Examination of Witnesses (Questions 40
- 59)
WEDNESDAY 11 FEBRUARY 2004
MR BERT
MASSIE AND
MS CAROLINE
GOODING
Q40 Baroness Wilkins: You have already
said that housing is a key issue. In paragraph 6.4 of your evidence
you said that it should be made unlawful for a landlord unreasonably
to withhold consent for a disabled person to make physical changes
to their premises. The Government has not accepted that. They
say that this is already covered sufficiently by the Landlord
and Tenant Act 1927. Why do you think it is not sufficiently covered
by that Act?
Ms Gooding: Briefly, five reasons.
One is ineffectiveness. It is clear that the 1927 Act has not
addressed the problem. It has been in force since 1927. As far
as we are aware, there have been no cases brought by disabled
people under those provisions. It is clear, both from the statistics
and from our help-line, this is an on-going problem. Why has it
not worked to date? One of the reasons why it has not worked to
date is because of the narrowness of scope. It does not actually
tackle some of the key issues that disabled people will be facing.
It does not apply in Scotland—I could go into a very long
discussion on Scottish law separately—but it also does not
apply to the common parts of blocks of flats, it only applies
to the flat itself. You are allowed to make adaptations to your
own flat, but not to the front entrance to get in. That is not
a great deal of help most of the time. One of the issues which
we have raised in the memorandum is the fact that the whole issue
is very relevant for owner/occupiers of common blocks of flats.
That was not something that was touched on by the Task Force.
It certainly is not addressed by the Landlord and Tenant Act.
It would need separate provision to ensure that the freeholders,
those who hold the freehold of common blocks of flats, would be
required to allow reasonable adjustments for owner/occupiers of
flats. We get an awful lot of calls to the help-line from owner/occupiers
of flats who have been told by the management company that runs
the block of flats and manages and owns the common parts that
they cannot make changes. So two problems are: ineffectiveness
and that the present law does not cover everything. A third problem
is complexity. It would be very difficult for us to explain how
this law would work. Certain aspects would be addressed under
the Disability Bill or the Disability Discrimination Act; others
the Landlord and Tenant Act 1927; others not at all; and a separate
regime in Scotland. So it would be very complicated. Fourthly,
the Landlord and Tenant Act, even if it were invoked, would not
operate within an anti-discrimination context. The way in which
reasonableness would be determined would be along property law
principles, not along the anti-discrimination provisions. Finally,
we could not publish statutory codes to say what we thought should
be taken into account in terms of reasonableness, which would
actually give guidance to the courts and to landlords. We would
not be able to issue statutory codes and consult on reasonableness
factors and we would not be able to enforce the Act. There are
many reasons why we do not think the 1927 Act meets the problem.
Of course, the approach which we would like to see in the Bill
was a Task Force recommendation that the Government originally
accepted and said they were going to consult on the reasonableness
factors, and since then the issue of the 1927 Act has emerged.
But, for these reasons, we do not think that Act is going to be
effective. We think we need a strong, clear, statutory non-discrimination
provision which we would be able to promote and enforce.
Q41 Baroness Wilkins: So you have
had a lot of evidence to show that landlords are unreasonably
withholding consent. Are there circumstances in which you think
it would be reasonable?
Ms Gooding: Yes, there would be,
there are, circumstances. I looked, for example, at the Part III
code of practice, which applies to commercial owners of property,
and they are not allowed to unreasonably withhold consent. If
it was going to cause a great deal of disruption to other tenants,
significant cost to the landlord, that could be unreasonable.
Consent might be made subject to reinstatement. It would be reasonable,
in many cases, for the landlord to say, "Okay, you can do
this, but you have got to reinstate." It might be reasonable
for the landlord to say, "Okay, you can do this, but I have
to approve the plans and I have to be satisfied that the building
contractor you are going to use is going to be a reputable one."
So there are many different factors that would come into reasonableness,
and there would be occasions where it was reasonable for the landlord
to either refuse or to make the consent subject to conditions.
Mr Massie: Could I come in? I
am not sure how important this is. 42% of social landlord housing
contains either a disabled person or someone with a long-term
illness. A few weeks ago I went to the hospital to get a new wheelchair.
It is a long story, but, much to my surprise, everything I asked
for they kept saying, "Yes". I was absolutely astonished.
So when I said, "Oh, well, you are going to give all this
in April, aren't you, because you are out of money", they
said, "No, we've got packs of money." So I said, "Well,
this is not the health service I know. Why have you got lots of
money?" They said, "Well, we are supposed to give a
lot of people powered wheelchairs in this area, and they need
them, but we cannot give it to them because we cannot get them
out of their houses." We are trapping people in their homes.
Here is the state, through another arm, willing to help, has resourced
it adequately and we cannot help simply because we cannot get
people out of their homes. So a lot of civil rights legislation
for some people becomes useless if you cannot even leave your
house. So it really is important to get this right.
Q42 Miss Begg: I would agree with
that. I know of too many examples myself. But it is not just landlords
that can withhold consent, it is either co-tenants, if it is in
a block of flats, or neighbours. To what extent does the draft
bill force or make provision to prevent co-tenants in a block
of flats unreasonably withholding consent? Secondly, often because
ex-council housing has been sold off—so a number of flats
could be sold off in a block—there are owner/occupiers alongside
council tenants and the owner/occupiers withhold consent for changes
to the communal areas. Does the draft bill, as it is drawn up,
answer both of those things?
Ms Gooding: No, it answers neither
of them. Neither of them would be capable of being resolved under
the present drafting.
Q43 Miss Begg: Should it be?
Ms Gooding: Certainly; both of
them should be.
Q44 Miss Begg: I have one more question.
Under the current legislation, a lease containing an absolute
covenant against making alterations to premises would, prima
facie, be valid. Does the DRC believe that landlords should
be prevented from including such conditions? I think that just
means can they put in the lease that you are not allowed to make
any adaptations?
Ms Gooding: Well, our concern
is solely whether or not tenants and owner/occupiers who need
to make adaptations because of their disability should be allowed
to do so. So, in a sense, that goes beyond our scope. As far as
we are concerned, landlords could be allowed to have such a clause
in their tenancy agreements, but it would have to be made subject
to a specific provision within the disability bill that, where
the adaptation was required by a disabled occupier, the landlord
should not withhold consent. So we do not say change landlaw generally:
all we are looking for is for disabled people who need consent
to be allowed to pay for their own adaptations to the property.
Q45 Lord Swinfen: Disabled people
can get grants to adapt their own dwelling. Should they leave
that dwelling, should they be able to get a grant to put it back
into the state that the landlord requires them to put it back
into?
Ms Gooding: That is an issue.
At the moment the disabled facilities grant will only pay to make
the adaptation, not to unmake it. I think we would need to look
at the funding and the context of the disabled facilities grant.
We know that it is over-stretched and is not working entirely
well at the moment. We would not want to over burden it with greater
expectations; so we need to look at that.
Q46 Lord Swinfen: Who then, bearing
in mind that many disabled people are on very low incomes, is
going to pay to put the property back into the condition that
the landlord requires at the end of the lease?
Ms Gooding: If the disabled facilities
grant was not extended to cover that, then it would have to be
the tenant; but many tenants actually do have money, they want
to make the adaptations aside from the disabled facilities grant
and cannot. Many people who get the disabled facilities grant
have to contribute towards it as it is. So, yes, there would be
a cost issue there, but I think that the fundamental principle
is about addressing this whole issue of landlord consent before
we can get on to the disabled facilities grant.
Chairman: Can we move on to Employment
Tribunals.
Q47 Mr Clarke: I am very, very interested
in your memorandum on this issue of employment tribunals. I quote
briefly from 10.22. You say, "We are aware of cases in which
disabled employees have succeeded in establishing that their dismissal
was discriminatory, winning the DDA claim and wanting to return
to work, but the tribunal lacked the power to provide for this."
I would like to hear your view on that as well as on the broader
question of the powers and jurisdiction of employment tribunals.
Ms Gooding: In relation to that
particular point that we were making about reinstatement, this
was a recommendation the Task Force made which the government
accepted but has not actually put in the Disability Bill. At the
moment all tribunals can do is make a recommendation. They do
not often do that. It is not going to apply in lots of cases.
In many cases the situation with the employer has so broken down
that the disabled person does not want to go back to work; but
in some cases the person very much does want to go back to work,
they win their case and the tribunal cannot make an order. There
was one case that I know about: somebody who was appointed to
be a bus driver, when they discovered that he had this particular
medical condition, within about a week of him being there, they
dismissed him. He won his claim, but he could not get reinstatement.
He was working in Brighton. There are only two bus companies in
Brighton. The other bus company was not hiring. All he got was
money to compensate him for the loss of the job. He did not have
a job. His job, his vocation was being a bus driver and he was
not able to go back to work. So it is not going to happen that
often, but, where it does, it is appropriate, as the Government
accepted, that there should be power to make reinstatement; and
I know that it is something that the other equality commissions
would welcome as well. That is the issue on reinstatement. There
is also a broader issue which, I think, goes down to the effectiveness
of trying to promote equality through taking individual cases.
The individual taking the case obviously wants to get their own
recompense and restitution for discrimination, but quite often
they will have a concern, a broader concern, for justice; and
certainly we would want to see individual cases having that knock-on
effect of promoting equality and awareness where situations have
gone wrong. Another Task Force recommendation was that tribunals
should have power to make recommendations that employers change
their practices in certain ways. At the moment they can do that
if it relates to recompense for the individual, but as the individual
has often left the job, in many cases tribunals will have been
sitting for weeks, or months, they will know a lot about the employer's
practices, but they will not be able to make any recommendations
for changes to those practices because the individual has left
the job and therefore they do not have the scope or the power
to make the recommendation. A classic example would be somebody
is being harassed and bullied. The organisation does not have
a harassment policy. The individual wins his claim, gets compensation,
but the tribunal cannot recommend that the employer adopts an
harassment policy. You may say it makes good sense for an employer
to do that anyway, but you may be surprised to know how often
employers do not have that good sense approach. What we would
like is for tribunals to be able to make recommendations. The
issue then is, how do you follow up on that? Who actually enforces
that? The individual is not in post to say whether or not that
has been carried out. Actually, the way in which the enforcement
would work would be through the Commission. Again, it may not
arise in that many cases—there are only about 150 or less
successful disability discrimination claims each year—but
where it does apply it could make a real difference. Quite often
you read about cases, you see somebody has won it and you wonder
happened after they left. Has that employer got any better? This
would be a way of improving the situation.
Q48 Mr Clarke: Why do you think that
tribunals are better placed to deal with goods and services than
the courts?
Ms Gooding: Tribunals were set
up to be a more accessible form of justice: quicker, cheaper,
less intimidating, less legalistic In many ways tribunals have
grown since they were first set up. Nevertheless, in comparison
to the county courts and the sheriff courts, they are much more
accessible. They are cheaper; you do not have to pay fees to start
a case. If you are trying to bring a claim under the county court
system, you may have to pay £60, or more, to institute a
claim, plus further costs along the way. In terms of not being
able to access your local shop or the cinema, that is a lot of
money to pay, but we do rely on individuals being prepared to
challenge discrimination. The Commission cannot do it all, we
need individuals to feel confident to challenge discrimination;
and at the moment it is simply not possible for most disabled
people to bring claims. If you look at the number of employment
tribunal claims compared to the number of goods and services claims,
there are thousands of employment claims, very few goods and services
claims and yet a third of our calls relate to goods and services,
a third of our cases relate to goods and services. So there is
a lot of dissatisfaction and discrimination but there are not
a lot of cases. One of the reasons for that—it is not the
sole reason, but the evidence, the research that has been carried
out for the DWP shows that people who advise disable people, time
and again, say the enforcement mechanism of Part III is clumsy,
expensive and intimidating; and that is a prime reason for not
enforcing.
Mr Massie: There is another point
to this, that because more cases of discrimination go to tribunals
the people running the tribunals acquire greater expertise about
discrimination matters than do the county courts. Therefore, there
is likely to be a greater understanding of the issues involved
in a tribunal while many county courts receive so few cases that
the judiciary there do not necessarily pick up the level of skills
and sensitivity that some of the tribunals have.
Q49 Mr Clarke: My last question on
this section. Are you satisfied that sufficient numbers of disabled
people are being appointed to these tribunals?
Ms Gooding: I have not seen the
monitoring statistics. We do know that some people have had difficulties
with the appointment process in the past, because they have come
to us and asked for representation. One of the issues in the past
was that members of employment tribunals were not covered by the
employment provisions of the DDA, but I think that has been successfully
clarified now. I could not tell you about numbers. I think there
is work to be done to raise disability awareness of all the tribunal
members, regardless of whether they are disabled or not, and we
have been doing quite a lot of work with the tribunal service
to make it more accessible to disabled people.
Q50 Tom Levitt: The points about
employment tribunals themselves not being subject to the DDA brings
me immediately to my question. You have clearly welcomed the proposal
to extend the DDA to councillors and exam boards and so on. What
do you think are the major gaps that still remain in organisations
and individuals who are still excluded?
Mr Massie: We think there are
a number of gaps. The first one is volunteers: voluntary work.
We would like that to be covered by the Act, if not immediately,
at least to have an enabling power with a code of practice to
support it. One of the other issues here is that some disabled
volunteers do need the sort of support which employed people get
through the Access to Work programme. We all know that Access
to Work is a budget under some pressure, but if that pressure
could be eased, we think there is a very strong case for extending
that scheme or a similar scheme to volunteers. We think quite
often voluntary work is an introduction to work; so it is a caveat
in itself. It can also be a means to an end; so we think it should
be supported on a number of levels. We are delighted that councillors
are being included, because we can list many cases of fairly blatant
discrimination. We are not quite sure why councillors qualify
for this protection but Members of Parliament and Members of the
House do not. There is no doubt a very good reason for this, which
has missed me totally—if anyone discovers it do tell me—but
it does seem to me an unnecessary exclusion. Happily, there are
a growing number of disabled people in both Houses, and there
are sometimes difficulties which protection by the Act might cover.
We also would like to see key office holders—lay magistrates,
school governors, governors of higher education organisations—have
the protection of the DDA. This does not necessarily mean huge
expensive adaptations. It could be providing papers in Braille
or on tape. You know, some of these things can be very basic,
but they are excluded from the current provisions, so we would
like to bring them in. Also on organisations, we are delighted
that examining bodies are going to be covered. One of the cases
we lost was against the General Medical Council, who refused to
allow a disabled woman to study medicine, despite the fact she
seemed to be eminently qualified so to do. Our understanding of
the current bill is that the examining bodies for GSEs and A-levels
are excluded, and that strikes us as being disappointing because
they are quite often—GCSEs and A-levels—the entrance
examinations to the professional examinations, whether they be
law, medicine, architecture or anything—you need to have
these first. Although some of the examining bodies do have a reasonable
record of trying to accommodate disabled people, we do not quite
see why they should be excluded at this level. It seems to us
simpler just to include them.
Q51 Tom Levitt: Thank you. I share
your view on extension to volunteers. Clearly we are getting a
lot of situations now where public services, local authority services,
are being delivered by voluntary sector organisations rather than
employees. Could you foresee a situation whereby a council who
is putting a service out to tender, because of the prospect of
reasonable adjustments, might actually choose an organisation
that was not covered by the DDA to provide a service rather than
one that was?
Mr Massie: It is possible. When
the public duty goes through in this bill, the councils will be
having a duty to be promoting the interests of disabled people
very proactively. So it would be surprising if they took quite
that line, but it is possible. A number of services are provided,
not just by voluntary organisations but by volunteers in the organisations,
because many voluntary organisations have a large number of paid
staff, but there are equally a large number of those who do rely
on volunteers; and some charities go through great efforts to
involve disabled people. Community Service Volunteers, with which
I have a link, are doing a lot to bring on more volunteers, but
they are getting no protection under the DDA at the moment. It
is a very important part of our social life in this country, so
we think the protection should be there.
Q52 Chairman: I wonder if you remember
the figures that were in Disability Now, I think it was, a little
while ago. They went through the ten major organisations involved
with disability, and listed the number of their total employees
and the number of disabled employees they had. It was really quite
shocking, and it was a low proportion of disabled employees in
organisations who were interested in disability.
Mr Massie: I am happy to say that
had the DRC been included in that survey, which we were not because
we are not a voluntary organisation, the figure would be between
35 and 40 per cent.
Q53 Chairman: That is way above the
average of the other organisations.
Mr Massie: Indeed.
Q54 Chairman: As it should be.
Mr Massie: We are the DRC.
Q55 Tom Levitt: One final point.
We are told that there are very good reasons and precedents why
the views of our peers are not covered by legislation such as
this. You have, quite rightly, welcomed the extension to councillors.
What about extending it to a particular group of volunteers: the
candidates for Council, Parliament, etc. Have you considered that?
Ms Gooding: Yes, we have considered
that. We think, in broad terms, it would be a good idea.
Mr Massie: Can I say about precedents,
they are very important, but they do not need to be set in granite
for ever. Life does move on, and people are joining Parliament
from all walks of the community today, and that has to be good.
So maybe what served us in the past we would say was wonderful
in the past, but now let us look towards the future.
Tom Levitt: I am delighted to have had
the opportunity to get you to say that.
Q56 Mr Williams: Both the DDA and
the draft bill put a duty on individuals and organisations to
make reasonable adjustments so that disabled people are able to
overcome the effects of their disability, but there are different
requirements in the Act and in the draft bill in terms of trigger
and when that trigger should occur. I think the trigger in the
draft Bill for local authorities when they are providing a function
is "very much less favourable", whereas the trigger
for public authorities when they provide a service—and this
is in the Act is—is "impossible or unreasonably difficult".
Do you think there is a balance there between the trigger in order
to protect the rights of disabled people and the financial and
the logistical burdens on the organisations who have to make the
reasonable adjustment?
Ms Gooding: We think that the
proliferation of triggers within the DDA and Disability Bill is
confusing and unhelpful. There are different triggers, there would
be under this disability bill as well, I think four or five different
trigger mechanisms for reasonable adjustments. We think that the
best thing would be to have one trigger mechanism, which is the
trigger mechanism which applies currently in relation to education
and employment; and that is, where somebody is placed under substantial
disadvantage, then they should be entitled to a reasonable adjustment;
and it is when considering reasonableness of an adjustment that
the issue of balance comes out. What we think is important is
that the legislation should set a clear goal for the end state
which organisations need to achieve. And if you had one trigger,
you would know what was wanted, which was to make sure that nobody
was placed at a substantial disadvantage. At present, with the
Part III trigger, the desired end result is that nobody should
find it unreasonably difficult to access a service. I do not think
and the DRC does not think that is a very appropriate standard
to be set by the anti-discrimination legislation. There are a
number of cases where this trigger mechanism is proving to be
worrying. There was a case of somebody who went to a Mel C concert
to see Sporty Spice, and he could not see Sporty Spice. He said
it was very important for him not only to hear but to see Sporty
Spice. The judge in that case said, "I understand that Miss
Chisholm is an energetic performer and that the theatrical aspect
of her concert is important. Mr Pagley could not see the stage
show, but that is not to say that it made it impossible or unreasonably
difficult for him to make use of that service." So he was
questioning whether the fact that he could not see the show made
it unreasonably difficult for him to get the service. I do not
think that is an appropriate threshold. The balance, which you
referred to, between the needs of the individual and the resources
of the organisation—that should be considered in relation
to the reasonableness of an adjustment—not in relation to
the trigger. Our basic position is that we think that the trigger
mechanism should be the same across the Act and much simpler and
that it should be where there is a substantial disadvantage. In
any event, in the Disability Bill public functions clause provides
this even tougher mechanism, a higher trigger of "very much
less favourable". That seems to us to be even tougher to
overcome than the Part III trigger of unreasonably difficult.
The notes to the Bill say that the Government's intention is that
the trigger mechanism should operate equally with the services
provision for public function, but it seems to us that we have
not successfully captured that. There is also the important way
in which the Part III duty is framed, which is that it creates
an anticipatory duty. That is very fundamental to the way in which
the Act has succeeded in breaking down barriers, to place a duty
on services not to wait until a disabled person turns up, but
to take action before they turn up, to anticipate where the barriers
are. That does not seem to us to apply in the public functions
clause as presently drafted but it should. Our preferred option
would be to have substantial disadvantage across the board. If
that was not achievable, then, at the very least, we would want
the public functions clause to better reflect the triggers that
we have in Part III.
Q57 Mr Berry: Is the DRC satisfied
that the measures in the draft Bill can be adequately enforced?
Mr Massie: Thank you for that
one. Of course the DRC has a duty to enforce the Act. I mentioned
earlier, as our current help-line is having 120,000 calls a year,
we are budgeting next year for 160,000. That, of course, has a
knock-on effect right through. We are currently doing 1800 investigations
a year and we are very conscious of the new duties coming in,
which will have an impact on us. One of the tensions we are finding
is that these duties are likely to come into effect round about
the same time as the Government, under its current proposals,
will introduce the Commission for Equality and Human Rights—so
we pass over to that—and we are very anxious that this momentum
should not be lost. We have proposed to the Government that in
the new body there should be a disability strand run by disabled
people—the Disability Commission, the Disability Committee—half
should be disabled and they should have some executive powers
on the disability specific agenda. We faced a lot of resistance
on that initially, although, I would say, the DWP ministers from
Andrew Smith downwards and DWP staff have been enormously supportive.
Lately, the DTI ministers have been much more helpful on this
agenda, but it is not won yet. There is still a lot of opposition.
Some just want to merge everything together. On our current basis,
the DRC's budget this year is £14.7 million, and that will
rise to £15.5 and then £16.9. Looking at all the various
things we have to do, we need to do new codes of practice so that
when the Act is in force the codes are out in advance. We need
to start working on the codes of practice this year or very early
next, assuming 2006 implementation. So we think that for the 2004/
2005 our current costing is that we will need an additional million
pounds to take those duties forward. Taking that forward to 2007/2008,
where there will be the enforcement of all these duties, assuming
the DRC is still there at that point, we think our budget then
would need to be about £22 million.
Q58 Chairman: Extra?
Mr Massie: No, in total; although,
if somebody is offering it as extra, it would be churlish of me
to decline. No, we think about £22 million should do it.
On staffing, we have to agree our staffing levels with the Secretary
of State, and our current staffing for the DRC is 180. We are
just negotiating with the DWP to increase that to 190. I see no
reason to believe that those negotiations will not be fruitful;
but then with these duties, we think we probably need another
10 to 15 posts. Given that proviso, we think we can introduce
all this and see it through.
Q59 Mr Berry: I know that one of
my colleagues wants to pursue the money aspect in a moment. Can
I ask about the monitoring responsibilities that you have? To
what extent is there a problem arising from the fact that the
people who 'phone you are invariably saying, "There is a
problem here. I need assistance from the DRC." To what extent
is your monitoring about problems of equal rights rather than
your being able to effectively monitor successes? If the effect
of the DDA, the new DDA, call it what you will, is that access
to a range of areas is improved significantly, is it part of your
job to monitor that, or is your job confined to dealing with alleged
breaches of the legislation?
Mr Massie: On the enforcement,
we are obviously using enforcement powers where there is a problem—we
do not use them where there is no problem—but where people
are getting it right, that is a huge positive example to others.
So, for example, we are doing a lot of work at the moment with
the British Tourist Authority, sorry, the British Hoteliers Association,
about what is going to happen in 2004. Some of the hotels have
been enormously helpful and so we have been able to bring them
together and we have been to their meetings. Then we take those
examples and put them into the codes of practice. So we do try
and push out the positive as well as the negative. One of the
unsung aspects of the DRC is that we have a practice development
team. They work with industry to help them get things right and
also to learn what is going round so we can spread it round other
industries. So there is a part of the DRC which does not have
anything to do with enforcement at all, it simply works with major
parts of the economy and works in a very constructive way with
people about how we get things introduced better. I think some
of the issues we have discussed today have come not from chasing
cases where things have gone wrong, but talking to employer representatives
and talking to trade organisations, saying, "What anxieties
are you having in implementing this? What are your problems?"
Because I think at the DRC we have a legal duty to take account
of the views of industry as well as for disabled people. So we
are feeding in all this information the whole time.
Ms Gooding: I just want to add
that I think that is going to be particularly important in relation
to the public sector duty to promote. One of the important things
about that will be that the public sector will need to be setting
themselves targets so that we can have measurable improvements
in the experience of disabled people from public authorities.
So we will be working with them and with the inspectorates to
look at how you can measure improvements in disability equality
and steps towards that. That is very much how the public sector
duty will work.
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