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Schedule 13: Education: reasonable adjustments

861.     This Schedule provides for reasonable adjustments to be made by educational bodies.

Effect

862.      Paragraph 2 requires schools to comply with requirements to take reasonable steps to ensure that any provisions, criteria or practices do not place disabled pupils at a substantial disadvantage in comparison to non-disabled pupils in relation to admissions and provisions of education and access to benefits, facilities and services.

863.     Paragraph 3 requires higher or further education institutions in relation to admissions, education, access to benefits, facilities and services, and the conferring of qualifications to comply with requirements to take reasonable steps to:

  • ensure that any provisions, criteria or practices do not place disabled students at a substantial disadvantage in comparison with non-disabled students;

  • take reasonable steps to change physical features which place disabled students at a disadvantage.

864.     Paragraph 4 defines who is an “interested disabled person”, in relation to conferment of qualifications. It also sets out that a provision, criterion or practice does not include an application of a competence standard, which is also defined.

865.     Paragraph 5 requires local authorities and maintained schools who are providing higher education or further education to take reasonable steps to ensure that any provisions, criteria or practices do not place disabled persons at a substantial disadvantage in relation to enrolling persons on courses of further or higher education, and to services provided once enrolled.

866.     Paragraph 6 requires local authorities providing recreational or training facilities to take reasonable steps to ensure that any provisions, criteria or practices do not place disabled persons at a substantial disadvantage in relation to their arrangements for providing recreational or training facilities.

867.     Paragraph 7 requires educational institutions to consider the relevant code of practice produced by the Equality and Human Rights Commission when determining reasonable steps.

868.     Paragraph 8 requires that, when making any reasonable adjustment for a particular person, the educational institution needs to consider any request made by that person to keep the nature and existence of that person’s disability confidential.

869.     Paragraph 9 sets out that qualifications bodies must take reasonable steps to:

  • ensure that any provision, criterion or practice does not place disabled persons at a substantial disadvantage

  • change physical features which put disabled candidates at a substantial disadvantage, and

  • provide auxiliary aids to disabled candidates who are at a substantial disadvantage in the conferring of qualifications.

Background

870.     These provisions are designed to replicate the effect of provisions in the Disability Discrimination Act 1995.

Examples

  • A school with a number of disabled pupils could negotiate special arrangements for pupils who are taking exams.

  • A school could provide Braille texts to a blind pupil at the start of lessons so they have access to the same information as other pupils.

  • A university has a revolving door which causes some problems for disabled pupils and under these duties it may be reasonable for them to replace the door with a sliding one.

  • To ensure that a pupil who needs a wheelchair is not disadvantaged by being left out of PE lessons, a school consults a physiotherapist and devises special activities for the pupil to carry out in PE.

Schedule 14: Educational charities and endowments

Educational charities: paragraph 1

Effect

871.     This paragraph provides for trust deeds or other instruments concerning educational charities which restrict available benefits to a single sex, to be modified by a Minister of the Crown. This cannot be done within 25 years of the trust being created without the consent of the donor, or the donor’s or testator’s personal representatives. Applicants need to publish particulars of the proposal and invite representations for the Minister to consider before making the order.

Background

872.     This paragraph replicates provisions in section 78 of the Sex Discrimination Act 1975. It is likely to happen when a single sex school becomes co-educational, and so wants to enable both sexes to benefit from a particular charity connected with the school.

Example

  • A single-sex (boys’) Grammar School now allows girls into its sixth form and wishes to modify a trust deed which offers scholarships and help with tuition for boys of the school wanting to go to university - so that it can also offer help to girls.

Endowments: paragraph 2

Effect

873.     A similar power to that in paragraph 1 is given to the Scottish Ministers to modify educational endowments administered in Scotland.

Schedule 15: Associations: reasonable adjustments

Effect

874.     This Schedule explains how the duty to make reasonable adjustments in clause 20 applies to associations. Paragraph 2 explains that the duty applies in respect of disabled members and guests including prospective members and guests and that the association must comply with all three reasonable adjustment requirements. It describes the types of adjustments an association must make, stipulates what the duty does not require and provides further information on the meaning of “physical features”. It is an anticipatory duty which means associations must anticipate the needs of disabled members and guests including prospective members and guests and make appropriate reasonable adjustments.

Background

875.     This Schedule is designed to replicate the effect of similar provisions in the Disability Discrimination Act 1995.

Examples

  • A private club with 30 members usually holds its annual dinner upstairs in a local restaurant. However, as there is no lift, the room is not accessible to two new disabled members who have severe difficulty in climbing stairs. Under the duty the club would need to think about changing the venue to a downstairs room to accommodate the new members. This is likely to be a reasonable adjustment for the club to make.

  • A club has members who cannot read standard print. Under the duty it would need to think about providing information in large print and on audio tape for them. These are likely to be reasonable adjustments for the club to make.

Schedule 16: Associations: exceptions

876.     Schedule 16 contains exceptions from the association provisions in Part 7 of the Bill.

Single characteristic associations: paragraph 1

Effect

877.     This paragraph allows an association whose main purpose is to bring together people who share a particular characteristic (such as a particular nationality, sexual orientation or a particular disability) to continue to restrict membership to such people, and impose similar restrictions on those who can exercise the rights of an associate, or who can be invited as guests.

878.     It is however unlawful for an association to restrict its membership to people of a particular colour.

Background

879.     An exception for associations which bring together people who share a particular protected characteristic is provided in current legislation in relation to race or sexual orientation. This exception will be extended to cover all of the protected characteristics in line with the prohibition on discrimination.

Example

  • A club for deaf people can restrict membership to people who are deaf and would not need to admit people with other disabilities, such as a blind person.

Health and safety: paragraph 2

Effect

880.     This paragraph is designed to ensure that it is not unlawful for an association to treat a pregnant woman differently in the terms on which she is admitted as a member or is given access to benefits as a member if the association reasonably believes that to do otherwise would create a risk to her health or safety and the association would take similar measures in respect of persons with other physical conditions. Equivalent provision is made in respect of associates and guests.

Background

881.     Provisions making it unlawful for an association to discriminate against a pregnant woman are being introduced for the first time in the Bill. The provisions in this paragraph, which are similar to those which apply in the provision of services to the wider public, are therefore also new.

Example

  • A private member’s gym may wish to restrict access to squash courts after a certain point in the pregnancy (for example, after 36 weeks).

Schedule 17: Disabled pupils: enforcement

Part 1: Introductory

882.     This Schedule sets out the arrangements for making disability discrimination claims in respect of school pupils.

Part 2: Tribunals

Jurisdiction: paragraph 3

883.     Disability discrimination claims in respect of school pupils are made to the First-tier Tribunal in England and to the Special Educational Needs Tribunal in Wales, unless they relate to admissions or exclusions. Claims are brought by the child’s parent.

Time for bringing proceedings: paragraph 4

884.     Claims need to be made within six months of conduct commencing. This period can be extended to nine months if the Equality and Human Rights Commission makes arrangements for conciliation in respect of disputes. In addition, tribunals could consider cases beyond this time limit.

Powers: paragraph 5

885.     If a tribunal finds that a school has discriminated against a pupil, it can make any orders it sees fit, particularly in order to remove or reduce the problem. However, it may not award the payment of compensation.

Procedure: paragraph 6

886.     The Welsh Ministers are given powers to make regulations to govern the procedure of claims heard by the Welsh Tribunal.

Part 3: Tribunals in Scotland

887.     In Scotland the power to make procedural rules for the hearing of disability discrimination claims by the Additional Support Needs Tribunals for Scotland will be exercised by the Scottish Ministers.

Part 4: Admissions and exclusions

888.     If the disability discrimination claim made is in respect of admissions to, or permanent exclusion from, a maintained school or an Academy, then the claim will be brought under independent education appeals panel arrangements as set out in education legislation, rather than going to the tribunals.

Background

889.     This provision is designed to replicate the provisions in the Disability Discrimination Act 1995.

Examples

  • A school pupil is not allowed to join other children in the playground at break-times because of his wheelchair and his parents believe he is being discriminated against because of his disability. They are able to bring a claim against the school which is heard by the First-tier Tribunal (in England). The Tribunal rules in favour of the pupil and makes an order for the school to alter the practice which caused the discrimination and make arrangements for the pupil to join his peers at break time.

  • A pupil is refused admission to a school and her parents believe that it is because of her disability and make a claim. The claim cannot be heard by the First-tier Tribunal and is heard by an independent education appeals panel under education legislation.

Schedule 18: Public sector equality duty: exceptions

Effect

890.     This Schedule lists exceptions to the coverage of the public sector equality duty.

891.     Paragraph 1 disapplies the equality duty with respect to age in relation to the education of pupils in schools and the provision of services to pupils in schools and in relation to children’s homes.

892.     Paragraph 2 disapplies the equality of opportunity limb of the equality duty in relation to race, religion or belief or age in relation to immigration functions.

893.     Paragraph 3 disapplies the equality duty in respect of judicial functions or functions exercised on behalf of, or on the instructions of, a person exercising judicial functions. A judicial function includes judicial functions which are carried out by persons other than a court or tribunal, for example courts martial.

894.     Paragraph 4 disapplies the equality duty in respect of any public functions (as that term is defined for the purposes of the Human Rights Act 1998) performed by the persons listed in sub-paragraph (2), or in relation to the functions listed in sub-paragraph (3).

895.     Paragraph 5 contains a power for a Minister of the Crown by order to add, change or remove an exception to the scope of the equality duty.

Background

896.     This Schedule replaces the exception for immigration functions from the race duty in section 71A of the Race Relations Act. It also replaces sections 76A(3) and (4) of the Sex Discrimination Act 1976 and sections 49C and 49D of the Disability Discrimination Act 1995 relating to excepted bodies and functions.

Examples

  • A school will not be required to consider advancing equality of opportunity between pupils on the grounds of age. Nor will it be required to consider how to foster good relations between pupils on the grounds of age. But it will still need to give due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between pupils in respect of the other protected characteristics.

  • The UK Border Authority, when taking immigration-related decisions, will not be required to give due regard to the need to advance equality of opportunity for people of different races, religious beliefs or age when taking those decisions. However, it will still be required to give due regard to the need to advance equality of opportunity for disabled people, for men and women, for people of all sexual orientations and transsexual people when making those decisions.

Schedule 19: Public authorities

Effect

897.     This Schedule lists those public bodies which are subject to the public sector equality duty contained in clause 145(1). It is divided into three Parts: public bodies generally; relevant Welsh bodies; and relevant Scottish bodies. There is provision for a fourth part to be added for cross-border Welsh and Scottish bodies. Subsection (2) of clause 145 applies the public sector equality duty to other persons who are not listed in the Schedule, but who are carrying out public functions, but only with regard to the exercise of those functions. The powers in clauses 149 and 150 to impose specific duties only apply to bodies listed in the Schedule; they do not extend to persons who are subject to the public sector equality duty by virtue of subsection (2) of clause 145.

Background

898.     This Schedule uses as its starting point Schedule 1A to the Race Relations Act 1976.

Schedule 20: rail vehicle accessibility: compliance

899.     The provisions of this Schedule are tied to those of clause 181 which provides for the Schedule to be repealed if not brought into force (either fully or to any extent) by 31 December 2010.

900.     This approach is required since the Department for Transport has recently completed consultation, in tandem with the passage of this Bill through Parliament, on a re-appraisal of the compliance certification and civil enforcement regimes of sections 47A to 47M of the Disability Discrimination Act 1995, together with new rail vehicle accessibility regulations prepared under section 46 of the Disability Discrimination Act 1995.

901.     Responses to that exercise have indicated that the Government's preferred option of not commencing the provisions contained in Schedule 20 is widely supported by stakeholders.

Paragraphs 1 to 4

902.     These paragraphs introduce the concept of “compliance certification” into the rail vehicle accessibility regime. The effect would be to require prescribed rail vehicles to have a rail vehicle accessibility compliance certificate (which certifies compliance with accessibility standards).

Rail vehicle accessibility compliance certificates: paragraph 1

Effect

903.     This paragraph provides for the introduction of compliance certification into the rail vehicle accessibility regime by prohibiting a regulated rail vehicle from being used in passenger service unless a valid compliance certificate has been issued for that rail vehicle. Regulations are required to set out which rail vehicles will require a compliance certificate.

904.     It also contains provisions to enable a penalty to be paid to the Secretary of State should a regulated rail vehicle, which is required to have a compliance certificate, be operated in passenger service without one.

905.     In circumstances where the Secretary of State has refused to issue a compliance certificate, provisions are made for the applicant to ask for a review of that decision, within a maximum time period to be set in regulations, taking into account any written representations that may be presented by the applicant. A fee can be charged to recover the costs of undertaking such a review.

Background

906.     This paragraph replicates the provisions of sections 47A and 47D of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Regulations as to compliance certificates: paragraph 2

Effect

907.     This paragraph enables regulations to be made setting out how the compliance certification regime introduced by paragraph 1 will operate in practice. For example, the regulations may specify who may apply for a compliance certificate, the conditions to which they are subject and the period for which they will remain in force.

Background

908.     This paragraph replicates some of the provisions of section 47B (1) to (3) of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Regulations as to compliance assessments: paragraph 3

Effect

909.     This paragraph provides for regulations to be made for the undertaking of compliance assessments, including provision as to who may carry out assessments, and may provide that assessments be carried out by persons appointed by the Secretary of State (to be known as an “appointed assessor”).

910.     Sub-paragraph (3) enables regulations to make provision about the appointment of appointed assessors, for them to charge fees in connection with their work, to prescribe procedures and for the referral of disputes between an appointed assessor and a person who requested a compliance assessment.

Background

911.     This paragraph replicates the remaining provisions of section 47B of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force not replicated in paragraph 2.

Fees in respect of compliance certificates: paragraph 4

Effect

912.     It enables regulations to be made setting out the fees which the Secretary of State may charge to recover the costs of carrying out certain administrative tasks relating to the issuing of compliance certificates. Any fees which are received must be paid into the Consolidated Fund. Before making any regulations under this paragraph, the Secretary of State must consult representative organisations.

Background

913.     This paragraph replicates the provisions of section 47C of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Paragraphs 5 to 12

914.     Paragraphs 5 to 12 make provision for a civil enforcement regime which enables penalties to be levied for non-compliance with rail vehicle accessibility regulations.

Penalty for using rail vehicle that does not conform with accessibility regulations: paragraph 5

Effect

915.     This paragraph sets out the procedure to be followed by the Secretary of State in respect of an operator of a regulated rail vehicle which appears not to comply with the construction requirements of rail vehicle accessibility regulations. The procedure involves the issue of “improvement” and “final” notices and, if the vehicle is used despite still being non-compliant with those elements of rail vehicle accessibility regulations with which it is required to conform, the Secretary of State may impose a penalty. The various timescales leading up to the imposition of the penalty are to be set out in regulations.

Background

916.     This paragraph replicates the provisions of section 47E of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Penalty for using rail vehicle otherwise than in conformity with accessibility regulations: paragraph 6

Effect

917.     This paragraph makes similar provisions to paragraph 5 but in respect of vehicles used in a way which does not comply with the operational, rather than technical, requirements of accessibility regulations. For example, a regulated rail vehicle may have appropriate equipment to assist a disabled person in getting on or off the vehicle, such as a lift or ramp, but no member of staff is available to operate it.

Background

918.     This paragraph replicates the provisions of section 47F of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Inspection of rail vehicles: paragraph 7

Effect

919.     This paragraph sets out powers of inspection, to be available where the Secretary of State has reasonable grounds for suspecting that a regulated rail vehicle does not conform with those provisions of accessibility regulations with which it is required to conform. The paragraph also grants similar powers of inspection following the issuing of notices under paragraph 6. “Inspectors” are empowered to examine and test such rail vehicles and to enter premises at which it is believed they are kept, and to enter them. If an inspector is intentionally obstructed in the exercise of these powers by an operator, or someone acting on the operator’s behalf, the Secretary of State may, in certain circumstances, impose a penalty on the operator.

Background

920.     This paragraph replicates the provisions of section 47G of the Disability Discrimination Act 1995 inserted by the Disability Discrimination Act 2005 but not yet in force.

Supplementary powers: paragraph 8

Effect

921.     This paragraph allows the Secretary of State to issue a notice to a rail vehicle operator requiring them to provide information by a specified deadline to enable a rail vehicle which is described in that notice to be identified. A penalty may be imposed on the recipient of such a notice if they fail to provide the information required by the deadline, which must be a minimum of 14 days from the date on which the notice is given.

922.     Provision is also included to incentivise compliance with notices served under paragraphs 5 or 6 (notices requiring rail operators to make vehicles, or their use, compliant with accessibility regulations). Operators may be required to state what steps they are taking to comply with such notices.

923.     In default of providing this information, the Secretary of State is empowered to proceed to the “further notice” stage under paragraphs 5 or 6, a precursor to charging a penalty for non-compliance.

 
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Prepared: 19 November 2009