Joint Committee on the Draft Disability Discrimination Bill Minutes of Evidence


Examination of Witnesses (Questions 760 - 779)

WEDNESDAY 31 MARCH 2004

MS MARIA EAGLE MP AND MR TONY MCNULTY MP

  Q760  Miss Begg: This is a specific example I have in my own constituency. My council tenant will not be able to take the neighbour who has bought the flat above him to court to say they have been unreasonable in not allowing the council tenant to build a ramp to the front door because it is part of the communal parts.

  Maria Eagle: My understanding of the law in Scotland is that it is different from the law in England and Wales. In England and Wales you do not have any rights over the common parts apart from to come and go, and if you have a flat within the dwelling you might have an obligation to pay to do the paintwork and keep it in repair, but your only right is to come and go, and your discussions about access would be with the landlord or management committee, but often that can mean the same thing, because often in long lease dwellings the freeholders are in fact the tenants in the flats who have a little management company, so you really are talking to each other about what is acceptable and what is not. It is difficult because many people think, "It will affect the value of my property" or "It will stop me getting up and down the stairs properly", and it is very difficult to use this legislation to deal with that complex area of law. In Scotland I think the situation is different because the common parts are divided between the owners.

  Q761  Miss Begg: We did look into it and there was nothing the tenant could do, or indeed the local authority who wanted to help the tenant could do, to force the neighbour upstairs to allow a ramp.

  Maria Eagle: I do not think your constituent would have that problem if the English law applied, although I am not recommending it. I know there are some changes to the Scottish landlord and tenant law which are upcoming, and I hope that will help your constituent.

  Q762  Miss Begg: It has kind of resolved itself because the upstairs neighbour has sold up and moved.

  Maria Eagle: Perhaps the problem is solved then. I do not pretend for a minute that these issues are easy; this is the most difficult area of the law which this Bill touches.

  Q763  Lord Swinfen: Tenants very often need adaptations when they are disabled to be able to live in a flat, and very often they can get grants for those adaptations. The landlord can, quite reasonably, ask for the property to be restored to the condition it was in before the disabled tenant moved in, particularly if the adaptations would make it difficult to re-let. Do you think the tenant who has to pay for the restoration should be able to get a grant to take the adaptations out as well as a grant to put them in?

  Maria Eagle: The budgets available for disabled facilities grants are always limited, of course, and I expect those who administer them would rather give the grants out for making adaptations which make it possible for disabled people to live in their homes rather than to take adaptations out.

  Q764  Lord Swinfen: So the disabled person would have to pay to take everything out?

  Maria Eagle: This is one of the great difficulties which this area of the law throws up, there is no doubt about it.

  Q765  Lord Swinfen: As you know, it is the tenant's responsibility to restore the property.

  Maria Eagle: Indeed.

  Q766  Lord Swinfen: I think it is a subject which might be thought about.

  Maria Eagle: I can see why there is an argument for giving grants to restore, but I can see why somebody who is interested in getting maximum value for money and making properties accessible might not want to spend their money taking adaptations away. It is very difficult.

  Chairman: We have touched on triggers but there is one question which will sum up the debate on triggers.

  Q767  Lord Rix: It was 2 hours 20 minutes ago we touched on triggers, and we are very grateful to you for answering so fully for all this time. A number of witnesses criticised the DDA—and the witnesses include the Disabilities Charities Consortium, the Law Society and others—and the draft Bill for its use of different triggers in different circumstances. Why should the DDA not have a uniform trigger of  "substantial disadvantage"? Why should "substantial" not be defined as in the employment code of practice which says "Substantial disadvantages are those which are not minor or trivial"?

  Maria Eagle: I can see the attraction of having one trigger, if you like, but the way this legislation works is to assume—if I call it Part 2 and Part 3 you will know what I mean—a balancing act between long-standing relationships such as you find in Part 2 of the DDA having a low trigger and a reactive duty, and a Part 3-type relationship which is more transitory having a high trigger and an anticipatory duty. That was to try and understand and respond to the reality of the relationships that this legislation is trying to regulate, and I do not think one trigger would be sufficiently flexible to fairly reflect the differences in those types of relationships. There are, however, two triggers. I know some people will have argued before you there are four or five triggers, there are in fact only two triggers and whilst the wording of some of them may appear to be different in fact their effect is the same. The two triggers are "substantial disadvantage", which is what I call a low trigger and which is generally linked to a reactive duty, and "impossible or unreasonably difficult", the anticipatory duty linked to a high trigger. That is the way the legislation works. I do not think it would be right to think you could capture the duties which an employer would owe to his employee, which is a long standing relationship of mutual benefit and trust, using the same trigger as for the sort of transitory relationship which perhaps my popping into a shop once in my life and buying a packet of cornflakes represents. However, I think two triggers can do it, and I think the current law does it quite well.

  Q768  Chairman: If there are only two and there appear to be four, perhaps that is a problem for the draftsman?

  Maria Eagle: Yes. I accept some people think there are more than two. This goes back to a degree to what I was saying about the distinction between functions and services, in the sense that the draftsman has tried to capture the right wording for that same trigger, how it applies to the particular instance he is looking at, and whilst I accept that might be confusing (and obviously we will take away those views which some of your witnesses have come up with) the intention is that there should be two. There always have been two and we intend there to remain two. I do not think, however, one would be good enough.

  Q769  Mr Williams: Moving on now to monitoring and enforcement, in the draft Bill the Disability Rights Commission has enforcement powers which are equivalent to the Commission for Racial Equality in that they can serve public authorities with compliance notices and ask courts to enforce them, but the Royal College of Nurses have suggested that this mechanism is not sufficient or appropriate and that similar provisions in the Race Relations Act have experienced problems with enforcement. We have had other evidence from Ireland which indicates perhaps other methods for monitoring enforcement could be more appropriate. The duties on public authorities under Clause 8 are not sufficient or appropriate for enforcing compliance. How do you respond to this? Have you considered any additional measures which may ensure effective compliance?

  Maria Eagle: Can I set out first what in our view is the purpose of the duty to promote equality of opportunity? This is not to provide another individual right for disabled people for action in a different court, they have their individual rights in respect of the DDA generally. These are designed to try and make sure that public authorities tackle institutional discrimination, if you like, because the way in which they organise what they do may inadvertently—usually inadvertently—do things in such a way that it excludes or disadvantages disabled people. The idea of the duty to promote is to try and get them thinking about how they do that so they can design-out those problems when they are designing how they carry out their functions or provide their services. So the focus therefore is less on rights of action before courts and punishing those who discriminate, because the DDA provides an ability to do that, and more on trying to build out the problems for the future. So there is a different focus, if you like, in respect of these duties. Obviously we are in early days. The Race Relations (Amendment )Act duties are relatively new, so we are only just starting to see what kind of impact they can have, but the idea is to focus public authorities themselves on how they do what they do in such a way they build out problems. For example, a local authority which deals with street furniture and kerbs in its own area in the past may have built all kinds of barriers and kerbs, and the aim of this kind of duty is that it will get them thinking at an early stage about how they do those sorts of refurbishments so the drop kerbs go in, so the individual wheelchair user will not have to take them to court to get them. That is the focus. In that sense, there is less of a focus on enforcement, more of a focus on getting organisations to think about how they do what they do.

  Q770  Tom Levitt: We understand that about a third of all cases that come to the DRC relate to issues within Part 3 of the DDA, and yet in the first four years of operation of the DDA there were almost 9,000 cases actually brought to court under Part 2 but only 53 under Part 3. Do you think that indicates it is more difficult to bring cases under Part 3 and what measures are you considering to make it less problematic for disabled people to challenge discrimination under Part 3 of the DDA?

  Maria Eagle: A couple of responses on that. One, I know I am a lawyer but I actually do not judge the success of legislation by how many court cases result from it. I would rather people get their rights without having to go to court if that is possible, because going to court is expensive, stressful and very many people in their right minds would not even dream of doing it. I do not think you can judge on the basis of how many court cases there are. I also say the figures you have put to us are not directly comparable. The figures under Part 2 were for a six year period up to February 2002, when almost 80 per cent of employees were covered by the DDA and its duties. The figures for Part 3 go up to 2001 when there have been limitations in coverage for a start, and the duty for service providers to make adjustments have only been in place for 16 months and the final phase of those duties—concerning alterations to physical features—are not even in place yet, they are coming into place in October. So there is no direct comparison. The other thing is that people's relationship with service providers is often much more transitory than their relationship with their employer. If somebody gives you bad service or does not provide a service properly, you might just go somewhere else to get it, you are not necessarily going to take them to court in the same way as you might if your employer sacked you unfairly or treats you badly as an employee. So these figures do not take into account alternative forms of dispute resolution, complaints procedures which stores or service providers might have or even the DRC's conciliation service, all of which might provide a resolution without you having to go to court. So in that sense I do not accept the fact there are far fewer court cases under Part 3 necessarily implies it is that much harder to go to court. It might be that people do not want to or they have dealt with their problem in a different way. I think that is probably the answer, which you might not agree with.

  Q771  Tom Levitt: My understanding was that the two figures were given over comparable periods of time.

  Maria Eagle: My understanding of the figures is that that is not the case, but no doubt we can clear that up in correspondence.

  Q772  Tom Levitt: Indeed. Initial monitoring of the DDA found that applicants did face a number of barriers to accessing justice under Part 2 of the DDA. It was said at the time that these barriers would diminish as the Act "bedded down". Does the latest study by the Institute for Employment Studies, which we understand has been completed, show this has happened, or is it actually getting more difficult to get access to justice through Part 2 and the courts?

  Maria Eagle: I cannot tell you the answer on the basis of the research you have just cited because it is not in front of me, so I will have to come back to you on that.

  Q773  Chairman: If we could have the results of that research, that would be extremely helpful to us.

  Maria Eagle: I will have to check that but if it is in the public domain, we will get it to you.

  Q774  Chairman: Can we move on to volunteers. We have had a lot of evidence about the exclusion of volunteers from the Bill. With regard to protecting volunteers from discrimination, the DRC have proposed that they could develop good practice and a voluntary code, which, if necessary, could be extended into regulation by way of an enabling power in the Bill. We understand the argument we have heard from the Department that this would complicate matters but this would seem to be a reasonable compromise: have a voluntary code and see how it works and then, if you need it, introduce the powers by regulation.

  Maria Eagle: We are certainly interested in developing a voluntary code and looking at proper guidance on the way forward in respect of volunteers. This is another quite difficult area of balancing properly the rights of disabled people to participate and not be prevented from participating with the obligations of those who they volunteer for or with to deal with the obligations and costs which would be implied. We have to strike a balance, and I think it is quite difficult in this particular area. I am not disposed to start imposing requirements which are akin to those of an employer-employee relationship on something like volunteering which, in some instances, can be like employment but in many instances is not like that, it is much more informal, it is in respect of much smaller organisations. So we are not convinced that legislating would be practical. Voluntary work can often be people acting largely on their own volition to meet the needs of a very small organisation, it is very varied, it cannot easily be characterised as akin to employment although clearly in some instances it is, so it is not an area which would be easy for us to deal with. We therefore are quite well disposed towards a voluntary code, because we do recognise of course that volunteering can be a way into social exclusion in all kinds of ways for disabled people who might have been excluded in the past. We do not now believe that legislating would be practical or fruitful, and there is not in the Bill a proposal to take a power to legislate for that reason.

  Q775  Chairman: I understand that argument perhaps for things like reasonable adjustment, but if there is direct discrimination against a disabled volunteer and they are excluded, how does that run?

  Maria Eagle: I think it would be much clearer in terms of direct discrimination. It is a difficult area and it is something we would like to see the voluntary code take forward.

  Q776  Chairman: Why have the Government chosen not to include examining bodies and standard-setting agencies within the scope of the DDA?

  Maria Eagle: Some are included. For example, some standard-setting bodies which are qualifications bodies which can confer a qualification relating to a particular trade or profession, like the Law Society might be, are included in Part 2 of the DDA by the DDA Amendment Regulations coming in on 1 October. So some are covered. Examining bodies, like those which award A-levels or GCSEs, are not covered, and there are some standard-setting bodies which are not covered, but we are looking at that.

  Q777  Chairman: We had an example of one mother who outlined how well her child did at school when he was provided with the necessary reasonable adjustments, but the examination body responsible for Key Stage 3 SATS refused to provide reasonable adjustments asked for by the school. It is the sort of thing which we think probably should be covered.

  Maria Eagle: We are looking at that.

  Chairman: Thank you very much. The last section of the questions is on private clubs.

  Q778  Mr Williams: Private Clubs and Clause 5. Clause 5 provides that the Government, by regulation, could place a duty on private clubs to adjust a policy or feature "which adversely affects disabled people", but the Disability Charities Consortium noted that the "adversely affects" trigger—although you would say that is not a trigger perhaps—for adjustment seems significantly more generous than other triggers. You have told us that "adversely affects" in Clause 5 is not a trigger, what then will be the trigger for the duty of private clubs to make reasonable adjustments? If, as you say in the explanatory notes, you do not expect the duties imposed by regulation to go further than those in Part 3 of the DDA, why did you not include the trigger of "impossible or unreasonably difficult" on the face of the draft Bill?

  Maria Eagle: That is quite a simple question actually, even though it has ended up being probably the longest one I have been asked all afternoon. It is not a trigger. If it was a trigger, it would be significantly more generous than any other trigger in the Bill. Our thinking on this is that the duties in respect of private clubs are akin to Part 3, we would therefore be looking at a high trigger and an anticipatory duty; that would be our first thought. However, unlike in respect of most other parts of this draft Bill, we have not consulted at all on these provisions and these proposals, so we want to make sure before we put the wording in the Bill that stakeholders who will be affected by these provisions are consulted in advance about what they think the trigger should be and whether or not our initial thinking is right. That is why we have not put it on the face of the Bill. But our initial thoughts are that it is likely to be high and anticipatory; akin to Part 3.

  Q779  Mr Williams: Another question about guests of private clubs. You have said that Ministers will provide protection for disabled guests of members should evidence emerge that protection against discrimination by private clubs in relation to disabled guests is necessary. What criteria, monitoring and timetable will be used to assess whether this is the case?

  Maria Eagle: We want to ask the stakeholders, the private clubs, first. When this Bill was published that would be the first they realised we were thinking of doing this. We did not in the "Towards Inclusion" consultation ask about applying the law to private clubs. So we are at a very early stage of talking to them. We do not know if there is a problem in respect of guests, or if it would be different from members, so we want to ask before we decided whether or not it is sensible to include them. We hope to be able to consult pretty immediately on these provisions once this process is over. I know you have had some evidence from organisations and private clubs. We have had not an awful lot of correspondence. We want to make sure we ask them about how they feel about this, what kind of problems they can see, if people think there is a difficulty with guests that we should cover. So, simply, it is a lack of knowledge on our part which leads us to be cautious.


 
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