Examination of Witnesses (Questions 540
- 559)
WEDNESDAY 24 MARCH 2004
MS LUCY
SCOTT-MONCRIEFF,
MR DAVID
RUEBAIN AND
MS VICKI
CHAPMAN
Q540 Lord Swinfen: I am thinking
of charities that perform on behalf of local authorities the duty
of caring for and looking after people with disabilities. Do they
then become public authorities as well?
Mr Ruebain: It is very interesting
that you raise that, Lord Swinfen, because there is of course
the Leonard Cheshire Foundation case, which was about closing
residential homes where they were in that case held not to be
public bodies for the purposes of the Human Rights Act. I do not
pretend for one second to know the straightforward answer to that
and, following on from Mr Berry's request, obviously we are happy
to write about that.
Q541 Lord Swinfen: There are a number
of charities, not just Leonard Cheshire. There is John Grooms,
Mencap.
Mr Ruebain: Of course.
Q542 Lord Swinfen: We would be very
interested to know how they would stand should this draft bill
become law.
Mr Ruebain: Of course. That would
all need to be thought about. It seems to me, with respect, that
what you are all saying is that certainty is a compelling requirement
for this bit of the legislation because what we do not want is
voluntary organisations not to be aware of a duty or to think
that they have a duty which in fact they do not have.
Ms Scott-Moncrieff: I have made
it clear that this is not my area of work but I must say I find
it quite difficult to imagine a charity that would seek to claim
that it was all right to discriminate against people because it
was not a public body. Whether you are a public body for the purposes
of different aspects of the Human Rights Act, and the Leonard
Cheshire case was not a discrimination case—
Q543 Lord Swinfen: But there are
special duties put on public bodies, this is the point, rather
than on the ordinary man in the street. Therefore, does a charity
doing a job on behalf of a local authority transmogrify into a
public body?
Ms Scott-Moncrieff: But those
obligations are only on them to make reasonable adjustments and
one would expect that they would want to be reasonable. Maybe
not.
Q544 Lord Tebbit: Not necessarily.
Ms Scott-Moncrieff: All right.
I take it all back.
Q545 Mr Berry: I understand it is
the duty to promote—
Mr Ruebain: Yes. It is the public
duty to promote—I have got the exact wording here.
Mr Berry: It is essential to know, as
you have argued, which organisations have this specific and new
duty.
Q546 Chairman: It was put to us yesterday
by the TUC, why do we pick out public authorities? Why does everybody
in the public and private sector not have the same duty and then
the problem of the definition disappears, does it not?
Mr Ruebain: That is interesting,
that they said that. I am a public law lawyer and most of my work
is in the territory of public law. As it happens the common law
makes additional requirements of public bodies that do not apply
to private bodies—to act fairly, reasonably, without perversity,
without bias and so on. Having regard to general jurisprudential
principles it makes sense (to me anyway) that public bodies can
be treated slightly differently but I would hate to disagree with
the TUC.
Lord Rix: Surely charities should be
covered by their Mem & Arts and the agreement to those mem
and arts by the Charity Commission?
Q547 Lord Swinfen: Surely they would
be covered, would they not?
Mr Ruebain: No.
Chairman: It depends what they do, does
it not, in each case?
Q548 Lord Rix: Their mem and arts
says they can do practically everything, even open a fish and
chip shop if they want to.
Mr Ruebain: What we are talking
about is a specific duty to take positive steps beyond the general
non-discrimination provisions, which of course does cover all
service providers.
Q549 Chairman: It depends what they
do, does it not?
Mr Ruebain: Yes.
Q550 Chairman: On some occasions
they have a duty and on other occasions they do not.
Mr Ruebain: Absolutely.
Q551 Tom Levitt: The Government believes
that the Landlord and Tenant Act 1927 does provide sufficient
protection for disabled tenants who are unable to make physical
improvements to the premises. You believe otherwise in the evidence
you have submitted. You believe that in practice the legislation
favours the landlord. What evidence do you have for reaching that
conclusion?
Mr Ruebain: We thought you would
ask us this. We have had another look at this and we recognise
now that this raises very complex issues. I wonder—and forgive
me for having to do this—if we could write to you with a
more detailed view about this. Obviously, we are aware of the
Disability Rights Commission's representations in particular on
the whole issue about lettings but, as you will be aware, as an
organisation the Law Society is interested in the totality of
law so we have an interest in land law from the perspective of
landlords just as much as tenants. What we would like to do with
your permission is to let you have our further written representations
about this.
Q552 Tom Levitt: So that would include
a discussion on whether the landlord is right to unreasonably
withhold consent to an adjustment?
Mr Ruebain: It would include that,
yes.
Q553 Lord Rix: We now come to reasonable
adjustments and triggers. The DDA contains two different triggers
for making reasonable adjustments. You have "substantial
disadvantage" in the world of employment and education, and
"impossible or unreasonably difficult" for a disabled
person to access a service. Like a number of witnesses before
you, you have argued that a consistent trigger should be applied
throughout the DDA and that this should be "substantial disadvantage".
Certainly the Disability Charities Consortium wished that and
others have as well. Even the TUC agreed with that yesterday.
Could you say why you believe that would be an appropriate common
trigger and also, if you accept "substantial disadvantage",
what do you think will be the general public's awareness or understanding
of that term?
Mr Ruebain: What we feel about
this is that phrases like "substantial disadvantage"
do not create hard boundaries. It is not possible for anyone to
give anyone else a list of what would be a substantial disadvantage
and what would be a non-substantial disadvantage because each
case turns very much on its facts. Indeed, what the minister said
at the time and what the guidance indicates is that "substantial"
means "more than minor or trivial". It is helpful up
to a point but perhaps only up to a point. The problem, of course,
arises if you have then a number of different definitions—"substantial
disadvantage", "very much less favourable", "impossible"
or "unreasonably difficult", because then you are in
the realms of textual analysis in trying to work out exactly how
much is "substantial", and if it is not substantial
is it nonetheless impossible? Is it unreasonable? These are things
that would make you end up boiling your head, frankly, if you
had to try and give definitive answers to it.
Q554 Lord Rix: "Shall"
or "will".
Mr Ruebain: Yes. It seemed to
us that there was no good reason why there should not be the same
threshold for the obligation to make an adjustment throughout
the legislation. That is not to say whichever threshold you then
pick will then make it absolutely clear. It simply means that,
as the guidance for Parts 2 and 3 does, it gives examples of what
might be a substantial disadvantage and what might not, so you
can give as much help as you can to both disabled people and to
those who have duties under the legislation. Our view was that
having more than one, particularly when these things themselves
were quite difficult to grasp, was hugely problematic and unnecessary,
frankly.
Q555 Lord Rix: Do you think the general
public would understand the phrase?
Mr Ruebain: "Substantial
disadvantage"?
Q556 Lord Rix: Yes.
Mr Ruebain: It has the benefit
of being crisp. I suppose what they (and indeed all of us) might
struggle with, is at what point does something stop becoming minor
and start becoming substantial? In other words, what is the hard
boundary? That probably would remain even if you only had one
trigger throughout the legislation, but at least you would only
have the one trigger and the guidance, as I say, would help people
who were trying to get their head round it.
Q557 Chairman: Do you have a view
on why different triggers have been used by the Government in
the draft?
Mr Ruebain: I do not know. I am
sure you know better about what the government is doing than I
do, so I was hoping that—
Chairman: I wish that were so.
Q558 Lord Tebbit: I wonder if you
would be kind enough to tell us why you disagree with the Disability
Rights Commission's view that cases under Part 3 of the DDA, the
goods and services section, should be heard by employment tribunals?
Mr Ruebain: It may have been that
we slightly overstated our position there. We generally support
the principle that tribunals are more experienced and therefore
better able to deal with these matters of judgment than the county
courts. In our view it is not surprising that there are very few
county court cases and there are many more tribunal cases and
they have the experience and the ability to deal relatively economically
with disputes of this nature. Our only concern, which is obviously
what you have picked up, Lord Tebbit, is that for many people
who are not in work at all, of which there is a disproportionately
large number of disabled people, the tribunal procedure itself
may be problematic and we wanted to flag that up in order that
some thought could be given to it. I apologise if we gave the
impression that we do not agree generally with the view that tribunals
are generally better fora for dealing with disputes such as this
than the court system.
Lord Rix: I have some figures here.
Q559 Lord Tebbit: I find that a somewhat
disappointing response because I rather take the view that employment
tribunals should deal with matters concerning employment and that
extending their remit is not a very sound way to proceed. County
courts exist for a specific purpose and so do employment tribunals
and I think it is perhaps unwise to put different loads on them.
Perhaps that comes from my experience as a former Secretary of
State for Employment; I do not know.
Mr Ruebain: If I may give one
other example, in the education field, about which I know a fair
amount. If you are a disabled child who has been discriminated
against, your complaint via your parents is brought through the
Special Education Needs and Disability Tribunal which of course
consists of a lawyer as the chair and two specialists who are
not lawyers but they are laypersons with experience of disability
and special needs who can use their experience to inform these
complex issues about what the effect of a disability is, how it
impacts in a classroom, and so on. If you are a young person,
or indeed an old person, in further or higher education you may
face exactly the same discrimination, you bring your case to the
county court. Now you may get an absolutely satisfactory outcome
one way or another from the county court but in the county court
(a) you are in a much more proceduralistic (if that is a word)
environment and also unless you happen to have a judge who has
experience or knowledge in these quite technical areas you or
indeed the court may be at a disadvantage. That is not to say
you cannot get satisfactory justice whoever you are in the courts
it is just our experience is that tribunals seem better able to
handle the complexities and the issues which arise. Obviously
you may disagree.
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