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;
— Discrimination in relation to letting
of premises;
— Enforcement of the DDA;
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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