward to the positive approach we are hoping will be in the new employment strategy for people with a learning disability which is coming out shortly. There is still a lot to be done.
Q14 Mrs Humble: Thank you. I will move on now to what I should be asking you questions about. First of all, Catherine, in your submission you state that it "is not difficult to see on any high street the number of service providers who have failed to comply with the reasonable adjustment duty". How do you think that can be addressed? Do you think the problem lies with the provisions in the Act or in the way that it is enforced?
Ms Casserley: I think it is probably a combination of reasons and one of them is obviously a cultural one that service providers are not taking their responsibilities seriously. The way that the duty is framed, particularly because it is an anticipatory duty, has in the past been very useful particularly when it first came in when I think there was quite a lot of activity around it. Subsequently there are really significant difficulties with people enforcing these provisions. It is not like employment; you do not fill in a form and send it into the tribunal. You have to apply to a county court, you have to pay money in order to put in your application, then you have to pay more money for them to decide which bit of the county court your case is going to be allocated to. If it is not allocated to what is called the small claims then you risk paying the other side's costs if you lose. For disabled people that is a very significant deterrent in actually bringing those cases. I think there is a very big problem with enforcement. Some courts have come out with very good decisions when people have brought cases but the problem I think lies in people not being able to bring those cases as well as the cultural change that the DDA has not yet brought about. Although it seems like a very long time, in some respects it is not because it was only 2004 when the physical feature provisions were brought in. Speaking in a personal capacity I would favour the introduction of equality tribunals where both employment cases and goods and services cases are all heard together. You would remove the potential barriers of people having to pay out costs if they bring cases and you also concentrate the expertise of the judiciary for those who have experience in discrimination law and who are able to deal with those cases in an appropriate way.
Q15 Mrs Humble: Do you think that if the EU Directive is incorporated in the new Equality Bill it would be helpful to the situation?
Ms Casserley: It would definitely make some positive changes to the duties. There are some areas in which it would be particularly beneficial such as housing for example. The Directive does not itself prescribe a particular way in which cases have to be brought but what it does mean is that there have to be appropriate sanctions and people have to be enabled to bring cases. There is an issue at the moment about whether or not people can with the way the present system is set up.
Q16 Mrs Humble: Can we just park the issue of housing for a moment because I want to ask a separate question on that, how do the other witnesses think that the EU Directive is going to help or not?
Mr Crowther: Clearly setting a standard that applies across the EU is beneficial and obviously our hope would be that that is a standard that is at least as developed as that which we have in the UK, the opportunity for disabled people to move across European states. That consistency of provision is clearly important in its own right. I think there are potential opportunities with the convention in areas like housing; I know we are parking that but I think there are opportunities in that area as well. Those are the key ones and there is also the opportunity, given that it will be a cross-strand directive to a degree, to benefit us and have consistency with our domestic equality law as we develop it this year. Those would be the key areas.
Mr Lamb: There is not a lot to add to that except obviously it helps in terms of standardisation and increased protection and also the fact that the Government has to deal properly with association which I suspect you will be coming onto more in the next session. I think it helps with that as well.
Mr Crowther: On the specific point about physical access and access on the high street, one of the requirements of the UN Disability Convention is that governments take more pro-active steps to promote accessibility. That is not the same as having it embedded in your anti-discrimination law, but to take those kinds of steps is something we would like to see reflected more strongly in the final directive and it could help address some of the issues that we are talking about here. I would support Cathy's point that more cases are important. We should not forget that there was a very significant case on Friday and a judgment handed down in the case of David Allen vs the Royal Bank of Scotland which is hugely significant in terms of part three of the Disability Discrimination Act where the judge not only awarded the highest compensation yet under that part but also served an injunction on the Bank to make the adjustments needed so that David (who was a 16 year old boy) can open and use his own bank account. I think that will make a difference in terms of how people perceive that case because the vast majority are settled out of court; they do not lead to a court claim, there is a small amount of compensation. They are not delivering the sort of systemic change really that we are looking for.
Q17 Mrs Humble: We will have to look up the details of that particular case.
Mr Lamb: I can give you a more encouraging example of it working quite well but not so much in terms of the enforcement but where voluntary organisations can help enforcement. We have had major issues at RNID around the provision of loop systems not so much because people are not willing to put them in but actually they do not maintain them. That has allowed us to round both to public authorities and private authorities and ask to do surveys of their loop systems. Often we find they are not properly maintained. We have been doing some work with London Transport recently, for example, where although they provided loop systems there were then issues about how many were working. We have been able to work with them to ensure that all their loop systems are working. Indeed, we have doing similar things with some of the banks. It has a leverage in that kind of respect rather than the individual rights respect.
Mrs Humble: I feel my colleague Tom Levitt is dying to get in on the loop system so I will hand over to Tom and then I will ask the question on housing.
Q18 Tom Levitt: As a former trustee of RNID you will not be surprised. A deaf constituent of mine did a survey of all the shops in the high street and he found that most of them had good policies in place and most of them had loop systems. However, if you then took out loop systems that were not working, that were not maintained, where the staff did not know how to operate them or where they were kept in a drawer and the individual had to ask for them to be used, then there was about five per cent or something like that; it was dreadful. My worry is that those shops have done enough to show they have made a reasonable adjustment but the individual will then have a very great problem in proving that there was negligence in maintaining that reasonable adjustment. Is there case work on this?
Mr Lamb: I think that is quite typical in terms of people's experiences and that is what we are trying to address at the moment even to the extent of giving deaf and hard of hearing people a little card when the loop system is not working allowing them to place this card with the name of a service provider saying that their loop is not working and this is how you can get it fixed. I think that illustrated the problem. The idea that an individual in an individual shop tried to prove that the loop system is not working and then take a county court case is simply not going to happen at that level and we have to look at enforcement at different levels and encourage vigilance at different levels to get at that.
Q19 Mrs Humble: How has the DDA helped access to housing for people with disability? What more could be done and how has the Malcolm case affected it?
Ms Casserley: The Malcolm case has had a massive effect on housing cases. It took quite a long time for housing lawyers to realise that there was actually a piece of anti-discrimination legislation that dealt with disability and housing. When they did, they did make quite a lot of use of it and obviously we have Malcolm as a result. To give you an example, there have been a few cases where people with either mental health issues or learning difficulties have fallen behind with their rent because they had not filled in the benefit forms. They did not have any assistance to do it, they had not filled in the benefit forms, they had fallen behind and possession proceedings were taken against them. Before Malcolm they would have been able to resist the possession proceedings on the basis that the reason they had not paid the rent was because they had not filled the form in, that was because of their disability and the result there would have been essentially for the authority to help them to backdate their benefit so that they could make sure their rent was paid. After Malcolm they cannot use the DDA any more at all; there is no scope for using it as a result of that judgment. There has only recently been a duty to make adjustments in relation to housing but that is a very, very restrictive duty; it is not in any way the same as you have in goods and services so it is not an anticipatory duty which means that individuals have to request an adjustment. Then there are a number of other hurdles that they need to go through in order to get that adjustment. The last thing I think I would say on housing is harassment. There is no free standing anti-harassment provision in the bits that deal with housing. There is in employment so if you are harassed because of your disability you can bring a claim based on that, but there is not in relation to housing or goods and services. You have to show essentially that the landlord is good at dealing with harassment on the grounds of race but not on disability so you have to compare yourself to someone. The DDA have not been able to tackle harassment in housing. Reasonable adjustment is few and far between. The landlords' awareness of the duties in any event is quite low and I think when they think of adjustments they think of social services, they do not think of themselves as having to do anything. There are very few cases around housing that have been brought. The positive thing I would say is that I think the disability equality duty which I know we will come on to does have the potential - and has in some circumstances - to make a big difference to housing in the public sector.
Q20 John Howell: I would like to look at the public sector equality duty. What can we learn from the existing users?
Mr Crowther: We can learn things in terms of what works and there are things that we think need to be improved. We do have three quite different public duties across race, gender and disability but just focussing on the disability duty and the key benefits we think that has brought, there is little doubt that it has changed the profile and the approach towards disability across many public authorities. I do not think that has been uniform; we are aware there are some public authorities that have taken a real lead on this, there are some that merely do what they have to and there are some that are not doing enough at all. Of course, we have to address all three of those situations in an appropriate way. From the evidence that has been produced (some evidence by the Office of Disability Issues and some that was commissioned by the Disability Rights Commission) there is no doubt that greater priority is being given to disability issues by public authorities and in particular a shift in the perception of disability as being an add-on issue to one of being the core business of what public authorities do: improved perceptions of an increasing respect for disabled colleagues in the workplace and a better understanding of people's supports needs; the greater involvement of people with hidden impairments; improvements in the quantity and quality of data that public bodies have to be able to make informed decisions rather than assumptions about what disabled people want. A report the DRC commissioned found real, real benefits in the emphasis on involvement which is unique to the disability equality duty, involvement rather than consultation. To give some examples: a local authority had trained disabled residents to monitor planning applications; a hospital trust involved disabled people in the redesign of its buildings; a local fire and rescue service involved people with learning disabilities in delivering fire safety advice to their peers. This whole idea which I think the disability world has really cultivated around co-production and involvement is very much a part and parcel of the way those duties work. We are still carrying out our assessment but the early suggestions would say that the secretary of state duties have particular benefits. From what we hear from many stakeholders but also from Whitehall departments, they believe in many ways that approach whereby they have to look back and see how well they were doing and also look forward at actions has been giving them the opportunity to relate disability equality again much more closely to their core business, to what they are doing, to have a conversation with all their partners in the delivery chain. I think those are the high level benefits.
Mr Congdon: Adding to that, in a way the public sector duty is a further additional power for the original DDA. You can have a debate about which has led to the most change but it probably would not get us terribly far. The example I would use where I think the DDA and then the public sector duty is starting to have a significant effect is on public authorities generally but also in relation to the work we have done in the health field. We uncovered some dreadful things going on in terms of the health of people with a learning disability, that we produced death by indifference. It is amazing how health trusts now are asking what they should do. They had not really got on their radar screen the original DDA; they certainly were not performing with that. Now they are having to say, "Well, we've done our disability equality scheme, we have to make sure it really works". We must bear in mind that disability equality schemes only came in in December 2006 so it is quite early days and the message to all of them is that if you are going to prove beyond doubt that you are giving disabled people a fair deal in terms of the services you provide, the move towards equal outcomes, you need to do things: you need to have a proper plan; you need to know what is going on. Are we delivering good quality healthcare to people with a mental health problem? How is their mortality or morbidity comparing with other sectors of the population? There will be a gap so what are we going to do to actually improve it? So it has got on the agenda that public bodies have actually got to take disability seriously, in fact as seriously as they have addressed in the last ten to 15 years the issues of race and ethnic monitoring. They need to take disability very, very seriously but I would stress it is early days to be able to give you a balance sheet of exactly what is happening. We have certainly found it a very powerful lever by saying, "What are you doing to ensure you are getting equality of outcomes for people with disabilities?"
Q21 John Howell: What would you like to see then in terms of improvements in order to bring those strengths in?
Mr Congdon: I think a much greater focus probably on the need for action than the scheme itself. Schemes are important but what is more important than the piece of paper which says there is a scheme is what we are actually going to do. What are we actually going to do to change how we deliver our public services to ensure we get equality of outcome? That is perhaps the most crucial thing, otherwise the danger is that it is a paper exercise; we do not want it to be a paper exercise, we want it to bring about real change. I think Neil's point about the secretary of state reports was actually very, very revealing. They were clearly varied - they were bound to be varied in terms of quality - but the most significant thing was that government departments have to think about what was actually going on in their area to bring about improvement. It is the start of a process and I think we all look forward to their reports in three years' time to see what progress they have made.
Mr Crowther: To second that point, I think we want an action oriented public duty where the emphasis is less on the production of a scheme and more on the tangible, visible results. We obviously need to build a number of tools for public authorities to be able to do that effectively and be clear what we want from them, but I think there is general consensus that that is where it has fallen down and we need to move on.
Mr Lamb: What is also really important is the issue of compliance both in terms of all the DCC organisations where there has not been enough compliance but also at the moment I am doing a piece of work for the Government on parental confidence in SEN and one of the major early findings from that is that if you look at schools they are not actually complying with their disability equality duties and the production of disability equality plans in terms of the planning duty that is required of schools, but you could make exactly the same comment about other public authorities and the way they are delivering those. I think we need to look at the compliance regime. Secondly in terms of looking at the way that the Equality Act is going to be put together, we mentioned at the beginning the asymmetrical nature of disability discrimination compared to the other areas and that is reflected in the notion of more favourable treatment. We need to see that very clearly expressed within the wording of the general duty that there does need to be required more favourable treatment in relation to disabled people within whatever the new duty is because without that everything else that colleagues have been talking about falls by the wayside.
Q22 John Howell: One of the major means of compliance has been through the equality schemes but I get the impression that none of you are particularly in favour of the equality schemes. One of the questions that I would ask is whether in your experience there is enough understanding of the difference between outcomes and outputs in the public sector and whether those equality schemes actually work. How is what you are proposing different from the equality schemes?
Mr Crowther: To date there has perhaps been too much of a focus simply on whether or not a public authority has a scheme and not on the substance of that scheme. If the best way a public authority feels it can address this is the development of a scheme and continue down that road then that is okay. We think actually there may be more benefit in them being able to develop a set of tools, come up with their action plans and then embed that in their overall business plans and their overall approach. That is the kind of shift we are looking at so the focus is much more mainstream and much more outcome-focussed and less simply ensuring compliance with a process which is not really going to move us on at the speed we need to move at.
Mr Congdon: I think it is about the practical measures that are going to be taken. If we take the health field as an example, we know that if you are going to go for equal outcomes for many people with a learning disability who cannot communicate particularly well GPs need to give them longer appointments. That is a pretty good example. If you do not give longer appointments there is less chance of getting a diagnosis. Another example in diagnosing what is wrong with somebody who cannot communicate is that you have to have a lower threshold for intervening because you do not actually get all the normal warning signs you get when you or I go to a doctor and say, "I've got a pain here, an ache there" and we go back next time if it has not gone. Those are practical things that need to be done in order to get the equal outcomes that we are looking for. The more things they can put into a plan that is specific and deliverable the better.
Mr Lamb: Obviously there are issues on the compliance side about how far the Equality Commission in general can police this massive number of public bodies so we want to look at mechanisms that look both at self-analysis and reporting mechanisms. We do not have a particular position on it but I think it is going to be interesting to look as the debate goes forward about how much compliance issues can be pushed down to other monitoring bodies as well and the more they might take and enhance what they might have in being able to do that.
Mr Crowther: The Commission's position is that we do believe inspectorates and regulatory bodies should have specific duties to monitor compliance with these duties. That is a kind of step further than I think what the Government is currently proposing which is resting on an assumption that the fact that they have the duties would be enough. To build on Brian's point, I think there are 44,000 public bodies in Britain and clearly the process of understanding and knowing what is going on and influencing them is not something the Commission can do on its own. Some of the practical steps that we plan to put in place in the next year are to develop a database whereby people can access and find out about any public body and their schemes and what they are doing in the country. So there will be that comparability and visibility. We will do more work with local voluntary organisations to understand what they can do with the duties and there will be memoranda of understanding with these key regulatory bodies. We are trying to broaden that impact.
Q23 John Howell: One aspect of that is procurement and I must admit I am fairly cynical about the effectiveness of procurement. Where I have seen it all that happened has really been a tick box exercise for saying: "Does my supplier have an equality scheme? If yes, then I can do business with them." Is it able to be any more effective?
Mr Crowther: I think it is. It comes back to the issue about the duties. There is a difference between the law itself and how different organisations implement it. There are very good examples in London (which Cathy might want to build on) of the way the GLA and Transport for London have use procurement to achieve real outcomes. There is quite a strong example in terms of the Olympics and the fact that Action for Blind People are doing all the catering for the building workers on the site. Procurement can be used to achieve and drive real, positive outcomes; it can also be a tick box exercise. What we are doing is updating and producing our guidance, trying to find case studies of good practice and where it works to promulgate and promote those.
Q24 Oliver Heald: I would like to ask a question about the idea of a single equality duty. Some lawyers have suggested to us that it is very important that you do not lose the ability to treat people more favourably by means of reasonable adjustments when they have disabilities, but if you were to write the single duty in that way would that favourable treatment and reasonable adjustment have to apply equally to people who are being discriminated against on the other two grounds? If not, why not?
Ms Casserley: I think all you would have is a sub-clause that says that in the context of disability you have to have due regard to the need to take account of people's disabilities even where that involves treating them more favourably. It would not mean that you had a duty that was exactly the same for everyone but I think that is the important aspect, that that is retained in the context of disability. It may not look as though it is completely harmonising but it is particularly important that it is retained in the context of disability. That does not prevent the rest of the aspects of the duties from being harmonised. The issues around public participation and positive attitudes, for example, are things that you can look at across the grounds; they are not just limited to the context of disability. It can certainly be done and I think it is important that it is done.
Q25 Oliver Heald: You are not suggesting and nobody that you are aware of is suggesting that treating individuals more favourably or making reasonable adjustments should apply to the other two limbs of discrimination.
Ms Casserley: No, it is certainly not something I have heard anyone raise. On the procurement aspect, I think there have been some really positive things done with it. I have come across people who have gone into their suppliers and, for example, examined their equality opportunities policies and actually looked at how they are dealing with them in practice. I think the difficulty is that because of the guidance that is sometimes put out and because of the European Directive there is a fear that if people use procurement to promote equality they will fall foul of European legislation in some way and actually that is not the case, you can be a lot more proactive about procurement. I think the important thing for the equality bit is to make it clear on the face of the legislation that you can use procurement to promote equality and that procurement is a public function and, as a result, you need to promote equality within your procurement policies.
Q26 Tom Levitt: I want to ask some questions on Access to Work to conclude this section. How do you think the Access to Work scheme can be improved to better enable people to obtain work, stay in work and make progress, in particular I am thinking of those people with a mental illness or fluctuating conditions?
Mr Lamb: I will have to answer more generally; I think the fluctuation conditions is slightly more complex but we can come to that. Access to Work is one of the Government's best kept secrets in terms of encouraging disabled people and retaining them in work. Secondly, in terms of its economic effectiveness, for every pound spent £1.70 goes back to the Treasury in the form of saved benefits, National Insurance contributions and taxation. In principle it is difficult to see why it is actually cash limited except for the fact that it sits in one bit of DWP's budget rather than another. Given that the Government is moving towards the situation with the Freud's proposals where it is looking at a different model of spend and invest to save on employment, the first way I think it could be improved is to look at the way it is actually funded within the departmental budgets and whether it could not be seen as either a hybrid or move from the departmental expenditure into the other budget which is more open ended because we see no reason in principle why Access to Work should not have more open ended funding, welcome though it is that the Government is committed to doubling that already by 2014. In general principle the first way I would recommend that Access to Work could be improved is to look at the whole funding machine around it. In relation to your specific question on fluctuating conditions, obviously one could look at whether more interim support could be available rather than the rather complex way of having to claim for it at the moment. That could have implications for the budget but it is certainly something we are looking at in terms of whether you could have someone that could substitute for part of the job for part of the time as a way of helping fill the gap left by someone who is there for part of the time and not for part of the time and more research into that would be very helpful. Secondly I think, looking back to the reasonable accommodation type arguments around whether someone with a fluctuating condition could have a different work arrangement during that period then Access to Work could actually help that. Thirdly related to that I think we can look at the more attitudinal issues that often do not get addressed directly by the Access to Work scheme and looking at policy practice and procedure which in a way brings you back into the legislation. As part of an Access to Work assessment what tends to happen is that you look at the DDA assessment, the policy practice and procedure over here and then in another place you look at what physical adaptations or support someone needs under Access to Work and actually something that starts to bring those two assessments together and look at them as a unified whole would be really helpful especially when dealing with fluctuating conditions.
Mr Crowther: The Commission has recently set up an employment for mental health working group chaired by Liz Sayce who some of you may know, she is a member of the Commission's Disability Committee. The first task they had was to come up with some ideas and proposals around this which I think need further development and further thinking. One of the key things that was said was the degree to which you can focus Access to Work far more on the individual than on the employer so that it became a part of the individual's capital when looking for work, certainly where people have needs and requirements that stay fairly constant over time. There was the issue around that and I think Liz was reflecting on a situation where she had interviewed somebody and during that interview they had been able to reassure her that they had this package, they would be able to bring it in, it was not going to be a concern as an employer which I think was quite interesting. In terms of specific issues around fluctuating conditions, the group looked at the idea of Access to Work being available to pay for temporary cover during short intermittent absence from work due to illness which could otherwise impact on the resources of small employers and to explore it in that way, that it might be provided in the form of credits so people could draw down on it when they needed it, almost like a kind of call out service. That is an interesting idea to explore so that people might secure out of hours support, mentoring, counselling, stress management as and when they needed that sort of support to maintain work, to use it to pay for in-work job coaching as well. It requires a sort of re-imagining of what Access to Work is there for and I think we need to think through some of those issues and also the balance between the responsibilities of employers to make adjustments and the state to actually provide that funding. Those were some of the ideas that they collated and I would be more than happy to share that in more detail with the Committee.
Q27 Tom Levitt: You are basically suggesting that there is some mileage in the DCC proposal for Access to Work to be able to pay for that cover where that is appropriate (because obviously there would be other circumstances where it would not be) rather than having a right to rehabilitation leave.
Mr Crowther: It may be a blended solution of both of those things. That is why I think that proposal needs more thought but I think it addresses a very real problem that many people with mental health conditions face in terms of the fact that their condition fluctuates and can unpredictably mean that they are not available for work which can clearly have an impact and a perception of them in the workplace. If that could be managed more effectively and made smoother then that could be beneficial.
Q28 Tom Levitt: I think we have a number of people who have now called Access to Work "the best kept secret"; there cannot be many left who have not heard of that phrase let alone Access to work, but even so the figures we have been made aware of suggest that the amount of money in Access to Work that has been spent on on-going support is increasing rapidly whereas the amount that has been spent on what you might call one-off or capital expenditure is actually falling and there are fewer instances of that than there used to be. Why do you think that is dropping off?
Mr Lamb: Certainly in terms of larger employers I think a lot of larger employers are now much more willing and much more aware because of the consequences of the Act to actually take on some of those expenses for themselves, but I do not think we should deduce from that that is an option that is available for all employers in all circumstances, even some times large ones. I think even in terms of larger employers Access to Work still has a very important role to play and certainly that can be part of the explanation. We have to be very carefully in speculating too much around this because there is a fairly major study about to come out that the Government has commissioned which I think will provide much more systematic evidence around a number of these issues. If asked to speculate that would be part of the explanation I think.
Q29 Tom Levitt: Would that be consistent with DWP's position of perhaps not providing Access to Work funding within the public sector and expecting the public sector to take on that cost from their own resources. Are you aware of that happening at all?
Mr Crowther: I think our understanding is that that may have been something under active consideration. The Commission's view is that that would be a great leap of faith into that area. I think we need a much more systematic review of the impact that has had within central government departments where that is already the position before we move forward and extend that to the broader public sector, certainly given the economic situation as well that we are finding ourselves in.
Q30 Tom Levitt: They were not denying Access to Work assessment, just expecting the government department to pick up the tab. What else might be done to engage employers? Is it going to be through exhortation from campaigning by disabled people who are going to be pushing the business case? What else could be done to promote Access to Work?
Mr Lamb: I certainly think there is an opportunity at the moment because of the way employment support allowance is going to work. That gives an opportunity at an early stage for claimants to essentially have basic Access to Work assessments as part of their action plan. It would not be a big step from that, for example, to look at, if you like, a mini evaluation at a very early stage when people are actually seeking employment before they have actually gained it or even at the point where they are gaining it to look at a very quick assessment of what they may need even at that stage. That might help both in terms of making people seeking work aware of it and making employers more aware of it. I think secondly the Government has done quite a lot with SMEs to ensure that they are more aware but a lot more could actually be done in promoting it to those areas in the employment market that very obviously are not going to be in the same position as either public authorities or very large employers. I would agree that we would not accept that even for the public sector and large employers that more promotion does not to be done nor that Access to Work actually does need to be provided. You cannot make a direct link but we have noticed that employment rates in DWP of disabled people went down about the same time. Again that would be a complex position, you cannot just assume that one relates directly to the other but it would reflect our concerns going into economic recession. We researched some of the reason why you have to look at ways in which you can extend Access to Work at the moment as a potential protection for disabled people going into a recession where we know they will be the first to be hit in looking at participation rates in the economy.
Mr Crowther: There is always a big challenge to reach small and medium sized employers. The DRC in its last few years did a lot of research around this and one of the key things that we found was the best reach is often through intermediaries - through their accountants, their lawyers, through chambers of commerce - so there is an issue about how my organisation, Jobcentre Plus and others target those intermediaries to make sure that information is there. Also the fact that often what those employers will do is only engage in an issue once they are presented with it. A large organisation with a well-resourced HR department have consistent polices and practices. I think there is a big role here, as Brian has said, for Jobcentre Plus and its agents. How is the whole issue of Access to Work embedded into the personalisation agenda, into the Freud proposals and the way these providers work closely with employers and employees and think through those needs as well. I think we need more work in that terrain as well.
Chairman: Thank you very much. This has been very interesting. You may not have thought so, but we did!
Witnesses: Mr Yusef Azad, Director of Policy and Campaigns, National AIDS Trust, Mr Andrew Harrop, Head of Policy, Age Concern England and Ms Emily Holzhausen, Head of Policy and Public Affairs, Carers UK, gave evidence.
Chairman: Good evening, it is good to have you with us. I noticed you were all very attentive in that first session. We will start the questions now.
Q31 Michael Jabez Foster: Is a single act welcome? Do you think the Equality Bill builds on existing legislation to improve equality and inclusion of disabled people? Do you think it is a good idea?
Mr Harrop: I will answer that but before I start I would like to clarify that I am representing both Age Concern and Help the Aged in advance of our merger in April. A single act is absolutely essential for older people because they are the poor relationship when it comes to equality protection in that they have no protection under goods and services legislation and no equality duty. The reason why we support a single new bill is because it will level up; it will go beyond the workplace protection that already exists for age to comprehensive protection as with other areas of equality. On top of that, however, there are real advantages in having a single piece of legislation rather than six different pieces of legislation potentially. You can see that most clearly when you think of the impact on public bodies of implementing public sector duties. Would you want to have six different requirements, potentially six different timescales, reporting cycles, et cetera? It is clearly much more sensible for an integrated approach where the public body thinks about all the different equality issues but in a single framework.
Q32 Michael Jabez Foster: Is that the view of you all?
Mr Azad: It certainly is, yes.
Ms Holzhausen: You will find us agreeing with what Andrew said very eloquently, but you will know from our evidence that we would also like to see a single equality act incorporate more for carers who feel very discriminated in our society. I can go through that now or later if you wish.
Q33 Michael Jabez Foster: Could I ask you in particular, Yusef, about the definition of disability? You particularly say that you are in favour of the social model approach to the definition but there are those who say that that would expand the scope in such a way as to make it unworkable. What do you say to that?
Mr Azad: I think you have already heard some eloquent and legally expert advice on that from the EHRC which I do not necessarily want to repeat other than to say we agree with it. The social medical model debate can seem very academic or philosophical I think but for people with HIV it is an extremely practical issue. When we had the unchanged definition of disability in the DDA 1995 people with HIV who were beginning to do well on treatment and so had no current functional difficulty but were nevertheless, because the condition is so stigmatised, often experiencing discrimination, were finding in courts that they could not get the redress which was their due and that was because basically the definition allowed a very limited and medical model of what disability was. To address that fact the Government and the DDA 2005 included people with HIV within protections from the point of diagnoses - which is great - but they did not really change the definition of disability to an extent that people with HIV can say, "I'm all Jack, we're covered". To give you one example of a very practical issue, a significant proportion of people with HIV are co-infected with hepatitis C. Is hepatitis C a disability? I would argue that that may be a matter of debate in a court and significantly disadvantage people who are infected in that way if they do not have any current functional problem as a result of their infection, even though discrimination can certainly apply in that case. I think that gives you one example from our perspective of a social model which may cover more people but that is because they need to be covered.
Q34 Michael Jabez Foster: You also expressed your concerns in your paper that the Government may step back from plans to include multiple discrimination in the new Bill due to concerns about costs. Can you elaborate on why you think that would be a problem?
Mr Azad: Seventy-seven per cent roughly of people with HIV are also either gay and bisexual men or black African men and women. For people with HIV it is usually the case that they have another aspect of their identity, if you like, which is itself vulnerable to marginalisation, stigma and discrimination in our society. You will have received, I am sure, many submissions that make the very basic point that we are not just one identity, we are a mix and combination. The current legal processes basically only allow for you to take one aspect of your identity and try to make a claim of discrimination on that ground. We think that for people with HIV who may be experiencing a combination - an intersection - of discrimination on the basis of not only their HIV status but their sexual orientation or the fact that they are from Africa, the current regime does not really address the specificity of their experience appropriately.
Q35 Michael Jabez Foster: Is there not a risk, at least, that people may simply take the blunderbuss approach and claim discrimination all over the place simply because they have a problem with the individual organisation or whatever it is that they wanted to challenge?
Mr Azad: I think we have heard already that the problem is that people are often not willing to take cases where they have a very strong case. I hope I may have the chance later to talk about the way we need to reform the tribunal system. There are processes to identify vexatious complaints and I do not think that is a realistic worry. There are a number of specified grounds. The grounds are not limitless; they are limited in number and identified in legislation. We are not going to increase the number of grounds so I do not think that is something that you should be concerned about.
Q36 Michael Jabez Foster: Would you see there is a need for a main purpose claim because otherwise if you have a whole series of claims the length and cost of just litigation would be absolutely astronomical?
Mr Azad: In a sense one is arguing for one claim. One is saying that a single claim should be able to express the wholeness of the person's experience of discrimination. One is not arguing for one claim followed by another claim followed by another claim. That, in a sense, is the problem we have at the moment. One is saying that the single claim should be able to address the social reality and complexity of human experience and of human discrimination. Again I think that what multiple discrimination will do is possibly even reduce the number of claims rather than increase them.
Q37 Tom Levitt: Is it the case with older people, that it is often something other than age that is in the background to the discrimination?
Mr Harrop: It certainly is. If you think in an employment context of the spate of stories over the last year of older women in the media who have, I think most people would agree, been singled out because of their sex as well as their age in the way that male broadcasters have not been singled out. There are also significant issues about the intersection between disability and age. We have heard from experts in disability in the previous session who did not really pick up some of the issues affecting older people who make up around half of those who are DDA disabled and frequently do not identify themselves as disabled. I think the advantages of not just seeing discrimination as a series of parallel potential claims, at the moment it is really a case of "pick your best one and see how you get on". With modest tweaks to the law around how comparator tests work you could enable people, as has been said, to represent themselves as their whole person and make the most appropriate comparator.
Q38 John Penrose: I would just like to broaden this out a little. As you would expect, as the Work and Pensions Committee, we are interested in barriers to employment and equality in employment. Clearly there are many barriers to employment which start with discrimination but move a good deal further beyond it and move out into wider attitudes in society and all sorts of things. How broadly should the Equality Bill go in order to achieve equality in employment?
Ms Holzhausen: If I might start and then hand over to my colleagues, you are probably all aware of the Coleman case and how important that is for carers. There are enormous barriers to employment as you know from having done your report last year on valuing carers which we warmly welcomed, as you know. One in five carers have to give up work in order to care; they are more likely to retire early. It is incredibly hard to get back into the labour market; well over 80 per cent said they felt less confident and less skilled and able to get back into the labour market and particularly when they are still caring for somebody not having the right kind of services that can get them back into employment makes it incredibly difficult. If we had a protection from discrimination in employment where carers are not treated any less favourably plus a positive public sector duty to promote equality for carers and get the right kind of services for carers, then we would see the barriers coming down. There are good business reasons and arguments for actually implementing this and introducing flexible working can bring improvements to the bottom line. Employers have found that their retention increases, they do not have to pay the costs of recruiting people (£12,000 per staff member), so it is not just looking at another layer it is actually looking at positives that we can get out of this as well. Businesses will obviously want to recruit and retain key staff members even during a time of downturn and recession. It is absolutely critical that they keep the right people and retain the right people.
Q39 John Penrose: If you were to go for that broader duty, how would you make it enforceable against a public body that was not providing sufficient training opportunities for people with caring responsibilities or some other such shortfall?
Ms Holzhausen: We would expect the same thing to happen that happens with the current public sector duties and have EHRC to have legal powers to take that body to court if need be. The evidence has already shown that it is difficult to enforce but I think, as you know probably from your constituents as well, carers do feel very invisible and just having a public sector duty to promote equality, as we have seen in Northern Ireland, really helps to raise the profile, helps people to change policies and can actually bring about real changes to individuals' lives because that is what this piece of legislation is about, about improving people's lives at the end of the day.
Q40 John Penrose: So carers' organisations feel very strongly that it should be much, much broader than pure, narrow discrimination. How about Help the Aged?
Mr Harrop: We have already discussed the point about multiple discrimination disadvantage. People in their fifties and sixties who struggle in the labour market often are carers, disabled and perhaps have low skills as well. We have also talked about the public sector duty and the potential it has. I would single out Jobcentre Plus and the learning providers and funders as having failed to really think inclusively about age in their work and the need to support and re-equip people in their fifties and sixties to get back into the labour market. There is still too much of an approach of supporting people as if it was their first time into work when actually these people who have lost their jobs in their fifties and sixties are complex but different. The biggest single thing that we want to see in the field of employment from this Bill, however, is an end to the law that permits forced retirement at 65 by employers. The current age discrimination law brought in in 2006 had this gaping whole which means that half a million people over 65 who are currently at work have no discrimination protection and we think that is both extremely unfair and causes outrage and very full mailbags for us, but also has a clear economic downside in terms of trying to promote people staying at work longer and supporting businesses. At the moment it is very important, thinking about the current economic conditions, because this is a group who will never work again. If they lose their job they will not be able to find others so we think it is particularly important now that we do not give a licence to employers to discriminate at 65.
Mr Azad: In a couple of years there are probably going to be over 100,000 people with HIV in the UK. We know that under half of them are in paid employment. I need not tell your Committee all the implications of that - the poverty, mental distress, social exclusion - and we very much welcome the key ambition of the welfare reform agenda which is to support people back into work. We know the vast majority of people with HIV can work and want to work. With a willingness to work we also need a willingness to employ and the problem for a highly stigmatised condition like HIV (and it applies to mental health as well) is that we need to change our civic culture, the attitudes of employers in both the public and private sector to a whole range of disabilities. To that end the Equality Bill is a really important opportunity where we must maximise change I would argue. That includes discrimination by association; we have talked about multiple discrimination. The single equality duty is, I think, a really important opportunity. We have found around HIV and the duty that one of the problems is that disability is such a broad category that we did a survey of a large number of disability equality schemes and found that HIV was only mentioned in a small minority of cases even when you would imagine it would be. I think in addition to what has been said about the EHRC taking cases we would welcome post the equality bill in the statutory code the Equality and Human Rights Commission can produce and which can be used in evidence in court; some clearer advice to public bodies as to how, without naming every single disability, to encourage and enable public bodies to be more disaggregated and nuanced in how they look at disability and cover the range of different challenges that the people are facing.
Q41 Oliver Heald: When I was asking Catherine Casserley about the single equality duty we were talking about whether disabled people would need a sort of sub-clause saying that, "save that an advantage may be given to a disabled person by way of a reasonable adjustment". Would that not also apply to a carer given that you are obviously often looking after somebody who is disabled and may need to go urgently to the premises or have some special dispensation made? Would you agree with me that it might well be necessary to have that exemption covering both disabled and the carers?
Ms Holzhausen: I would indeed. I think the Coleman case illustrates that very well, as well as the very negative language that was used around disabilities, the actual problem that Sharon faced whilst she was at work was around flexibility. Reasonable adjustments in relation to carers is all about good practice of employers. The reasonable adjustments that are required and which are fairly easy to implement, they are all part of common knowledge and good practice within good employers, so it certainly would not be a burden in any way. It would be a lot harder to see how the single equality duty and certainly protection from discrimination at work would work without that kind of thing. To pick up your point about training it would be about what time are the courses put on, can carers access them, do they need slight adjustments there? That would certainly be right and be workable for them.
John Penrose: Can I just encourage all three of you now to look into a crystal ball and look forward a series of years? Let us make a heroic assumption that some kind of general equality duty has been imposed and has worked, just picking up the point made by my colleague, John, earlier, what at that stage would "good" look like in terms of outcomes? What would you class as success?
Q42 Chairman: Would your organisation being wound up mean success?
Mr Harrop: Every charity always says that our aim is to put ourselves out of business but it has never happened yet. I think terms of public sector we have some really visible examples of age discrimination which the Department of Health actually has put numbers on in terms of several billion of quantified discrimination in the health service and in social care. Clearly seeing that gap close would be a major achievement. More widely discrimination law is a tool to change attitudes and we have seen that with race and gender over a 30 or 40 year period. It is not the only solution but it is part of a social movement. This country still faces massive issues around prejudice against both older people today but also the ageing process and coming to terms with the fact that we all grow older. What we need, as an ageing society, is a complete C-change in all our attitudes to the second half of adulthood and particularly periods of great frailty at the very end of our lives. This legislation and the work that public bodies will have to do as a result of it can make a major contribution to that.
Q43 John Penrose: Can I focus the question down a little more and ask in relation to employment - which is where we started off the questions - what would "good" look like there for your organisations in terms of access to employment and employment levels?
Mr Harrop: I think the key thing to watch is the average age that people leave the workforce. It has been improving in recent years and we will have to see what happens over the next few years. We will need to see over the long run that age rise in line with life expectancy so that people spend roughly the same amount of time in their adulthood in work as they do today. We also need to make sure that we do not see widening inequalities so that people of the same age do not have very different experiences of the labour market from their late fifties onwards. At the moment it tends to be people with fewer skills, poorer health and caring responsibilities who are forced out of work well before they wish to and others who are able to carry on on their own terms with a gradual reduction of work; actually need to see everyone having the opportunity to save for their retirement by being able to work for as long as they wish to.
Q44 John Penrose: Do either of your organisations have any figures for target levels of employment for people between the ages of 65 and 70 or some such equivalent which maybe government should be aiming to achieve if it gets this right?
Mr Harrop: We do not have targets over 65 because certainly over state pension age we believe it should be a matter of choice. There is plenty more room to increase employment between the ages of 50 and 69 which is the current age range that DWP uses. There is no reason to think that it could not get significantly closer to the main employment rate but I will not give you an exact number.
Q45 John Penrose: I may come back and ask you to do so. I take your point about it being a matter of choice, but nonetheless there must be examples of what "good" and "bad" would look like to illustrate that discrimination and inequality has been reduced so people are only exiting at the moment of their choice rather than somebody else's.
Mr Harrop: There are three quarters of a million people over the age of 50 who are out of work who say they would like to work in ideal circumstances so that is a good benchmark at the moment. Not all of them will be able to because of discrimination and prejudice and other complex reasons, but that is a good indication of the scale of the challenge.
Q46 John Penrose: Thank you, that is very helpful. I am going to ask Emily and Yusef the same question, do either of you two have examples of what "good" would look like in relation to employment levels in particular?
Ms Holzhausen: Yes, I was going to talk about employment but I also want to talk about health as well and public bodies. A lot of the examples that we get are around health and social care where they are discriminating against carers. To give you some examples of how success would look, one carer, for example, has had bowel cancer and she has not had a check-up for eight and a half years because the pre-check-up medication that she needs to take would leave her ill for a week and she cannot get the social care for that so she is dropping out of the health system. Another has not registered with a GP for two and a half years because he cannot get to the GP services in the morning because he cannot get the social care to look after his father in order to do that. Success would be social services and health working together to look at their policies and make sure that carers are not invisible, that they are able to access health and employment in exactly the same way. We have aspirational figures as well of carers who want to work and there are times when it is just impossible because the caring situation is so complex, where there are several members of the family who have a disability or who are chronically ill.
Q47 John Penrose: Are those aspirational figures in your submission?
Ms Holzhausen: They are not but we can provide them for you afterwards.
Q48 John Penrose: That would be helpful.
Ms Holzhausen: We would see an increase in the number of carers in employment and we would also see a decrease in the number of carers who felt they were forced to leave employment early.
Mr Azad: As the effectiveness of treatment continues to increase our aspiration is that people with HIV enjoy national average employment rates. We see no reason why not. One of the problems at the moment is that because too many people are being diagnosed late - that is sometimes as a result of discrimination within the health service - they are not able to access the treatment as effectively as they would like. Certainly our aspiration is normal levels of employment. There are very real problems at the moment. To give you one example, there was some research carried out recently that showed that employers are the adults that people with HIV are least likely to disclose their status to; they are at the bottom of the league table as it were. When you think of remaining in work you cannot access reasonable adjustments unless you have disclosed your status to your employer. Going back to the point Andrew made about the bigger picture - which is about culture change - what we need is an equality act that will, through the duty and through various very concrete measures - like banning pre-employment questionnaires, ensuring confidentiality when necessary in employment tribunals - change culture around stigmatised disabilities and stigmatised conditions.
Q49 Miss Begg: Yusef, you have just talked about a culture change and I have questions on equality in goods, facilities and services. In terms of disability we have had the legislation on the statute book for a few years and while there have been improvements there are still huge gaps, as was said in the previous session, in terms of physical access to buildings. How do we make that change systemic? How can we embed it in the culture in terms of access to goods, facilities and services for all people regardless of which strand of disability? How do we get that change embedded into the culture?
Ms Holzhausen: I think that is a really difficult question, having had equality legislation on things like gender for a good many years.
Q50 Miss Begg: I will try to make it easier: is the problem in the actual legislation itself or is it in the way it is implemented and enforced?
Ms Holzhausen: I do not think the fundamental problem is in the legislation necessarily. The Equal Pay Act was brought in in the 1970s and we still have not necessarily achieved equal pay between men and women. I think the issue is more about implementation really. We have had enormous culture change across many of the different equality strands but it is about culture change and change of hearts and minds as much as it is any of these really important practical measures. I just think it is down to continual enforcement as well as showing the real positives that can be generated out of all of these measures: making communities more inclusive, disabled people and their families being able to go out together rather than just separately because the environment is not accessible; and constantly underlining the positives as I talked about with business, for example, where flexible working is not negative it is positive. I think that is the other half to the coin against enforcement.
Mr Harrop: I would agree with all of that. Another point we should think about is the opportunity that having the new Act brings. Events do create awareness so it is very important that the Government and EHRC use this as an opportunity to shake up public debate and raise awareness of both existing legislation and the new rights that are coming. Linked to that is the implementation programme. What is being proposed for age at least is a phased and gradual implementation programme. It is really important that that does not mean that the impact of the legislation is diluted, kicked into the long grass or indeed just never happens, that secondary legislation is never brought in. To keep the culture change momentum going we need to see now the Government set out a clear timeline and plans and get all the secondary legislation sorted quickly even if there are long commencement times so that it can work with EHRC and other partners on a planned and phased programme to make sure that people with new duties are ready and aware.
Q51 Miss Begg: Have you learned anything from the delay in bringing in the physical access provisions under the DDA 2005? They might have had ten years to do it but everybody stumbled around to do it the year before it came into force. Have you learned from that? Is there anything you would do differently?
Mr Harrop: We made exactly that point to the Government when it was considering the timing of the legislation and it is a very similar story for the age employment law which was six years after the European directive that it came from; everyone sorted themselves out in the last six months. The truth is that in some bits of the public sector there are public spending implications from age equality legislation so it is understandable why ministers are nervous, but there are other areas where you can just get on with it, particularly in the area of financial services where current discrimination against older people, particularly in things like insurance and credit, is extremely ill-founded; there is not much good data or rationale to break it up. I think financial service providers will find that in a couple of years' time, after the law comes in, they do not know what they were worrying about two years previously, they will adjust very quickly.
Q52 Miss Begg: Yusef, legislation or implementation?
Mr Azad: I do not have much to add. Without wishing to sound too cynical, I think you do need to be hard-nosed and have effective and accessible processes for complaint, application for change and redress if the culture change needs the stick as well as the carrot, as it were. We need to see an equality bill that improves the situation.
Q53 Miss Begg: If it is enforcement that is the problem, Yusef you have already made reference to how you might do that. Do we have specialist judges? Do we have specialist tribunals? What is your favoured way of making sure we can raise the number of cases that are actually brought?
Mr Azad: Could I mention one very specific issue around stigmatised conditions? It applies to HIV but it also applies to mental health and a number of other disabilities and conditions. Certainly we know when it comes to HIV related discrimination that a large number of people simply put off or are scared of putting in a complaint to a county court or an employment tribunal because of the fear of the disclosure of their status to a large number of other people. Perversely it can be the case that your complaint is about an inappropriate disclosure of your status to colleagues at work and yet to actually get redress you have to go to an employment tribunal where there is no guarantee that your HIV positive status will be protected. There is some allowance in the regulations for the tribunal to take place in private around strictly confidential information but lawyers do not believe that really applies to medical status and I think we need to be much clearer on that front. There are also reporting restrictions that are possible but they only last, as far as we can see, for the duration of the tribunal. We need much clearer and stronger confidentiality support to allow people with stigmatised conditions or conditions they wish to remain private to access appropriate justice and redress.
Q54 Miss Begg: Is there a particular problem with stigmatising conditions in as much as the chairman of the tribunal or the judge might have the same prejudices as the general population?
Mr Azad: That is something we are working on with the Judicial Studies Board at the moment to get better training for judges and tribunal chairs around HIV but that is absolutely something that needs to be addressed. In preparing for this evidence session we asked colleagues in a range of HIV organisations round the UK to give examples to us of problems which they thought needed to be addressed. We had one from Northern Ireland from someone who was discriminated against in further education and had a very powerful case. The equality body in Northern Ireland wished to support him but when it came to the court, the court simply refused to admit or agree that his HIV positive status was sensitive enough to allow for his identity to be protected and as a result he withdrew his complaint. That is a very practical example of how we need the training of judges and we need the regulations to be much clearer and firmer in providing for appropriate degrees of confidentiality during legal process.
Q55 Miss Begg: Emily, how do you think these cases should be dealt with?
Ms Holzhausen: We run an information and advice line and have the problem across the board of people accessing redress through the courts really. On top of caring it is incredibly stressful to take any form of redress even if it is just going through the normal complaints process and then to the local government ombudsman, so we would say anything that was easier and quicker like a tribunal system, even though that would still be very stressful.
Mr Harrop: There are obviously major issues about access and the complexity of discrimination law. It was originally intended that the employment tribunal was somewhere you could go without lawyers but that is clearly not the case for discrimination legislation. With the specific issue of whether there should be equality tribunals as I think Cathy touched on earlier, we are not sure that is the best approach simply because in employment cases it is very difficult to untangle a discrimination claim from a wider employment claim; they almost always come together. What we really need is employment judges all being experts in discrimination. In goods and services there is a case for some sort of specialist role for some judges so that they have at least seen a sensible flow of discrimination cases in the county court rather than it being a rarity when you might see some of those issues of prejudice, as we have heard about, coming up. We would also want to see a much bigger role for the small claims court in discrimination cases so that it does not feel like a big and intimidating process; that people can get relatively modest compensation easily and quickly.
Miss Begg: So we do not actually have a consensus as to which is the best forward; different people have come up with different solutions.
Q56 Harry Cohen: I want to ask about the public sector equality duty in your view. It is obviously going to be in the new Act; how do you think it should be formulated? What sort of enforcement should go with it?
Mr Harrop: It is obviously extremely welcome that it is being extended to the extra strands from the three it covers at the moment. I think the experience of the three existing equality duties is fantastically helpful and we should aim to bring the best. We heard earlier about the importance of involving people rather than just seeing them as passive recipients of consultation. That applies well beyond disability, particularly to marginalised older people. We have also already heard about the importance of seeing equality as being about supporting people who are different rather than just treating everyone the same. I think that needs to be built into the equality duty. There is a risk that public bodies have a rather formulaic process of thinking about equality which might actually lead to harm if they do not appreciate that you can treat different age groups differently. You can provide them with different services, be that children or young adults as well as older people, as long as you are thinking about fair outcomes for each age group and the different sorts of services they need. That does not necessarily need to be about reasonable adjustment in the formal sense of discrimination law; it is about common sense approach to equality, it is about the outcomes you are aiming to achieve rather than the input of everybody being treated the same. Finally, one suggestion for an additional element that the duty might contain in relation to age, ageing is a dynamic process, we are getting older as a society, our demography is changing. The current duties do not really think about that future-proofing element. There might be a case for thinking in guidance or in the detail of duty to require public bodies to think about their future populations and their needs rather than just people today.
Q57 Harry Cohen: Are there any other points on that?
Mr Azad: We also really welcome the extension of the duty to a number of grounds. Obviously with so many people with HIV being gay men, to have a duty that may cover sexual orientation is particularly important around issues such as education and provision of decent health services, et cetera, to gay men and that will have an impact on HIV. I do not want to repeat what I said in detail about the need around disability to have something of a more nuanced piece of guidance than the EHRC, but to give you one concrete example, we are having an argument with the Department for Children, Schools and Families at the moment because, even though the number of young people and children with HIV is quite small, we are hearing increasing numbers of stories of them being discriminated against in schools - schools trying to exclude them; schools saying that their status has to be told to every teacher and every parent in the school; schools passing on information about the child to another school, et cetera - all utterly unwarranted and profoundly discriminatory. We have asked the DCSF to send a very brief and straightforward circular out to schools explaining that this is unnecessary, that their health and safety worries are unnecessary, et cetera. They referred us to a piece of guidance to schools on disability. HIV is not mentioned other than briefly to say that it is included within the definition of disability. It does not address any of the issues about confidentiality; it does not address any of the misplaced concerns around health and safety. It is not enough to tick a box and say, "Yes, we've done disability". The point that was made very eloquently and well earlier on in your session was that if it is about the way we think, if it is about due regard rather than simply ticking boxes in a scheme, the key issue is responsiveness to a well-founded approach. That is what we are not seeing at the moment from that department and where we need, I think, even stronger advice than EHRC; there is a concern that the single duty will be one step further away from the detail of disabled people's lives on the ground and we need to make sure that does not happen.
Ms Holzhausen: We warmly welcome the extension as well but of course we would welcome it even more if it included carers. To give you an example, one of our members was seriously ill in hospital and the local social services phoned her to tell her that the amount of her husband's direct payments that he was receiving was going to be reduced because he had just reached his 65th birthday. That obviously is discriminating against his age in the provision of goods and services, but in terms of her she was a younger woman of working age and by reducing the amount of direct payments that meant she would not be able to go back to work when she came out of hospital, besides the immediate problem of how would she manage when she got out of hospital. If there was an extension across the Act in a single equality duty and protection for carers we would see both the carer and that older person being protected rather than just the one.
Q58 Harry Cohen: This might be a bit of an unfair question, but I will put it to you to see your initial reaction. As part of the evidence to us we got something from the CBI and they say they want to see value for money outcomes rather than processes like targets and audits. They said that would bring more commitment rather than compliance. There are some interesting points there and they are a powerful voice as a lobby. What do you feel about that approach?
Mr Harrop: Are you referring to the public sector duty or the private sector?
Q59 Harry Cohen: The public sector at this stage.
Mr Harrop: It is a fair point that there has been an awful lot of paper produced and equality schemes have been reasonably criticised for being exercises in job creation rather than leading to outcomes for disadvantaged groups. I think the lessons have been learned and you have heard from EHRC earlier that they want to move beyond the current generation to requirements that are based on outcomes and where you report in your mainstream planning and reporting documents rather than in some special thing what you were doing for all the discrete groups in your community. That obviously seems to make sense.
Q60 Harry Cohen: Can I move onto the private sector? It has been argued that the equality duty, in relation to race anyway, should be in the private sector as well. Do you think a wider equality duty in the private sector is workable?
Mr Harrop: We are absolutely delighted that we are getting a public sector duty covering age so we see making that work as the top priority. We very much welcome the proposals on voluntary approaches and kite marking the private sector.
Mr Azad: Similarly I think we are interested in the idea and keen to talk about it, but there are things higher up our agenda immediately, for instance prohibiting pre-employment health questionnaires, having effective employment tribunals.
Q61 Chairman: We will come back to the pre-employment questionnaires in a moment.
Ms Holzhausen: I certainly think that the procurement by public bodies as well is a very important way of working with the private sector to look at outcomes and mechanisms. We would certainly be very much in favour of that.
Q62 Harry Cohen: One of the suggestions put to us, I think by the CAB, was that there could be a greater role for regulators and indeed as part of that the trading standards people at the more local level. There are some really bad employers who will do nothing. Would that be a way forward in trying to get this equality duty into the private sector a little bit better? How do you feel about that?
Mr Harrop: There are definitely roles for intermediaries in the private sector. I can actually think of more examples with relation to goods and services rather than employment, but I am sure it is analogous. The sector regulators covering things like finances, the Financial Services Authority has really washed its hands of the debate on age discrimination in finance. That is a good example where a bit of sector leadership with the regulator who really knows the industry well would be really helpful.
Q63 Oliver Heald: I just want to follow up the question I have been asking other people about the nature of the single equality duty given that you have to make an exemption for those who are disabled and carers. Is it not also true of the group you represent, that you might want to see reasonable adjustments made and advantages given in order to achieve equality for the elderly?
Mr Harrop: I think that the duty can potentially be sufficiently flexible so that you do not need to get into lots of specific exemptions for specific groups, as long as you explain clearly in the legislation what we mean by equality and it is not treating people all the same. In terms of the prohibition on discrimination, you are absolutely right that there are issues around making sure that things which benefit a particular age group - there is a clear social reason for doing that like free bus passes that enable older people to remain active in the community - that they are either exempted in the law or it is clear that they can be justified on a case by case basis. What is being proposed on age uniquely - unlike any other equality strand - is that direct discrimination and service delivery can be justified so that a service provider will be able to say, "Here is the evidence, here is the reason and here is why it is a proportionate response to the issue we are tackling". It is a different approach from reasonable adjustment but it is trying to meet a similar sort of concern.
Q64 Chairman: I would like to ask about pre-employment questionnaires. Why do you think this is a legitimate route and not just using the DDA? Are there not parts of the economy where actually having a pre-employment health questionnaire could actually be productive?
Mr Azad: The problem for people with HIV and indeed again, as I said, it applies to mental health, is that the apparent need to disclose their status at an early stage of recruitment is something which many people find profoundly off-putting when applying for a job. Secondly - and this was talked about earlier - when it comes to recruitment it is often very difficult to demonstrate that discrimination has actually taken place. You are quite right, of course, health related issues can be very relevant to a job so I think what would be expected is that whilst in the initial process of application you could not ask the question, once a provisional job offer was made there would quite often and appropriately be relevant health related questions asked. Should it become apparent that there is either a disability for which no reasonable adjustment is possible or some health issue which cannot possibly be addressed, then it is possible to withdraw the job offer but the process is transparent and someone can, if they really feel it is necessary, make a complaint and we would all understand what the issue is. At the moment that is not the case and many people with HIV simply find themselves, if they do disclose their status in application forms, rejected out of hand again and again and again. The only other thing I would say is this is not a sort of out of left field idea; such pre-employment questions are prohibited in France, in Belgium, in the Netherlands, in the USA and indeed in a lot of industrialised developed countries. I think what we are really hoping - we are working on this with the Terence Higgins Trust who have been campaigning for this for a long time and Rethink, the mental health charity - is that the Government, as they look at the Equality Bill, will look seriously at the experience in other jurisdictions. Of course there are legitimate issues and concerns the other way, but it can work and it does work effectively in other countries. I think it would really encourage people with HIV at a time when they are being told to go back into the job market to make applications and not worry about discrimination.
Q65 Chairman: How many countries in the European Union take this route?
Mr Azad: I have a list of some here.
Q66 Chairman: Just the European Union.
Mr Azad: On my list I think there are six European Union countries but that is simply ones that have been brought to our attention; I have not done an exhaustive and comprehensive analysis.
Chairman: Thank you very much, this has been very useful and we appreciate your attendance here.