Examination of Witnesses (Questions 200
- 219)
WEDNESDAY 3 MARCH 2004
MR BRIAN
LAMB OBE, MR
STEVE WINYARD,
MS KATE
NASH AND
MR DAVID
CONGDON
Q200 Lord Rix: The airline you refer
to was EasyJet, not Ryanair. Does that not lead to a further worry
that a court could eventually rule that a person with, say, a
learning disability or with other disabilities as well has to
be escorted by a carer when using public transport? Is that a
possibility that you think could arise?
Mr Congdon: I very much hope it
does not arise but who can predict? The problem, as I am sure
all members of the committee appreciate, is that once laws are
passed it is how the courts interpret them. To a certain extent
that is why we have proposals on the table to amend the legislation,
to try to see if the legislation can be strengthened. It would
be a very brave person who predicted what a court might or might
not say because obviously operators do have to take into account
issues of health and safety and so on.
Mr Lamb: I think it should prevent
this to the extent that the whole problem with the EasyJet example
was that EasyJet have a policy about the number of carers per
number of people. What it seems happened, although we do not know,
and again I have to be careful because this may yet be the subject
of some litigation of one sort or another, if not under the DDA
necessarily, is that the airline had a policy of not allowing
people with learning disabilities or other people as they defined
it who would need carers in some way and that was then inappropriately
applied to the deaf and hard of hearing people. What you would
be looking at with a policy like that anyway is that it did not
have discriminatory policies and practices and that those were
only applied in genuine cases where people did need carers and
they would have to have much more regard to how they worked through
that policy and the judgments they made as a result of those policies.
To go back to our previous discussion, it would have to be objective.
It would not have to be that the subjective "reasonably believed"
was used in that case. It would have to be an objective view and
what we are trying to get to with the courts in both examples
that we were talking about before and in the current one is a
much more objective test, so if transport was brought in we would
accept a much more objective test about what could be reasonably
believed. What it does show is that EasyJet is a big company,
Ryanair is a big company. It is not unreasonable to expect them,
if they had goodwill, to be implementing voluntary codes now.
What was absolutely farcical and is not known about is that the
next day two of my colleagues were also flying on EasyJet. One
was a British sign language user, the other was a colleague that
could converse with some British sign language. They were sitting
in the EasyJet departure lounge and you know you get corralled
into groups of 30 and then they let on women with children first.
In some desperate attempt to make up they had a number of very
good and well-meaning EasyJet staff coming up to them and going,
"Are you all right?", and putting their thumbs up, which
was very nice but did not actually mean anything to a British
sign language user. Women and children were held up so that they
could be ushered on to the plane first. They did not need that
adjustment at all; it was not their problem. They just needed
to be left on the plane. They were put at the front, they were
served first, and it got to the point where they had to say, "Please:
this is fine. We can cope for ourselves, and indeed my friend
is hearing and not here to look after me". The point I am
trying to make again is that they clearly have goodwill at one
level within the airline but they are hopelessly flapping around
trying to work out what it is they should do. If there were statutory
regulations in place, if it was covered by the law, there could
be guidance from the DRC and they could do the right thing.
Q201 Lord Tebbit: Our witnesses will
be aware, of course, that the captain of an aircraft has an absolute
duty concerning the safety of those on board his aeroplane. In
the light of that do they think it is reasonable or unreasonable
for a captain to put a limit on the number of people who are unable
to walk, such as wheelchair-bound passengers, on their aircraft?
Ms Nash: We would be loath to
suggest that was reasonable. There are a whole host of cases where
there is conflict between the DDA and health and safety legislation.
We see that in other trades and other sectors. We would suggest
too that there could equally be a conflict here, but of course
it would be improper for the DCC to suggest that it would be reasonable
to limit the number of disabled people on a flight.
Mr Lamb: Our point would be that
if it was brought within the law there would be a perfectly proper
legal process to test out within that transport system, depending
on the size of the plane, the type of operation, whether it is
an EasyJet one with just three people on the plane or a British
Airways type of operation with a much more full service, and all
those factors would affect whether one wheelchair user or ten
could easily be evacuated from a plane. With a voluntary code
without a framework of legislation and case law around what is
reasonable, I think you are absolutely right that in this sense
the pilot is left in the worst of all possible situations at the
moment, having an absolute duty of care to the passengers and
very little proper guidance about whether a British sign language
user poses a threat or not.
Q202 Lord Tebbit: So it is a case
where the test of reasonableness would be the best test to apply?
Mr Lamb: Absolutely, and you cannot
apply that unless it is covered by legislation.
Q203 Lord Tebbit: Secondly, I have
recently heard of a case of a blind passenger who, on a long haul
flight, was told that he could only put his dog on board the aeroplane
in a container in the freight hold. As those of us who have dogs
know, that is calculated to leave a dog in a fairly hysterical
state, but against that, as you may also know, urine has a pretty
devastating effect on the light alloys of which an aeroplane is
made, so where does the responsibility lie there in deciding whether
a dog may be carried in the passenger cabin and whose responsibility
is it to ensure that it does not foul the floor of the cabin?
Is that another one where tests of reasonableness should be applied
and the captain should be able to say, "No; look, I am terribly
sorry. For a four-hour flight, yes, but for a 12-hour flight,
no"?
Mr Lamb: I think the short answer
in terms of the principles again is that unless it is covered
by the legislation you do not have a process by which to make
those decisions because obviously that is quite a tricky circumstance.
I do not think voluntary codes with different interpretations
of what you might do are the best way to resolve that. I think
the very sensible approach of the legislation being in place and
the DRC getting involved and working out what might be sensible
guidelines, which may well include those defences on behalf of
airlines if they were found to be reasonable, helps everyone because
they are all clear where they are.
Ms Nash: A brief but important
point from Leonard Cheshire. They are reminding us that the Regulatory
Impact Assessment also states on page 29 that relying on the voluntary
compliance from the transport sector crucially "would not
provide disabled people with confidence in the transport network
as a whole and would not deliver against the government's manifesto
and policy commitments", and of course the need to build
confidence is quite critical.
Q204 Mr Williams: If we can move
on to clause 8, the public authority duty, the Bill gives a proactive
duty on public authorities to ensure that discrimination and harassment
of disabled people under the DDA is eliminated, and the trigger
here is "where opportunities for disabled persons are not
as good as those for other persons". Do you anticipate that
this will pose a difficulty for public authorities to determine
and decide when they will be required to have due regard to the
need to improve opportunities for disabled people?
Mr Winyard: In broad terms we
very warmly welcome this clause and the introduction of public
authority duty. That needs to be said at the outset. We feel that
the wording of 49(a)(i)(c) will in itself create difficulties
This is a wonderfully obscure piece of writing: "The need,
where opportunities for disabled persons are not as good as those
for other persons, to promote equality of opportunity between
disabled persons and other persons by improving opportunities
for disabled persons". A much easier way of putting this
would be "the need to promote equality of opportunity for
disabled persons". That would work quite well and it would
give public authorities a much better chance of knowing what is
expected of them, so that is a starting point. I do not think
we do anticipate any great difficulties in determining what would
be required. It would certainly require public authorities to
think much more systematically about the full range of activities
they undertake. There will be a greater use of audits, I am sure,
to monitor how they are undertaking their duties. We anticipate
this duty having an enormously positive impact and one area in
particular would be in public procurement. We do have new European
legislation in this area but it needs to be implemented in the
UK and this public sector duty will certainly require public authorities
to think about the equipment that they purchase and ensure that
it is fully accessible for disabled people, so that is going to
be of real importance.
Q205 Mr Williams: Do you think it
would be reasonable for a person who is disabled but not recognisably
disabled to have to inform the public authority that he or she
was going to access some of its services before that person did
access those services?
Mr Winyard: Clearly this duty
is meant to be an anticipatory one. We expect it to lead to duties
being undertaken in a way which will properly meet the needs of
disabled people. I guess in some areas people will need to spell
out that they have specific requirements that may not be met.
I do not see any problem with that.
Q206 Lord Addington: Following on
from that idea of hidden disabilities being a very important one,
and certainly including the idea of dyslexics and the very basic
interchange of that information normally being provided on a piece
of paper and having to ask someone to explain it to you or for
you to put the information down, would that not be an example
where you should train your staff to carry out that function and
be available to do that function once it has been described to
you? Surely that would not be something that would be covered
in this situation?
Mr Winyard: I imagine that is
one way in which this duty might be met, yes.
Q207 Lord Addington: Also the idea
here would be that if you are training your staff to respond it
would be taken into account.
Mr Lamb: This partly perhaps goes
into the next question. Certainly the point is that it is anticipatory
duty so we would be expecting—
The Committee suspended for a division
Q208 Mr Williams: Mr Winyard gave
us an alternative wording for the trigger. Do you think that will
better enable public authorities to get out of or avoid the comprehensive
approach to this duty?
Mr Winyard: The duty is very much
an anticipatory one. The expectation is that public authorities
will take a whole variety of actions in order to promote equality
of opportunity for disabled people and the rewording of that clause
would be very helpful in terms of clarifying and simplifying what
is expected of them.
Q209 Mr Williams: So you are recommending
that to us?
Mr Winyard: Yes.
Q210 Mr Berry: Many people have invoked
the Race Relations (Amendment) Act and said that we should have
parallel obligations in relation to disability and, of course,
the draft Bill does not include a requirement to promote good
relations and you asked the question in your memorandum why has
not the Government included a duty to promote good relations between
disabled people and non-disabled people. What activities do you
think public authorities would undertake in order to fulfil that
objective? What kinds of things do you have in mind that would
not be embraced by the general commitment to promote equality
and equal opportunities?
Mr Lamb: I think the most obvious
answer to that is that we look at the kinds of activities that
are being promoted under the Race Relations Act. There are four
broad areas you can see within that and I have some more specific
examples. The first is work bringing communities together and
building community cohesion, and you can obviously see how that
might transfer and apply across disability; secondly, addressing
issues of harassment and violence outside the workplace in the
specific sense that at the moment there is no DDA duty specifically
on the public to behave well towards members of the disabled community,
although there is now a separate duty that has been brought in
separately from the DDA to do that. Thirdly, there is the promotion
of general understanding and awareness in the community and, fourthly,
improving civic participation and combating social exclusion and
deprivation. If you look at what that might look like, if you
look first inside a local authority service provider and someone
who is thinking about how they make reasonable adjustments, this
would obviously give the whole issue a higher profile within there.
Public authorities could ensure that all staff receive disability
equality training. Public authorities should stop seeing disability
as an additional issue but regard it as part of their integral
functions and service delivery. They could also factor disability
into planning processes in the way they exercise their duties.
What it is trying to ensure is that equality is built in and not
bolted on, so it is very much part of that anticipatory role about
being much more proactive about how you do that within the community.
I hardly need remind this committee that some of the reasons behind
that for what happens in the community is very simply that hate
crime affects one in five disabled people, and that was very clear
from the DRC Attitudes and Awareness Survey, and that nine out
of ten people with learning difficulties face some form of violence
or abuse. Our casework service has many examples right down to
where deaf and hard of hearing people have been texted on their
mobile phones because people could not make them hear so they
have texted them instead with abusive language and behaviour in
that way. We feel that if there is not a more positive duty and
public authorities are not setting a more public example and promoting
that, even outside their own service provision, we will not have
any chance of addressing the fairly endemic violence and discrimination
that takes place against disabled people within their communities.
Q211 Mr Williams: You have made what
many would regard as a strong case, and you have already discussed
this issue with officials and possibly ministers. We will have
the minister at a subsequent session but why do you think the
Government has excluded this?
Mr Lamb: I think that would be
better addressed to the Minister rather than me trying to speculate.
As far as we have discussed it with officials, my understanding
is that there is a rather technical argument that relates to symmetry
of obligations between DDA legislation and race relations legislation.
Whereas race relations creates obligations on both sides DDA legislation
requires obligations to positively treat disabled people differently.
I think there is an unwarranted worry that there might be a case
for saying that the local authority in some way, by doing all
this promotional activity, is disadvantaging non-disabled people;
at least I understand that is part of the concern. In a way I
think it is better to have that elucidated by the Minister because
it is not one that we agree with and I do not want to be making
the Minister's case, if that indeed is the case.
Q212 Lord Addington: What criteria
would you use to decide which public authorities should be included
in a list of those subject to the positive duty under this clause
and how would you respond to the view that the creating of a list
or schedule of public authorities would become overly cumbersome
and subject to constant revision? This is a very old political
point. Do we have a big list with everybody in or do we have a
short definition.
Mr Lamb: Let me start by saying
intuitively why on earth would you want to have a list if in some
way you could cover something with a general duty? It almost seems
counter-intuitive to go the other way. First, it is important
to say that that was the approach taken in the race equality duty
and that is very helpful, together with the definition in this
Act, in starting to define how you would identify those public
bodies. What happens in the reality of considering these lists
is that in fact, whether you specify it or not, when anybody thinks
of starting to try and work with it and identify who you need
to work with and who is responsible, the net effect is that, whether
formally or not, you start producing a list because you need to
know who is in and who is out and what is actually going to happen.
I think the practical effect, whether you have a stated list or
not, is that you have one. Thirdly, that list does not have to
be exhaustive. It is not that you do have this enormous laundry
list and you are always adding or taking away from it every other
day. There are lots of other examples in the Act where you do
have administrative lists around reasonable accommodation within
employment, for example, and there is a great debate about whether
you should list it or not. In the end a very pragmatic approach
was taken where you had a list of the types of things you should
do in the same way as you would have a list of the types of bodies
that were undertaken but it would not necessarily be an exhaustive
list. Also, what it would remove is the need for litigation in
courts about whether an organisation is a public authority under
the meaning of the Act and it would also allow the DRC to develop
guidance aimed at specific sectors if you mentioned them in that
way. Lastly, we also have a concern that there have been examples
where what we thought had been public bodies—and I expect
everybody knows of the case that Leonard Cheshire took in relation
to a body under the Human Rights Act that we thought was a public
body and it was found not to be—and the tendency, especially
in housing associations and the housing field, is to escape duties
by redefining yourself as not a public body. If there was a list
there could be no prior dispute about whether something was a
public body or not. Therefore, unless we could be convinced that
in some way having just the general definition would really capture
those issues and would not lead to problems around deciding who
is in and who is out and the need to produce lists anyway, I think
we would want to go with a list approach, but a sensible one in
the sense that you could have an illustrative list and add to
that, even though to some extent that may appear counter-intuitive
at first sight.
Mr Congdon: Could I add a couple
of points, Chairman? There have been issues in relation to examination
boards and whether they are all public bodies or not and therefore
not making reasonable adjustments when a blind student is taking
an exam. That is a particular reason why we would like the definition
to be clear, but within the context of what was being said earlier,
we regard the obligations under the public authority clause as
being very fundamental and important. There are other aspects
in relation to disability discrimination that are not really dealt
with satisfactorily today, and in some respect are surprising.
There are a number around the field of education where we have
obviously had both the DDA and the Special Education Needs and
Disability Act. We have come across a number of cases where children
are being denied their education in school either by being formally
excluded or usually informally excluded from school because their
health needs cannot be met. That may involve medication, it may
not involve medication. What we think would be really useful is
if the committee were able to ask the Government to set out what
specific duties under this clause would apply to schools, further
education colleges, etc, and to see whether the Government would
be prepared to review the specific guidance which is given to
schools in this respect under the 1996 circular which really needs
reviewing in the light of the Special Education Needs and Disability
Act. One would have thought that the issue of children being denied
education because of health needs would have been met already
by legislation but it has clearly not been and therefore the public
authority power is a powerful weapon and lever that could be used
to bring about real improvement.
Q213 Chairman: Are you claiming that
the Special Education Needs and Disability Act is not meeting
this, is failing in this regard?
Mr Congdon: That is correct. We
have certainly had informal discussions with the DRC on this point.
An example would be, and I do not think there has been much in
the way of case law on this, that a school could have a blanket
policy to refuse to administer medication to all pupils, and so
that would not under the current law necessarily be discriminatory
because they would be discriminating against everybody but, of
course, with disabled pupils they are more likely to have medical
needs that needs to be addressed. What you get and what is particularly
difficult about this area, because parents do not necessarily
want to kick up a great fuss because they realise this might damage
their relationships with the school, is that what parents often
do is put up with it or take their child to another school and
so you do not get the resolution by legal routes. It just means
they have to put up with all those difficulties and aggravation
and it would be a very powerful message if the Government set
out very clearly how they could see this public authority power
being used to address issues like that.
Chairman: Any parent of a disabled child
is fully aware of the point that you have just made about what
happens if they make a fuss.
Q214 Lord Tebbit: Should not those
needs be attacked through education legislation rather than through
this legislation? Secondly, surely one either has to define the
public bodies to which this legislation applies by defining what
is a public body or one has to give a list of every body to which
it applies? You cannot compromise between those two surely? You
cannot have illustrative lists in legislation.
Mr Lamb: Can I come back on the
first point? We are not saying either a list or the definition.
We totally agree that you need the definition but we think you
also need an illustrative list. It is not an either/or; it is
both. I think the view you were putting to us was that just to
have the definition is enough. We are saying absolutely you need
the definition and we can give you an illustrative list of what
would appear as bodies covered under that, but then I think you
do need a list of areas and sectors as illustrative of what is
expected to be covered, and I think the education one is a very
good example of that. In another role I am Chair of the Special
Education Consortium, which includes all the bodies representing
the DCC, which is a much broader group of bodies around education,
and they are all extremely concerned as well about what is covered
and what is not covered in the way that David has outlined. In
terms of your question about would it not be better covered in
education legislation, I think the short answer is yes, but we
go back to our opening statements and the practicalities of the
types of negotiations that would have to go on within different
government departments and amendments in other areas of the legislation
and not currently in the current Bill, whereas we can see a way
through providing a list approach that it would be able to be
simply covered under the powers that are already in the Bill and
therefore that might simply be a way of doing it. In an ideal
world the answer is yes, it should be covered under education
legislation.
Q215 Lord Addington: So what you
are actually saying is that you have got to have a definition
of what you think a public body is and a huge list of everything
that is a public body and it has got to be updated regularly?
Mr Lamb: On the second, that we
would have an illustrative list, that would ideally be by sectors
to give people guidance as to the types of bodies and some illustrations
of those but it would not necessarily have to be an exhaustive
list.
Q216 Lord Addington: If you get a
list like that the argument always is, as I set out, do you have
a very short thing that states, "These are the bodies that
shall be ...", or do you have a huge list? Then you have
an argument which goes through, and I think I was one of the first
Members who spoke on it, that you then say everything should be
in or you just say "all the public bodies", and you
end up having to go for one or the other, so I take it from what
you are saying that you would like a definition of what you think
a public body is, "These are the bodies we think are covered",
bang?
Mr Lamb: But not necessarily an
absolutely comprehensive list. I understand what you are saying
but we could easily point to other areas in the DDA, for example,
the whole idea of what reasonable accommodations an employer has
to make where in a way precisely the same issues were discussed,
whether you had a whole list or whether you had a general definition.
It was felt that the general definition did not give enough guidance
but it was accepted that a complete list was almost impossible,
so what you have is a general definition of reasonable accommodation
and then in guidance you have a list of the types of accommodation
that might be followed but which is not an exhaustive list, and
so it is a guidance. What it helps you to do is pick up any organisations
where you want to give absolutely no doubt that these are covered
and why but it leaves latitude that you are suggesting that you
do not have the issue of "Let's look at this week's list".
I would also add that in relation to the way the race relations
duties have worked within the Race Relations Act we are not aware
of there being any massive problems in relation to the way that
list is maintained, and that is a list approach. I think this
improves on it since it is a definition and a list.
Q217 Baroness Wilkins: Can you highlight
some of the difficulties that have been experienced by disabled
tenants who sought redress under the provisions of the Landlord
and Tenant Act 1927?
Ms Nash: We are not aware of any
cases where disabled people have been able to seek redress under
the 1927 act, although we can illustrate some of the challenges
and the difficulties by example. Obviously, we welcome the suggested
introduction of the "reasonable adjustment" duty for
landlords when renting to disabled tenants, and obviously this
would mean where a disabled person might not have been able to
seek redress through current means, for example, allowing a tenant
with mobility impairment to leave her rubbish in another place
if she cannot access the designated place. Another case, for example,
is changing or waiving a term of the letting to allow a tenant
to keep an assistance dog on the premises. It would allow for
a change in the term of letting that forbids, for example, alterations
to the premises so that a disabled tenant could make the necessary
alterations with the consent of the landlord. A simple case would
be where it would allow for a landlord potentially to read out
a tenancy agreement to a visually impaired person. The current
difficulties of obtaining permission are quite clearly illustrated
by a recent case brought to RADAR's attention. The case concerns
a man who lives in sheltered accommodation, he has chronic emphysema,
spends significant amounts of time at home and is unable to climb
stairs. He recently asked for a stair lift, offered to pay for
the installation and maintenance of it, but his neighbour objected
and the management committee stated that they could overrule the
objection but that work could only take place if all four people
of the block agreed. In relation to the 1927 Act only current
lettings are provided for, providing no right of reasonable adjustment
to be made in prospective lettings. It also does not cover, I
believe, the common parts of the building, which is a significant
problem. We hear many cases where a disabled occupier needs, for
example, alterations to the external parts of the building, such
as installation of grab rails or additional lighting or a ramp
and so on. We understand that currently the DCC has no power to
take a case under the 1927 Act and therefore at the moment disabled
people are left without reparation on this issue. One further
case highlights the difficulties that disabled tenants face. I
will just read a quote here about a woman we heard of: "I
live in a block of flats. Though I own the flat it is on a leasehold
basis. I am a wheelchair user and would like a ramp to be put
in. The management company has consistently refused my requests
and I cannot afford to bring action against them because the terms
of my grant state that I cannot start work until all necessary
consents are obtained". Another case the DCC are aware of
is about a resident of a block of flats who had an impairment
following an accident. He owned his flat in the same way as other
residents and through the management committee he put forward
proposals for a lift to be installed to enable him to gain access
to his flat, but again two members of the management committee
refused it. A ballot of all the residents in his block of flats
and those of the surrounding block took place to decide whether
the permission should be granted. It is extraordinary. Two members
of the board refused to give the permission, stating that the
lift would restrict access and bring down property values. Some
residents of the block of flats next door objected on the grounds
that it would make all the flats look like an old people's home.
The short answer is we are unaware—
Q218 Chairman: Ms Nash, I think it
would be easier if you submitted them in writing.
Ms Nash: I am boring the committee.
Q219 Chairman: No, you are not boring
the committee at all.
Ms Nash: I have come to the end
of my examples. The last sentence is that we would urge the government
to bring management committees and wardens into the scope of the
new housing provisions and to make it clear that landlords cannot
and should not unreasonably withhold consent to disabled tenants
to carry out physical alterations.
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