Joint Committee on the Draft Disability Discrimination Bill First Report

CHAPTER 15: CONCLUSIONS AND RECOMMENDATIONS

Chapter 1: Introduction

1.  We strongly endorse the recommendation of the Joint Committee on the Draft Gambling Bill that the Government should make the full text of draft bills available to pre-legislative scrutiny committees in good time before the committees are asked to report. (paragraph 18)

2.  We suggest that Government publications which particularly affect disabled people should be made available in appropriate alternative formats at the same time as the standard format document is published. (paragraph 19)

3.  We recommend that the full bill should be introduced into Parliament as soon as possible in the current session. (paragraph 21)

4.  After Royal Assent, the new provisions should be implemented as quickly as possible. (paragraph 22)

5.  We recommend that the Government review the provisions of the Disability Discrimination Bill, the Mental Incapacity Bill and the Mental Health Bill to ensure that they are consistent with each other. (paragraph 26)

6.  We recommend that, once the bill is enacted, the Government consolidate all the anti-disability discrimination legislation into a single Act. (paragraph 27)

7.  We recommend that where a draft bill contains significant delegated powers, the Government should as a matter of routine provide the appropriate Parliamentary committee with a memorandum explaining the purpose and effect of those powers (as was provided for us). (paragraph 28)

8.  We recommend that the Government consider changing the short title to the Disability Anti-Discrimination Bill. (paragraph 29)

Chapter 2: Who should be protected from discrimination?

9.  The Committee recommends that the DRC, in line with its duty to keep the working of the DDA under review, should consider and consult on whether, and if so how, the law could be amended to provide (a) protection against discrimination on the grounds of impairment, regardless of level or type of impairment and (b) entitlements to the removal of disabling barriers, and submit its recommendations to the Government. (paragraph 50)

10.  The Committee welcomes the extension of the definition to include HIV, cancer and multiple sclerosis from the point of diagnosis, and recommends that the Government should not take a power to exclude certain types of cancer. (paragraph 55)

11.  The Committee recommends that all progressive conditions which are currently covered under the DDA when they begin to have an effect should be included from the point of diagnosis. (paragraph 63)

12.  We recommend that the Government should take a regulation-making power in case further "surprising" case law indicates that the definition is not operating in the way the Government intend, which will enable such conditions clearly to be brought within the scope of the DDA. (paragraph 64)

13.  We recommend the removal of the requirement that mental illnesses must be "clinically well recognised": the requirement should instead be that medical evidence must establish the effect of the condition on the person. (paragraph 79)

14.  The Committee recommends the addition of the following activities to the list of "normal day-to-day activities" in Schedule 1:

• ability to care for oneself
• ability to communicate and interact with others
• perception of reality. (paragraph 88)

15.  The Committee recommends that people experiencing separate periods of depression totalling six months over a two-year period should be considered to meet the "long-term" requirement. (paragraph 99)

16.  The Committee recommends that the DDA should be amended to prohibit direct discrimination and harassment against people who are associated with a disabled person or are perceived to be disabled. (paragraph 109)

17.  The Committee recommends that the Government review eligibility criteria for all disability benefits, and consider whether eligibility for certain disability benefits should automatically provide coverage for a disabled person under the DDA. (paragraph 113)

18.  The Committee recommends that the bill should include a regulation-making power enabling the Government to delete the exemption of the armed forces from Part 2. In order to meet the concerns of the Ministry of Defence the regulation-making power should provide for an exemption, as in the SDA, for discrimination for the purpose of ensuring the combat effectiveness of the armed forces. (paragraph 121)

Chapter 3: Transport

19.  The Committee recommends that when the full bill is introduced the Government should issue an indicative timetable for the prompt introduction of the regulations, and the date by which each sector will be required to comply. (paragraph 132)

20.  We recommend that the Government take note of the comments made by witnesses when drawing up regulations under clause 3. (paragraph 134)

21.  The Committee recommends that the DRC code of practice on transport should be very clear about what is reasonable for transport operators in each sector and in different circumstances. (paragraph 141)

22.  The Committee endorses the recommendation of the House of Commons Transport Committee that any DRC codes of practice on transport should be made subject to the affirmative procedure rather than the negative procedure. (paragraph 141)

23.  The Committee recommends that the DRC should be very clear about what is a reasonable level of service for operators to provide in relation to the book-ahead requirement. (paragraph 143)

24.  The Committee recommends that the DRC keep under review the effectiveness of any book-ahead system following the introduction of the new duties on transport operators and the transport code of practice. (paragraph 143)

25.  The Committee hopes that the DRC and disability organisations will work closely with the transport industry to help phase in disability equality training for existing staff, and to assist with the integration of such training with existing customer service training. We recommend that the Government should review the provision and cost of training for smaller operators, and consider whether there is a need to ease any financial and practical burdens for those operators. (paragraph 149)

26.  We welcome the Government's commitment to complete evaluation of the codes on aviation and shipping by the end of 2005. The Government should make a commitment during the passage of the full bill through Parliament that, if the evaluation indicates that the voluntary approach is not working satisfactorily, the Government will consult without delay on the desirability of the statutory approach. (paragraph 157)

27.  The Committee recommends that the consultation on the setting of the rail end-date is begun immediately. There is no justification for further delay. (paragraph 166)

28.  The Committee's analysis of the evidence we have received, together with the Department for Transport's own data, leads us to suggest an end-date of the end of 2017. We conclude that this, together with a limited exemption system which would itself expire in 2025, would be an appropriate compromise between the needs of disabled people and the industry's current replacement programme. (paragraph 167)

29.  The Committee recommends that improvements to accessibility should be an integral part of the refurbishment process, including, for example, the installation of accessible audio-visual systems. (paragraph 169)

30.  The Committee welcomes the Government's commitment to taking forward the remaining Blue Badge proposals requiring primary legislation, and urges that the feasibility study on a national database be carried out as quickly as possible. We recommend that the full bill be used to make the necessary amendments on language and reciprocity. (paragraph 173)

Chapter 4: Discrimination by public authorities (Clause 4)

31.  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. (paragraph 182)

32.  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. (paragraph 187)

33.  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. (paragraph 196)

34.  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. (paragraph 201)

35.  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. (paragraph 202)

Chapter 5: Duty on public authorities (Clause 8)

36.  The Committee recommends that the current definition of a public authority be replaced by a list of authorities to which the duty applies, as is the case in the RRA and NIA. For consistency, the bill could adopt the list in Schedule 1A of the RRA. As in the RRA, the bill should provide a power for the list to be amended by order; this should include a power to extend the definition to include any person carrying out functions of a public nature. (paragraph 220)

37.  The Committee further recommends that the DRC and the Government should keep under review the application of the duty to listed authorities in order to assess whether amendment is required. In particular the Committee recommends that such reviews should have regard to whether the list should be amended to extend the duty to other bodies defined on the basis of their public functions. With regard to the benefits of consistency across all discrimination legislation, we suggest that any major review of the application of the duty to a closed list of public authorities should include relevant experience under the comparable provisions of the RRA. (paragraph 221)

38.  Additionally, the Committee recommends that the bill must make clear that a public authority is responsible for compliance with the duties under clause 8, regardless of whether its functions are contracted out to a private or voluntary body. (paragraph 222)

39.  We recommend that the duty on public authorities should require that public authorities must carry out their functions with due regard to the need to promote equality of opportunity between disabled persons and other persons by improving opportunities for disabled persons, and should not include the pre-condition "where opportunities for disabled persons are not as good as those for other persons". (paragraph 228)

40.  We recommend that the bill include a duty on public authorities to have due regard to the need to promote good relations between disabled and non-disabled people. (paragraph 241)

41.  We recommend that, following consultation, the DRC code of practice to be made on the new clause 8 duty should emphasize the importance of independent advocacy services, and provide guidance on the circumstances in which public authorities will be expected to ensure that such services are available for disabled people. (paragraph 244)

42.  The Committee notes the importance of advocacy services for those with learning disabilities and mental health problems, and hopes that the forthcoming Draft Mental Health Bill for England and Wales will include similar provision to that found in the parallel Scottish legislation, the Mental Health (Care and Treatment) (Scotland) Act 2003. (paragraph 245)

43.  The Committee recommends that the DRC should have the power to issue a compliance notice if a public authority fails to comply with the general duty under section 49A(1). (paragraph 253)

Chapter 6: Local councillors and other office and post-holders (Clause 15)

44.  The Committee recommends that the Government re-examine clause 15 and all existing disability anti-discrimination legislation with the intention of ensuring that no statutory elected and appointed office- and post-holders are excluded from coverage. (paragraph 262)

45.  The Committee recommends that the Government review the effect of clause 15 combined with clause 5, and ensure that the full bill as introduced to Parliament protects disabled councillors from direct discrimination in appointments to posts of the kind described in new section 15B(3). (paragraph 266)

46.  The Committee recommends that the wording of new section 15C follow the duty placed on employers to make reasonable adjustments in section 4A(1). (paragraph 269)

47.  The Committee also recommends that a separate provision is inserted into new section 15C, creating a duty to provide auxiliary aids and services. (paragraph 270)

48.  The Committee recommends that guidance should identify the activities undertaken by councillors for which reasonable adjustments should, if necessary, be provided. (paragraph 273)

49.  The Committee recommends that the regulations provided for under proposed section 15B(4) do not lower the threshold for justification of discriminatory treatment in section 3A(3) DDA ("material and substantial"). (paragraph 275)

Chapter 7: Private clubs and membership associations (Clause 5)

50.  We recommend that the drafting of new section 21G(1) should be changed so that the power taken is not wider than the Government intend to use. At the very least, the power taken should not authorise the Government to impose any trigger which is lower than an existing trigger in the DDA. (paragraph 284)

51.  We recommend that guests of members of private clubs should be included under the provisions of clause 5 immediately. (paragraph 291)

52.  The Committee notes that in future all public authorities, including English Heritage, will come under both the duty in clause 4 not to discriminate in the exercise of their functions, and the duty under clause 8 to promote equality of opportunity for disabled people. This should ensure that all heritage and planning authorities respond sympathetically and helpfully to requests for alterations under the DDA. (paragraph 294)

53.  We recommend that the Government estimate the potential cost of training for staff in private clubs in the full RIA. (paragraph 297)

Chapter 8: Housing (Clauses 6 and 7)

54.  We recommend that the DRC code of practice on housing should, following consultation, clarify the extent of the duty on controllers of premises to provide reasonable adjustments under the draft bill, and explain exactly how the duties will work in practice. (paragraph 308)

55.  The Committee concludes that the duty under clause 8, provided it is well understood and enforced, offers the most appropriate way to secure an active approach by public housing organisations, and the housing providers they fund, to meeting the full range of housing needs of disabled people. (paragraph 310)

56.  The Committee recommends that a specific provision prohibiting a landlord from unreasonably withholding consent to the making of appropriate physical alterations in respect of a disabled person should be included in the full bill. (paragraph 321)

57.  The Committee recommends that the full bill includes a specific provision prohibiting controllers of premises from unreasonably withholding consent to the making of reasonable adjustments to communal areas. (paragraph 325)

58.  The Committee recommends that the Government consider whether the full bill would be an appropriate vehicle for introducing an accessible housing register in order to simplify the process of matching suitable accommodation to disabled people. If the bill is not found to be appropriate, the Government should consider how best to introduce such a register. (paragraph 327)

59.  The Committee recommends that, in light of the report by the House of Lords Delegated Powers and Regulatory Reform Committee, the Government should reconsider the drafting of the power in clause 7. (paragraph 331)

Chapter 9: Clauses 1, 2, 10 and 11

60.  The Committee therefore recommends that the additional justification of ignorance set out in new subsection (2A) be removed from clause 1. (paragraph 338)

61.  The Committee recommends that discriminatory advertisements should be made unlawful in relation to the provision of goods, facilities or services under Part 3 of the DDA, as well as in relation to employment, as is the case in the RRA and SDA. (paragraph 339)

62.  We recommend that the Government ensure that the wording of clause 2 addresses the concerns of witnesses and meets the policy intention stated by the Government. (paragraph 345)

Chapter 10: Volunteers

63.  The Committee recommends that the Government should consult on and produce a code of practice on volunteers. The Committee further recommends that the full bill should include a regulation-making power enabling volunteers to be brought into coverage, should the non-statutory code prove ineffective. (paragraph 359)

64.  We recommend that, alongside the voluntary code to assist organisations to understand how they should remove barriers that prevent disabled people from full participation as volunteers, and in the light of the Government's wish to provide comprehensive civil rights for disabled people, the full bill includes a provision protecting disabled people who are volunteers or who apply to volunteer from direct discrimination. (paragraph 360)

65.  We acknowledge that funding arrangements are largely beyond the scope of this bill, but in the light of our recommendations on volunteers we recommend that the Government review the case for making funding available - either through Access to Work or a new fund - to provide reasonable adjustments for volunteers. (paragraph 361)

Chapter 11: Tribunals

66.  The Committee recommends that employment tribunals be given the power under the DDA, comparable to their existing power under the Employment Rights Act 1996, to order reinstatement or re-engagement of an employee in disability discrimination cases. (paragraph 368)

67.  The Committee recommends that the Government review whether tribunals should be given the power to recommend changes to policies, procedures or practices that have been found to be discriminatory. (paragraph 369)

68.  We recommend that the Government review the way in which disabled people may seek redress under Part 3 of the DDA in the context of current and future reforms to the tribunal system. (paragraph 378)

Chapter 12: Examining bodies and standard setting agencies

69.  The Committee recommends that all examination bodies and standard setting agencies are brought within the provisions of the DDA. (paragraph 386)

Chapter 13: Triggers

70.  The Government should make clear that the full bill and any statutory instruments made under it will create no new triggers, and will employ the two already used in the DDA: "substantial disadvantage" and "impossible or unreasonably difficult". (paragraph 391)

Chapter 14: Financial implications

71.  The Committee recommends that, not only should the Department review the RIA in order to improve it for the full bill, but that when producing future draft bills more attention is devoted to ensuring that the initial cost and benefit estimates are comprehensive. (paragraph 393)

72.  The Committee recommends that the Department reviews the processes it uses for preparation of RIAs, and seeks to ensure that they are designed to present a more robust and measurable assessment of the balance of costs and benefits in any regulatory proposals. (paragraph 394)

73.  The Committee recommends that the Government and other relevant bodies provide appropriate support for public authorities to share good practice and deliver the new duties cost effectively. (paragraph 396)

74.  The Committee notes that the effectiveness of the measures in the bill depends in large part on the DRC producing sound guidance and then effectively monitoring and enforcing the DDA. The Committee therefore trusts that the Government recognise this and are committed to making available the additional funds to the DRC to carry out these duties effectively. (paragraph 397)

75.  The full RIA should assess the costs and benefits of those of our recommendations which are included in the full bill. (paragraph 398)

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Prepared 27 May 2004