Further memorandum from the Disability
Charities Consortium (DDB 127)
PART A: ELECTED AND APPOINTED REPRESENTATIVES
IN PUBLIC LIFE
1. CLAUSE 15:
RELATIONSHIPS BETWEEN
LOCALLY-ELECTABLE
AUTHORITIES AND
THEIR MEMBERS
1.1 In 2001, 13 per cent of councillors
in England and Wales were disabled people. Disabled councillors
face considerable barriers in carrying out their official functions,
including lack of accessible transport and documentation, inaccessible
venues and discriminatory attitudes.
1.2 Clause 15C (reasonable adjustments)
only seems to refer to practices, policies and procedures. There
is no mention of auxiliary aids or services. If this aspect of
reasonable adjustment is not included in the draft Disability
Discrimination Bill it could have a serious impact upon disabled
councillors. For example, without aids such as an induction loop
or a service such as a BSL/English interpreter, hard of hearing
and deaf people will not be able to participate in meetings.
1.3 We note under s 15B(4) and (5) that
the Secretary of State may make regulations as to justification
of less favourable treatment of disabled councillors. We would
like some clarification as to the circumstances in which these
powers might be used.
1.4 We agree that appointments of councillors
to offices such as cabinet posts, council committees and outside
bodies by their party groups should remain outside the Disability
Discrimination Act 1995 (DDA) as these are decisions for the political
parties concerned rather than (other than in a purely technical
sense) the local authority itself.
Recommendations
We ask the Government to rectify Clause 15C
to explicitly include the provision of auxiliary aids and services
in the duty to make reasonable adjustments.
We ask the Government to clarify whether and
how they intend to use the regulations as to justification of
less favourable treatment.
2. PUBLIC APPOINTMENTS
2.1 The Disability Discrimination Act 1995
(Amendment) Regulations 2003 (SI 1673) come into force on 1 October
2004. These extend the DDA's provisions to office holders where
"they are entitled to remuneration" (s4C(3)(a)) and
where the "post is one to which appointments are made by
a Minister of the Crown, a government department, the National
Assembly for Wales or any part of the Scottish Administration"
(s4C(3)(b)). Only 3 per cent of people currently serving on non-departmental
public bodies (NDPBS) are disabled people. Many such posts, including
lay magistrates, school governors, are unpaid and/or not appointed
by ministers, government departments or national assemblies.
Recommendation
The Disability Discrimination Act 1995 should
extend to all public appointments whether paid or unpaid including
boards of public bodies, lay magistrates, NHS appointments, school
governors and governors of further and higher education institutions.
3. MPS AND
OTHER POLITICAL
OFFICES
3.1 Section 65 of the DDA covers disabled
staff of both Houses of Parliament and members of the public in
the provision of services. S65(5) states that nothing in "the
law or practice of Parliament prevents proceedings being instituted
before an industrial tribunal". In such cases, the appropriate
Clerk to the House is the person against whom proceedings may
be instituted.
3.2 We believe that the DDA should be extended
to all political office holders at national level—Members
of Parliament, peers, Members of the Scottish Parliament and Members
of the National Assembly for Wales.
3.3 It has been argued that extending the
DDA to functions of Parliament other than those covered by s65
would raise problems concerning constitutional separation of the
powers of courts and the legislature. We do not agree that addressing
access issues faced by disabled MPs and peers should give rise
to such constitutional questions. We are asking for provisions
to ensure that MPs, peers, AMs and MSPs can perform their functions
without obstacles related to a disability. The chambers of both
Houses, committee rooms and other facilities should be fully accessible.
Parliamentary documents should be available in accessible formats
for people who are blind or partially sighted.
3.4 A clear distinction can be drawn in
legislation between such issues and those matters which have implications
for the constitutional doctrines of parliamentary sovereignty
and the exclusive cognisance of Parliament. These latter issues
include Parliament's powers to make legislation and the powers
of the Speaker and Lord Chancellor to conduct the business of
both Houses and to regulate members' behaviour. Such issues would
remain outside the legislation while matters such as disabled
MPs, peers, MSPs and AMs rights to reasonable adjustments in carrying
out their functions and the right not to experience discrimination
could be brought within the DDA.
Recommendation
We ask the Government to make provision that
political office holders at national level (Westminster, Scotland,
Wales) are protected against discrimination in the conduct of
their official business.
PART B: FURTHER DISCUSSION OF ISSUES ARISEN
DURING ORAL EVIDENCE
4. KNOWLEDGE
OF DISABILITY
4.1 Mind has specific expertise about the
definition of disability, and will be able to address the issues
around definition of disability and hidden disability in their
separate oral evidence on 30 March 2004.
4.2 We would wish to make the point, however,
that caselaw under the Disability Discrimination Act 1995 (DDA)
has established that an employer can subject a disabled person
to less favourable treatment for a reason related to his/her disability
regardless of whether the employer has knowledge of that disability.
That knowledge, or lack of it, though, may be relevant to the
issue of justification.
4.3 With regard to the matter of reasonable
adjustments, employers only have to make them, where they know,
or, in the circumstances, could reasonably be expected to know
of a person's disability. Therefore a disabled person only has
to disclose his/her disability if s/he needs reasonable adjustments.
4.4 So far as we are aware, there have been
no problems with the state of the law as it stands, and in particular
with the fact that `non obvious' disabilities are covered by the
DDA.
4.5 The DDA does not place a duty on disabled
people to disclose their disability to employers. Often employers
discriminate against disabled people, only because they hold certain
prejudices against disability. Not knowing that a person is disabled,
especially if this is not relevant for the job in question, diminishes
the risk of intentional discrimination.
4.6 Under the Race Relations Act and the
Sex Discrimination Act it is already unlawful in many circumstances,
and as a result of caselaw, to ask questions related to pregnancy,
married status or race. Tribunals can draw inference of discrimination
from gender- and race-specific questions in the recruitment process.
In the Netherlands, we understand that employers are prohibited
from asking disability-related questions under any circumstances.
Thus there is clearly precedence for such an approach.
4.7 If a disabled person meets the minimum
requirements of a job description, and subsequently is not short-listed
for an interview, and where the job application form required
the applicant to state whether he or she has a disability, it
is likely to give rise to an inference of discrimination.
4.8 It is for these reasons that we believe
that disability-related enquiries should be kept to an absolute
minimum We thus endorse the Disability Rights Taskforce (DRTF)
recommendation on disability-related questions, which we would
urge be included in this bill.
4.9 For example, it is widely accepted that
an employer can use anonymous equal opportunities forms to monitor
his workforce and the background of people (sex, age, ethnic background
and disability) who are responding to job adverts.
4.10 In addition, an employer can still
make queries that are necessary to establish the need for reasonable
adjustments. It is worth noting that the Disability Rights Commission
(DRC) draft Code of Practice on Employment encourages employers,
as a matter of good practice, to ask at the job interview whether
any reasonable adjustments need to be made.
5. THE DUTY
TO MAKE
A REASONABLE
ADJUSTMENT
"Substantial disadvantage" trigger for
reasonable adjustment
5.1 In our earlier evidence we argued that
the current trigger of "impossible or unreasonably difficult"
is too high. It denies disabled people the right to independence
and privacy, without the need to rely on relatives, friends and
other members of the public.
5.2 We gave an example of the Appleby v
DWP case where Mr Appleby had to rely on members of the public
in a Benefits Agency to tell him when his name was called. Likewise
a blind person could have to rely on another person to read their
post as the "impossible or unreasonably difficult" trigger
does not provide for an independent right to access private or
confidential information.
5.3 It is quite common for disabled people
to use a coping strategy to deal with the substantial disadvantage
that they may experience when trying to access services, etc.
These strategies can include asking a relative to read correspondence,
make telephone calls, or indeed where a disabled person arranges
their own support. These strategies are used where a service provider
or similar has failed to make a reasonable adjustment, for whatever
reason including an outright refusal. The disabled person accordingly
makes the adjustment, but in so doing, deprives himself of the
opportunity to take legal action under the DDA.
5.4 We proposed to follow the DRC's Legislative
Review, which recommended changing the trigger to that of "substantial
disadvantage".
5.5 Using this trigger means that:
— Disabled people would be able to
live as independent people;
— The trigger across the DDA is simplified,
as the same is already in place for employment and education.
5.6 This lower duty would create additional
responsibilities for service providers, however, it must always
be remembered that any adjustment is subject to the test of reasonableness.
This test takes into account the resources and premises of the
service provider and therefore will never require overly burdensome
adjustment of a provider. In addition, service providers are already
familiar with a low trigger—that relating to auxiliary aids
and services (s21 (4) of the DDA) which are required where they
would "enable or facilitate" the use of a service.
Does the anticipatory duty obviate the need for
a lower trigger?
5.7 Employers do not have an anticipatory
duty; instead they have a duty that is owed to the individual,
and the duty is triggered by "substantial disadvantage".
We do not believe that merely because the duty is owed at large
there should be a higher trigger. In particular, we do not share
concerns about the level of demands that the lower trigger would
place on service providers because of the anticipatory duty. The
anticipatory duty means that service providers have to think in
advance about the need to provide access to disabled people. If
a service provider has complied with the anticipatory duty, it
will mean that they are less likely to have to make reasonable
adjustments for an individual.
5.8 The anticipatory measures required would
be subject to the test of reasonableness—which is absolutely
key to the duty and its scope.
Public functions and anticipatory duty
5.9 The Joint Committee was keen to have
further illustrations of failures of provision for disabled people
that would be addressed by the anticipatory duty.
5.10 There are many service providers who
have put considerable resources into improving disability access:
in the view of the Disability Charities Consortium (DCC), this
is likely to have been encouraged by the anticipatory nature of
the duty to make adjustments. Barclays Bank, for example, has
spent £11 million on improving disability access in 475 of
their branches. They are offering customers wheelchair access,
lifts to upper floors and car parking in certain branches: all
branches feature an induction loop fitted at the counter which
can be moved to an interview room if discussions take place in
there. Barclays Bank have a refurbishment programme which will
see increased level or ramp access, power assisted doors, low-level
counters, improved lighting and clear signage. New style cash
machines will feature Braille, a funnelled entry for cards and
large bold numbers on raised keys. Abbey National, another major
bank, has undertaken an audit of all branches to make sure that
they will be fully accessible for the 2004 changes [see Financial
World, July 2002].
5.11 Disabled people often experience that
public authorities and service providers do not contact them in
an appropriate way, for example a council official tries to contact
a deaf person using a voice telephone rather than a textphone,
or JobCentrePlus sends correspondence to a partially sighted client
using normal print rather than large print. Often the problem
is in the computer software that does not allow officers to register
the information requirements of disabled clients. When the London
Borough of Hackney made changes to their computer system, they
consulted with disability organisations how they could best meet
the needs of disabled people.
5.12 RNIB has come across an example of
the Highways Agency having made alterations to a bridge to make
it more accessible for horses that are regularly taken from one
field to another over it. However, in making the bridge better
for horses the Agency failed to recognise that it made the bridge
less accessible and potentially dangerous for visually impaired
people by removing features that assist in recognising the steps
and other features of the bridge. A man who complained about this
had to be informed that currently under the DDA nothing could
be done as the Highways Agency is not covered.
5.13 An anticipatory duty on the Highways
Agency in relation to their public functions would have meant
that they would have had to consider accessibility issues in advance.
The reality of having to consider what was reasonable in relation
to one person, however—as under the proposed provisions—is
likely to be vastly different to that in relation to disabled
people at large, which would be the case with an anticipatory
duty.
Justification
5.14 At the moment the DDA permits employers,
service providers and others to justify a failure to make reasonable
adjustments. This justification defence comes into play only after
the question of whether the adjustments are reasonable has been
considered, and answered positively. Therefore, the alleged discriminator
has two opportunities to avoid liability. That means that there
is in effect a double test of reasonableness, although recent
caselaw has severely restricted this (Collins v National Theatre
Board Ltd [2004] EWCA Civ 144).
5.15 The DDA Amendment Regulations 2004
will remove the possibility for employers to justify failure to
make an adjustment if it is reasonable for them to make it. The
test of reasonableness would then be applied only once. This would
end a confusing practice that uses double standards. DCC believes
that it should not be possible to justify a failure to make a
reasonable adjustment in relation to goods and services, and public
functions. Issues such as cost and health and safety should be
taken into account in determining whether or not it is reasonable
to make an adjustment, rather than waiting until the justification
stage. The Court of Appeal in Collins v Royal National Theatre
took this line, holding that under s5(4) what is material and
substantial for justifying a failure to make reasonable adjustments,
cannot include factors which either have or could have been considered
in relation to establishing whether or not there had been a failure
to make the adjustments.
5.16 We also believe that the test of justification
should be objective, rather than the present mix of a subjective/objective
test. At the moment a "reasonable opinion" test applies.
Whilst this may seem attractive, what it means in practice is
that a court cannot put itself in the shoes of the service provider,
and look itself at all the circumstances, and then reach a decision
as to whether or not treatment is justified. For example, where
health and safety is cited as justification: the court cannot
look at all the information which it has, and reach a decision
about whether there is in fact a health and safety risk on the
basis of which treatment is justified. It has, instead, to consider
whether the service provider has a genuine belief that there is
a health and safety risk: and then consider whether it was reasonable
for the service provider to hold that belief. This can result
in prejudices being reinforced and is certainly not, in our submission,
an appropriate way in which to justify potential discrimination
by a public body.
5.17 The reasonable opinion aspect of justification
may have served a purpose in the early days of the Act, when service
providers, in particular small organisations, may have had difficulties
in obtaining information. At this time disability was also an
issue with a low profile, about which little was known. This is
now not the case. There is a great deal of clear and readily accessible
information and advice available from the DRO and elsewhere.
5.18 The draft Disability Discrimination
Bill is an ideal opportunity to remove the justification defence
for a failure to make reasonable adjustments in respect of the
other Parts of the DDA, as the Government has done for Part 2
DDA.
6. TRANSPORT
6.1 Disabled people often cite the lack
of accessible transport as the single biggest barrier to labour
and social participation. Accessible transport is an essential
precursor to the wider benefits of the disability civil rights
agenda. The draft Disability Discrimination Bill provides a unique
opportunity to address the fundamental gap in the DDA caused by
inaccessible transport. Not to do so will be another opportunity
missed and deliver flawed legislation.
Consequences of lifting the Part 3 exemption for
transport providers
6.2 The regulation making powers within
the draft Bill make it possible to lift the Part 3 exemption for
transport providers. Depending on the regulations this lifting
can be done in whole or in part. If the exemption was lifted for
the October 1996 duties, it will make it unlawful for transport
providers to provide a lower standard of service to disabled people
and to refuse to provide services for a reason related to disability.
The costs covered in the draft Regulatory Impact Assessment (RIA)
mainly focus on disability equality training for staff members
and they are acknowledged to be low. The benefits of lifting the
exemption for the 1996 duties are enormous and have been discussed
in previous evidence presented to the Joint Committee.
6.3 In addition, the draft Bill allows for
the introduction of regulations to lift the transport exemption
for the October 1999 duties, which again can be lifted in whole
or in part.
6.4 The benefits of lifting the exemption
for the 1999 duties are broken down in detail below.
6.5 The introduction of a duty to make changes
to practices, policies or procedures which make it impossible
or unreasonably difficult for a disabled person to make use of
a service would have a positive impact on disabled people in a
variety of ways, for example, ensuring that an "at seat"
refreshment service was offered to disabled people unable to use
the buffet car. Although assistance at stations is already covered
by the DDA (see for example the Ross case) there has always been
some confusion surrounding what is in, and what is outside the
exemption. The draft Bill will ensure that it is irrelevant whether
such assistance is provided to the platform, or actually on to
the train.
6.6 In addition, a separate statutory Code
of Practice, which we assume that the DRC would produce, would
be able to address, as a whole, issues such as the 24 hour book
ahead system for assistance at stations, which we are aware has
in some cases required 6 weeks advance booking and is frequently
disregarded in any event.
6.7 The provision of an auxiliary aid or
service: if a coach or a train has a passenger information system,
but the driver has neglected to switch it on, the transport provider
is likely to have failed in its duty to make a reasonable adjustment.
A driver might also have to make oral announcements with regard
to station stops, to ensure that blind and partially sighted people
are aware of the stop.
6.8 The provision of a reasonable alternative
method to disabled people of accessing the service might be required
from transport operators where a physical feature makes it impossible
or unreasonably difficult for disabled people to make use of the
services. Another example might include when the trains on a particular
route are inaccessible to a disabled person the train company
might be under a duty to provide the disabled person with an alternative
way of getting to the destination they were intending to travel
to. This could mean providing a taxi service to a station where
the person would be able to board an accessible train. The duty
would be subject to the test of reasonableness, which also looks
at factors such as cost and practicability.
6.9 Electronic passenger information systems
are another example of what may be covered by these provisions.
If no passenger information system were provided, the transport
operator would be under a duty to provide the service in an alternative
way. For example, drivers could be required to announce the next
stop and the destination. This would not lead to excessive additional
cost but once again would bring considerable benefit for many
disabled people.
6.10 We expect the overall positive impact
on disabled people of extending the October 1999 duties to transport
operators to be considerable. Disabled people would be able to
have confidence in the transport network and whilst these duties
do not ensure disabled people's access to transport services in
the same way as non-disabled people, it would ensure that disabled
people would be guaranteed some level of service. This in turn
would mean that a crucial barrier to the workplace, healthcare
and leisure opportunities and social participation generally will
be on the way to being overcome.
The practicalities and costs of having 2017 as
an end date for rail vehicles
6.11 The Joint Committee has asked for evidence
to support the DCC's statement that 2017 is an appropriate and
workable date by which rail vehicles should be made accessible.
6.12 The DCC believes 2017 would be an appropriate
end date, as it would ensure consistency with other transport
operators such as the bus sector for whom 2017 is the end date
set. Consequently, disabled people would finally have the full
choice of transport modes to undertake journeys throughout the
country. In view of the recent publication of the Sixth Report
of the House of Commons Transport Committee which looks at Disabled
People's Access to Transport, the DCC would also like to draw
the Joint Committee's attention to recommendation 11 which looks
at end dates:
"The rail system should be made accessible
as soon as practicable; it is not acceptable for disabled people
to have to wait for 20 to 30 years for this to happen. We recommend
that our colleagues on the Joint Committee ask Ministers about
the relationship between their consultation on an end date for
rail accessibility and the SRA's own policy."
6.13 The RIA has not costed the end date
of 2017. We expect that, although there will be additional costs
accrued, this will be offset by other benefits. When bus operators
recently had to comply with similar legislation they experienced
a significant increase not only in the number of disabled people
travelling with them but also non-disabled people—parents
travelling with push chairs and elderly people. It is not unreasonable
to conclude that the bus experience should be the same for rail
operators. Unfortunately, the RIA accompanying the Department
for Transport recent consultation on end dates for rail vehicles
does not cost this benefit to the rail operators. In addition
the RIA does not take into account the expected longer-term financial
benefits due to increased volumes of passengers, or the social
benefits for disabled people. Therefore the information on the
potential costs and benefits is not complete.
6.14 Clearly, the costing of end dates is
complex. We have summarised some of the main points below but
more detailed costing would have to come from the Department for
Transport (DfT).
6.15 The end date of 2017 has not been specifically
costed. The RIA accompanying DfT's end dates consultation indicates
that compliance by 2020 would cost the transport industry £50
million more than the Government's preferred date of 2025. This
would mean that an additional 1,360 vehicles are made accessible
to disabled people before their natural expiry date.
6.16 The RIA states that compliance by 2015
would increase the costs by over 50 per cent, which works out
at approximately £39 million. Given the substantial sums
of money dealt with by the transport industry the DCC does not
understand why this is considered impracticable and would be interested
to see more evidence to support the claim that it `would probably
be impracticable".[2]
6.17 In addition to these costs, the RIA
also lists interim refurbishment costs that could be carried out
on the vast majority of vehicles before the chosen end date. Whilst
these changes would not make rail vehicles fully accessible, as
they do not include the cost of accessible toilets or passenger
information systems, they would make a significant difference
for many disabled people. These interim changes would affect 3,439
vehicles if done before 2020 and would cost a relatively modest
£29.9million.
6.18 The DCC is disappointed that accessible
toilets or passenger information systems were not costed in the
RIA. Whilst we accept that the costs for this may be considerable,
access to toilet facilities on long distance journeys is essential
and should not be viewed by the industry as an expensive modification
that can be ignored until the last minute. Passenger information
systems are an extremely important way of ensuring the large number
of people with sensory impairments and learning disabilities in
the UK use the rail network with greater confidence.
6.19 The DCC believes that the legitimate
expectations of disabled people that they should be able to use
rail services as everybody else does should take priority when
deciding on an end date for rail vehicles.
7. HOUSING
Landlords' Duties
7.1 Clause 6 of the draft Disability Discrimination
Bill extends the duties of landlords letting premises to disabled
people. The term "premises" covers both residential
and commercial lettings. Under ss22-24 of the Disability Discrimination
Act 1995, persons controlling premises are prohibited from treating
disabled tenants and prospective tenants less favourably than
they would a non-disabled person. The Bill would extend these
duties so that landlords and their agents must make reasonable
adjustments to policies, procedures or practices and to provide
auxiliary aids or services to allow a disabled person to take
up or to enjoy occupation of the premises. These new duties would
not require landlords to make any physical alteration to premises.
This is in line with the DRTF recommendations.
7.2 The draft Bill does not place an explicit
duty on landlords that they may not unreasonably withhold consent
from tenants wishing to carry out adaptations to the premises.
The DWP explanatory notes to the draft Bill state that such a
specific requirement is unnecessary because:
— Where a tenancy agreement prohibits
a tenant from making physical alterations to the premises, the
duty which requires landlords to make reasonable adjustments to
policies, procedures and practices would apply. The condition
would be set aside and replaced with one "so as to allow
a disabled tenant to make alterations needed by reason of his
disability with the consent of the landlord".
— Where the tenancy agreement allows
for the tenant to make alterations subject to the landlord's consent,
s19(2) of the Landlords and Tenant 1927 (LTA 1927) would apply.
This implies a term in such agreements that consent must not be
withheld unreasonably and that any further conditions (eg re-instatement
at the end of the tenancy) must themselves be reasonable.
Gaps in legislation
7.3 The above would leave the issue of landlords'
consent to adaptations in the following situations:
— Tenancy agreement silent on consent
for alterations by tenant:
Tenant would be allowed to carry out alterations
providing they would not amount to "waste" (anything
which might adversely affect the value of the land).
— Tenancy agreement prohibits alterations
by tenant:
The draft Bill would replace the prohibition
with a term allowing alterations with landlords' consent, but
only if a court considered that this would be a "reasonable"
adjustment to make. S19(2) of the LTA 1927 would then imply term
that consent should not be withheld unreasonably.
— Tenancy agreement allows alterations
by tenant subject to landlord's consent:
S 19(2) of the LTA 1927 would apply and imply
a term that consent must not be unreasonably withheld.
7.4 There are a number of problems with
the above:
— Tenants seeking to challenge a landlord's
refusal to allow adaptations would be unable to secure assistance
from the Disability Rights Commission. S7 of the Disability Rights
Commission Act 1999 restricts the assistance of the DRC in proceedings
to those taken under the DDA. Nor would it be possible for the
DRC to draw up a statutory Code of Practice in relation to this
complex issue.
— The test of whether refusal to grant
a disabled tenant permission to carry out adaptations was "reasonable"
under property legislation such as the LTA 1927 is likely to be
narrower than the rights-based approach of the DDA 1995. There
is little caselaw establishing the grounds upon which it might
be reasonable to refuse consent to alterations. In the old case
of Lam bert v EW Woolworth & Co Ltd (No.2) [1938] Ch 883 the
Court of Appeal held a "landlord might justify his refusal
to consent on various grounds.. . . on aesthetic, artistic, or
sentimental grounds. . .that the alterations would damage the
demised premises or diminish their value. . .the alteration would
damage his neighbouring premises, or diminish their value".[3]
More recently in Ashworth Frazer v Gloucester County Council [2001]
3 WLR 2180 the House of Lords stated "the landlord's obligation
is to show that his conduct was reasonable, not that it was right
or justifiable".
— Furthermore, the LTA 1927 does not
apply in Scotland.
7.5 The proposed legislative scheme is unnecessarily
complex. Where a tenancy agreement prohibited alterations, this
would involve a disabled tenant in a two-stage process. First,
the tenant would have to show that it would be reasonable within
the meaning of the DDA to waive the term and secondly they would
then have to show the landlord's refusal of consent to the alterations
was unreasonable within the meaning of the LTA 1927. It is possible
to envisage a tenant succeeding under the first test and then
failing the second.
7.6 S19(2) of the LTA 1927 only refers to
the premises contained within the tenancy agreement or lease and
not to any common parts leading to the premises such as stairways,
hallways, steps, paths etc. No rights concerning access to the
accommodation from common parts eg installation of ramps, grab
rails, stair lifts videophones or intercom, etc, is contained
within either the draft Bill or the LTA 1927. This means that
freeholders of leasehold premises need not satisfy any test of
reasonableness or justification in denying leaseholders permission
to make adjustments allowing them access to the premises.
Commercial Lettings
7.7 In 2003, Scope conducted a major employment
survey called "Ready, Willing and Disabled" among disabled
people, employers and non-disabled employees which explored the
reasons why 1 million disabled people who want to work cannot
find jobs. In some cases where workplaces had access problems
which presented barriers to disabled people's employment, employers
cited the negative attitudes of their buildings' landlords towards
making reasonable adjustments.
7.8 Disabled employees can include lessors
who refuse unreasonably to allow employers leasing premises to
carry out alterations in claims under the employment provisions,
and similar provisions are in force in relation to goods and services.
Yet this is not to be afforded in relation to landlord and tenancy
issues under the DDA. In addition, as with residential accommodation
this only applies to works to the premises let and not to common
parts controlled by the lessor.
Other considerations
7.9 If the reasonableness of landlords'
refusal to consent to adaptations is determined under the principles
of land law, the issue of "waste" may be problematic.
Such are the vagaries of the property market that the presence
of adaptations may well diminish the valuation of the premises.
In such cases, it could be argued that the landlord's refusal
was justified. This could be obviated by making landlords' duties
in this respect explicit within the DDA.
7.10 Conversely, the courts might deem it
reasonable that landlords could impose a duty on tenants carrying
out alterations to restore the premises on vacation (many landlords
of social housing currently apply such conditions on their tenants).
7.11 In addition, landlords' duties in respect
of consent to alterations do not cover prospective tenancies.
In order that a tenant may decide whether to take up the offer
of a tenancy, it may be vital that the tenant knows in advance
whether the landlord's consent will be forthcoming. The draft
Bill's provisions in relation to this issue should cover prospective
tenancies.
Recommendation
That a new sub-clause be added in Clause 6 of
the draft Disability Discrimination Bill imposing a duty on landlords
and freeholders that they shall not unreasonably withhold consent
from any tenant/leaseholder wishing to make physical adjustments
to the premises or common parts by reason of her/his disability
or of a member of her/his household.
8. PUBLIC AUTHORITIES
DUTY
8.1 As stated before, the DCC welcomes the
public authorities duty which will create a culture where the
needs of disabled people are considered in the first place, before
systems and physical features are decided.
8.2 The provisions in the draft Bill place
a general duty on public authorities not to discriminate and to
promote equality
8.3 In addition to the general duty, the
draft Bill creates the power to place specific obligations on
designated authorities, for instance to produce disability equality
schemes, the same as race equality schemes. Related to this specific
duty, is the power of the DRC to issue Codes of Practice and to
take action if public authorities are not complying with their
duties. This is an extremely important tool, for it means that
the DRC does not only have the carrot of promotion but also the
stick of making sure that public authorities follow up their obligations.
8.4 The draft Bill proposes a broad approach
to public authority in relation to the general duty, by using
the definition contained in the Human Rights Act. The DCC can
see the attraction in such a definition, providing as it does
flexibility. The DCC is concerned, however, that such a broad
definition will be problematic: this is evidenced by the report
of the Joint Committee on Human Rights (JCHR), and the comments
which it has made regarding in particular bodies whose functions
are of a public nature.
8.5 The DCC has proposed that as well as
this broad definition, there be a non-exhaustive list of bodies
in the Act. There is ample precedent of this already in the DDA:
for example, s6(3) as currently stands has a long, non-exhaustive
list of steps which an employer might have to take to meet the
duty to make reasonable adjustments s6(4) contains a non-exhaustive
list of factors tobe taken into account in determining what is
reasonable s19(3) provides a non-exhaustive list of examples of
services to which the relevant sections apply etc.
8.6 The DCC believes that in addition to
the general definition of a public authority, a list is necessary
for the following reasons:
— It gives an illustration of who is
definitely covered by the definition.
— It provides clarity for most organisations
and allows them to plan accordingly.
— It facilitates the work of the DRC,
or its successor, who can target the appropriate bodies, and issue
sector-specific guidance and codes of practice.
8.7 The DCC is particularly concerned about
those organisationswhich exercise some public functions, but which
courts have been holding not to fall within the definition contained
in the Human Rights Act (as detailed in the JCHR report). We would
wish to ensure that these are covered by the public sector duty
in respect of these functions: it would be open for the Secretary
of State to list types of functions which come within the definition
of "public functions", or alternatively examples of
these could be given on the face of the bill.
8.8 If the Government follows the list approach
used for the race equality duty, as public authorities are set
up or abolished, the list will be subject to change through regulations.
Such regulations would be subject to negative resolution procedure5
which should make this a relatively simple process.
9. EMPLOYMENT
TRIBUNALS
9.1 The Joint Committee asked the DCC to
submit further evidence explaining our belief that employment
tribunals would provide a better forum for the determination of
all discrimination cases. This is provided in addition to the
submissions contained in our original memorandum.
9.2 Discrimination cases would be better
heard in tribunals because:
— It would greatly increase disabled
people's access to legal redress by reducing costs and complexity.
— Knowledge of the DDA amongst County
Court judges has proved to be limited as few cases are heard in
the County Courts. The lack of judicial awareness of both the
DDA and disability itself has led to some disturbing results.
— The lack of caselaw means that uncertainty
about the interpretation of the DDA continues to exist.
— From October this year tribunals
will be considering cases that relate to employment agencies.
These are currently heard in the county court, as they fall under
Part 3 of the DDA, as opposed to Part 2. Following the implementation
of the DDA Amendments Regulations 2004, though, cases in relations
to employment agencies will be heard in tribunals. In particular,
tribunals will have to hear claims on, for example, failure to
make reasonable adjustments to physical features of premises.
This means that tribunals will get used to dealing with "goods
and services issues"—giving added weight to their abilities
to consider such cases more broadly.
9.3 It is worth noting that tribunals have
dealt with thousands of cases while the courts are still in double
figures only. Tribunals and courts can help clarify a law that
is confusing and unclear for many businesses and people. If courts
have dealt with so few cases under the DDA, the private and the
public sector continue to live in uncertainty about their duties
under Part 3 of the DDA. In contrast tribunals have built up expertise
in the legislation and because of this we believe that they will
be able to cope with the hearing of goods and services. Tribunals
also allow more easily the use of disability discrimination experts
on their panel as lay members. However, it is necessary that tribunals
have the power to refer cases to the courts.
9.4 Making provision for goods and services
cases to be heard in tribunals would, we believe, address the
clear inequality that exists between the legal positions of people
taking employment cases and those taking goods and services cases.
Putting the two types of case on an equal footing in terms of
costs and risk to the disabled people taking the cases would ensure
fairer access to justice for disabled people in both areas.
10. VOLUNTEERS
10.1 Volunteering makes an important contribution
to the community both as an end in itself and as a route into
employment. For many disabled people voluntary work is the first
step into, or back into, the workplace and provides an opportunity
to gain new skills, confidence and experience. For those already
in work, it is an opportunity to apply their skills for the benefit
of the community. For many it is also a social event.
10.2 volunteering is becoming increasingly
professional, with volunteer co-ordinators in large organisations,
and use of contracts to define the rights and obligations of the
volunteer and the employer.
10.3 Voluntary organisations such as VSO
and Oxfam already work with disabled volunteers. There are many
voluntary organisations¥ and community groups that are run
by disabled people.
10.4 It is for these reasons that the DCC
believes it would be a significant omission if discrimination
against volunteers on the ground of disability was not addressed
within this legislation.
10.5 The DDA Amendment Regulations 2004
make provision, specifically for private households, with a list
of factors that determine when it is reasonable to make a particular
adjustment. We would support similar provision for voluntary organisations.
10.6 We do not anticipate this approach
would place an onerous burden on employers given that they already
have to take into account anti-discrimination policy in relation
to employees and most likely covering volunteers as well. We think
it unlikely that employers would be discouraged from taking on
volunteers and hope that consultation on good practice measures
would assist in ensuring employer participation.
March 2004
2 Consultation on Governments proposals to amend Rail
provisions in Part V of DDA" pg.14. Back
3
Per McKinnon L J at 910-911. Back
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