Examination of Witnesses (Questions 120
- 139)
WEDNESDAY 25 FEBRUARY 2004
MR NEIL
BETTERIDGE, MS
ANN BATES
AND MR
GRAHAME LAWSON
Q120 Lord Tebbit: You do, I hope,
understand that it is almost impossible in any serious emergency
to remove people who cannot walk from an aircraft?
Mr Betteridge: Precisely. That
is why in my previous answer I agreed with your implication that
in those situations it is not reasonable and therefore would not
be a part of the new legislation for companies to do that, because
it would compromise health and safety.
Q121 Lord Tebbit: So it may be unreasonable
for the operator to carry the people at all?
Mr Betteridge: If they had data
to demonstrate that it significantly compromised health and safety,
then that would be a significant part of how reasonableness was
assessed, yes.
Q122 Lord Tebbit: I think you should
be extremely careful because, if I may say so, you may be in danger,
if you push it too far, of finding that we cannot have wheelchair
bound passengers on civil aircraft at all.
Mr Betteridge: The aviation group
working within DPTAC is talking to industry, of course, all of
the time and taking on board these considerations. We are not
pushing in that direction: we are listening to what disabled people
say and transport providers say to get a shared sense of what
would be reasonable in those circumstances. I do not disagree
with anything you have said there.
Q123 Lord Rix: Supplementary to Lord
Tebbit's question, in June last year easyJet refused to take on
thirteen students from one of our colleges at Pengwern because
they did not have sufficient carers with them. Eventually various
passengers offered to be carers but the airline would not take
them unless they had one carer for every two passengers with a
learning disability. Obviously we are worried that a court eventually
could rule that a person with a learning disability could not
fly unless they were escorted by a carer, which is obviously going
to double up on costs and going to make it almost impossible for
that person to travel by aircraft. I suppose it could be applied
to other means of transport too, but certainly aircraft. Do you
not think that would be unreasonable?
Mr Betteridge: You know better
than probably anybody else in this room that, especially in terms
of learning disability, people are very quick to make assumptions
and they are usually negative. When the Disability Discrimination
Bill was first brought forward in the mid-1990s, we had many similar
conversations with providers of insurance services and the depth
to which assumptions pervade into people's concept of disability
is hard to exaggerate. In that particular instance actuarial data
was the answer, whereby insurance providers needed to establish
facts in the matter before they could construct policies around
what otherwise might just be assumptions, and I think the same
principle applies there. The onus of proof, if you like, needs
to reside with the service provider. There needs to be a demonstration,
as with the previous example of health and safety, that to carry
out something which would be classified as a reasonable adjustment
for the purposes of the Act would in some other way damage them
in terms of their cost or would undermine their safety or whatever
that aspect of reasonableness may be. If they can successfully
demonstrate that with the evidence then it becomes reasonable
not to make that adjustment, but without the evidence we only
have assumptions and that is where the Act needs to be strong.
Q124 Tom Levitt: You have already
touched upon the use of regulations once or twice. Could you lay
down for us what you think are the advantages and disadvantages
of the use of regulations to implement the measures in this bill,
and what is the balance of advantage and disadvantage?
Mr Betteridge: I briefly referred
to that in a previous answer where I agreed with previous witnesses
that the flexibility, both in terms of timing and differing modes
of transport, was one major advantage. At the same time the major
disadvantage is the risk of slippage in terms of the scheduling.
On balance we are very pleased to see regulations being used to
actively carry forward many of these measures. The key to that
is going to be how robustly they are monitored, evaluated and—where
necessary—enforced, so that is the particular reason we
believe the Government should lay out its timetables as far as
it can on differing modes of transport, so that those such as
the Disability Rights Commission, ourselves and others can simultaneously
work on the codes to accompany the regulations to make sure they
are monitored robustly. On balance, therefore, we are in favour
of using regulations where possible. In fact, we even go further
and make the point in our written submission about the definition
of disability as contained in the draft bill, whereby it can become
invidious to start naming particular conditions or impairments
because once you start a list you really have a duty to complete
it and it is difficult to get an exhaustive list. Regulations
might be one way of dealing with some of those difficult issues
around the definition. Rather than naming specific conditions
such as multiple sclerosis, HIV or cancer on the face of the bill
or Act, it may be helpful in terms of the speed at which this
can be reviewed or changed in the future to do that through secondary
legislation or regulations also.
Q125 Tom Levitt: You say quite rightly
in your submission that the Regulations must address the needs
of the widest range of disabled people. You also say there is
a risk that some categories—and you highlight sensory or
learning impairments and mental health problems—can be excluded
from consideration. Do you think there are inherent weaknesses,
therefore, in the proposals in respect of those categories of
disabled people?
Mr Betteridge: No. Many of the
suppositions that the general public have about disability and
transport are rooted in thought around physical access but the
way in which, for example, information is arranged and provided
and made accessible or not is very important for people with learning
difficulties, of course, and with mental health problems too in
many cases, and these can be just as much barriers to travel as
a flight of steps can be to a wheelchair user. So the concept
at the heart of the Draft Disability Discrimination Bill about
whether your impairment is severe, adverse, long term and whether
it interferes with day-to-day activities, are key and I think
should be universally applied to understanding how the legislation
can best serve all disabled people whatever their type of impairment.
Q126 Tom Levitt: Is there anything
else the Regulations particularly need to address?
Mr Betteridge: If the way in which
the Regulations are devised allows both the flexibility to take
account of the different modes of transport and also enables us
to develop schedules which mean that we would lose no further
time in turning ideas into practice, then the Regulations will
be of the highest quality.
Q127 Lord Addington: What do you
think would be a reasonable timescale for the different forms
of transport to be covered by the proposed Regulation? Also, we
have heard in previous evidence the suggestion of a chain of transport.
How would you think that is going to fit into any timescale if
we try to get that idea going, and what would you say is reasonable
here—straight away removing all exemptions? What is your
position on this?
Mr Betteridge: The current schedules
are quite complex because each mode of transport currently has
a different schedule. The complexity is added to by the fact that
each mode has had to date a differing level of discussion and
consultation. Therefore the two areas in which DPTAC makes specific
recommendations are around the voluntary code on aviation and
shipping—and, as I mentioned before, we believe that the
end of 2005 is a reasonable time for Government to decide on whether
legislation is necessary—and on compliance with the rail
vehicle access regulations, and on that 2017 is our preferred
end date. We would believe we were failing in our duty as the
statutory adviser to Government on these issues if we second-guessed
the result of discussions that we need to have over this next
period with transport providers in the other modes where that
level of detailed discussion has not yet taken place. So with
that in mind we have limited our specific recommendations to 2005
for aviation and shipping in relation to legislation and 2017
to rail.
Ms Bates: We are trying to take
a pragmatic view about railways in that, if you listen to a rail
company, they will say that they need until at least 2035 and
if you listen to a lot of disabled people they will say they want
it tomorrow and they are entitled to access tomorrow, but we need
to work with the train companies and the train manufacturers and
the ROSCOs, the leasing companies. We are not interested in anyone
having an unreasonable burden of cost, and we need to work with
the rail companies to make sure that whatever we ask for is achievable.
I take as an example the Mark I guards vans. People in wheelchairs
are still sitting in guards vans even though dates have long gone
past, and I think we need a blend of a date and working carefully
with the train companies and the manufacturers to make sure that
at least reasonable provisions are allowed for. We support the
Menu Plus idea in here to make sure that, when refurbishment happens,
it is like-for-like but with a plus for toilets and visual display
units and so on, to make sure that, as time goes on, even refurbished
trains come up very close to the rail vehicle accessibility regulations.
Q128 Chairman: Other areas affect
disabled passengers like 24-hour notice for assistance, for instance.
Would you like to comment on that?
Ms Bates: Yes, very much so. As
someone who needs to book rail travel myself it is very close
to my heart. We have been working very hard and have some figures
from 2002 to say that over 30% of booked journeys fail, and I
think what happens is that people have experience of a booked
journey, it fails, and it destroys people's confidence in travel.
Q129 Chairman: When you say it "fails",
what do you mean?
Ms Bates: The booked assistance
does not turn up. We are working with the SRA at the moment who
are doing a much larger scale survey about this, and there are
two main reasons that I am wanting to get involved in it: we need
to emphasise to the rail operating companies that there is a large
market out there especially for non-peak travel amongst people
with disabilities. Rail is an ideal way to travel if you can be
sure that your booked assistance will turn up, so we need to make
people more confident about using the Disabled Persons' Reservation
System (DPRS). Also, from a train company's point of view, if
a booked service does not turn up it results in great losses for
the train company. As an example, I travel up from Brighton on
the main line and if I go to change at East Croydon and the ramp
to get me off the train does not appear it can take five or ten
minutes to find a ramp, and the penalties for that train and the
trains that are clogged up down the line behind me are huge, so
I am trying to make a point to the rail companies that it is in
their financial interests to make this service work better.
Q130 Miss Begg: Is there something
inherently difficult about getting particularly people in wheelchairs
on to trains which means it needs 24 hours' notice? I ask that
because I travel regularly by British Airways and I often do not
give them 24 hours' notice. I can book a flight with less than
24 hours' notice; sometimes I am on my way out to the airport
if my plans have changed and they can always accommodate me and
get me on that flight, yet not on the railways. Why?
Ms Bates: From a personal level
I would like to see a turn-up-and-go service tomorrow on the railways,
I agree, but the nature of the infrastructure is that we have
a lot of unstaffed stations and a lot of unsuitable stations,
and from a disabled person's point of view I want to build up
somebody's confidence in using the service. Everyone who uses
a wheelchair knows lots of people who have tried it, it did not
work, so they are not going to do that again, and in that way
I would like to personally see an 0800 number for the DPRS service.
If we can get more people booking ahead, then the people on the
stations will get more confident about how they deal with disabled
people and there will be more of a call for really good disability
awareness training, because that is a huge component. If a ramp
turns up and the person with that ramp is unpleasant and does
not greet you in a way that makes you feel welcome, it can really
destroy your confidence. If it turns up late and somebody says,
"Oh, well, I did not know you were coming" it can make
a big difference, so I think we need a two-pronged attack here
and my eventual aim is to get a turn-up-and-go service.
Q131 Miss Begg: Are you confident
that the Regulations that will be passed, along with what we are
considering today in the draft bill, will ensure that there are
enough legislative teeth, if you like, to make sure that the train
operators do fulfil their obligations under the Act to make sure
that these booked assistance places do not fail in the future?
Ms Bates: I think it needs a robust
enforcement system and I think, as it stands, any bill is not
worth the paper it is written on unless there is a properly funded
enforcement system. I can give you examples of the Rail Vehicle
Accessibility Regulations (RVAR) where you can see non-compliant
trains on the network but they need to be reported in, and we
need a much more proactive system that perhaps uses disabled travellers
to report in things that go wrong. Some of the people who take
the bookings for disabled people are now operating a callback
system because one of the problems we have had is that there are
lots of people's tales out there but very little hard data, so
after a person who has booked a journey has travelled they get
rung back, asked how the journey went and what went right or wrong,
and this is presented in data which can go and be worked on, because
until you have the data it is very difficult to enforce.
Q132 Miss Begg: And are you saying
that the enforcement system should be within the scope of the
regulations in this bill?
Ms Bates: I would very much like
an enforcement system in there.
Mr Betteridge: The spontaneous
journey is something that most people in society take for granted
and disabled people cannot take for granted, and there are ways
in which the new legislation can specifically address that. We
need greater clarity, for example, about who is covered in terms
of public authorities, what that means in terms of the practice,
and specific issues such as what happens when a journey begins
to fail the disabled person rather than the person not turning
up. For example, if your journey is disrupted or you arrive at
a train station but actually there is a coach replacement for
the first leg of it, if the coach is not accessible to you then
your journey becomes difficult or impossible, so we can through
the Regulations and focus on specific issues such as breakdown
recovery, for example, so if a disabled motorist breaks down,
if it is a private hire vehicle especially, can they be reasonably
sure they can get an adapted vehicle pretty soon to replace it
or are they going to be rendered immobile? Certainly in terms
of the new duties for public authorities one of the things which
stops disabled people getting from A to B is the fact that every
journey begins with a single step, and immediately outside your
home you may have a terribly inaccessible environment before you
even get to the first bus stop, or the rail station.
Mr Lawson: Just adding to that,
we heard evidence earlier regarding the chain of the journey.
It is important that the whole chain is accessible from beginning
to end and without that there is no confidence for any passenger.
Q133 Miss Begg: Coming back to the
reasonableness in all of this, I have an example from my own experience
when I got on a train at Glasgow expecting to get off at Montrose
to be told at that stage that I was too late for it to be manned
to get off, but the train company did get me off it at Arbroath
and provided a taxi which got me home. Now, I thought that was
a reasonable adjustment. I would have perhaps been happier had
I known in advance because then I may have changed my travel plans
but at least they made that reasonable adjustment. Would you interpret
that as a reasonable adjustment as well?
Mr Betteridge: Yes.
Q134 Miss Begg: Making sure the system
works, but not necessarily in the same way as it works for everyone
else?
Ms Bates: The DRC are at the moment
looking at a reasonable adjustment involving a taxi with a train
company who are refusing to get a taxi for somebody to get from
one platform to the other where there is a footbridge. One example
is in Winchester where there is a stepped access, and South West
Trains—I sound like an advert for South West Trains!—will
provide a taxi from one platform to the other because it is unreasonable
to have to go round, and I know the DRC are looking at another
rail company that is refusing to provide that now.
Q135 Mr Williams: On the issue that
every stage of the journey should be accessible if it is going
to give confidence, we have also got examples, especially in very
rural places, of people who are unable to change platforms and
who have been advised to travel in the opposite direction until
they get to a station where they can do it. I cannot think of
anything more discouraging than setting off on a journey and going
in the opposite direction from what you want. Also we have examples
of bridges over tracks that are listed buildings or structures
which cannot be demolished. But surely reasonable adjustments
must be made for people to have confidence to go through the whole
journey. It is not just the trains but the stations as well.
Mr Betteridge: Yes.
Q136 Lord Addington: Going back to
the idea of trying to link what else is going on in the journey,
you suggested 2017 as being reasonable. Taking the whole chain
of transport that we have just been hearing about, do you see
any heavy engineering work or any other reason that would mean
you could not have an integration and everything being available
by, say, that date? To be perfectly honest it has been pointed
out that you cannot rely in public transport on one mode of transport,
so is there any reason why one date could not be applied to all?
Mr Betteridge: The various end
dates have various strands of logic to them—
Q137 Lord Addington: But can you
push them? Is there any reason physically?
Mr Betteridge: One of the strands
of logic that determines the end dates which are suggested at
the moment is around the expected life of the stock. Trains last
approximately thirty years and it is a 1995 Act and therefore
we have a suggestion of a 2025 end date, but I think we have to
transcend some of those issues, important though they are, and
do some of the joining-up that you suggest is so important and
we would agree is very important. For example, one of the reasons
we suggest 2017 as the end-date to meet the rail vehicle access
regulations is because 2017 is also when buses must be fully accessible,
and although buses and trains are only together two parts of the
whole chain they are two very important parts, and if you cannot
join up everything for reasons to do with stock decay and so on,
we can at least make some of those important connections. Whilst
I understand the concerns around the refurbishment issue we would
suggest that, if train operating companies can demonstrate that
if they were to be allowed to refurbish in order to go beyond
2017 that refurbishment would produce demonstrable improvements
to access, there would be a case for exemption provided the exemption
mechanism was robustly monitored, and DPTAC has a role to play
in that.
Q138 Mr Williams: The Draft Disability
Discrimination Bill at the moment imposes a duty on organisations
providing services and goods to anticipate what reasonable adjustments
must be made for the needs of disabled people, but it balances
that with a high trigger, which is "impossible or unreasonably
difficult". In your submission you say that the draft bill
should clearly state that public authorities must anticipate what
reasonable adjustments they ought to make to their functions in
order not to discriminate against disabled people. You also recommend
that there should be a low trigger for this duty, perhaps if a
disabled person would otherwise be "adversely affected".
What problems might public authorities face in attempting to anticipate
the need to make changes to any of their functions with such a
low trigger?
Mr Lawson: The whole issue of
definition is a question of "adversely affected" rather
than "very much less favourable". "Very much less
favourable"—from my point of view as a practitioner,
and I am head of service in a local authority—is shades
of grey whereas "adversely affected" to me is much more
positive statement, and I have a much better idea of what I am
expected to do. Going back to my role, what drives me as a chief
officer in a local authority are the Acts of Parliament. I have
to make sure the Council complies with those, and any regulations
that derive from them. There are also performance indicators put
in place by Government which are becoming very extensive. In England
we have the CPA, comprehensive performance assessment, for councils.
My salary depends on how well I perform relative to statutory
performance indicators so I have an interest in making sure we
do comply with regulations. In terms of the anticipatory question
the Disability Discrimination Bill came in in 1995, so we have
already had nine years to think about where we go with it and,
again, the local authorities have a dual role. We are a service
provider but we are also an enforcer through our responsibilities
for the planning regulations and for building control regulations,
for licensing of premises, etc, and it would be unfair of us to
enforce regulations on others if we are ourselves are not anticipating
and if we are, if you like, not also leading by example.
Q139 Lord Swinfen: Are you satisfied
that the measures in this draft bill can be adequately monitored
and enforced?
Mr Lawson: Yes, there is no reason
why they cannot be. I have already mentioned the fact the Government
itself sets performance indicators, and it is certainly a question
of ensuring that the correct indicators and monitoring mechanisms
are put in place, but I think the emphasis has to be on the user.
Too many of our current indicators relate to provisions—outputs
rather than outcomes—and I think it is very important that
any measure of achievement itself is in terms of the user and
user satisfaction, rather than us having an indicator, for example,
that says, "We are aiming to have 100% low-floor buses".
Even if we have 100% of low-floor buses we have failed if people
are not using these buses, so again the emphasis has to be on
the user.
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