Examination of Witnesses (Questions 1
- 19)
WEDNESDAY 11 FEBRUARY 2004
MR BERT
MASSIE AND
MS CAROLINE
GOODING
Q1 Chairman: Good afternoon, and
thank you for joining us. Would you be kind enough to introduce
yourselves?
Mr Massie: I am Bert Massie and
I chair the Disability Rights Commission.
Ms Gooding: I am Caroline Gooding.
I am Special Adviser to the Disability Rights Commission.
Q2 Chairman: Is there anything you
would like to say by way of a brief statement before we start
to ask questions?
Mr Massie: Not a great deal because
I want to give you the chance to ask the questions. The DRC was,
of course, set up by Parliament to help enforce the Disability
Discrimination Act. One of our statutory duties is to monitor
the Act and how well it is working and to make recommendations
to Government and others on changes which might be necessary.
When we do present our views to you this afternoon we do so not
just as people of the DRC gathering round and thinking what might
be a good policy but our views are based on our help line, which
this year received 120,000 calls from disabled people. We investigate
just under 2,000 cases of discrimination a year and so we know
what goes wrong and the cases we cannot take because the law is
inadequate. In 2002 we published a review of the legislation,
which we did after extensive consultation, and we also looked
at the legal cases which have succeeded and failed. When we are
recommending changes it really is quite heavily evidence-based.
Q3 Chairman: What is your overall
reaction to the draft bill? What do you think its impact will
be on disabled people?
Mr Massie: We welcome the bill;
we give it a very warm welcome. We think as the bill stands (and
we hope to improve it, of course) it will already have a very
positive impact. The most obvious one is that on the extension
of the definition it would cover, we think, about another 73,000
people. There are huge difficulties in housing, which we will
come on to later, and we welcome the improvements this will bring
forward. We have many cases where the transport industry has not
catered for disabled people. We know now that the Government has
issued regulations requiring, for example, buses to be accessible,
but we do have cases where an accessible bus turns up and refuses
to allow a wheelchair user to get on the bus. You have got the
technology, you have got the system; all you have got is the wrong
driver and no legislation to protect the person's right to get
on the bus, and so those are very important provisions in this
bill. The extension to small employers again is critical because
this is where all the new jobs in the country tend to be, not
with the big companies, so this extension is one we have been
calling for for a long time, indeed since the Disability Discrimination
Act was itself a bill. We think the opportunity of opening up
better leisure and sports opportunities is excellent in private
clubs. In fact, I had a meeting this morning with SailAbility,
who provide sailing opportunities to disabled people, and they
were saying that this bill gives them what they have been looking
for for an awfully long time. Not only will an organisation like
SailAbility be able to provide their services but they are now
going to the integrated sailing clubs and saying, "You have
a duty now; it is coming very soon, and we can help you",
so it is all very positive stuff. I think probably the bit which
is going to have the biggest impact is going to be the public
sector duty. This really will move the public sector from tolerating
disability and doing what they have to do but no more to having
to be much more proactive and really promoting the rights of disabled
people. I think that is going to have a really big change in the
lives of disabled people in this country.
Q4 Baroness Wilkins: In your evidence
you say that people with mental health problems face the biggest
hurdle in claiming their rights under the Disability Discrimination
Act because the definition of disability inadequately captures
the obstacles they face. You have made a number of recommendations
about the definition in your evidence which have not been included
in the draft bill. Do you think the bill will be seriously flawed
if they are not included in the bill and why are these changes
that you have recommended so important?
Mr Massie: I will ask Caroline
to come in on the details on mental health. Looking at the cases
we cannot bring or the cases in tribunals which are lost, people
are having to prove they have a mental illness, and if we cannot
stick a diagnostic label on to their condition it is almost invariably
excluded. Also, the nature of mental illness tends to differ from
many physical impairments in the intermittent nature of some mental
illnesses, so it means that people do not even clock up the 12
months so that they qualify for help under the Act. We did argue
in our legislative review, and indeed in the evidence we put to
you, that there should be changes to the definition of disabled
people to cover mental illness. We have not yet persuaded the
Government of that and I know that there is opposition to those
changes from some sectors of industry who are afraid that if the
definition becomes in their view too vague it will be a gateway
through which many people pass.
Ms Gooding: I want to emphasise
that when we carried out the legislative review last year this
was one of the major weaknesses that we saw in the definition
of disability, the group of people who are widely recognised as
experiencing a high level of discrimination and pure prejudice
but actually, when we looked at the cases of people who were finding
it difficult to bring themselves within the protection of the
Disability Discrimination Act, we found that people with mental
health problems were the number one group who were finding the
most difficulty. That was for a number of reasons that Bert has
alluded to, most obviously because the list of day-to-day activities
in the Disability Discrimination Act, which you have to establish
as substantially impaired in order to be covered, does not really
reflect the reality of the impact of mental illness on people.
It talks mainly about physical impairments. There is the ability
to learn, understand or concentrate and the perception of risk
or danger. Those are the two categories that people with mental
illness have to try and bring themselves within and it is very
difficult and very artificial. Classically, one of the major impacts
of depression is in your ability to interact with other people
to form social relations. That is not captured by the bill. Also,
although the perception of risk of physical danger is there in
terms of the day-to-day activities, that does not capture the
situation of people like one case that went up to the EAT where
somebody with bulimia, who was self-harming, drinking bleach,
making herself vomit, I think she was cutting herself as well;
all of that activity, was held not to be covered because they
said that her condition did not have a substantial impact on her
day-to-day activities. She knew the risk of harming herself; she
chose to do it voluntarily, was their attitude, so it is not adequately
capturing the reality of the impact of mental illness on people's
lives. That is the most obvious thing that needs to be changed.
On that one, when we did our consultation on the legislative review
proposals, we found that there was quite a lot of support for
that, even from organisations that you might be surprised to find
supporting it. People like the Institute of Directors said, "We
would expect people with this sort of mental illness to be covered.
If they are not, they should be", so there was quite a lot
of support for that one. The second difficulty is the number of
hurdles. There is an additional hurdle that people with mental
illness have to pass in order to be protected by the Act, and
that is that when you have a mental illness you have to show that
it is clinically well recognised. This is proving to be very difficult.
The stated policy intention behind that requirement, which does
not apply to physical illness, is to screen out people with mild
moods and eccentricities, trivial forms of conditions which are
not really mental illness. What we are finding is that the cases
show us that the people who do have a mental illness—and
nobody really doubts that—cannot bring it within the exact
specification of the international classification of diseases.
There was one case which again went up to the Employment Appeal
Tribunal where somebody had a very long history of depression,
very well documented, she received treatment for it, it had a
major impact on her life. Because she only produced the GP's notes,
she did not produce a consultant's report which went through the
international classification of diseases' list of symptoms for
depression, the tribunal said (and the EAT upheld it) that she
had not established that she had a clinically well-recognised
condition. She had all the symptoms, and nobody was doubting that
she had symptoms which impacted upon her life substantially, but
she could not bring herself within the exact set of symptoms that
are described. That does not seem right in an anti-discrimination
provision. It does not apply to physical illness and, certainly
when we consulted on this proposal, that was something that groups
representing people with mental illness felt very strongly about.
They felt that the law itself discriminated and was almost saying
that people with mental illness were more likely to be malingerers
and putting it on than people with physical illness. As Bert said,
there was some concern from employers about that proposal, but
in terms of the reasons that the employers gave for their concern,
it was that this would open up a channel for abuse of the law.
That does not take into account the other hurdles that already
exist that somebody who is claiming protection under the Disability
Discrimination Act has to pass. The final point, which Bert has
already referred to, is the fact that for some people who have
a history of ongoing mental illness each bout of depression, for
example, may well last well short of 12 months and therefore they
are not protected by the Disability Discrimination Act because
you have to show that it is going to have a long term impact.
There is provision in the Disability Discrimination Act which
says that if you have an impairment which has a recurrent impact
that will be deemed to be long term, but the problem for a lot
of people with depression is that again it is to do with medical
evidence: clinicians will not say to them, "You have an ongoing
impairment, a low-lying depression which is there all the time".
Each depression is a new event and therefore it does not come
within the recurring condition provision of the bill. That seems
to us again not right. We had one DRC case where somebody was
turned down for a job which they otherwise would have been successfully
appointed to because they had a history of attempted suicide.
Because no particular bout of depression that he had experienced
lasted as long as 12 months he was not covered by the DDA, and
again that seems to us wrong. I think it would be a big missed
opportunity if this bill did not include provisions to strengthen
protection for people with mental illness.
Q5 Tom Levitt: You recommend in your
evidence that the definition of disability should be extended
to cover people who are perceived to be disabled and people who
are associated with people who are disabled. Do you think the
argument for those two inclusions are equally strong, or is one
stronger than the other, and do you think there is a danger that
including those groups might dilute the effectiveness of the act
or cause confusion?
Ms Gooding: Our starting point
on this issue is that our reading of the European Framework Directive
is that that requires these two situations, if you like, to be
covered by the Disability Discrimination Act, so we think the
argument is a legal argument in that sense and that the same applies
to both of them. If you look at the European Framework Directive,
it provides that Member States have to prohibit discrimination
on the grounds of disability, sexual orientation, religion, age.
In terms of the sexual orientation and religion regulations, which
were brought in at the same time as the disability regulations,
the notes make clear that they cover discrimination related to
perception and association, but that is not the case with disability,
so we think that if the Disability Discrimination Bill does not
remedy that incomplete transposition of the directive eventually
the issue will end up in front of the European court. In that
sense the basis of the argument is the same for both perception
and association. We think that the Framework Directive requires
them to be covered. With regard to how it would work in terms
of disability, it is not as confusing as it might seem. The worry
that you were pointing to in your question perhaps would be diminished
by the fact that the prohibition on discrimination and perception
and association only applies to direct discrimination. There is
no requirement in our reading of the Framework Directive for reasonable
adjustments for people who are perceived or associated. It is
just direct discrimination that is prohibited in relation to association
and perception. I think that answers the point about diluting
the effectiveness. The real impact of the DDA in terms of changing
employers' practices and service providers' practices is in relation
to reasonable adjustments. That will not be required with regard
to people who experience discrimination on the basis of association
or perception. In terms of confusion, in a way it would be helpful
to have a consistent approach across the different discrimination
strands, so that if it applies in relation to religion and sexual
orientation people would be surprised if that same approach was
not adopted in terms of disability. I think the general public
would be surprised if somebody who had AIDS or HIV was protected
from discrimination but somebody who did not have that but was
mistakenly thought to have that was not protected. Our fundamental
starting point is that we think that this is required under European
law. We think it would be a helpful addition to the Act and that
it would not dilute or confuse it.
Mr Massie: Can I add that we have
taken legal advice on this? The advice we have received is exactly
as Caroline has outlined to you. We understand that the Government's
lawyers have a different interpretation. That is the nature of
law, I guess. I have this week written to the Minister for Disabled
People giving her a full outline of our interpretation of the
European Directive and suggesting that her lawyers and ours get
together to see if we can find an agreed position because if our
interpretation is accurate then this will certainly be challenged
in courts if the Government does not pick it up before that happens.
Q6 Tom Levitt: Do you think that
that phrase, "people who associated with a disabled person",
would apply to all carers, and is the sort of discrimination which
you are thinking of there not already covered by existing employment
law which does allow people time off for family problems?
Mr Massie: Not necessarily. You
are only trying to ascertain why people face discrimination and
this goes almost into social model territory. It can either be
because you are disabled or because somebody perceives you to
be disabled and treats you as though you were, or because you
are associated with a disabled person. I know of one case where
a woman was refused a job because of an impairment her sister
had and the employer thought this woman might catch it. That is
not covered by any law at the moment and had there been no such
thing in this world as disability the woman would have got the
job. It is only because her sister was disabled that she was refused
a job. It is utterly bizarre, but people behave in a bizarre way.
Ms Gooding: We had another query
that came through from the helpline about somebody who was wanting
to set up a support scheme for people who were HIV positive and
he needed to rent premises. Because his fax had the heading "Preston
HIV Support Team", the estate agent said that they would
not be prepared to rent those premises because they thought there
would be needles, they thought you might catch things from the
toilet seats and generally they were an undesirable class of customer.
Unless the individual who wanted to rent those premises could
show that it was because of his personal HIV characteristic status
that the landlord had refused him, that situation is not covered
at the moment, but I think it would be if it was protection for
association.
Q7 Tom Levitt: Clearly you welcome
the extension for HIV and cancer and MS, but is there not a danger
in identifying certain conditions but excluding others? I am thinking
particularly of lupus, which is sometimes wrongly diagnosed as
MS. How would you get round that situation?
Mr Massie: You get round it very
easily. You change the draft bill so it covers progressive impairments.
The way the current definition is drafted you only really qualify
when the impairment has an effect on your everyday life in some
way or on your employment, etc, and yet we know that people do
face discrimination when there is no effect of their impairment
at that stage but there might be in the future. The two cases
where this was very obvious were cancer and multiple sclerosis,
but you are quite right: there are many other instances and the
most sensible way of doing this would be for it to cover any progressive
conditions. You might, as the Act is currently arranged, need
to put in something on the conditions that are recognised, I suppose,
to give some protection if people need that, but it would be a
sensible change to the Act. I do not know whether the Government
feel comfortable in going that far but I do at least welcome the
way they are moving. It is the right direction.
Q8 Tom Levitt: If all those changes
were made and having a progressive condition was covered by the
Act at the end of the day, and therefore someone was protected
against discrimination because of the way in which their condition
might develop in the future, would you still stand by your call
in paragraph 8.22 of your evidence for the rules relating to disability
benefits to be harmonised with those for disability discrimination,
because it seems to me that on disability benefits it is about
the disabling effect on someone's work capacity?
Ms Gooding: I think perhaps our
evidence was not as clear as we might have wanted it to be if
you interpret it like that. We do not want the benefit system
to be changed in order to make it consistent with the definition
of disability in the DDA. It was purely, if you like, an evidential
point that we were making, that if somebody has already claimed
specific benefits, so if you have already claimed disability living
allowance, you should not have to go through the additional hoops
in front of a tribunal to show that you are protected under the
DDA. You would need to look at which those benefits were but we
would not intend in any way to make any changes to the benefit
system. The processes for claiming disability benefits are ever
more arduous and complicated and if you have already gone through
that process you should not have to prove it again, and that would
give an element of certainty to the situation and make it easier
to prove your case.
Q9 Mr Berry: If I may come back to
the perception and association point, there is clearly a very
strong moral case for the change you have suggested, but can you
identify disability legislation anywhere else in the world where
this issue has been addressed satisfactorily?
Ms Gooding: The Australian and
Irish legislations have very broad definitions of disability which
include association and perception and that has not caused any
problems. In America the American Disabilities Act does cover
perception as well and there have been a number of very difficult
Supreme Court decisions on the definition of disability, including
one on perception which has not been helpful. Certainly in Ireland
and Australia the definition does extend that far and there have
been no problems.
Q10 Mr Clarke: There was an exchange
in the House on Monday at Question Time when Tony Wright, the
MP for Great Yarmouth, asked Maria Eagle if she would regard ME
as something that should be considered as part of the definition
on disability, but her reply essentially was that there was not
any evidence of discrimination. Would that be the view of the
DRC?
Mr Massie: I would like to see
the minister's reply in more detail. If somebody has ME, ME can
be really very debilitating and there would clearly be some cases
of discrimination, just thinking about that impairment, but it
could be tackled under the current bill. We would not need to
change the definition to cover ME. It would be covered now, so
I do not see any legislative change is needed. ME does give you
a good example of going back to the issue on mental health because
when ME was first apparent you will recall that many people who
had it were told they just had yuppie flu. It did not really exist
as a disability because the doctors did not have a label for it
and the fact that people were profoundly disabled was being seen
as psychosomatic because the doctors did not have a label. That
is happening to some extent now with mental illness. If the doctors
do not have a label it does not exist. It is almost as though
the medical profession has to have the label and then you are
allowed to be disabled. That is why we have been calling for the
change in the mental illness definition. I am not saying people
with ME do not face discrimination; I think they do. In fact,
I have friends who have ME who do face discrimination but it is
not an issue over and above any other impairment group at the
moment. If an issue comes up we can deal with it.
Ms Gooding: There have been a
number of successful cases brought by people with ME. I am not
aware of any cases where somebody has attempted to bring a case
of disability discrimination who has ME and has not been covered
by the Act. There may be some but I certainly have not seen any.
Q11 Chairman: On the point of amending
the bill, perhaps the easiest way to do it would be if there were
a regulation-making power which allowed the Government to add
in other conditions as they became known, because over time this
will happen. Would you agree?
Mr Massie: It would be helpful
because then we do not close the gate on tomorrow.
Q12 Chairman: Exactly.
Mr Massie: But I still think there
is a case even now for saying let us include progressive conditions.
It is the nature of progressive conditions that when they start
they are quite minor and that is when you start facing discrimination,
when an employer might think, for example, "Well, they are
okay now. What is it going to be like in two years' time and they
have got all this employment legislation? I cannot get rid of
them easily". If they thought of it another way and said,
"Okay; in two years' time they are going to need extra support
and we will start building that in now", so that you change
the mindset, it could mean that some people could have jobs who
would not have them otherwise. That is a change I would like,
but if the Government does not feel able to do that then your
suggestion is helpful.
Q13 Mr Goodman: Returning to the
social model, you have said that you see the attraction of using
the social model for disability in the longer term. Can you explain
why this is and, if the model is so attractive, why should it
not be used in the short term or the medium term?
Mr Massie: The timing issue, if
I can take that first, is that we think this is a very important
bill and we would like to get it through Parliament as quickly
as possible and get Royal Assent to it. We think that the issue
of the social model is quite complex. We think that if we threw
it into the pot at the moment it would delay things quite considerably.
There would need to be very wide consultation and I suspect that
there would be in some parts of society quite a lot of opposition,
so we think the time will come for a social model definition but
pure pragmatism tells me that the time is not now, no matter how
much I would like it to be. Why is it sensible? If somebody faces
discrimination on account of disability and the first thing they
have to do—and they are now spending sometimes five days
in a tribunal doing this, which, of course, the lawyers love—is
actually prove they are disabled, surely the issue should be,
"Has somebody faced discrimination?", and if that can
be linked to an impairment in some way you should be covered by
it. The social definition would do that. We have moved towards
a social definition already with the debate which Tom initiated
here on the perception of disability. That is the social model;
it is an element of it. It is saying, "Look: you are not
disabled but, because other people treat you as though you are,
which is their construct of society, not yours, then you are being
treated as though you were disabled". Our view therefore
is that it would be easier if we did move towards a social model
definition but there is not one in other legislation at the moment
in other parts of the world which is pure social model. At some
point all the legislation around the world comes down to some
sort of impairment base model, and so I think there is some thinking
to be done about how you take this philosophical concept and put
it into legislative terms, and I think we still need to work through
that and we have not quite got there yet. It is absurd, it seems
to me, using scarce resources trying to justify that somebody
who is obviously disabled is disabled before they can even attack
the issue on which they are being discriminated against. The first
case the DRC took to the Appeal Court was of a man who had a mental
illness. His employers, who were a local authority, argued right
up to the Appeal Court that he was not mentally ill. This man's
inability to cope with some of the things that were happening
around him was so obvious if you met him and yet he was trying
to find a clinical label. A social model definition would cut
round that right away and this defence that the local authority
put up to justify outrageous behaviour would have fallen very
quickly. We want to move towards it; we think it needs more work
and we do not think in legislative terms we are ready for it yet
but we want to start moving towards it.
Q14 Mr Goodman: How strong do you
think the opposition to the model is?
Mr Massie: Not quite as strong
as one might think. When we have done our own consultation about
this we have been encouraged that organisations such as the Employers'
Forum on Disability, which is a large group of employers, have
sympathy with this approach, as indeed do the Local Government
Association. Looking at the resistance to some of the more incremental
changes of definition which we have already spoken about this
afternoon, we know that the CBI have some anxieties and we need
to work through them. I think if we tried to do that in this bill
those anxieties would delay the bill quite a long way and would
not go anywhere. In fairness to the CBI, and indeed to the Federation
of Small Businesses, who have been very supportive, as have the
Institute of Directors, which are all major organisations, all
of them are beginning to think more and more on these lines. I
think the anxieties they have—and you can understand the
anxieties; they represent a lot of employers with a lot of jobs
at stake; I do not in any way underestimate and under-value their
tensions—we can work through in time and already the ground
on which we work is changing in a much more favourable way. If
you go back to what the employer organisations were saying 15
years ago, they were hostile to any legislation. Now they are
welcoming it and supporting the legislation and helping us find
ways of implementing it with their members. I think there has
been a massive change in employer organisations and if that progress
continues I think there will come a time when my successor will
be coming to you and saying, "What we need here is a social
model definition", and you will say, "We have thought
that for ages. Let us get on with it", and we will all clap.
Q15 Lord Swinfen: With the social
model, and it is a matter of perception, does it not make an Act
incredibly difficult to police?
Mr Massie: No, because first of
all you have to have the discrimination. If somebody does not
get discriminated against they really do not have a case. The
first thing you have to prove is that you face discrimination.
Then you have to prove that it was on account of a disability
or a disability related issue. It is for the discriminated against
to prove the discrimination rather than the discriminator or potential
discriminator to prove that they have not discriminated, so the
onus is quite different here. When you look at the cases it is
always the disabled person trying to prove their case. Secondly,
why would somebody who, for example, has been thrown out of a
football match because they are a yob and they are drunk, try
and say, "It is because I am disabled"? On what basis
would they argue it? The courts would just throw it out. I really
do not think there would be a major problem. I think the problem
would be if the judiciary tried to create their own definitions
and on that we need to do a lot more selling and a lot more thinking
through. I do not think it would be a problem but I do not think
the ground is yet right for legislation. We need to do more thinking
on it.
Q16 Miss Begg: On that last point,
there is the fact that in the first case you have to prove discrimination.
That is relatively easy, but then you have to prove the grounds
for that discrimination and that is where you need a definition
of disability. Is not the ultimate answer to all of this for us
to have a single equality act and in that way all you need to
prove is the discrimination? It does not matter what the grounds
are and that is the only way that you are going to fill all the
gaps with regard to definition, because it does not matter whether
it is medical, social or economic or whatever the model is that
you use: it is always very difficult to draw up that definition
which is watertight and will cover everybody in all circumstances
and the thing that is wrong is the discrimination irrespective
of what reason it is for?
Mr Massie: Yes. So you are calling
for a single equality Act? It is music to my ears, I have to say.
I have been calling for a single equality Act for years and have
singularly failed to persuade the Government of the wisdom of
my words, but keep on going. I think at some point you are still
going to have to show that somebody has been treated in an inferior
way to somebody else and so ultimately, even with a single equality
act, unless you cover everybody in the entire population against
any sort of beastly behaviour, you are still going to have some
groups to whom you say, "This is more important than for
other groups" and, with the Government's proposals on a commission
for equality and human rights, they are looking at six groups
and one could even suggest seven or eight. You are still going
to end up at some point down to definitions, but what we are going
to find in future years is that because the Government is not
persuaded of the wisdom of having a single equality Act you will
have a hierarchy of discrimination amongst groups and a large
part of the case for a Commission for Equality of Human Rights
is undermined immediately because they will say, "We want
to be equal". Well, no way. You choose which aspect of your
identity you want to play on this because that is where your rights
are going to be. If you are an elderly, disabled Muslim going
to a night club and you get turned away, forget you are elderly,
forget you are a Muslim. Your right here is based on your disability.
It does not make sense, so I agree with you totally: we need a
single equality Act but it is not going to happen in this bill.
It does need another bill. My view is that the Government should
be thinking about that much harder before they go ahead with a
single equality body because they are putting the cart before
the horse and the single equality body will not be anywhere as
effective as it could be if it was set up in the right way. Unfortunately,
that is not the Government's current proposal.
Q17 Mr Berry: The thing about this
bill is, of course, that transport operators are to be embraced
within some of the legislation. With regard to the regulations
that could be provided under clause 3 of the bill, could you indicate
what sort of thing you would like to see there?
Mr Massie: There are several things:
first, a tiny bit of history, which you will remember. Back in
1994/1995 when the DDA was being written, when the bill was published,
transport did not appear at all. Part 5 of the current Act did
not exist, even in the bill form. Transport was brought in by
a large amendment in the Upper House and late in the day. They
gave the Government regulatory powers to specify, in the case
of taxis, buses and trains, that they should be accessible and
they had to define accessibility. It was quite important that
that approach was taken because you could not just lift part of
the building regulations and apply them to transport. It would
be singularly inappropriate, for example, to put lavatories designed
to building regulation standards on to a train. You would need
to widen every tunnel in the country, so it just was not going
to happen. It was a sensible approach but, because transport at
that stage was still largely inaccessible, Part 3 of the Act,
Accessibility to Services, was not linked to Part 5. What the
draft bill proposes is to give the Government regulatory powers
to make that link. That would mean that if the bus operator, to
whom I referred earlier (and it is a true case), turned up and
left the person at the bus stop, the person would have recourse
in the courts against that operator in much the same way as if
a shop refused them entry, so that is welcome. It would also mean
that on trains, for example, if a person cannot get to the buffet
car, either because they are a wheelchair user they cannot physically
get there, they cannot get down the aisle, or because they have
an impairment which makes it difficult or impossible to walk on
the train because of the train movement, they then might be able
to say to the staff, "Can you bring a cup of tea to my table
as I cannot go and get it?". That is not currently a requirement.
I remember on one train asking somebody whether they would go
and get me a cup of tea and he replied in two words, one to do
with sex and the other with travel, and I had no recourse. I think
it is important to put that right. You might need to put different
duties on to different modes of transport, so, for example, the
duties you might impose on a rail operator would be rather different
from the duties you would put on a taxi driver. I think the Government's
approach is right and we welcome it. What we are anxious about,
of course, is the time frame. The Government is consulting at
the moment on the end date to make rail coaches accessible. There
are a number of dates being thrown around and in our submission
we have suggested, if we can get away with it, 2017. I do not
think for a second we will get away with 2017. It has a nice symmetry
because it is when the buses will be accessible, but coaches will
be accessible by 2020. If you look at the time frame under which
trains undergo major refurbishment—and by that I mean that
they are taken into the workshops and virtually stripped down
to the bogeys and rebuilt—that is about every 15 years,
so a time frame of 2020 would enable the railway companies to
do this without having any significantly different expenditure
from that which they will have anyway, so it is achievable. It
might push them a little bit; it will push them a bit, but not
that much. I have heard some wild figures like 2050 should be
the end date. I do not know what your plans are but I plan to
be in my coffin by that date, so we want things rather more quickly.
The first time a wheelchair user could travel inside a coach,
not in the guard's van but inside a coach, was in 1979 when British
Rail made the first (then almost new) Mark III trains accessible.
They took a seat out of the first class. That was the first time
a wheelchair user could travel in their wheelchair in a train
without going in the guard's van. That was in 1979. To ask all
trains to be fully accessible by 2020, which is 40 years later,
is hardly excessive. The railway industry have known this was
coming and, whilst I appreciate that they have got so many issues
on their minds, I cannot believe that in 40 years they have not
got one member of staff who cannot get their mind around this.
I think that when we go for access, if we can agree a date in
2020 or thereabouts, certainly no later, then we need to make
sure that it is fully accessible. We really should not accept
this argument, "Well, we can do the colour contrast but we
cannot put on an accessible toilet". In our submission to
you we have put down one journey, which a certain member of our
staff makes in a wheelchair regularly, between Cardiff and Manchester.
That is four hours without having a pee. Think about it. Have
a pint and then think about it. Then experience it, and then bear
in mind that some of those people will have an impairment such
as multiple sclerosis where being able to control their bladder
for hours on end is simply not an option. When you are uncomfortable,
think of the agony they are going through. In saying that we want
the trains fully accessible, if I say we should be able to have
a pee like everybody else, I defy anyone in this country to say
we are being unreasonable. The railway companies can do it and
they will do it if they are obliged to do it, and I think now
the time for talking has gone: they should be told to do it. After
all, they are mostly spending our money, so let us get these trains
right. That is one thing we do want to see.
Q18 Mr Berry: Let me just press you
on this. In your written submission you are urging the committee
to go for 2017 and now you sort of seem to have said, well, 2020.
Presumably we want this as quickly as is reasonably possible and
there is a judgment about how quickly reasonable people who want
to do it can do it. Are you saying that you do not think it could
be done before 2020 or that it is a kind of compromise because
the Government is talking about 2025, you think 2017, so 2020
is the third way?
Mr Massie: No, I have never been
accused of being third way—or even first or second!
Q19 Mr Berry: Is 2017 realistic,
is the serious question?
Mr Massie: I think it could be
achieved if the Government insisted on it and the regulator really
decided to do it. The defence could be that you are now asking
us to bring in trains for refurbishment earlier than would otherwise
happen. That would be the argument and then the thinking I am
doing is, would we win that argument or would we not? Looking
at some of the trains around at the moment, which do not conform—even
new trains do not conform with the regulations they are supposed
to be conforming with—what really is the Government's power
to do something about it? The Government's power really is the
nuclear option: they can take away the franchise or have the train
withdrawn. They withdraw the train and then there are no trains
on the service and that is not going to go down terribly well
with the rest of the population. It is just trying to say, is
there something here which is readily achievable? I think 2025
is just too long. It is a leisurely pace and I think industry
would be happy to accept it because, frankly, it does not involve
a great deal. 2017 would push them and that was our original proposal,
but there would almost certainly be objections. 2020, if there
are objections, they are going to be pretty feeble and should
be knocked aside, so, push it by all means. That is my reasoning.
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