Examination of Witnesses (Questions 340
- 359)
WEDNESDAY 17 MARCH 2004
MR ANDY
RICKELL, MS
RACHEL HURST,
PROFESSOR PETER
BERESFORD AND
MR ROY
WEBB
Q340 Tom Levitt: I wonder whether
this little story might help to illustrate it as well. I have
a constituent who drives an automatic car. He only has one leg.
He has lost his left leg so although he is impaired he is not
disabled when he is in that car because he can still drive that
car perfectly normally. Had he lost his right leg he would be
equally impaired but he would be more disabled because he would
not be able to drive an automatic car, so it is clearly the difference
in the relationship between the person and the environment which
is the disabling factor. Would you agree with that?
Ms Hurst: Absolutely. I do very
well in the queue at Sainsburys, better than you do. I am less
disabled than you are as long as I go to the checkout which is
wide enough to take my chair. I am much more comfortable than
you are.
Q341 Mr Clarke: Before I put my question
and welcome colleagues who have come to give evidence, can I say
especially to my good friend Rachel that the question I am about
to put should not imply that my philosophy has changed since we
last met. It is not so much a devil's advocate question as giving
her the opportunity to enlarge upon what you said in written evidence.
In written evidence, Rachel, your organisation and Roy's made
a number of recommendations which involved significant costs,
which some would perceive would be like making the taxpayer pay
for adjustments to rental premises or having an independent living
centre, as we understand it, in each district. Have you estimated
these costs or do you think that those who have to pay in consequence
would be willing to do so?
Mr Rickell: Just looking specifically
at the issue of adjustments to rental premises, we do not believe
there will be significant extra costs on the taxpayer and we believe
the taxpayer will accept the cost if one important measure is
introduced. The taxpayer is already potentially liable and is
indeed potentially paying for many of these costs through the
Disabled Facilities Grant, which is mandatory subject to meeting
certain conditions. The grant is administered by local authorities
with responsibility for housing and central government provides
60% of the costs. We believe that it would not be difficult to
amend the scheme to achieve our proposal. One important measure
which we believe could be introduced is that a national register
should be kept of all accommodation which has been made accessible
for disabled people through disabled facilities grants and possibly
others too. It could then be used by disabled people and housing
advisers to enable disabled people to obtain accommodation suitable
for their needs and the property that had been altered at taxpayers'
expense through a disabled facilities grant could be used by a
succession of disabled people, ensuring good value for money and
not requiring disabled people on each and every occasion to live
for a period in inaccessible accommodation until it was altered.
Q342 Mr Clarke: I just wondered if
Roy had a comment, particularly on the independent living centres.
Mr Webb: Yes, a few thoughts.
You started off by asking about had we had an opportunity to estimate
what might be significant cost. I wonder if that is a word that
I can just ponder about for a moment because a more general feeling
is that we are not entirely convinced at this point that the cost
is going to be that significant. There are two aspects to that.
First of all, we are talking about adjustments relating to mostly
disabled people who are a small minority at the moment within
the overall population and, secondly, we were talking about costs
which can also be savings and can also be benefits. For example,
we were talking about London Transport which recently has become
much more accessible than it used to be and one of the benefits
of that is that there are more people using London Transport all
together now than used to be the case. In fact, London I think
is now the only major city in the world that has recently demonstrated
an increase in the usage of buses as transport, and obviously
that brings great economic and social benefits to the whole of
London as well as making it possible for disabled people to use
transport. The sorts of things we are talking about can be financed
by redirecting existing expenditure into a different arrangement
which could benefit more people than it currently does. The issue
is not absolutely straightforward. First of all, the figure may
not be as big as you think. There are big benefits to be gained
by redirecting expenditure that already exists and there are big
social benefits to be gained from the kinds of spending that we
are advocating, if you like. It certainly would be well worth
studying that in greater depth. At the DRC, for example, they
are currently undertaking a cost benefit analysis of the very
issues we are talking about today, so there is some work going
on about that which might be something that the committee itself
would want to have a closer look at over time. With regard to
the centres for independent living, and Rachel might want to say
more on this, there are big benefits by getting disabled people
involved in making decisions, and one of the areas in which this
has been very clear has been the question of direct payments for
independent living. The areas where independent living schemes
and direct payment schemes have been highly successful have been
the areas where disabled people's organisations have been most
involved in supporting, planning and developing those schemes.
We see again a big social and political benefit from paying some
money, not a lot, to enable disabled people to become active participants.[1]
Q343 Mr Clarke: Maybe I should make
the point because it may be in some people's minds that, admirable
though the representations were,—and maybe this is a question
for Roy again but Rachel may want to have something to say—perhaps
some of what you were saying was more relevant to the policy of
care in the community than the specific short title and long title
of this draft bill dealing with discrimination. Would you like
to comment on that?
Ms Hurst: Let us take the example
of a report that was produced on the Newcastle subway system which
was initially not terribly accessible. They then spent £7
million on making it accessible. That £7 million was paid
for within three years of expenditure by the extra usage because
it became accessible to mothers with buggies, to older people
and to people with luggage, shopping trolleys, etc. A recent piece
of research on the new accessible London buses has shown that
the lifts have raised the number of people using them, again with
buggies and so on, so the initial discrimination which was caused
by inaccessibility, although it appeared to have a large cost,
in fact did not. It was a cost that was paid for by extra benefits,
in the case of transport, to the transport providers, and I would
say in the case of things like the independent living centres,
it is much cheaper for local authorities to give core grants to
the independent living centres. For example, my independent living
centre in Greenwich gets a core grant of about £50,000 a
year. That is chickenfeed compared with the amount that goes to
run their old people's homes which only concerns the rights (if
you can call them that) of, say, 21-25 people, whereas the other
is for many more. Undoubtedly, in the research that was done after
the Americans with Disabilities Act found that reasonable accommodations
on the whole were not much more than $500 dollars.
Q344 Mr Clarke: But would the absence
of an independent living centre in a given area amount to discrimination?
Ms Hurst: It would if you see
discrimination as part of the whole human rights spectrum because
if you are as a local authority not allowing a certain section
of your citizenry to live independent and self-determined lives
then you are in fact discriminating against them within your provision
of human rights, and we are a human rights society now.
Q345 Mr Goodman: You say volunteers
should be protected from disability discrimination. Could you
outline your rationale for this and say something about the difference
you think it would make to people with disabilities?
Mr Rickell: Volunteering offers
disabled people the chance to acquire crucial work-related skills
for moving on into paid employment. The following quote comes
from the Volunteer Management Review: "For their part,
the students and other volunteers with disabilities have an invaluable
opportunity to practise meeting those less trainable expectations,
such as reliability, co-operation, punctuality, focus, organisation
and collaboration. It is not so much job skills they learn as
how to meet expectations in a work environment that you really
need to do in an actual work situation to learn". Yet, from
the website of Skill, which is the National Bureau of Students
with Disabilities, a survey in 2001 found that only six% of volunteers
declared a disability as opposed to almost 20% of the UK population
of working age. So volunteering helps to fill a gap in work and
work-related experience that non-disabled people obtain in ways
that are not always open to disabled people, for instance, doing
a paper round when you are a teenager, Saturday jobs in a shop,
team sports etc. Team sports, etc, may not be accessible to some
people with impairments. For some professions previous voluntary
work in a related area is often expected in order to get a paid
job, for instance, journalism, broadcasting and, dare I say it,
politics. It is often the precursor to moving on. In many other
cases voluntary work for an organisation may lead to an offer
of paid employment with that organisation. Therefore, if we are
committed to enabling disabled people to get work, disabled people
need to get access to volunteering opportunities. I am sure some
of my colleagues may like to widen that out a bit.
Professor Beresford: We were commissioned
in Shaping Our Lives last year and reported this year to Stephen
Ladyman as Minister of the Community. He asked us to do some more
work finding out more about issues that people on the ground (as
disabled broadly defined) were experiencing in trying to contribute
and participate in the way the government is encouraging in both
a voluntary and a paid capacity in relation to benefits, and we
found from talking to a wide range of disabled people as well
as service providers, people in trusts, for example, that there
are very serious obstacles. We called our report Contributing
on Equal Terms because it is quite clear that there are very
real difficulties for people to be able to do that as disabled
people. It was very clear that people want to contribute and sometimes
felt frightened that if they did, because perhaps their incapacity
might be questioned, they might run into difficulties with benefits
even if they were not being paid, so we were encountering some
worrying barriers for people to make their full contribution as
citizens.
Q346 Mr Goodman: I have a follow-up
question and I am sorry if I have got the wrong end of the stick.
Let me just play devil's advocate for a minute. You can see in
a business how you would have an employer and an employee and
the employer has full responsibility for the employee, including
making reasonable adjustments. The devil's advocate argument would
be, can you really apply this with voluntary organisations, for
example? Can you really apply this concept of full responsibility
here where you have bodies which, so the argument would run, if
a law of this kind was proposed, might disappear under a welter
of litigation?
Mr Rickell: It is slightly different
in the sense that there is much more freedom in terms of how an
employer might employ a voluntary worker, so it is not as tight
as the employment legislation might necessarily oblige. I suppose
one of the things that we would see associated with this potentially
was that the Access to Work source of funding might follow associated
with the change of legislation, and therefore that would enable
an employer to obtain some support towards the reasonable adjustments
necessary. However, if we see volunteering as a precursor of or
as support into employment then effectively what you are doing
is enabling disabled people to move on in the way that we are
identifying as important. If you want to include disabled people
then to deny them the possibility of paid employment and the things
that might lead up to that, you are seriously in danger of excluding
disabled people in a way you might not expect.
Ms Hurst: You have got a very
good point but it is the same point that was made around the employment
of disabled people. If any disabled volunteer came to any firm
and wanted to volunteer they would have to show a competence in
that particular realm of volunteering so that the burden on the
employer would not be as great as your concern, which I quite
understand. It would be absolutely daft for Friends of the Earth,
for instance, if they were digging up a canal and a whole lot
of wheelchair users wanted to volunteer. There would have to be
a certain wording to ensure that the volunteer had qualifications
to do the job.
Q347 Lord Swinfen: In the BCODP's
evidence it is implied that prisoners should have an entitlement
to reasonable adjustments. Can you produce any evidence of the
extent to which disabled prisoners require such protection from
discrimination?
Mr Rickell: Our proposal here
is section 21C(5) should be removed; that is what we are effectively
talking about in answering this. A Prison Service report in 1999
found that 427 prisoners, or about 0.65% of the prison population
at that time, were disabled people, of whom 40 were wheelchair
users. The Howard League for Penal Reform have catalogued a number
of cases including, amongst others, a prisoner whose legs had
been amputated and had to drag himself upstairs. After five years
he threatened court action and was moved to a prison with suitable
facilities. There was also the case of a mobility impaired prisoner
who was held in a cockroach-infested cell on the ground floor
because there was no disabled access to the refurbished cells
on the upper floors. Perhaps more pertinent evidence would be
the case of Price v The UK in the European Court of Human
Rights 2001 where a disabled woman was found to have suffered
degrading treatment because she was not provided with suitable
prison accommodation. The judgment also referred to a probable
breach of the standard minimum rules for the treatment of prisoners
adopted by the UN in 1955. That case suggests that this proposed
clause would not conform to the Human Rights Act. Perhaps the
most conclusive evidence is that the Prison Service has been acting
as if the DDA applies to the allocation of prison accommodation
already. I understand that Lord Avebury asked a written question
in 2001 which elicited the following reply from the government
and Lord Bassam: "A Prison Service order on the management
of prisoners with physical, sensory or mental disabilities has
been published to ensure that the governors of all prison establishments,
including those holding life sentence prisoners, are aware of
the requirements of the DDA 1995. A working party has been set
up to develop a strategy for the reasonable adjustment to Prison
Service premises in order to remove physical barriers to access
to services and facilities by 2004 as required by the third stage
of the act." This also appears to be borne out by HM Prison
Service's standards manual which, in the section on disabled prisoners,
contains the key audit base line, "allocation of accommodation
is demonstrably suited to the prisoners' individual needs".
We think that gives quite strong evidence for why "reasonable
adjustments" is appropriate and this clause ought to be withdrawn
because it would be a retrograde step to leave it in. Instead
the Prison Service should be supported and commended for their
commitment to the rights of disabled prisoners to appropriate
allocation of accommodation.
Chairman: That quotation is very helpful
indeed. Thank you.
Q348 Lord Swinfen: Do you have evidence
of where disabled people are disadvantaged in other aspects of
the criminal justice system?
Ms Hurst: Gosh, yes. They are
disadvantaged in access to the whole of the justice system, particularly
if they are unable to verbally communicate. There is a case of
a woman with multiple sclerosis who used a board. She was intellectually
totally competent but she needed to use a board to spell out what
she wanted to say and she had been physically abused in the institution
that she was living in but the judge refused to take her case
because she used a board to give evidence and he saw that evidence
as inadmissible. Deaf people, people with learning difficulties,
often are denied access to justice because of not having sign
language interpretation. Many of us cannot be jurors because you
need a personal assistant or you need sign language interpreters
and you are not allowed to take them into the jury room. On the
other side we cannot be judges, we cannot be members of the legal
profession. I am afraid the list is endless. There are awful problems
around people with autism where their behaviour is seen as socially
unacceptable and they are arrested and nobody treats them in a
non-discriminatory way because they have not had to. There is
no methodology, there is no come-back for us.
Q349 Lord Swinfen: Thank you; you
have given us some examples. From what you say it sounds as though
you could go on all afternoon.
Ms Hurst: Yes. I will not bore
you.
Lord Swinfen: No, no.
Q350 Lord Rix: When I last saw the
prison medical officers, which was some time ago, I must admit,
they claimed that they were really the last refuge of people with
learning disabilities and obviously those with learning difficulties
as well. They claimed that up to 40% of people who came into prison
on remand were probably people with learning disabilities or learning
difficulties. Is that a figure with which you could agree?
Ms Hurst: I would not say it would
necessarily be learning difficulties. It is certainly even higher
for mental health.
Professor Beresford: There are
very high levels identified amongst prisoners of mental health
conditions and also of users of mental health services, and there
are comparable issues, I think, to be identified about the making
of reasonable adjustments. We should not be over-categorical about
categories. I think there will be people who may have learning
difficulties and also have experience of mental health services
and so on. It is quite complex.
Chairman: We are anxious to hear your
views on transport. As I am sure you will appreciate, we have
a lot of evidence, both written and oral, on transport.
Q351 Lord Rix: This is for you, Andy.
You recommend that the clause 3 exemption for transport services
should be lifted immediately. How do you respond to the view that
this would cause unreasonable difficulties for certain sectors
of the transport industry? Will extending Part 3 to transport
services be the panacea for disabled travellers and what problems
might disabled people, and particularly people with learning disabilities,
still have when using public transport even after transport services
are under Part 3?
Mr Rickell: We do not think we
are here to represent the rights of the transport industry. We
are sure they are capable of making their own representations.
We are here to represent the rights of disabled people and we
are here to raise the unreasonable difficulties that are caused
to some disabled people by further delay in making all public
transport accessible right across the range of impairment and
access issues. There are unreasonable difficulties that mean disabled
people cannot get to a potential place of employment or education,
cannot travel with family or friends or undertake caring responsibilities
or undertake civic or community leadership roles. Disabled people
have consistently put lack of accessible transport or appropriate
transport at the top of the issues that prevent their full participation
in society and the continuing exclusion of transport services
from the DDA threatens to make the legislation a cause for derision
amongst disabled people and a basis for disabled people to question
the commitment of successive governments to the reality of rights
for disabled people. We are certainly looking for unequivocal
recommendations from yourselves on this issue. It is not a panacea
because what will happen is that you will deal with that issue
and then disabled people will be able to get out and about and
they will meet the next barrier that they come to. Disabled people
are already recognising that this is a barrier which prevents
them doing many of the other things that they would like to do.
It is a barrier which gets in the way pretty quickly as soon as
they get out of their front door and therefore many of the other
things they would like to do are denied to them entirely. It is
beneficial to those people who have mobility impairments, for
obvious reasons. We are just thinking about accessibility, things
like low floor buses and trains you can get on, but then, taking
up Lord Rix's comment, there are issues about signage, issues
about support, not just a case of people being around to help
people when they ask for assistance but support for people who
might otherwise be confused when entering a particular train station
or something like that. Transport is not just about the vehicle;
it is about the whole issue of getting from where you start to
where you want to end up and the support necessary to achieve
that. When we use the word "accessible" we are not just
thinking about trains you can physically get on to.
Q352 Chairman: That is a problem
for the disabled person but you have not quite answered the question
about the argument, which I am sure you heard, that to remove
the whole of the exemption immediately would produce unreasonable
costs for the industry.
Ms Hurst: I think we need to look
at why we have non-discrimination legislation for any group. It
is in order to include them in society. Transport is supposed
to be for the public. It is an expense for the public anyway.
If we had been in a just and socially equal society even when
Stevenson invented his little train, they would have been immediately
made accessible. Unfortunately they are not, and I think there
has to be a discussion and dialogue between the train providers
and government about the expense of making them, but what I say
is that, if you are a government which is supporting non-discrimination
against disabled people and rights for disabled the people, then
you have to make a public service accessible, and to do anything
else—
Q353 Lord Addington: So effectively
what you are saying is that the only limitation that should be
considered is the one of the speed with which the physical change
can be implemented?
Ms Hurst: Yes.
Q354 Lord Addington: In other words,
in view of things like the actual practicalities of possibly relocating
the loans to do it and the physical work, would you regard that
as being a reasonable timescale?
Ms Hurst: It depends. I am not
sure about reasonable timescales. If they are done with the intent
of bringing an end to the discrimination as soon as it is humanly
possible, then I will accept it, but if it is to adapt to the
cri de coeur from the transport industry and a government
who does not want—
Q355 Lord Addington: No, we are not
worrying about that—
Ms Hurst: Well, I am.
Q356 Lord Addington: —because
that is in about 2008.
Ms Hurst: Yes, actually.
Q357 Lord Addington: What do you
think?
Ms Hurst: What would I consider
to be a reasonable figure?
Q358 Lord Addington: Yes, that is
what I am getting at.
Ms Hurst: Okay; fine. Well, in
1995 I would have said 2005 was a reasonable date for total accessibility,
but, you know, dream on! A lot of the stuff has already been put
in place and a lot of mechanisms are understood. Where are we?
2004. I would say that 2015 was the absolute end date. That is
off the top of my head and with no discussion with my peers.
Lord Addington: Thank you.
Q359 Lord Tebbit: Could I turn your
attention for a moment to air transport. Do you think that air
operators (airlines) should be able to impose limits on the number
of disabled people, particularly those unable to walk, on any
given flight?
Ms Hurst: I am going to answer
that one with an example. At the moment if you travel by air and
you are somebody who cannot walk, the situation is dire, and it
has got worse and worse over the years; but in 1992 I made arrangements
to fly 24 disabled people to Vancouver on one aeroplane, and I
think there were thirteen of us using wheelchairs. As long as
we did it all in advance and they were prepared for it, there
was no problem; but if I tried to do that now I would not be able
to do it. All I can say to you is if it could be done once, why
can it not be done again?
1 Note by witness: For example, there are only
about 8,000 people using direct payments at the moment, compared
with about 400,000 still using residential care, even though care
in the community is cheaper. There is plenty of evidence to show
that, where there are active Centres for Independent Living, more
disabled people use direct payments, get access to better housing,
and so on. In other words, disabled people tend to experience
less discrimination in an area where there is an active CIL. As
disabled people become more active citizens, they become bigger
consumers, buy more goods, pay more taxes. If they also find jobs
they pay more taxes again. There are financial and social benefits
to enabling disabled people to live as active and equal members
of their own community. On the question of whether or not this
is a matter for social services rather than this bill, we would
argue that we are not asking that social services be told how
to make assessments, but, in their duty not to discriminate and
in order to promote equality, they must bear this, together with
other factors. Experience from other equality legislation, like
the McPherson Report and the Morris Report have shown, sometimes
it is necessary to explain the practical issues which local authorise
must examine in order to eliminate discrimination. Back
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