Joint Committee on the Draft Disability Discrimination Bill

Joint Committee on the Draft Disability Discrimination Bill First Report

CHAPTER 4: DISCRIMINATION BY PUBLIC AUTHORITIES (CLAUSE 4)

174. The DDA makes it unlawful for public and private sector bodies to discriminate against disabled people in employment (Part 2), in providing services (Part 3) and in education (Part 4). Similar provisions are also found in the RRA. However, RRA case law and the Stephen Lawrence Inquiry[205] highlighted the fact that some significant types of activities that are carried out by public authorities, including immigration control, the administration of the prison system and the law enforcement activities of the police, did not constitute "services" and were not therefore covered by the RRA. This has similar implications for the scope of current coverage under Part 3 DDA.

Draft bill changes

175. Clause 4 aims to close this loophole by inserting into Part 3 a section which makes it unlawful for public authorities to discriminate in the carrying out of any of their "functions" not already within the scope of the DDA. Public authorities will be placed under a duty to make reasonable adjustments if the outcome to a disabled person would be "very much less favourable" than to a non-disabled person.

176. The new provision covers Ministers, local authorities, the police, NHS bodies and other government organisations. A number of public authorities, and decisions taken by them, are specifically excluded, including both Houses of Parliament, the security services, a public authority acting in a private capacity, acts of Parliament or judicial acts, decisions to discontinue criminal proceedings and allocation of prisoners to and within prison accommodation. A regulation-making power provides that other public authorities or functions may be excluded, but there is no power to remove an existing exclusion.

Duty to make reasonable adjustments

177. Clause 4 will give a public authority a duty to make reasonable adjustments if "it carries out a function, and for a reason related to the disabled person's disability, the outcome of the carrying-out of the function is very much less favourable for him than it is or would be for others to whom the reason does or would not apply".[206]

178. In evidence to the Committee the Government stated their intention that the duty to make reasonable adjustments to functions under clause 4 should be the same as in the rest of Part 3: "an anticipatory duty which bites when a trigger equivalent to the "impossible or unreasonably difficult" trigger at s.21 of the DDA is activated".[207] However, the Committee has received much evidence that the way in which clause 4 is currently drafted does not achieve this aim, "with the result that it will create confusion and complexity for public authorities, and deliver inadequate protection for disabled people".[208]

179. Witnesses identified three ways in which clause 4 differs from the rest of Part 3 DDA: failing clearly to establish that the duty to make reasonable adjustments is anticipatory; using a different trigger for making reasonable adjustments; and not making the provision for reasonable adjustments a freestanding duty.

Anticipatory or reactive duty

180. New section 21D will place a public authority under the duty to make reasonable adjustments if "it carries out a function, and for a reason related to the disabled person's disability, the outcome of the carrying-out of the function is very much less favourable for him than it is or would be for others". The DCC suggested that this wording does not place public authorities under a sufficiently anticipatory duty,as it focuses on the effects on the individual in each case.[209] While an anticipatory duty applies to disabled people in general, a reactive duty applies only in relation to a specific disabled person. By this token, section 21D implies that it is a reactive duty by referring to a singular "disabled person", rather than plural "disabled persons", and inferring a retrospective view of what is considered reasonable.

181. Numerous organisations proposed that clause 4 should contain a clear duty to make anticipatory reasonable adjustments.[210] The DRC noted that the anticipatory duty under Part 3 has "proved essential to effective promotion of disabled people's rights and is considered an invaluable lever for cultural change". Additionally, a failure to anticipate adjustment may mean it is too late to make an effective adjustment when it is actually required by an individual.[211]

182. The Committee welcomes the Government's intention that clause 4 should provide an anticipatory duty for public authorities to make reasonable adjustments. However, evidence suggests that the wording of new section 21D(2) does not make this anticipatory duty adequately clear. We recommend that clause 4 clearly provides that public authorities have an anticipatory duty to make reasonable adjustments in the carrying out of their functions.

Trigger to make reasonable adjustments

183. Under clause 4, a public authority will be required to make reasonable adjustments if the outcome of a function would be "very much less favourable" to a disabled person, compared with a non-disabled person. This differs from the wording of the reasonable adjustment duty in Part 3 DDA, which requires public authorities to adjust a practice, policy, procedure or physical feature if it would otherwise be "impossible or unreasonably difficult" for disabled persons to access goods, services or facilities. The Minister for Disabled People told the Committee that the trigger under clause 4 of this bill is intended to replicate the trigger in Part 3 in obligation and effect, and that the wording of the trigger had only been changed because "it has to try and take account of the differing nature of public functions as opposed to services".[212] A number of witnesses expressed concern that, contrary to the Government's intentions, the reasonable adjustment trigger for functions actually sets a higher threshold than that required for services.[213] Disability Agenda Scotland described the clause as "very clumsily worded".[214] The Mayor of London considered that the different wording between clause 4 and Part 3 DDA would create confusion.[215]

184. This issue is particularly important because there is no consensus about exactly what activities of public authorities are services and what are functions. The Local Government Association (LGA) thought that the difference between a service and a function was "a grey area", and noted that local councils did not see a great deal of difference between the two concepts.[216] The Minister agreed that there were some grey areas.[217]

185. Although the Government's intention is that the clause 4 trigger should reflect the same obligations and effect as the Part 3 DDA trigger, evidence to the Committee suggests that the wording could be interpreted very differently. Given the "grey area" between services and other functions, this could lead to confusion about which trigger to apply in which circumstances and provide inconsistent protection for disabled people.

186. The Committee notes the Minister's view that the wording of the trigger in Part 3 might not make sense in relation to some functions, for instance if a disabled person is being arrested.[218] But another form of words does seem to be required, to meet both the concerns of witnesses who regard the trigger as too different from Part 3 and the concerns of draftsmen that the trigger should properly reflect the nature of the activity to which it relates.

187. The current wording of the trigger to make reasonable adjustments in clause 4 does not adequately mirror the obligation and effect of the trigger in Part 3. We recommend that clause 4 be amended so that it more accurately and explicitly reflects the trigger found in Part 3 DDA. It should be made clear, if possible on the face of the bill, that the trigger under clause 4 imposes the same duty to make reasonable adjustments as that in Part 3.

"Reasonable opinion" test

188. Clause 4 outlines circumstances in which a public authority would be justified in discriminating against a disabled person. These include health and safety grounds, unreasonable costs, inability of a disabled person to give informed consent, or if the treatment or outcome was necessary for the rights and freedoms of others. A power provides for regulations to add, amend or omit the conditions under which discrimination by public authorities is justified.[219]

189. A public authority subject to the duty under clause 4 would be able to justify less favourable treatment or a failure to make a reasonable adjustment using a two part "reasonable opinion" test. First, the public authority must be of the opinion that one of the justifications provided for in the bill is met and second, the holding of that opinion must be deemed to be reasonable. If a court determined that the authority held the opinion and that the holding of the opinion was reasonable, the discrimination would be justified, regardless of whether or not one of the justifications was actually met. The reasonable opinion test is also found in Part 3 DDA.

190. A range of different organisations criticised the reasonable opinion test as being subjective and entrenching discrimination. They questioned whether its existence is appropriate in legislation which aims to eliminate discrimination.[220] DPTAC suggested that it potentially allows a "defence of discrimination where it is based on wrongly held prejudices and stereotypes about disabled people".[221] The BCODP considered that the reasonable opinion test would "prolong and embed discrimination".[222] The TUC contended that trying to combine the test of reasonableness with the defence of justification had become "phenomenally complicated", and proposed that there should be an objective justification.[223]

191. The Minister for Disabled People told the Committee that she did not accept that the reasonable opinion test was entirely subjective. In her view, although the "opinion" part of the test was subjective, the question of whether it was "reasonable" or not to hold that opinion was an objective decision made by a court.[224]

192. However, the Committee has heard evidence that the courts have not always applied the reasonable opinion test in an objective way. The ECNI cited the case of Rose v Bouchet 1999, in which a court found in favour of a landlord who had refused to rent a flat to a blind man because the landlord did not consider that the blind man could navigate the steps to the flat without endangering himself.[225] It did not apply an objective test to assess whether this was an accurate assumption to make. The case did not consider, for instance, whether the landlord should have obtained more information from the applicant before deciding there was a safety risk. The ECNI told the Committee that "in actual fact there was no reference at all made to how fit and able the person with the visual impairment was when he was manoeuvring steps".[226] It added:

"We are concerned that the reason for discrimination can be based on wrongly held prejudices and stereotypes of disabled people and as long as there are those prejudices and they are viewed by a judge or a tribunal as being reasonably held then that can be used to justify discrimination".[227]

193. The Spinal Injuries Association also suggested that subjectivity could be a problem in both parts of the test, as problems could occur or be perpetuated when "those judging what is reasonable do so based on wrongly held perceptions of disabled people".[228] The DRC added that judges in county or sheriff courts do not have much experience in hearing disability discrimination cases. It suggested that there is a danger that because judges may themselves hold the same stereotypical assumptions about the disabled applicant as the service provider, they will conclude that a discriminatory view is a reasonable one to hold.[229]

194. The DCC stated that the test was introduced into Part 3 DDA to help smaller service providers which may not have access to advice, and that it was not appropriate for a public authority which should have access to expertise and information. It suggested that under a public authority "best practice should be expected in relation to accessibility of public functions for disabled people".[230]

195. The Minister said in oral evidence that courts ought to apply stricter standards to a large public body than to a small shopkeeper.[231] She noted that, although it may not always happen, "we would expect the public sector to be exemplars; we want to lead the way".[232]

196. The Committee shares the concerns of witnesses about the way in which the "reasonable opinion" test has sometimes been interpreted by the courts. However, only a small number of cases have been brought so far and the requirement to adjust physical features under Part 3 DDA does not come into force until October 2004. The Committee recommends that the DRC should review the need for and effectiveness of the "reasonable opinion" test soon after the coming into force of clause 4 and the introduction of the duty on service providers to make reasonable adjustment to premises.

Exemption for allocating prisoners

197. Section 21C(5) provides that the duty of public authorities not to discriminate does not apply to the allocation of prisoners to a prison or to accommodation within a prison. The BCODP argued that the exemption should be removed.[233] It referred to the case of Price v the United Kingdom (2001), in which the European Court of Human Rights found that a disabled woman had suffered degrading treatment because she was not provided with suitable prison accommodation. The judgment found that, in doing so, the United Kingdom had violated article 3 of the European Convention on Human Rights, which provides that no-one shall be subjected to torture or inhuman or degrading treatment or punishment.[234]

198. The Committee has heard evidence that the Prison Service already behaves as though the DDA applies to prison allocation. The Prison Service Standards, which measure performance throughout the service, contains the key audit baseline: "allocation of accommodation is demonstrably suited to the prisoner's individual needs". A prison is required to establish "that it has considered the "reasonable adjustment" that can be made to meet the needs of disabled prisoners" and a decision by the Governor not to make reasonable adjustments must be documented.[235] The phrase "reasonable adjustment" is based on the requirement under Part 3 DDA.

199. A written question from Lord Avebury in 2001 elicited the following reply from the Government:

"A Prison Service Order ... has been published to ensure that the Governors of all prison establishments ... are aware of the requirements of the Disability Discrimination Act 1995. A working party has been set up to develop a strategy for the reasonable adjustment of 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".[236]

The BCODP suggested that rather than providing an exemption for the functions of the Prison Service, it should be commended for its commitment to the rights of disabled prisoners.[237]

200. The Minister for Disabled People told the Committee that the Home Office had sought this exemption "because they have other constraints ... like security classification or medical rehabilitative things to bear in mind when they are thinking about the allocation of prisoners to particular prisons".[238]

201. The Committee has considered the Minister's comments, but concludes that any exemption from a duty under the DDA should only be made if there are exceptional and robust reasons for doing so. A large number of public authorities will be affected by the clause 4 duties, and the Prison Service has already stolen a march on many of them by working on meeting its obligations under the DDA. Society quite legitimately discriminates against prisoners in terms of loss of liberty. Disabled people in that position should not be discriminated against further. An exemption seems neither necessary nor desirable. We consider that disabled prisoners should be fully protected under the DDA and recommend that the exemption for the allocation of prisoners to a prison or to accommodation within a prison under proposed section 21C(5) be removed.

Other exemptions

202. We also question why provision is made in sections 21B(5) and 21C(6) for regulations to exclude further public authorities, or further acts of public authorities, from the duty not to discriminate. If there are good reasons for exclusion, the authority or act should be put on the face of the bill now. We recommend that the new sections inserted by clause 4 should not include any delegated powers to exclude additional public authorities or additional public acts from the duty not to discriminate.

205 The report of the Stephen Lawrence Inquiry was published as Cm 4262 (February 1999). Back

206 Proposed section 21D(2)(a) Back

207 Ev 276, para 4 Back

208 Ev 40, para 1.1 Back

209 Ev 76, para 6.3 Back

210 Including DRC, Ev 1, para 4.5; Joint Committee on Mobility of Blind and Partially Sighted People, Ev 344, para 4.9; Action for Blind People, Ev 357; National Union of Teachers, Ev 370, part 6; Greater London Action on Disability, Ev 406 Back

211 Ev 1, para 4.5 Back

212 Q 685; see also Ev 276, para 4 Back

213 Action for Blind People, Ev 357, chapter 3; Arthritis Care, Ev 368, para 6.1; Greater London Action on Disability, Ev 406, para 7; DRC, Ev 40, para 1.46 Back

214 Ev 337, para 6 Back