Examination of Witnesses (Questions 160
- 179)
WEDNESDAY 3 MARCH 2004
MR BRIAN
LAMB OBE, MR
STEVE WINYARD,
MS KATE
NASH AND
MR DAVID
CONGDON
Q160 Miss Begg: If the different
triggers continue to be used, can you give us some examples of
the kind of disadvantages that disabled people face because of
the different triggers?
Mr Winyard: I will try. Certainly
the trigger of "impossible or unreasonably difficult"
is, in relation to Part 3 proving very problematic, and it means
that there is case law building up showing that cases where I
am sure you or I and any reasonable thinking person would believe
that there is a problem, "impossible or unreasonably difficult"
has meant that the case has not been proved. The case of Appleby
v DWP is one example that we quote in our evidence, and certainly
the high threshold of "impossible or unreasonably difficult",
for example, in the case of a service provider failing to deliver
information in an accessible format. If you have got a partner
at home who can read the letter to you, then that could easily
be taken by the court to be an acceptable method for receiving
that information. So certainly "impossible or unreasonably
difficult" is one trigger that we would like to see changed
to "substantial disadvantage".
Q161 Miss Begg: Is that partly because
one person's "impossible" is another person's challenge,
and different people can see differently, but when it get to the
courts it is not as easy to define as that?
Mr Winyard: I am sure that when
it gets to the courts it is not easy; and going back to the Appleby
case, the judge there was quite happy to see the defendant not
being able to independently access the information—in this
case it was audible announcements—and we feel that that
sets the trigger in quite the wrong place.
Q162 Miss Begg: But having a single
trigger might also have disadvantages. Can you think of any disadvantages
across different sectors if you have only one trigger?
Mr Winyard: None spring to mind,
and obviously in all of this there is the balancing of complexity
against trying to create legislation that people—both service
users and service providers—that disabled people can understand.
I think we are moving towards a situation where we are going to
have five or six different triggers throughout the Bill, throughout
the legislation, and that is something that people, as I say,
neither service providers nor disabled people, will be able to
properly grasp.
Q163 Miss Begg: On a scale of one
to ten where one is not of great effect and ten is of great effect?
Mr Winyard: I am sorry, one is
what?
Q164 Miss Begg: One is the least
and ten is the highest. All right. How flawed do you think the
Bill will be if there is not a single trigger in the Bill, one
being not very flawed but ten being a fundamental flaw that will
undermine the whole legislation—
Mr Winyard: I will go for seven.
Q165 Miss Begg: So important then?
Mr Winyard: Important, yes. We
must remember that statistically if you ask people for a random
number between one and ten they always go for seven, or the majority
go for seven.
Q166 Miss Begg: So not below the
waterline but slightly above the perimeter line?
Mr Winyard: Certainly below.[1]
Q167 Chairman: If it is between one
and four, people always go for three. On the example you gave
of the blind person, I am not sure that example is a good one,
because of course the blind person will have to know from a pile
of sighted mail which was the one that they wished to have read
to them, when you could have some highly personal private mail
that you only one want member of your family to read to you and
not others. So the idea that just because there is a sighted person
available for that piece of mail is not much help because the
blind person has a pile of mail and cannot tell which piece is
which.
Mr Winyard: Absolutely. I totally
agree with you, but sadly that is not the view that courts necessarily
take.
Q168 Lord Addington: You recommend
that the public function clause includes an anticipatory duty.
Could you give examples of how the anticipatory duty might benefit
the disabled and, following on from that, is there a reason that
the duty on public authorities to make adjustments carrying out
their functions under clause 4 would differ substantially from
the duty to make adjustments for a provider of services?
Mr Winyard: Examples of how a
duty might benefit disabled people. I think, firstly, we would
want to warmly welcome the provisions in the Bill around discrimination
by public authorities. The way in which the public function could
benefit disabled people. A number of examples: one is to clarify
the position as regards elections. At the moment it is not clear
whether elections are or are not covered because whether or not
they are a service it is unclear. They would certainly be covered
under this new provision. Another example would be disabled people
who have been prevented from adopting. An anticipatory duty would
require a local authority to examine its policies in this respect
and it is likely to encourage good practice. Fundamentally, an
anticipatory duty will require public authorities to think about
things in advance and make appropriate adjustments. This could
be in the area of accessible information. There will be a whole
range of areas where it will lead to direct improvements for disabled
people.
Q169 Lord Addington: Following on
from that, you are saying that the anticipatory duty, you think,
is probably the best way of making sure that people have best
practice in place?
Mr Winyard: It will tend to lead
things in that direction. I do not know whether it will lead in
the direction of best practice, but it will at least ensure across
a range of functions that proper account is taken of the needs
of disabled people, yes.
Q170 Lord Addington: Also this would
lead on to the fact that we would not have the reactive situation
at the moment. Are there any examples where you think this might
actually have saved, for instance, a great deal of time or money
in trying to get something made available, or a service made available
to the disabled user group. Do you have any examples? Has anybody
heard of any?
Mr Winyard: I do not know if my
colleagues have anything to say on this. I think you are absolutely
right in terms of timing, that making the duty an anticipatory
one would mean that hopefully over time services will be properly
taking account of the needs of disabled users and functions will
properly take account of disabled people rather than a demand
being made, a delay and then an appropriate service being provided.
We have certainly had cases in relation to local authorities,
of forms not being made available in an accessible format on demand
and inappropriate printed material coming through to a visually
impaired person. They are unable to read it, access it, and, in
one case we have taken, they have lost housing benefit as a result
of that. That is a sort of situation which should be dealt with
by this particular duty.
Mr Lamb: If I could come in there.
It is the difference between when an individual presents with
a particular problem and then the public body becomes aware of
that problem and does something to address it perhaps for that
individual, perhaps for a group of individuals, and having, if
you like, a moral or systematic or systemic view of equality where
you try and anticipate for a whole number of needs at one time,
so you then do not have to be bolting on solutions for individuals
as you go through practices and procedures at a later stage. So
it is to actually get that sense of not just looking at when the
individuals present but looking systemically across the whole
way an authority provides its services. That may sound very philosophical
at one level, but it can come down to reviewing whole sets of
policies, practices and procedures in one go and anticipating
problems rather than waiting for things to go wrong; someone to
make their claim and then fixing on a bolt-on solution as it is
actually happening.
Q171 Lord Addington: So what might
be created here is not only that you have an accessible interchange
between a bus and a train station or something going on, but also
you have the information, you know, timetables in Braille, etcetera,
The whole thing would be taken care of organically or at least
would be accessible. This is what you would anticipate to be an
advantage?
Mr Winyard: In principle, yes.
Q172 Mr Berry: May we stay with clause
4, discrimination by public authorities. Here we have the reasonable
opinion test which is also featured in Part III of the DDA. In
your submission in relation to the draft Bill you specifically
criticised the reasonable opinion test suggesting it should be
removed, as I understand it. Do you have any examples of cases
where the reasonable opinion test has prevented a disabled person
from accessing services?
Mr Lamb: Yes, we have. Can I just
take this slightly broader to begin with and then answer the specific
point. It is already the case that amendment regulations will
abolish the justification defence in relation to employers around
this. This will not be seen as a reasonable defence in relation
to employment. If you look at what has happened in a number of
these cases, Mr Rose is a good example. Mr Rose was a blind poet
who booked a room at a hotel and on arriving there he found that
the hotelier refused to allow him to mount the steps leading to
the hotel because he believed it would be dangerous for Mr Rose.
The court held that the hotelier was entitled to hold this as
a reasonable opinion. So what you have is a situation where what
can be elicited as a defence is something where you can go back
to an act at the time and say that it was reasonable for you to
have held that opinion at the time. When we discussed this on
the Task Force at the time we were thinking, about small companies,
small service providers who would not have access to legal advice,
would not actually be in a position where they could do this,
and we did not want to necessarily hound people that for a very
good reason had tried to do something the right way but had failed;
but what this test is allowing is a lot of acts that we would
think of, whatever the motivation, as being unjustly discriminatory.
In the context which we are talking about here of public duties
or public bodies, we can see no reason why a public body would
not have the expertise and ability to actually ensure that their
staff were fully prepared. Indeed, if we go back to the anticipatory
duty, precisely one of the advantages of an anticipatory duty
would be things like staff training and a joined up approach.
So you would not expect people to be doing it in that kind of
way. Can I can give another example. It is slightly at one remove
because it covers an area that is not actually covered by the
Act; but I am sure you are all aware of the example of EasyJet
recently where they had eleven deaf sign-language users on the
plane and the pilot thought that in some sense they were, I do
not know, uncontrollable and needed a carer when in fact none
of them did, and removed them all from the plane. Again, the defence,
were transport to be covered, would still be that the pilot reasonably
held the view that in some sense these people needed a carer.
We would expect in a situation like that, especially for a large
airline or a large employer or service provider, that they would
not be in that kind of position. So we think there is a big barrier
here and, certainly when we are talking about public duties, we
do not think there is any reason to have it in there.
Q173 Mr Berry: Let me play devil's
advocate here. Perhaps I am missing the key point. The notion
of reasonableness is flatly in the system. The two examples that
you give, Brian, seem to me—we will argue—perfectly
unreasonable judgments for people to make. Our concern with it
is not that there is a test of reasonableness, it is that you
have given two examples of what might be astonishing decisions
for people to make that I think are totally unreasonable. I am
not sure whether it is the test of reasonable opinion that is
the problem or the interpretation of the word reasonable.
Mr Lamb: That is an interesting
point. Whichever it is, I think you end up in the same place,
do you not? The test of reasonableness might be a problem but
what we are resting it on here is the justification that they
knew at the time—what they have to hold is that they knew
that that was a reasonable justification and were deploying it
in relation to the way the Act works. Therefore what we are saying
is that we should not give people that as a justification because,
certainly in relation to clause 4, which is what we are talking
about, we are in a position where, would it have been reasonable
for them to have held that opinion, and the answer would be, "No".
Q174 Mr Berry: So presumably your
view is that not only in relation to clause 4 should the notion
of reasonable opinion be deleted, but it should also be deleted
from Part III of the DDA?
Mr Lamb: Certainly there would
be potentially still issues around small service providers, but
otherwise we are not very happy with that, if that answers your
question. Yes, we do see a bigger problem with the whole concept
of the defence.
Q175 Mr Berry: I have to confess
that slightly concerns me, because we are going into a sort of
a two-tier approach where the reasonable opinion seems to be sensible
in relation to small business for some reason, but not the—
Mr Lamb: I am sorry. I understand
your question now. I do not think we are arguing here that we
would want that removed necessarily from small providers. It is
not something we have discussed in relation to our response to
this Bill, and would have to give that some further thought, but
I do not think that is what we are suggesting at the moment. Certainly
in relation to the public duty, we are suggesting it, because,
as I said, the whole rationale for a two-tier approach was what
we might expect of a green grocer on the corner is very different
from what we might expect from a large public body.
Mr Berry: That is the key distinction
you are drawing?
Q176 Chairman: As a general point,
if there is anything which occurs to you from the questions you
are asked which you would like to write to us about afterwards,
any point you feel you would like to expand on, that is perfectly
in order. Just in passing, in the EasyJet example you gave of
the deaf people who were turned off the aeroplane: I flew to New
Zealand in 1969 and two-thirds of the aeroplane was full with
the athletes who were going to the Deaf Olympics, and there was
no problem with the pilot asking them to leave the aeroplane.
Mr Lamb: Clearly you were in a
much more dangerous situation than you actually thought.
Q177 Mr Berry: In your very helpful
memorandum you asked the Government to clarify their intentions
about the trigger to make reasonable adjustments in relation to
private clubs. What trigger would you like to see?
Mr Winyard: We again would want
to see "substantial disadvantage". We really think there
is a very powerful case for consistency across the whole of the
Act, and we believe that trigger is appropriate in the area of
private clubs just as much as in other areas of the draft Bill.
It seems perfectly workable, perfectly reasonable and not something
that will create undue problems either for the user or for the
private club.
Q178 Mr Berry: Is that judgment based
primarily on consistency, or is it based on some kind of assessment
of balancing the rights of disabled people verses a possible burden
on private clubs, given that private clubs are special in one
sense, in that they are excluded from the DDA, so somebody somewhere
thinks that private clubs, or did think that private clubs presented
a particular problem?
Mr Winyard: We certainly do not
see any concept of burden here. I mean, the sort of cases we have
come across often are simply ones of a club, and it is only clubs
with more than 25 members, saying, "We do not want this disabled
person as a member." So it is a pretty blatant case of discrimination,
no burden involved. If there is a burden, if there is a burden,
then this, as ever, can be addressed through the test of reasonableness.
We feel that, yes, if it is deemed to be a problem, the ways in
which reasonableness is to be determined can also be spelt out.
There is a precedent for this in the new employment regulations
in relation to private households, so that can be clarified.
Q179 Mr Clarke: Brian in his opening
statement mentioned that the consultant had a physical interest
in transport, and I think that is reflected in many of the witness
submissions that we have received. I am going to ask a few questions,
if I may, on the subject, beginning with this one. Can I deal
with your recommendation that the Part 3 exemption for transport
services should be lifted immediately, and can I ask: how do you
respond to the view that this would cause unreasonable practical
and financial difficulties for certain sectors of the transport
industry.
Ms Nash: The short answer, before
I go for the long answer, the short answer is that we would find
the question quite despairing. On the one hand the DCC retained
the view that of course there have been real advantages in the
notion of reasonableness within the current legislation, and on
the other hand we remain fearful that the notion will continue
potentially to be used to perpetuate institutional discrimination,
which is possibly out of kilter with new thought regarding the
UK society's capacity to accept and indeed celebrate human difference.
There are two pieces of evidence. One is RADAR's new spirit consultation,
where we ask direct questions of disabled people about their view
of the usefulness or otherwise of the DDA seven years after its
introduction, and the lack of access to transport was cited again
and again as the most significant concern of disabled people.
I think if we consider that 60 per cent of households with a disabled
member do not have access to a car, therefore access to public
transport system is naturally a crucial part of many disabled
people's lives, as, indeed, all people's lives. I think similarly,
the relatively recent research from Leonard Cheshire showed that
23 per cent of disabled people who are seeking employment have
to turn down a job offer because of inaccessible transport, and
of course that figure does not include the significant number
of disabled people who choose not to apply for a job in the first
place because of the their perception of the challenges of using
the public transport system. Obviously, because of our contact,
our regular daily contact with disabled people, the DCC has numerous
examples of where disabled people are refused access on buses,
which do not stop for wheelchair users or refuse to operate ramps,
even where they exist. We have heard of a recent case where it
took a young visually impaired man up to four hours to get home
because the driver had not indicated the bus had already passed
his stop—this is ludicrous—yet at the start of his
journey the man was only four miles from home. Similarly, we have
heard where a disabled person often asks a passer-by to hail down
a taxi for him while he hides nearby, the reason for that being
that, in his experience, taxi drivers do not stop if they see
his disability. It is becoming a long answer to your very pertinent
short question, but I think these examples of discrimination against
disabled people must be put into the overall context of the overall
equality debate. I think such forms of discrimination would, and
rightly so, we know, be unacceptable for other minority groups;
and I think we have much to celebrate from the fact that there
are no longer parts of the world where people are separated into
different carriages, for example, because of the colour of their
skin and yet, albeit those carriages or those trains that still
have guards vans are becoming less prominent, we know that they
are disappearing, nonetheless they still remain; and I think,
you know, we would all agree that the Government naturally needs
to be applauded for moving to outlaw discrimination on the basis
of age and religion and sexual orientation. We see that in the
European Directives. We are hopeful about the intent behind the
Equality and Human Rights Commission, but I think the reality
is the Government must help us run the last mile into transport.
I think removing the recommendation that the exemption from all
modes of transport will give disabled people significant confidence
that the Government is serious about giving people full and enforceable
civil rights; and I think the exemption of transport services
would be immediately removed, as recommended by the Disability
Rights Taskforce many years ago, is important, not on a sector
by sector basis. In short, and I hand over to my colleague David,
who, I know, wants to add to this, but you ask for our response
to the view that it would cause unreasonable practical and financial
difficulties to lift the exemption, and it is not that we would
be unsympathetic to the challenges for the sector, but we would
encourage the Government to create the circumstances by which
we acknowledge that to do otherwise is institutional discrimination
that is dressed up as being reasonable.
1 Note by witness: It will leave the legislation significantly
flawed. Back
|
