Joint Committee on the Draft Disability Discrimination Bill Written Evidence


Memorandum from the Joint Committee on Mobility of Blind and Partially Sighted People (DDB 58)

1.  INTRODUCTION

  1.1  The Joint Committee on Mobility of Blind and Partially Sighted People (JCMBPS) welcomes the opportunity to comment on this draft bill. We have not commented on all the contents of the draft bill but concentrated on particular areas which fall within the remit of JCMBPS.

  Comments will follow these headings:

    —  Introduction to JCMBPS;

    —  The consultation process and availability of consultation papers;

    —  Transport Services (clause 3);

    —  Public Sector: Discrimination by public authorities (clause 4) including the trigger for reasonable adjustments and anticipatory duty;

    —  Public sector duties;

    —  Councillors;

    —  Discrimination in relation to letting of premises;

    —  Enforcement of the DDA;

    —  Blue badges; and

    —  Timing.

  1.2  The Joint Committee on Mobility of Blind and Partially Sighted People (JCMBPS)

  JCMBPS is an independent body consisting of representatives of the principal organisations of and for blind, deafblind and partially sighted people with a specific interest in access and mobility.

  1.3  Figures from the 1999 DSS Research report No.94 "Disability in Great Britain" indicate there are now an estimated 1.97 million people with a significant sight loss.

  1.4  JCMBPS believes that blind, deafblind and partially sighted people should be able to move around safely and independently. This is currently often not the case and barriers may be physical, operational or attitudinal.

  1.5  The Joint Committee on Mobility of Blind and Partially Sighted People works with Central and Local Government, and the transport and built environment sectors, to ensure that the requirements of blind, deafblind and partially sighted people and other disabled people are understood and integrated.

2.  CONSULTATION PROCESS

  2.1  It has proved very difficult to obtain copies of the draft bill in alternative accessible formats. Some members of the JCMBPS require consultation papers in braille and some on tape in order to consider the papers and prepare a response. By early January 2004 braille and tape versions of the draft bill were in preparation but still not available and in order to allow our members sufficient time to comment we had to prepare our own braille and tape versions. JCMBPS would express strong concern about this situation, particularly given the subject of the consultation, and urge the government to ensure that alternative accessible formats of consultation papers are available at the same time as print copies.

3.  TRANSPORT SERVICES

  3.1  Clause 3 of the draft Bill provides for the extension of the DDA to cover discrimination in relation to the use of a means of transport. JCMBPS welcomes this. At present section 19(5) DDA excludes anything consisting of the use of a means of transport from Part III of the Act. Currently disabled people have no right to use a bus, train or coach however accessible it is. This was the subject of a recent consultation by the DfT to which JCMBPS responded. A copy of this response is attached.

  3.2  Access to transport is a crucial part of daily life, and one that has been for so long difficult or even denied completely to many disabled people. The Government should set out the intended timetable for regulations to lift the Part 3 exemption from transport operators as soon as possible. JCMBPS urges the Government to bring in these regulations as soon as possible.

  3.3  The Government is not proposing to lift the exemption on aviation or shipping yet, but to wait to assess the impact of voluntary Codes of Practice before deciding whether to extend the DDA to cover these services in line with the Task Force recommendation. JCMBPS is aware of reviews being undertaken by DfT, in which DPTAC are involved. We recommend that early dates are set when voluntary compliance can be assessed and that the government commits to early action if voluntary compliance is not seen to be effective.

  3.4  The full Bill is to include an "end date" by which all passenger rail vehicles should comply with rail accessibility regulations in line with the Task Force recommendation. Trains brought into service since 1 January 1999 must comply with the detailed technical standards set out in the DDA Rail Vehicle Accessibility Regulations 1998. There is however no requirement on any train brought into use before that time to be accessible, or for accessibility to be improved, even when it is refurbished.

  3.5  JCMBPS has recently responded to the DfT consultation on this, a copy of our response is attached. JCMBPS concerns include:

    —  An end date by which all rail vehicles should be accessible of 2017.

    —  Clear guidance on refurbishment accessibility improvement requirements to include visual and audible passenger information.

    —  There is particular concern about slam door trains. The phasing out of these trains has been put back, and members would stress the safety concerns where the wrong door can be opened onto the track rather than platform. Visually impaired people highlighted this concern in Travellers Tales (RNIB 2002). Until these trains are taken out of service an interim measure would be the fitting of centrally operated door lock systems.

    —  Strong pro-active enforcement procedures and adequate penalties for non compliance.

    —  The opportunity should be taken to review the current RVAR regulations, now 6 years old. There are several features on trains where members consider the current standards should be reviewed. Examples include the close and lock buttons on accessible toilets which members find difficult to locate and operate; the buttons to open doors between carriages which are not consistently sited and therefore can be difficult to locate; and the button to open the outer train door where members report that when not sure which side of the train to exit they can spend time pushing a button on the wrong door—an audible sound to locate the button when door ready to open may help.

4.  PUBLIC SECTOR: DISCRIMINATION BY PUBLIC AUTHORITIES

  4.1  Clause 4 of the draft Bill makes it unlawful for a public authority to discriminate against a disabled person in carrying out its functions. JCMBPS welcomes this to ensure clear application of the DDA in key areas such as the overseeing of the highway, the conduct of elections and electoral registration. JCMBPS has consistently called for this. The grey area of the pedestrian environment has been a key concern.

  4.2  JCMBPS considers that a well designed and managed accessible pedestrian environment is vital for disabled people, particularly blind, deafblind and partially sighted people.

  4.3  The RNIB has recently produced "Travellers' Tales" (2002). Research involved qualitative surveys of the experiences of visually impaired people and showed that the poor condition of the pedestrian environment and poor access to transport are major factors limiting the mobility and independence of visually impaired people.

  4.4  DPTAC, the government's advisory committee on access in transport and the built environment, commissioned a MORI survey into the attitudes of disabled people to public transport (2002). The research findings show that the poor condition of the pedestrian environment is the major cause of concern to disabled people, and that disabled people did not consider that those responsible for providing and operating public transport and the pedestrian environment sufficiently understand their requirements.

  4.5  It is important that this clause provides the same level of protection and, so far as possible, mirrors the approach contained in the DDA sections relating to discrimination in relation to goods, facilities and services (ss19-21). There will be many occasions in which aspects of the same service may be covered in some respects by the general services provision, and in other respects by this functions clause. In other instances it may be unclear, without expert legal advice, which provision applies.

  4.6  We are concerned that on present drafting the functions clause provides different, weaker, protection than the services sections: in particular, it sets a very high threshold for making reasonable adjustments, and fails to establish an anticipatory duty. Under the Bill a reasonable adjustment is required where an authority carries out a function and for a reason related to the disabled person's disability the outcome of the carrying out of the function is very much less favourable for him than it is (or would be) for others to whom that reason does not (or would not) apply. This creates a very high threshold (there must be a "very much" less favourable outcome).

  4.7  Currently, under Part 3 of the DDA a service provider has to consider making a reasonable adjustment if it is "impossible or unreasonably difficult" for a disabled person to access the service. This is a very high threshold. For example, if a service provider sends a blind person a standard print letter it is possible for a court to decide that if there is a relative or friend who could read the letter, it is not impossible or unreasonably difficult for the person to access the letter. Thus a person's right to accessible information may not be guaranteed under the current trigger.

  4.8  JCMBPS recommends a harmonisation of the triggers for reasonable adjustments. This would improve clarity in a complex law. The DRC's legislative review proposed a trigger of "substantial disadvantage". This has received support and would help clarify the situation.

  4.9  JCMBPS recommends that the wording of the reasonable adjustments duty is amended so that it is framed as an anticipatory duty owed to disabled persons. Service providers are already under such a duty under Part 3 of the DDA.

  4.10  Planning to make systems accessible at an early stage always proves more cost-effective than having to adapt them further down the line. Moreover failure to anticipate the need for adjustments well in advance will mean that often it will be too late to make an effective adjustment for a particular disabled person.

  4.11  JCMBPS is also concerned about potential justifications for less favourable treatment. Proposed s 21D 3 allows less favourable treatment to be justified where in the reasonable opinion of the public authority one of the specified conditions applies. We are concerned that the reason for discrimination can be based on wrongly held prejudices and stereotypes of disabled people, and that, 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 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.

5.  PUBLIC SECTOR DUTIES

  5.1  JCMBPS welcomes the inclusion of a Disability Equality Duty for public authorities in line with Task Force recommendations. This change will bring enormous benefits to disabled people. All the evidence tells us it is impossible to remove discrimination by relying solely on individuals one by one taking legal cases to challenge acts of discrimination. This, it is hoped, will tackle institutional discrimination and lead to lasting cultural change.

  5.2  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 RRAA, ie key public sector bodies will be required to develop disability equality schemes (along the lines of race equality schemes under the RRAA).

  5.3  A Planning Bill is currently going through Parliament. JCMBPS, along with other disability organisations, has recommended that this Bill should be amended to give a positive duty to Planning Authorities to promote social inclusion. If amendments to the current Planning Bill are not made we recommend that the Disability Bill considers the insertion into the Planning Act of the duty to promote social inclusion.

6.  COUNCILLORS

  We recommend that the full Bill extends DDA coverage to councillors and to all political office-holders.

7.  DISCRIMINATION IN RELATION TO LETTING OF PREMISES

  7.1  We recommend that the full Bill includes a provision prohibiting landlords from withholding consent unreasonably from a disabled tenant or prospective tenant to make changes to the physical features of the premises and explicit provision to ensure management committees cannot unreasonably refuse consent to disabled tenants to make adjustments to common parts.

8.  ENFORCEMENT OF THE DDA

  8.1  In the report "Monitoring the Disability Discrimination Act 1995" (DfEE 1999), which looked at the type and number of claims brought under the Act in the first few years of its implementation, the reasons highlighted for such a small number of Part III claims being brought under the Act included: formality and complexity of the court system; judges' inexperience with the Act and low awareness of discrimination issues; little or no disability awareness; and accessibility and facilities in courts.

  8.2  The difficulties in enforcing Part III claims in the county court is supported by the findings contained in the RNIB report "The Price of Justice" (RNIB, 2000): the cost and complexity of bringing proceedings in the county court are deterring disabled people who have experienced discrimination from pursuing their claim. This deterrent effect upon applicants 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.

  8.3  The DRC Legislative Review recommended that Part III DDA cases should be enforced through employment tribunals rather than through the Courts. JCMBPS urges the Government to give consideration to this and other measures which may enable the DDA to more effectively be enforced.

9.  BLUE BADGES

  9.1  JCMBPS recommends that the opportunity is taken in the Disability Bill to consider the required legislative changes to implement the accepted changes to Blue badge provisions.

10.  TIMING

  10.1  JCMBPS urges the Government to introduce the Bill proper before the end of this session—ideally before the summer recess, and then use the new provisions for carrying-over Bills. In this way the risk of the Bill falling in the event of an early general election can be minimised.

  10.2  It would also be useful to have a draft timetable from the Government setting out when they aim to implement the new duties, which duties they would wish to bring into effect shortly after Royal Assent and how long a lead in time they anticipate for more complex provisions and those requiring detailed regulations. We would argue that all provisions—including the transport regulations—should be in force and fully implemented by the end of 2006 at the latest.

11  CONCLUSION

  11.1  The Joint Committee on Mobility of Blind and Partially Sighted People welcomes the opportunity to comment and hopes that these comments are useful. We would be pleased to provide further information on any of the points raised in this response and/or to provide oral evidence to the Committee.

ATTACHED

  Two JCMBPS consultation responses referred to in the above response

    —  JCMBPS response to Department for Transport Consultation on the Government's proposals to lift the exemption for transport services from some of the civil rights duties in Part III of the Disability Discrimination Act (February 2003) (Not printed).

    —  JCMBPS response to Disability Discrimination Act 1995 Rail Vehicles: Consultation on the Government's proposals to amend the rail provisions in Part V of the Disability Discrimination Act (January 2004) (Not printed).

February 2004




 
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