DDB 130 Royal National Institute for the
Blind - Additional Submission
Additional submission to the Joint
Committee further to the evidence session held on 31 March 2004
with Maria Eagle MP and Tony McNulty MP.
1. Triggers
1.1 The Minister made reference in
her submissions to the committee to there being two different
triggers in relation to reasonable adjustments: in particular,
the Minister said that :
- Where there is a long-standing
relationship (such as in employment) there is a low trigger balanced
by a reactive duty
- Where there is a more transitory
relationship, there is a higher trigger but an anticipatory duty
1.2 There was no reference, however,
to the duties in Part 4 of the DDA (as amended by the Special
Educational Needs and Disability Act 2001) relating to education.
Those duties will often relate to a long-standing relationship,
and there is a lower trigger (that of substantial disadvantage)
but the duties are anticipatory, as is clear from the language
used in sections 28C and 28T (which detail the reasonable adjustment
provisions) and from the attendant Codes Of Practice.
1.3 In addition, it is also clear from
the wording of the reasonable adjustment provisions in s.21(4),
relating to goods facilities and services, that there is an additional
trigger in relation to the provision of reasonable adjustments
by means of auxiliary aids and services: that of where it would
enable or facilitate the use of a service.
1.4 RNIB's view remains that there
should be a universal trigger of "substantial disadvantage",
regardless of the nature of the relationship and regardless of
whether the duty is an anticipatory one or a reactive one: in
particular, we would wish to see the trigger in relation to public
functions (and of course in Part 3 in general) being amended to
one of "substantial disadvantage", rather the confusing
approach being proposed in the draft bill.
2.
Public authority definition - Clause 8
2.1 RNIB welcomes the Minister's
comments in committee that, where an organisation carries out
a public function on behalf of a public authority, the intention
would be that it would be covered by the public sector duty, in
view of the Human Rights Act definition of public authority used
in the draft bill. However, following the report of the Joint
Committee on Human Rights on the meaning of public authority under
that Act (The
Meaning of Public Authority under the Human Rights Act, Seventh
Report of Session 2003-04), RNIB has grave concerns that this
intention may not be manifested in the implementation of the legislation.
2.2 The JCHR has expressed considerable
concern that the application of the "functional" public
authority provision in section 6(3)(b) of the Human Rights Act
(i.e. not a pure public body but a body which exercises some public
functions) leaves real gaps and inadequacies in human rights protection
in the UK, including gaps that affect people who are particularly
vulnerable to ill-treatment (JCHR report as above, page 50). It
has considered a number of solutions, including amending legislation,
(to include, for example, the provision of a schedule of listed
authorities). It has rejected such solutions in favour of the
Government intervening in the public interest as a third part
in cases where it can press the case for a bread functional interpretation
of the meaning of public authority. It has also produced guidance
on the meaning of public function (principles of interpretation),
which it hopes will be adopted.
2.3 RNIB would ask the Committee
to consider the efficacy of the current definition in light of
the comments in the JCHR report.
3. Governors
3.1 We welcome the Minister's confirmation
that the appointment of governors is covered as those appointing
them will be covered by the public functions provisions of the
draft bill. However, we have additional concerns that have not
been addressed.
3.2 Appointed governors may be covered,
but the status of elected governors has not been clarified.
3.3 In addition, whether or not the
appointment of the governors is covered, our main concern will
not be addressed by the public function provisions; and that is
that disabled school governors need to have access to reasonable
adjustments to enable them to carry out their duties effectively
(in the same that the government has acknowledged is necessary
for councillors, by virtue of Clause 15). We believe that it is
essential that the DDA's protection extends to governors after
they have been appointed or elected. In order, for example, for
blind or partially sighted governors to be able to carry out their
responsibilities it is vital that they receive information in
an accessible format such as large print, tape braille or an electronic
format.
4. Enforcement
4.1 Maria Eagle disputed the figures
that Tom Levitt quoted, which were in the Disability Charities
Consortium submission and RNIB's submission. We want to confirm
our commitment to those figures and belief in the genuine need
for part 3 DDA cases to be heard in Tribunals in order to improve
access to redress for disabled people.
4.2 The two figures, (from 'Monitoring
the Disability Discrimination Act 1995 (Phase 2)', Income Data
Services & DWP, February 2002) were for the periods 1996 to
September 2000 and 1996 to February 2001. We do not consider that
the five-month difference within the context of nearly five years
is relevant when the figures are so vastly unequal:
- 8,908 Part 2 cases were issued
and/or decided from when Part 2 came into force up until 1st
September 2000.
- 53 known Part 3 cases were issued
from when the DDA came into force up until 1st February
2001.
4.3 The Minister also claimed that
we should not regard a low number of cases as indicating that
legislation is not working. We would dispute this view in relation
to the low level of part three cases heard. To support this we
have attached a Campaign Report 'Price of Justice' that RNIB produced
in 2001 on the problems disabled people are experiencing in taking
goods and services cases in the County or Sheriff courts. For
example, we would contend that it is clear that the £250
fee for issuing a claim, the £100 fee for the allocation
questionnaire and the possibility of losing and having to pay
all costs, are deterring disabled people from taking service providers
to the County Courts. We feel sure that the number of cases taken
since February 2001 has not significantly increased, whilst levels
of discrimination experienced by disabled people has not, in our
view, decreased.
5. Landlord and Tenant Act, 1927.
5.1 In her evidence the Minister did
not address the additional concerns we have in relation to the
1927 Landlord and Tenant Act.
5.2 The Act does not apply to Scotland
and therefore we will have a situation where different standards
will apply.
5.3 The Disability Rights Commission
has no powers to take cases under the LTA 1927, meaning that disabled
people will be unable to get comprehensive assistance in relation
to premises, when they can in relation to other areas such as
goods and services.
5.4 The LTA will not be of assistance
to disabled people who have contracts stating explicitly that
they cannot make changes to their premises. In order for this
to be challenged the policies, practices and procedures clauses
of the draft bill are needed to ensure the policy is either waived
or changed.
5.5 We do not know how the concept
of reasonableness in the LTA (land law) will relate to or complement
the concept of reasonableness in the DDA.
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