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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