Joint Committee on the Draft Disability Discrimination Bill First Report

APPENDIX 4: SCHEDULE LISTING WITNESSES' COMMENTS ON THE DRAFT BILL, WITH GOVERNMENT RESPONSES

Proposed changes to Draft Disability Discrimination Bill

  

Clause	Original text	Change/comment	Source*	Comments by HMG
1	Discriminatory advertisements.	It is imperative that the new subsections (2A) and (2B) are in no way removed or amended to the detriment of newspapers.	The Newspaper Society, DDB 25, para 3.	1(a): The Government intends to keep these provisions.
		The clause should [not] include opportunities to pass on the blame. It would be simpler if it were the duty of those accepting advertisements to be responsible for their publication complying with the legislation.	Spinal Injuries Association, DDB 29, p1.	1(b): The clause is modelled on provisions in the Race Relations Act (RRA) and the Sex Discrimination Act (SDA). The amended section 16B Disability Discrimination Act (DDA) allocates responsibility appropriately. It ensures that all those involved in the publication of a discriminatory advert are liable for their own actions.
		The definition of "publish" should include the advertising of all employment opportunities in the public domain. There have been concerns as to the scope of this term for those enforcing Race Legislation. Potentially, clause 1 could apply to small cards displayed in newsagent's windows, flyers and the internet (where the author can be identified).	Disability Law Service, DDB 60, para 3.2.	1(c): The amended statutory provision is wide in scope. The advertisements covered are set out in s16B(3) in the definition of "relevant appointment or benefit" and include the advertising of "any employment, promotion or transfer of employment" and "any work placement (within the meaning of section 14A)". Section 16B(4) contains a very wide definition of "advertisement" and provides that an "advertisement" includes every form of advertisement or notice, whether to the public or not.
2	Group insurance.	Moving the section dealing with insurance from Part 2 of the DDA to Part 3 appears to give insurers extra justification for discriminatory behaviour. S20(1)(4) DDA allows service providers to justify adverse treatment if a person is incapable of entering into a contract, but there is no such adjustment available to employers under Part 2 DDA. Since capacity to enter into an employment contract is not co-extensive with the capacity to enter into an insurance contract, it could leave learning disabled employees with no redress, no pension and no health insurance.	Disability Law Service, DDB 60, para 6.1.	2(a): In deciding whether discrimination has occurred, providers of group insurance are currently treated as though they were providing a service under Part 3 of the DDA. This justification is therefore already available to providers of group insurance by virtue of s18(2). The clause clarifies the way in which the DDA applies to group insurance without changing the approach to discrimination or justifications.
2(3)	"group insurance arrangement means an arrangement between an employer and another for the provision by the other of facilities by way of insurance to the employer's employees or to any class of those employees;".	Current regulations state that the insurer (as opposed to the employer) can only be held responsible where they carry out all decisions relating to eligibility for, and amounts of, benefits etc. The new provisions appear to remove this protection for the insurer. They should not be held liable for decisions taken by the employer that are wholly beyond the insurer's control. Under the proposed bill it will be possible to hold the insurer jointly liable. Insurers may be required to re-appraise their relationship with the employers and could seek more control over some decisions that are traditionally exclusively the domain of the employer.	Unumprovident Ltd, DDB 87, para 1.9.	2(b): The Disability Rights Task Force (DRTF) recommended that the DDA should be amended to ensure providers of group insurance and employers were each responsible for their own actions, as it considered the current legislative provision to be inadequate. The clause implements that recommendation. The insurance provider and the employer are both subject to duties not to discriminate (under Parts 3 and 2 respectively) and cases would be brought in an employment tribunal. The insurers would be liable for discriminatory acts of an employer only where he was acting as agent for the insurer and with their express or implied authority: see section 58 DDA. The Government believes that is the correct approach to be adopted.
		The use of the phrase "provision of facilities by way of insurance" could cause confusion. Clause 2 needs to make explicit which arrangements fall within the scope of the bill, including the position in relation to voluntary schemes. Insurers should not be held responsible for decisions taken by the employer, or an independent financial adviser, which are wholly beyond the insurer's control.	Association of British Insurers, DDB 65, paras 3-6.	2(c): As the Explanatory Notes make clear (paragraph 21), the new definition of group insurance in section 68(1) is slightly wider than the current definition in section 18(3). The new definition covers all types of group insurance schemes, not just those relating to termination of service; retirement, old age or death; or accident, injury, sickness or invalidity. It is not, however, expected to bring into scope a voluntary scheme that is not already covered by s18. The Disability Rights Commission (DRC) already issues guidance on insurance services in a Code of Practice. The Government believes that the clause meets the DRTF recommendation and that the slight extension of the definition should not cause difficulties.    See the response to 2(b) above about respective responsibilities of the provider and employer.
3	Application of sections 19 to 21 of the 1995 Act to transport vehicles.	London Underground should be included in the bill.	Disabled People's Direct Action Network, DDB 9, p 5.	3(a): Clause 3 provides for Part 3 provisions to be applied to London Underground as for any other public transport service. There is no suggestion that London Underground would not be covered.
		Local authorities have requested some clarification and guidance on their roles and responsibilities in terms of licensing private hire vehicles and the provision of school and community transport. How would the duty to promote disability equality tie in with this clause and would it be considered "reasonable action' for a LA to put conditions on licensing of contract requirements?	Welsh Local Government Association, DDB 14, part 2, clause 3.	3(b): Clause 3 allows transport vehicles to be brought within Part 3 of the DDA. Where the exemption is lifted the duties would apply to those providing the service. In the case of private hire vehicles, the duties would be on the driver and operator. Where the exemption is lifted in respect of a service operated by a local authority then the duties would apply to the local authority as well as to the driver and other staff involved in the service.    The duty to promote equality will require public bodies to give due regard to the needs of disabled people across all their activities. When letting a contract, public authorities will need to consider whether they should include particular requirements in order to ensure that disabled people are able to access services provided under that contract. Similarly, it may be appropriate for public authorities to attach conditions to licences in certain circumstances to promote equality. However, this clause would not require or permit authorities to attach conditions to contracts or licences that would contravene other legislation.
		Agreed guidance and codes of practice on the "reasonableness" of any adjustment would be helpful.	Confederation of Passenger Transport UK, DDB 13, p2.	3(c): The DRC would be responsible for producing a Code of Practice on the application of the provisions to transport vehicles.
21ZA (3)	"Regulations may provide for subsections (1) or (2) not apply, or to apply only to a prescribed extent, in relation to vehicles of a prescribed description".	The exclusion for transport services in the whole transport sector should be immediately removed and should not be subject to individual regulations.	Leonard Cheshire, DDB 11, summary points 1-5.	3(d): The Government accepted the DRTF's recommendation on Part 3 that the exemption should be lifted in part. It was on that basis that the Government consulted and that the approach provided in Clause 3 was accepted.
		The Government should set out the intended timetable for regulations to lift the Part 3 exemption from transport operators as soon as possible.	Disability Rights Commission, DDB 1, para 3.4.	3(e): The Government has said that it will lift the exemption for public transport, car hire and breakdown services as soon as practicable after Royal Assent.
		Regulations on transport should cover refurbishment, such as disabled toilets and visual signage.          Part 5 of the DDA should be changed to prioritise accessible audio-visual information to customers in transport refurbishment programmes.	Disability Rights Commission, DDB 1, para 3.11.          Groups representing people with a learning difficulty, DDB 23, p7.	3(f): The Government consultation on introducing refurbishment regulations for rail vehicles ended on 26 January. There was a range of views expressed. The Government is considering the responses.    Audio-visual information systems can already be covered under Part 5 accessibility regulations. They are a requirement of the Rail Vehicle Accessibility Regulations 1998. Research has been carried out and further work is in hand to establish the feasibility of providing similar equipment in buses and coaches.
		Regulations in relation to key issues such as transport should be subject to affirmative procedure.	Disability Agenda Scotland, DDB 52, para 2.	3(g): The approach is consistent with similar provisions. Accessibility regulations made under Part 5 are not subject to the affirmative procedure.
21ZA (4)	"in this section - "vehicle" means a vehicle for transporting people by land, air or water, and includes..".	Although an operator would be required to provide a coach capable of carrying a wheelchair user, the wording does not exclude the requirement to provide a trailer or separate van capable of carrying a motorised scooter. This could be resolved by amending section 21ZA(4) to include two extra definitions: (4)(c) a trailer attached to such a vehicle and (d) a goods vehicle provided in conjunction with such a vehicle.	Confederation of Passenger Transport UK, DDB 13, p 4.	3(h): The Government's stated policy in respect of Clause 3 is that it will not be used to require a coach operator to make his vehicle accessible or to provide the service by an alternative means. Accessibility of vehicles is the subject of Part 5 of the Act.
4	Discrimination by public authorities.	This will need to be backed by comprehensive guidance so that authorities are aware of what practical steps the Government expects them to take.	Welsh Local Government Association, DDB 14, part 3, clause 4.	4(a): The DRC would be responsible for providing guidance to public bodies on the implications of the new duties.
4(1)	"It is unlawful for a public authority to discriminate against a disabled person in carrying out its functions".	For consistency across Part 3 the bill must subject public authorities to an anticipatory duty when exercising their functions. It differs in approach from the anticipatory duty in Part 3 DDA, which applies to all disabled people. If the draft does not place a similar duty upon public authorities its effects in widening access may be significantly less than that achieved under Part 3.    Public authorities should have a clearly stated anticipatory duty to make reasonable adjustments, as is the case for service providers under Part 3 of the DDA.	Disability Charities Consortium, DDB 17, para 6.3.             Disability Rights Commission, DDB 1, paras 4.5 - 4.7.	4(b): The Government believes that the draft clause achieves its policy intention - to replicate the approach taken in sections 19-21 as closely as possible in respect of the exercise of public functions, including an anticipatory duty. The drafting is necessarily different - while ss. 19-21 of the DDA refer to disabled people 'making use of' services, it is not possible to describe the interaction between disabled people and authorities exercising functions in the same way.
21B(3)(c)	"In this section, "public authority"… does not include…. (3)(c) the Security Service".	The scope of Security Service must be more closely defined.	Disability Law Service, DDB 60, para 8.2.	4(c): The definition of the Security Service replicates that in the Race Relations (Amendment) Act, and the Government believes that it achieves the policy intention.
21B(4)	" ... a person is not a public authority by virtue only of subsection (2)(a) if the nature of the act is private"	I fear that there may sometimes be confusion about whether an act is private or public. Moreover, it may be that some private acts of public bodies should be subject to anti-discrimination legislation ... Accordingly, unless very good reasons are advanced to the contrary, I would delete, from both Clause 4 and Clause 8, the proviso that a body will not be a public authority if the nature of the act it is carrying out is private.	Sir Peter Large, DDB 91, para 4.2.1	4(d): This provision replicates that in the Race Relations (Amendment) Act, and the Government believes that it achieves the policy intention.
21D(1)(a)	"a public authority discriminates against a disabled person if - (a) for a reason related to the disabled person's disability, it treats him less favourably".			4(e): There is no comment listed by the Committee in this part of the Schedule.
21D(2)(a)	"a public authority also discriminates against a disabled person if - (a)… the outcome of the carrying-out of the function is very much less favourable".	The threshold for the reasonable adjustment requirement should refer to "substantial disadvantage", rather than "very much less favourable". The functions clause seems to provide a different weaker, protection than the services sections in the DDA. This could cause confusion because it may be unclear which activities of public authorities are covered by the services or the functions provision.	Disability Rights Commission, DDB 1, para 4.4.	4(f): The Government believes that the draft clause achieves its policy intention - to replicate the approach in sections 19-21 DDA as closely as possible in respect of the exercise of public functions. However, the drafting is necessarily different - while ss. 19-21 refer to disabled people 'making use of' services, it is not possible to describe the interaction between disabled people and authorities exercising functions in the same way. The phrase "very much less favourable" therefore simply makes analogous provision to that made by the phrase "impossible or unreasonably difficult" in the current legislation.
		A single test should be applied throughout the DDA which requires a reasonable adjustment to be made when a disabled person has been placed at a 'substantial disadvantage' in comparison with non-disabled people.    The term "very much less favourable" is very clumsily worded and sets a higher threshold than other parts of the Act	Law Society, DDB 15, pp 4 and 6.          Disability Agenda Scotland, DDB 52, para 6.	4(g): The DDA employs two triggers for reasonable adjustment. In Part 2 an employer must make an adjustment if a disabled employee would otherwise suffer a 'substantial disadvantage' - but such adjustments need only be made when a disabled employee (or potential employee) presents themselves, and the employer knows that an adjustment would be appropriate. That is, it is a reactive duty of reasonable adjustment. In Part 3, on the other hand, there is a higher trigger for a reasonable adjustment - that it would otherwise be 'impossible or unreasonably difficult' for a disabled person to make use of a service - but service providers must take steps in advance in order to meet the needs of disabled people. That is, it is an anticipatory duty of reasonable adjustment. The Government believes that this arrangement reflects the difference between the close, continuing relationship between employers and employees, and the more ephemeral relationship between service providers and their users, and that there is no evidence to suggest that it does not work well in practice.    See also response at 4(f) above.
		The term "very much less favourable" in this clause should be replaced with "less favourable" in line with other sections of the Act.	Disability Law Service, DDB 60, para 8.3.	4(h): see the response to 4(f) and 4(g) above.
21D(3)	"Treatment or outcome is justified… if - (a) in the opinion of the public authority, one or more the conditions specified in subsection (4) are satisfied; and (b) it is reasonable… for it to hold that opinion".	The Government should remove the 'reasonable' opinion test from the list of justifications. They should also remove the power to introduce new grounds for justification. The test is not appropriate for a public authority - they should have access to expertise and information to prevent them from making a genuine error.	Disability Charities Consortium, DDB 17, para 6.4 - 6.6.	4(i) The Government believes that the parallel approach taken for justifications by public bodies as providers of goods and services is also appropriate to these measures. Both the expertise and information available to public bodies would be factors in determining whether an opinion held by a public body were reasonably held.
		The justification for discrimination should be based on objective standards, rather than the 'subjective' "reasonable opinion standard". The reason for discrimination can be based on wrongly held prejudices and stereotypes of disabled people, and, so long as such beliefs were viewed by the judge as "reasonably" held, they could justify discrimination. This 'subjective' standard appears to be especially inappropriate in relation to the carrying out of public functions. Disabled people need to have confidence that where a public authority treats them less favourably this is for an objectively legitimate reason.	Disability Rights Commission, DDB 1, para 4.6.	4(j): The Government does not accept this analysis. The justification for discrimination relies on a test that is partly subjective, and partly objective: it only applies when a public authority reasonably holds the opinion that one of the limited conditions in s. 21D(4) applies. Opinions based on prejudice or stereotypes would not be reasonably held, and could not therefore be used to justify discrimination.
		The 'reasonable opinion standard' is objectionable in all cases and particularly inappropriate to the carrying out of public functions.    The DRC's arbitration service should be extended to cover public functions.	Disabled Persons Advisory Transport Committee, DDB 12, summary point 6.	4(k): See the response to 4(j) above.    In addition, s28 of the DDA gives the DRC powers to make arrangements for conciliation services in respect of disputes arising under Part 3 of the Act. As these provisions would be inserted into Part 3, section 28 will allow the DRC to extend the Disability Conciliation Service to disputes related to public functions.
21D(4)(c)	"Treatment or an outcome is justified.. if - (4)(c)… treating the disabled person equally favourably would in the particular case involve extra costs".	This clause would be strengthened by the inclusion of the word "substantial" to read: "…would in the particular case involve substantial extra costs".	Disability Law Service, DDB 60, para 8.4.	4(l): The Government does not believe that it is necessary to include the word "substantial" as courts would not be likely to regard the incurring of minor or trivial costs as justification for less favourable treatment. The justification would in any event only apply where the public authority reasonably considered that the extra costs would be "too great".
21D(5)	"Treatment or an outcome is justified ... if the acts of the public authority which give rise to the treatment or outcome are a proportionate means of achieving a legitimate aim"	Ss 21D(5) ... will virtually nullify the intentions of Clause 4. Because disabled people are never in the majority, the use of the word "proportionate" will mean that virtually any action could be justified. In order to avoid nullifying the potential benefits of Clause 4, subsection (5) should be deleted.	Sir Peter Large, DDB 91, para 4.2.2	4(m): The Government does not accept this analysis. S. 21D(5) provides an objective justification similar to those used in the Employment Equality (Religion and Belief) and Employment Equality (Sexual Orientation) Regulations, as well as that used in the Race Relations and Sex Discrimination Acts. "Proportionate" does not directly relate to the proportion of disabled people in the population but to whether the act of a public authority is proportionate to the treatment in achieving the particular legitimate aim.
21C(5)(b)	"Section 21B(1) does not apply to… (b) allocating prisoners to accommodation within a prison".	Disabled prisoners should have their rights met in a dignified manner, which may have implications for the accommodation provided, as well as reasonable adjustments in other areas.	British Council of Disabled People, DDB 6, para 7.	4(n): The Government has provided a narrow exemption only in relation to the allocation of prisoners to and within prisons. All other aspects of the Prison Service's activity would be within the scope of the DDA.
5	Private clubs.	The Government should provide details of what it proposes to be in the regulations sooner rather than later.	Disability Rights Commission, DDB 1, para 5.2.	5(a): The Government will do this as soon as practicable.
		There should be a power to bar from private clubs people who exhibit disruptive behaviour as a consequence of substance abuse, notwithstanding that they suffer a disability defined under the DDA. It is necessary to protect the well-being of others using private clubs.	Rethink, DDB 26, p2.	5(b): There is no need for such a power where the reason for exclusion is as a consequence of substance abuse, because the DDA only prohibits discrimination for a reason related to disability. Regulations made under the Disability Discrimination Act (The Disability Discrimination (Meaning of Disability) Regulations 1996, SI 1996 No 1455) provide that people who are addicted to alcohol, nicotine or any other substance do not have an impairment for the purposes of the Act.
21E(1)(a)	"This section applies to any association of persons… if - (a) it has twenty-five or more members".	The limitation to 25 members is arbitrary and open to challenge. The limit on membership should be removed to bring it into line with section 7 of the DDA as amended from October 2004.	Disability Law Service, DDB 60, para 9.1.	5(c): The "limitation" follows that in section 25 Race Relations Act 1976. Its use also meets the concerns of the DRTF that the definition of a club should not extend to private social arrangements (From Exclusion to Inclusion - recommendation 6.10)
21G(1)(a)	"Regulations may make provision imposing on an association… - (a) a duty to take steps for a purpose relating to a policy, practice or procedure of the association, or a physical feature, which adversely affects disabled persons".	The "adversely affects" trigger is significantly more generous than other triggers in Part 3 DDA or draft bill. But the explanatory notes suggest that it is not expected that the duties imposed by regulation will go further than those in Part 3. Clarification of the Government's intentions is needed.	Disability Charities Consortium, DDB 17, paras 2.2 - 2.5.	5(d): This is a misapprehension. The use of the words "adversely affects" does not constitute a new DDA trigger. The words are used to ensure that the power given to Ministers under this Regulation is wide enough to enable an appropriate duty to make adjustments to be formulated. The power would only be exercised after full consultation.
		Physical alterations to private clubs should be made on an individual basis. The section should mirror the provisions in Part 2 of the DDA, not Part 3.	Richard Cullingworth, DDB 83, para 7.a.	5(e): Some private clubs are already under Part 3 duties when providing goods, services or facilities to the public or a section of the public, such as banqueting facilities or hire of sports grounds. Decisions on whether similar duties should be applied in relation to potential members, members or associates will be taken following consultation.
21G(3)	"Any duty imposed under this section is imposed only for the purposes of determining whether an association has discriminated against a disabled person; … a breach of any such duty is not actionable as such".	If a breach of duty is not actionable it is therefore not enforceable. It should be actionable to ensure compliance and act as a deterrent.	Disability Law Service, DDB 60, para 10.1.	5(f): This is a misapprehension. This provision follows the DDA as it stands now - see for example section 21(10) of the Act. Breach of a duty to make a reasonable adjustment constitutes discrimination and is enforceable as such before a court (Part 3) or tribunal (Part 2). The reason for the inclusion of such a provision throughout the DDA is to make it clear that a breach of a duty to make a reasonable adjustment is not a breach of a statutory duty giving rise to a separate claim in damages. This does not affect the remedy for a claim of discrimination provided by section 25 DDA.
21H (2)	"Regulations may amend this Part… to apply also in the case of a disabled person who… is invited by a member of the association to take advantage of a benefit, facility or service".	It would be better to include guests from the outset.	Disability Rights Commission, DDB 1, para 5.3.	5(g): This power allows for Ministers to provide protection for disabled guests of members should evidence emerge that protection against discrimination by private clubs in relation to disabled guests is necessary.
6	Discrimination in relation to letting of premises.	The role of policing and dealing with complaints in this area could impose extra pressure on local authority enforcement departments and so clarity is needed over who is responsible for this.    To avoid confusion it may be worth including specific reference within the bill to the landlord duty in the Landlord and Tenant Act 1927.	Welsh Local Government Association, DDB 14, part 3, clause 6.	6(a): The enforcement mechanism for the new premises provisions is the same as for the existing provisions. A disabled person who believes they have been discriminated against will be able to make a complaint to the county court or, in Scotland, sheriff court (s25). As now, the DRC will be able to provide assistance to individuals, and the DRC's free conciliation service will be available. As a result of clause 10, individuals will also be able to issue a questionnaire seeking information from the alleged discriminator.    See the response to 6(f) below about the 1927 Act.
		This clause does not make sense when applied to commercial property - it makes sense in relation to residential property. Most leases of commercial property are to companies and not individuals. Clarification must be made as to who the 'occupier' is. There should be wide consultation on common parts in commercial premises.	Richard Cullingworth, DDB 83, paras 8.a - 8.d.	6(b): As with the existing premises provisions, a disabled person will be covered by the new premises provisions where they are renting or seeking to rent commercial property. A company would not be protected by the existing or new premises provisions. Subject to regulations under s24J(1)(d), the word "occupier" has its ordinary meaning. This would be unlikely to include employees of an employer, but could include a disabled person who occupies the business premises leased to his limited company through which he trades.    See the response to 6(c) below on common parts.
		There must be explicit provision to ensure management committees cannot reasonably refuse consent to make adjustments to common parts of privately owned premises.	Disability Rights Commission, DDB 1, para 6.11.	6(c): The DRTF made no proposals about common parts and coverage of them was not part of the Towards Inclusion proposals. The Government's view is that seeking to cover common parts of premises in England and Wales in this Bill would pose a number of difficult problems. In particular, the Government is not convinced that tenants should be able to make adjustments to common parts over which they have only limited rights, or that a landlord should be required either to allow a tenant to make changes or make the changes themselves. The system of property ownership in Scotland means that such an approach would not be appropriate.    The Bill's new duties apply to 'the controller of premises' as defined in section 24A(3). It includes 'a person who manages the premises'. The management committees of leasehold flats in England and Wales will therefore often be either a landlord or a manager of premises, e.g. where the lessees have collectively purchased the freehold of the block through the medium of a management company in which they each own a share.
		The term "including the common parts" should be included in relation to the mention of premises. As it stands the legislation could be interpreted as "demised premises" which relates to the premise occupied by the lessee.	Disability Law Service, DDB 60, para 11.2	6(d): See the response to 6(c) above.
		It is necessary to identify in the draft bill who will take action on behalf of tenants if a landlord refuses to consent to alterations, and what penalties will be imposed.	Royal College of Nursing, DDB 43, para 2.2.	6(e): See the response to 6(f) below.
		The bill should include a clause stating that landlords are not allowed to withhold consent unreasonably for a disabled person making changes to the physical features of the premises. The Landlord and Tenant Act 1927 is not adequate - 1) where the lease contains absolute prohibition on adjustments the 1927 Act would not apply; 2) its complexity would make it difficult to publicise or for courts to enforce; 3) the 1927 Act has failed to provide disabled tenants with redress; 4) the DRC has no power to issue statutory codes of practice or bring cases; 5) the Act does not apply to Scotland.	Disability Rights Commission, DDB 1, paras 6.6 - 6.10.	6(f) The Government does not consider it necessary to legislate in the Bill for the DRTF recommendation about tenants' alterations.  In England and Wales, in a large majority of cases, leases and tenancy agreements already provide - either expressly or by operation of the Landlord and Tenant Act 1927 (section 19(2)), the Housing Act 1980 (section 81) or the Housing Act 1985 (section 97) - for the landlord not to refuse consent unreasonably for improvements the tenant wishes to carry out.    County courts have power to decide whether a refusal is unreasonable. In Scotland, the Scottish Executive Housing Improvement Task Force (HITF) recommended that private sector tenants should have the right to carry out adaptations to their home to meet particular needs arising from a disability. This right should be subject to consent of the landlord and such consent should not be unreasonably withheld. The recommendations of the HITF are expected to be taken forward in a new Private Sector Housing Bill early in 2005.
		The draft bill should contain a provision to prevent landlords from withholding consent unreasonably for a disabled person making changes to the physical features of premises. Section 19(2) of the Landlord and Tenant Act 1927 favours the landlord. The requirement not to consent unreasonably is general and not specifically related to disabled people.	Law Society, DDB 15, p5.	6(g): See the response to 6(f) above about the 1927 Act.    The general nature of the 1927 Act's protection and other landlord and tenant laws may be of advantage to a disabled person, as the landlord would not be able to challenge an application to a court on the basis that the person is not disabled. By contrast, such a challenge is possible in any DDA case.
		DRTF recommendation 6.27 should be included in the draft bill. There should be consultation on when it is reasonable for a landlord to withhold consent for a disabled person to make adaptations. A regulatory clause, stating the type of alterations permissible in given circumstances, would be useful and have the benefit of being flexible enough to react to changes in technology and user expectations.	Shelter, DDB 16, p3.	6(h): See the response to 6(f) above on the 1927 Act.    Section 24J contains regulation powers which can be used, if necessary, to clarify, for example, what would constitute a policy, practice or procedure.
		The landlord should normally give consent to adjustments and the cost should be borne by the taxpayer in order to improve the housing stock.	British Council of Disabled People, DDB 6, para 8.	6(i): See the response to 6(f) above about the 1927 Act.
		The Government should bring the provision of benefits or facilities by freeholders for residents into the scope of the new housing provisions.	Disability Charities Consortium, DDB 17, para 7.6	6(j): Where a freeholder is a controller of let premises, they will be subject to the new premises provisions, including the duty to make reasonable adjustments.
		The bill should include a clear directive stating that public housing organisations should deliver an adaptations service. Landlords in receipt of public funding should as a minimum, offer a 'pro-active' adaptations service to their tenants as part of their 'public responsibilities'. The DRC should issue a code of practice in rented housing using the model already adopted by the CRE. An inquiry into disability and housing issues should be called by the DRC.	Habinteg Housing Association, DDB 59, executive summary, points 2, 4, 5, 6.	6(k): Landlords who are also public bodies, for example, local authorities, will have to take account of the duty in clause 8 to promote equality for disabled people. This applies equally to their housing functions. The DRC already has the power to issue Codes of Practice and has included guidance on the existing premises provisions in its Code on Part 3 of the Act. The DRC intends to issue a revised Code before any new premises duties come into force. The DRC also already has wide powers to mount formal investigations.
24A(4)(a)	(a) let includes sub-let; and (b) premises shall be treated as let by a person to another where a person has granted another a contractual licence to occupy them".	Certain private sector landlords should not be exempted from the new duty. This is not consistent with other parts of housing law relating to the private rented sector.    The proposals may not offer protection to those who are placed by local authorities in temporary accommodation. The legal status of many living in hostels and B&Bs means they lack rights as tenants and would not qualify under the proposed duty of clause 6.	Shelter, DDB 16, p3.	6(l): The existing DDA premises provisions already provide an exemption for small dwellings. The DRTF agreed that this should continue and it has been applied to the new provisions. Section 24B contains an additional exemption which applies only where the premises are or have been the only or principal home of a landlord and an agent has not been used in the letting. There is a similar exemption in section 24F. The Government believes that these exemptions from the current and new duties appropriately reflect the particular nature of a person's principal home and that of small dwellings where the landlord or a near relative reside on the premises.    The new provisions apply to premises that are let or to be let. This includes premises where a person has granted (or proposes to grant) another a contractual licence to occupy them. The provisions protect disabled people who are tenants or licensees (or prospective tenants or licensees). The new provisions will therefore apply to many who are living in hostels and B&Bs.
24C(1)(b)	"Section (2) applies where - (b) it is reasonable to regard the request as a request the controller take steps in order to provide an auxiliary role or service".	A clear definition of what is meant by 'reasonableness' would be welcome. Under the DDA and Government guidance the term is subject to inconsistent interpretation.    There is concern over the cost implications for NHF members and all let premises. The Housing Grants, Construction and Regeneration Act 1996 should continue to be applies and resources allocated to ensure these funds remain available. The bill should make special statutory provision so that funds are available to landlords to enable effective implementation of this element of the bill.	National Housing Federation, DDB 57, para 3.3.    paras 3.12 - 3.13.	6(m): As explained in the response to 6(k) above, the DRC already has the power to issue Codes of Practice. Its Codes contain guidance on the meaning of reasonableness. The DRC's Code on Part 3 of the Act includes guidance on the existing premises provisions. The DRC intends to issue a revised Code before any new premises duties come into force.    Subject to its eligibility rules, a Disabled Facilities Grant (or Housing Improvement Grant in Scotland) may be available for structural adaptations to a home. However, the Bill's premises provisions do not require landlords to remove or alter a physical feature of rented premises.    Landlords will not have to make adjustments that are unreasonably costly and, subject to the terms of the lease, could spread the cost of adjustments across all their tenants through rents and service charges in the same way as other overheads. The Government therefore sees no need to set up a grant scheme for these duties.
		Clarification about what kind of aids would be covered would be welcomed. Essentials such as grab rails and visual doorbells should be covered.	Disability Rights Commission, DDB 1, para 6.2.	6(n): As explained in the response to 6(k) above, the DRC already has the power to issue Codes of Practice. Its Codes contain guidance on the meaning of auxiliary aids and services. The DRC's Code on Part 3 of the Act includes guidance on the existing premises provisions. The DRC intends to issue a revised Code before any new premises duties come into force. It would be appropriate for this to include guidance on what might be reasonable auxiliary aids and services for landlords to provide.    There is a power to regulate (s24J(1)(h)) as to what is or is not an auxiliary aid or service that could be used if there was ever any doubt. This power is subject to the proviso that landlords would not have to remove or alter a physical feature of premises (s24C(6), s24E(5)), which might exclude many grab rails and visual doorbells.
24C(1)(c)(i)	"the auxiliary aid or service would - (i) enable a relevant disabled person to enjoy the premises".	The term "enjoy" is far too vague.	Richard Cullingworth, DDB 83, para 8.j.	6(o): This word achieves the policy intention, and is used elsewhere in landlord and tenant law without apparent difficulty (e.g. a tenant has a right to "quiet enjoyment" of the demised premises).
24G(1) (b)	"Subsection (2) applies where - (b) it is reasonable to regard the request as a request that the controller take steps in order to provide an auxiliary aid or service".	There should be a consistent approach to the triggers to reasonable adjustment throughout the DDA. S24G relies on specific request for an auxiliary aid by the disabled tenant-to-be whereas in s21E no such request is necessary. No such request is required by s21(4) in the DDA either.	Disability Law Service, DDB 60, para 5.3.	6(p): See the response in 4(g) above. It would not be appropriate to expect landlords to make adjustments without a request from the tenant, as the landlord may often have little or no personal contact with the tenant or occupiers.
7	Power to modify or end small dwellings exemption.	A definite end-date should be given for the removal of the small dwellings exemption.	British Council of Disabled People, DDB 6, para 8.	7(a): The clause goes beyond the DRC's recommendation and the Government sees no need to specify such a date.
8	Duties of public authorities.	The public duty to promote disability equality should make particular reference to the role of the Housing Corporation and the Audit Commission in adopting a planned strategic approach to housing and disability.	Habinteg Housing Association, DDB 59, executive summary, point 3.	8(a): The DRC will be responsible for providing guidance to public bodies on the implications of the new duties. They may wish to make particular reference to the roles of these bodies and other inspectorates in that guidance. These two bodies will clearly be public authorities as defined by section 49B.
49A(1)(a)	"Every public authority shall in the carrying out of their functions have due regard to - (a) the need to eliminate discrimination that is unlawful under this Act".	It would be useful for public authorities to have a duty to promote good relations. Not to include this duty risks being interpreted by public authorities as inappropriately signalling that the issues tackled in relation to race have no relevance for disabled people.	Disability Rights Commission, DDB 1, para 7.4.	8(b): The Government does not believe that it is possible to frame a meaningful duty of good relations within the structure of the DDA, which gives rights to disabled people alone, and not non-disabled people. The sorts of suggestions made by the DRC for the purpose of such a duty would, we believe, be covered by the general duty to promote equality.
		All employers, not just those in the public sector, should come under such a duty.          The duty to promote should be extended to the private sector - it cannot be right that there is a hierarchy of rights where public sector employees enjoy higher standards of treatment that those in the private sector.	Public & Commercial Services Union, DDB 28, para 4.1.    The Graphical Paper & Media Union, DDB 48, p2.	8(c): The Government believes that the public sector must lead by example on equality, and believes that the public sector duty will help raise standards in all sectors of society for disabled people. The Government will continue to work with businesses and other partners to identify what works best and to promote good practice. This replicates the approach taken under the Race Relations Act
49A(1)(b)	"Every public authority shall in carrying out its functions have due regard to - (b) the need to eliminate harassment that is unlawful under this Act".	The draft bill's duty to eliminate harassment applies only to harassment unlawful under the DDA, not wider hate crime.	Disability Rights Commission, DDB 1, para 7.6.	8(d): The Government believes it is important that new legislation does not duplicate existing legislation. S. 146 of the Criminal Justice Act 2003 already provides that courts must consider whether offences are motivated by hostility towards disabled people when sentencing offenders.
49A(1)(c)	"[public authorities should have regard to] - (c) the need, where opportunities for disabled persons are not as good as those for other persons, to promote equality of opportunity between disabled person and other persons by improving opportunities for disabled persons".	The wording is confusing in its terminology and negative in focus in comparison to the race equality duty. This could be more clear and positive by stating "that where disabled people experience disadvantage there is a need to promote disability equality and improve opportunities for disabled people".    A more reasonable lead-in time and timely guidance on complying with duties imposed by regulations would be appreciated, in light of the lack of time given to local authorities when drafting race equality schemes.	Welsh Local Government Association, DDB 14, part 3, clause 8.	8(e): The Government believes that the draft clause achieves its policy aim.    The Government recognises that it is necessary to strike a balance between the early implementation of these duties, and allowing public authorities time to prepare for implementation.
49B(1)	"In this Part "public authority" - (a) includes any person certain of whose functions are functions of a public nature".	The definition is based on that in the Human Rights Act. Paragraph 77 of the explanatory notes implies that the same bodies will be caught by the HRA, RRA and DDA. This may not be the case because public authorities under the HRA are identified by reference to the UK's international treaty obligations under the ECHR (a public authority for the purposes of the HRA is one for whose actions the Government is answerable under the Convention). The RRA and DDA are domestic legislation and the scope of the application of the positive duties under both is a matter for Parliament alone. The case law under the HRA may not be conclusive in determining what is a public authority or public function for the purposes of the RRA or DDA.    Public authorities should be drafted by the provision of a list. The principles which determine who is included on the list should be made explicitly in the draft bill to encourage transparent decision-making. The minister should be required to review this list annually.	Law Society, DDB 15, p4.                                        p5.	8(f): The Government does not agree with this analysis. The definition is also based on that appearing in section 19B RRA - as well as that in clause 4 of the Bill and in section 6 of the HRA. These are all pieces of domestic legislation.                            The Government believes that the generic definition of a public authority is sufficient.
		This definition may lead to an inconsistency regarding the status of registered social landlords. The HRA and case law has failed to produce a consistent view on which of their functions are of a public nature. Housing Associations' housing management functions should be defined as being of a public nature, although their overall status would remain as private law bodies.	Shelter, DDB 16, p4.	8(g): The Government believes that the draft clause achieves its policy intention. DRC will issue guidance on which types of body are likely to be regarded as exercising public functions.
		Alongside the broad definition of public function contained within the bill should be a statement that it must be read as including all bodies already listed as being covered under the RR(A) Act 2000.	Trade Union Congress, DDB 18, para 2.iv.c.	8(h): The Government does not believe it would be appropriate to make such a statement.
49D(1)	"The Secretary of State may by regulations impose on a public authority… such duties as the Secretary of State considers appropriate for the purpose of ensuring the better performance of that authority of its duty".	It would be useful if the Government set out its thinking on what specific duties it intends to apply to which public bodies and confirm that there will be parity in this respect with the Race Equalities Amendment Act 2000 - for instance, that there will be a duty to develop disability equality schemes; specific employment duty and specific duties to be applied to schools, further education and higher education institutions.	Disability Rights Commission, DDB 1, para 7.2.	8(i): The Government will set out its plans as soon as practicable.
49F	Enforcement of compliance notices.	There must be clarification on how the county court order enforcing a compliance notice would itself be enforced.	Disability Law Services, DDB 60, para 2.1.	8(j): The enforcement procedure would mirror that provided for by the Race Relations (Amendment) Act.
		There is no appropriate enforcement mechanism to impose the duty on public authorities under the terms of clause 8. The equivalent provision in the Race Relations Act 1976 has experienced problems of enforcement and efforts should be made to eliminate similar obstacles with this legislation.	Royal College of Nursing, DDB 43, para 3.3.	8(k): The Government does not accept this analysis. The general duty to promote equality would be enforceable by judicial review, while a failure to comply with a specific duty could be enforced by the DRC.
9	Codes of practice.	The Government should provide DPTAC, the DRC and other bodies involved, with the resources and support they need to allow them to develop and issue these codes.	Disabled Persons Advisory Transport Committee, DDB 12, summary point 9.	9(a): The Government will consider the resource needs of DPTAC and the DRC as part of the normal funding process.
10	Generalisation of section 56 of the 1995 Act in relation to Part 3 claims.	The time limit for Parts 2 and 3 questionnaires should be extended to 8 weeks. The time limit for service providers to respond should be placed at 8 weeks, the same as the time limit for employers.	Disability Charities Consortium, DDB 17, para 9.2.	10(a): This is not a matter for the Bill, as the time period for submitting a questionnaire will be set out in subsequent Regulations. The Clause is modelled on the Part 2 DDA (employment) questionnaire procedure under which potential claimants have up to 3 months from the act of discrimination complained of in which to issue a questionnaire before they make an application to an employment tribunal. From 1 October 2004, the period within which a Part 2 questionnaire must be issued after a complaint has been submitted to a tribunal will be extended from 21 days to 28 days. This is longer than other discrimination legislation allows and meets the need some disabled people may have for more time. Even if it did not meet this need for some reason, Tribunals already have discretion to allow extra time.
12	Meaning of "disability".	The inclusion of a regulation-making power would be an appropriate and flexible way of including specific conditions.	Disabled Persons Advisory Transport Committee, DDB 12, summary point 10.	The text below is the Government's response to all of this Schedule's questions on the definition of disability with the exception of items 12b and 12k where separate responses are supplied.    12(a) The definition of disability set out in section 1 of the DDA 1995 as modified by Schedules 1 and 2 to the Act and the Disability Discrimination (Meaning of Disability Regulations) 1996 (SI 1996 No 1455), identifies as disabled people those who have long term impairments which have a substantial and long term adverse effect on their ability to carry out normal day-to-day activities of living. This includes both physical and mental impairments. About 20 per cent of the GB population are covered by the definition. By and large the definition is one, which through the use of general descriptors, can be applied without attempting to list particular conditions. The definition specifically includes certain people, for example, those with severe disfigurements, or whose condition has a fluctuating effect (such as arthritis) or which causes progressive deterioration (such as Multiple Sclerosis). The effects of impairments are generally considered without regard to medical or other treatment. People who have had a disability which met the definition are treated as disabled. Minor or short term conditions are excluded, as are, for example, addiction to substances such as alcohol or drugs or those with self-inflicted disfigurements such as piercings or tattoos.    Case law is building up and is demonstrating that many people with particular conditions like autistic spectrum disorders and mental health conditions, such as depression and schizophrenia, are likely to be disabled people within the meaning of the Act if they can show that they have a long-term impairment. The Government is looking at making amendments to the statutory guidance, after Royal Assent, to provide clarification in situations where case law is absent, where guidance on its application would be helpful or where further examples are required to improve understanding.    The Governments proposals in Clause 12 of the draft Bill do not constitute the sole definition of disability under the Act. The existing, wide coverage remains in place. The proposal is for an extension to the existing definition of disability for people who have HIV infection, cancer or multiple sclerosis. In the case of the first two of these the proposal implements the recommendations of the DRTF. In respect of people with multiple sclerosis it reflects consideration of case law in which a person with MS did not meet the current definition of disability in the DDA due to the difficulty in making a prognosis of the condition.    We believe that, subject to the changes in the draft Bill, this wide and increasingly well-understood definition covers the range of people who would generally be regarded as requiring protection against disability discrimination. The Government does not believe that any further extension is necessary or appropriate at this time.
		Changes should be made to the bill to ensure that receipt of specified state disability benefits should automatically allow applicants to be deemed disabled.	Disability Rights Commission, DDB 1, para 8.22.	12(b): The conditions of entitlement for each benefit are necessarily particular to that benefit and do not read across fully to the DDA definition of disability. It would be inconsistent to apply different tests of disability to different people under the DDA according to whether they were entitled to a particular benefit. The DDA applies its own effects-based definition of disability which may be entirely different from any benefits-related test.
		The bill should amend Schedule 1 of the DDA to remove the requirement that a mental illness must be "clinically well recognised" in order to be capable of constituting a disability under the Act. There is no such requirement for other forms of mental or physical impairment.	Disability Rights Commission, DDB 1, para 8.5.	12(c): See the response to 12(a) above.
		Schedule 1 of the DDA should be amended: a) add to the list of day-to-day activities: "(i) thought processes, perception of reality, emotions or judgement"; OR add to (h) "or ability to care for oneself"; AND "(i) perception of reality; (j) ability to communicate; b) For mental impairments consisting of depression, reduce the qualifying period from 12 months to 6 months; c) Through guidance or regulation, clarify how the definition of progressive condition should be interpreted for depression in order to ensure that serial, but discrete episodes of depressive illness are covered; d) remove the requirement that mental illness be clinically well recognised.	Mind, DDB 19, summary.	12(d): See the response to 12(a) above.
		The list of normal day-to-day activities should be revised to include "the ability to communicate with others" and to ensure that self-harming behaviour is covered.    A new ability should be included in schedule 1 para 4(1) of DDA to cover "social interaction and communication". The associated guidance and codes of practice should be amended to take account of the inclusion of this new ability.    An additional day-to-day activity in the schedule should be the "ability to understand social cues", to ensure that people with Autistic Spectrum Disorder are covered by the DDA.    The categories of "memory or ability to concentrate, learn or understand" and "perception of risk of physical danger" (in current list of day-to-day activities) often fail to reflect the difficulties people with mental health problems experience. Para 4 of schedule 1 DDA should be amended to include the following day-to-day activities: a) ability to concentrate; b) ability to care for oneself; c) perception of reality. Guidance should provide further clarity about what is covered by "ability to concentrate, learn or understand" (under para 4, schedule 1 DDA). There should be further consultation on whether the 12 month requirement for impairment should be reduced to 6 months for people with depression.	Disability Rights Commission, DDB 1, para 8.9.    The National Autistic Society, DDB 44, para 5.          Disability Law Service, DDB 60, para 4.4.    Law Society, DDB 15, p2-3.	12(e): See the response to 12(a) above.
		New provision should be applied to all people with progressive conditions, eg. Motor Neurone Disease, Huntingdon's Disease and Parkinson's Disease. The requirement that the effect of the progressive condition may be less than substantial provided that the effects are likely to become substantial in the future should be removed (under para 8, schedule 1 DDA). This would enable all people with a progressive condition to be covered from the point of diagnosis.	Law Society, DDB 15, p2.	12(f): See the response to 12(a) above.
		This part of the bill should be amended to ensure anyone who has a progressive condition is deemed to be covered.	Disability Rights Commission, DDB 1, para 8.20.	12(g): See the response to 12(a) above.
		The definition of disability should be changed to remove any requirement regarding the extent of impairment.	British Council of Disabled People, DDB 6, para 4.	12(h): See the response to 12(a) above.
		The draft bill should also prohibit a) discrimination on grounds of perceived/ imputed disability; and b) discrimination on the basis of association.	The National Aids Trust, DDB 24, para 1.3.	12(i): See the response to 12(a) above
		Genetic predispositions should be covered.	Public and Commercial Services Union, DDB 28, para 3.7.	12(j): See the response to 12(a) above.
12(1) (2)	"Regulations may provide for sub-paragraph (1) not to apply in the case of a person who has cancer if he has cancer of a prescribed description".	The power to regulate to restrict the protection offered to people with certain forms of cancer should not be invoked unless there is clear evidence that protecting everyone who has (or has had) cancer from discrimination on this basis is proving problematic.	Disability Rights Commission, DDB 1, para 8.19.	12(k): We are following the recommendations of the DRTF that only cancers requiring substantial treatment should be covered by the definition of disability. This power would allow Ministers to make regulations excluding cancers which did not require such treatment from the scope of the new provision.
12(1) (3)	"A description of cancers prescribed under sub-paragraph (2) may… be framed by reference to consequences for a person of his having it".	Subsection 12 (1)(2) should be removed The consequences of cancer diagnosis are significant and permanent. Sub-paragraph (3) should be the determinant, rather than whether a specific variant of the disease is, or is not, included in regulations.	Macmillan, DDB 55, para 1.6.	12(l): See the response to 12(k) above.
15	Relationships between locally-electable authorities and their members.	The DDA should be extended to include all political office-holders (including MPs and peers).       The proposal should be extended to include all elected or appointed public offices, eg. Parliament, NDPBs, magistrates, school governors etc in order to enable the full and fair participation of disabled people in public and civic life.    The councillor clause should be extended to other statutory office holders, such as magistrates, registrars, school governors and judges.	Disability Rights Commission, DDB 1, para 10.6.1.    British Council of Disabled People, DDB 6, para 9.          Law Society, DDB 15, p7.	15(a): The Government agrees with the recommendations of the DRTF that MPs, MSPs and members of the Welsh Assembly should regulate themselves. The same principle extends to the House of Lords. Protection for many types of office and post holders will be incorporated into the DDA from 1 October 2004, by the DDA Amendment Regulations. Ministers consider that coverage of office and post holders under the DDA is sufficient and consistent with that available under all the other anti-discrimination strands.
	Regulatory Impact Assessment.	The RIA does not include the costs for stopping public transport between fixed stops, introducing auxiliary aids for disabled people or providing personal assistance at interchanges or refreshment stops.	Confederation of Passenger Transport UK, DDB 13, p2.	We are considering the costings set out in the draft RIA and will publish a revised version in due course.
		There will be costs associated with undertaking access audits, developing solutions to eliminate barriers to access, developing the required monitoring systems and training and awareness raising of officers and elected members. These are not recognised in the draft RIA.	Welsh Local Government Association, DDB 14, general comments, para 2.	As above.
		The RIA does not make any estimate of the cost of implementing the new duty as the specific duties have yet to be proposed, but suggests that costs under clause 8 are likely to be insubstantial. Evidence of the introduction of the race equality duty suggests that the costs in human resources terms (including training) can be quite substantial.    The cost of clause 15 is estimated to be £2,000 per authority per year, which would barely meet the requirements of a single deaf cabinet councillor requiring a BSL interpreter for all meetings. It is also unclear why this has been estimated as a fixed term costs when in many cases it is likely to be a recurring cost.	Local Government Association, DDB 78, paras 4.3 -4.4.	As above.
	Triggers.	The use of different triggers is confusing. A uniform trigger of "substantial disadvantage" should be adopted across the DDA. The definition of 'substantial' should be that given by section 4.17 of the Employment Code of Practice: "substantial disadvantages are those which are not minor or trivial".	Disability Charities Consortium, DDB 17, para 2.12-2.13.	See the response to 4(g) above.
	Monitoring and Enforcement.	The bill should introduce provisions allowing organisations and associations with a legitimate interest in the rights of people with disabilities to act on behalf of the complainant. This is one of the requirements of the EU Framework Employment Directive.    Public enquiry, undertaken by the DRC, provides an opportunity to tackle systematic discrimination, as well as promote awareness and compliance with the legislation. It would be open and public and involve receiving and making public submissions from parties other than the complainant and defendant.	The National Aids Trust, DDB 24, para 6.9.	The obligation under the Directive is to allow bodies with a legitimate interest to engage in proceedings either in support of or on behalf of an individual who alleges contravention of the equal treatment principle. The DRC and other bodies are already entitled to support individuals in bringing cases under the DDA.    The DRC have powers under DRC Act 1999 to commence investigations.
		There should be regulations and accompanying guidance about what aspects of public authorities' performance should be monitored. A better form of monitoring is one that relates to the barriers and difficulties faced by groups of disabled people.	Public and Commercial Services Union, DDB 28, paras 6.1 - 6.3	The DRC would be responsible for providing guidance to public bodies on the implications of the new duties.
	Tribunals.	As recommended by the DRTF, provisions enabling tribunals to order re-instatement or re-engagement should be included in the bill.    Tribunals should have the power to recommend to employers changes to their practices, where a case brought by an individual reveals clear shortcomings.    The cost and complexity of bringing proceedings in the county court are deterring disabled people who have experienced discrimination from pursuing their claims. This is of concern not only because individuals may be deprived of justice, but also because an absence of case law leaves many areas of the law untested and unclear. Part 3 DDA cases should be enforced through employment tribunals.	Disability Rights Commission, DDB 1, para 10.2.2. and 10.2.3.                Joint Committee on Mobility of Blind and Partially Sighted People, DDB 58, paras 8.2 - 8.3.	The Government is still considering this issue.    The Government is still considering this issue.          It is premature to consider changing the means of redress while Part 3 of the DDA not yet fully implemented. Furthermore, cases concerning goods and services, transport, housing, private clubs and public functions would go far beyond the expertise of employment tribunals and their statutory remit, which is to deal with employment matters. The issues in DDA Part 3 cases are similar to other jurisdictions, including similar actions under sex and race discrimination legislation.
		Part IV (Further and Higher Education) cases, which are currently dealt with in the County Court, should also be brought within the tribunal system. Consultation should be conducted and consideration given to the development of 'equality tribunals' in all discrimination cases.	Law Society, DDB 15, p7.	The Government believes that adequate means of redress is provided through the County courts.    See the response below regarding equalities tribunals.
		One way to help people with a learning disability speak up against discrimination would be to have accessible tribunals rather than courts, which are often too expensive and scary for people with a learning disability to use.	Groups representing people with a learning difficulty, DDB 23, p11.	See the response above regarding tribunals for Part 3 above.
		Provision should be made for an Equalities Tribunal - this is in line with the Independent Review of the Enforcement of UK Anti-Discrimination Legislation. The tribunal route may pose some problems. For many disabled people bringing Part 3 cases, employment will never be an option and an employment tribunal may be as off-putting as a county court. Employment tribunal panels will have little, if any, experience of issues surrounding Part 3 cases, as is the case under Part 4 education cases.	Disability Law Service, DDB 60, paras12.1 - 12.5.	The Government believes that it would be inappropriate for employment cases to be heard anywhere other than Employment Tribunals. For consistency and efficiency, employment cases should remain with ETs as it is very common for applicants to ETs to make claims under several employment jurisdictions (e.g. unfair dismissal and discrimination).    We indicate above that we believe it is premature to alter the means of redress for Part 3 cases.
	End date for rail vehicle accessibility.	The Government should regulate for 2017 to be the end date for rail vehicle accessibility. This would be in line with the end date for buses.	Disability Charities Consortium, DDB 17, para 5.13 - 5.15.	The Government is aware of the views of disability organisations on "end date" from the recent consultation. It is the Government's intention that a full Bill would include provisions which would enable an end date to be set. Further consultation would take place on draft regulations setting the end date. The Government intends to consult when the Bill is introduced.
		Regulations should make 2017 the end date by which all rail vehicles should be made accessible. All trains should be required to adopt half-life refurbishment programmes with clear outlines of what accessibility changes are legally required.	Leonard Cheshire, DDB 11, summary points 1-5.	The Government is aware of the views of disability organisations on refurbishment regulations from the recent consultation. It is the Government's intention to include provisions in the Bill to enable accessibility regulations to be made, which would apply to vehicles when they are refurbished. Further consultation would take place on the draft refurbishment regulations. The Government's proposal is to consult when the Bill is introduced.
		There should be adequate allocation of resources to ensure monitoring and enforcement schemes.	Disabled Persons Advisory Transport Committee, DDB 12, summary point 4.	The Government will consider the resource needs of DPTAC and the DRC as part of the normal funding process.
	Voluntary codes for aviation and shipping.	The Government should bring aviation and shipping immediately within the remit of legislation.	Disability Charities Consortium, DDB 17, para 5.8 - 5.10.	Clause 3 already provides for aviation and shipping to be brought within scope through regulations. The Government's policy is to allow evaluation of the current voluntary approach. Evaluation is due to be completed by end 2005.
		The Government should announce when it expects it will be ready to take a view on how effective the voluntary approach in relation to the aviation and shipping sectors has proved. This end date should be the end of 2005.	Disabled Persons Advisory Transport Committee, DDB 12, summary point 3.	Monitoring and evaluation is due to be completed by the end of 2005.
		Clause 3 should be expanded to allow regulations to ban discrimination on aircraft or ferries on internal UK services.	Sir Peter Large, DDB 91, para 2.4	The Government does not believe there is any need to expand the Clause. It provides flexibility to lift the exemption for the same vehicles operating different services.
	Employment.	The Government should provide clear direction about the adoption of disability leave facilities by employers. Disability leave could be includes as one of the list of examples of 'reasonable adjustments' included in the Act and guidance.	Public and Commercial Services Union, DDB 28, para 4.3.	Disability leave might already be a reasonable adjustment for an employer to make. The list of adjustments in the Act is illustrative and the Government does not consider it appropriate or necessary to add to that list
		The anticipatory duty on service providers should be extended to employment provisions. The absence of an anticipatory duty impacts on the recruitment process, and in the provision of training, with serious effects on the ability of disabled people to access employment in the first place or to develop careers.	Northern TUC, DDB 53, para 2.12.	See the response to 4(g) above. There is already an anticipatory duty on employers in relation to recruitment practices.
	Disability-related enquiries.	The bill should prohibit disability-related enquiries before a job is offered, except in very limited circumstances.	Disability Rights Commission, DDB 1, para 10.3.1.	Disability-related questions are necessary to determine whether any reasonable adjustments might be needed in the recruitment process, or to the job itself. Discrimination in recruitment by employers or potential employers is already covered by the DDA. The Government does not believe that further legislation in this area is necessary or appropriate
	Occupational pension scheme.	The Government never fully responded to the DRTF recommendation regarding equal rights of access to occupational pension schemes at the point of starting work. The proposed amendments due in October under the Employment (Pension) Regulations, do not achieve the aims that were set out in the DRTF report. This should be covered within the draft bill.	Public and Commercial Services Union, DDB 28, paras 5.1 - 5.4.	The DDA 1995 (Pensions) Regulations 2003 come into force in October this year. They significantly improve protection for disabled people against discrimination in occupational pension schemes. For example, employers and trustees and managers of schemes will be required to make reasonable adjustments for disabled people.    The Government believes that the DRTF's approach would be an unacceptable burden on schemes. It would lead to schemes being forced to take into membership disabled people at the start of their employment entirely irrespective of the actuarial consequences of significantly increased risk of developing permanent incapacity. Limiting access to schemes for late joining employees based on pre-existing impairments, as the DRTF recommended, would often involve unlawful direct discrimination contrary to the requirements of the Employment Directive.
	Volunteers.	The bill should be amended to include the enabling power to cover volunteers as per the Disability Rights Task Force's recommendations. A pool of funding would be useful to support work related adjustments for volunteers, operating in a similar way to the Access to Work scheme.	Disability Rights Commission, DDB 1, para 10.4.6 and 10.4.7.	There would be practical difficulties in covering volunteers, because of the diversity of formal and informal working arrangements for voluntary workers and the organisations that engage them. The Government would not wish to discourage voluntary organisations, particularly small, local charities, from using volunteers by placing too many statutory duties on them or because they feared litigation. Access to Work is aimed at helping people enter and retain paid employment, thus directly and indirectly reducing benefit dependency. We consider that the link between volunteering and employment is too tenuous to justify a similar fund for volunteers.
		Bringing volunteers within the remit of the DDA would have major implications for other areas of the law and further consultation would be useful to explore this issue fully.	Law Society, DDB 15, p7.	See above.
	Examining bodies.	All examining bodies and standard setting agencies should be covered by the DDA.    It will be very confusing to have some qualifications covered by disability legislation but not others. The draft bill should include general examinations set by awarding bodies.	Disability Rights Commission, DDB 1, para 10.7.1.    Skill, DDB 35, part 2	From 1 October 2004 the DDA will offer protection from disability discrimination to disabled people from bodies which can confer a professional or trade qualification which is necessary or facilitates entry into a particular trade or profession. The necessary amendments to Part 2 of the DDA to achieve this have been made in the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003 No 1673); implementing the disability requirements of the European Commission's Employment Directive 200/78/EC,. The Regulations do not apply to examination bodies awarding general academic qualifications and standard setting bodies which do not confer a professional or trade qualification.
		Current voluntary arrangements for adjustments for disabled students as regulated by the Joint Council for General Qualifications Bodies and the Scottish Qualifications Authority are inadequate for safeguarding the rights of disabled studies - the draft bill should bring examination bodies within the scope of discrimination legislation.	Centre for Studies on Inclusive Education, DDB 46, para 2.	See above.
	Blue badge scheme.	The Government should reform enforcement of the Blue Badge Scheme, either by amending the Traffic Management Bill or by including appropriate provisions in the Disability Bill.	Disability Rights Commission, DDB 1, para 10.9.3.	A Government amendment has been tabled to the Traffic Management Bill to give enforcement authorities the power to inspect Blue Badges.
	Consolidation of timescales.	Recognition by the Government about consolidating timescales on Welsh Language schemes and Race Equality schemes would be welcomed.	Welsh Local Government Association, DDB 14, general comments, para 2.	The legislation governing Welsh Language and Race Equality schemes are the responsibility of the Department for Constitutional Affairs, and the Home Office respectively. The specific duties under the Race Relations (Amendment) Act require only that bodies review their Race Equality Schemes within three years of May 2002, and within each further period of three years. This allows relevant authorities to revise both schemes on the same timetable.
	Review of Education Law Reform.	There should be a review of Part 4 of the DDA within the next two years.	Disability Law Service, DDB 14, para 13.1.	The DRC has a statutory duty to monitor the operation of the DDA and is at liberty to make recommendations to Government for further change.

* Where the same proposal is made several times only one organisation is usually listed.

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Prepared 27 May 2004