Further memorandum from The Royal National
Institute of the Blind (DDB 130)
ADDITIONAL SUBMISSION TO THE JOINT COMMITTEE
FURTHER TO THE EVIDENCE SESSION HELD ON 31 MARCH 2004 WITH MARIA
EAGLE MP AND TONY McNULTY MP
1. TRIGGERS
1.1 The Minister made reference in her submissions
to the committee to there being two different triggers in relation
to reasonable adjustments: in particular, the Minister said that:
— Where there is a long-standing relationship
(such as in employment) there is a low trigger balanced by a reactive
duty.
— Where there is a more transitory
relationship, there is a higher trigger but an anticipatory duty.
1.2 There was no reference, however, to
the duties in Part 4 of the DDA (as amended by the Special Educational
Needs and Disability Act 2001) relating to education. Those duties
will often relate to a long-standing relationship, and there is
a lower trigger (that of substantial disadvantage) but the duties
are anticipatory, as is clear from the language used in sections
28C and 28T (which detail the reasonable adjustment provisions)
and from the attendant Codes Of Practice.
1.3 In addition, it is also clear from the
wording of the reasonable adjustment provisions in s.21(4), relating
to goods facilities and services, that there is an additional
trigger in relation to the provision of reasonable adjustments
by means of auxiliary aids and services: that of where it would
enable or facilitate the use of a service.
1.4 RNIB's view remains that there should
be a universal trigger of "substantial disadvantage",
regardless of the nature of the relationship and regardless of
whether the duty is an anticipatory one or a reactive one: in
particular, we would wish to see the trigger in relation to public
functions (and of course in Part 3 in general) being amended to
one of "substantial disadvantage", rather the confusing
approach being proposed in the draft bill.
2. PUBLIC AUTHORITY
DEFINITION—CLAUSE
8
2.1 RNIB welcomes the Minister's comments
in committee that, where an organisation carries out a public
function on behalf of a public authority, the intention would
be that it would be covered by the public sector duty, in view
of the Human Rights Act definition of public authority used in
the draft bill. However, following the report of the Joint Committee
on Human Rights on the meaning of public authority under that
Act (The Meaning of Public Authority under the Human Rights Act,
Seventh Report of Session 2003-04), RNIB has grave concerns that
this intention may not be manifested in the implementation of
the legislation.
2.2 The JCHR has expressed considerable
concern that the application of the "functional" public
authority provision in section 6(3)(b) of the Human Rights Act
(ie not a pure public body but a body which exercises some public
functions) leaves real gaps and inadequacies in human rights protection
in the UK, including gaps that affect people who are particularly
vulnerable to ill-treatment (JCHR report as above, page 50). It
has considered a number of solutions, including amending legislation,
(to include, for example, the provision of a schedule of listed
authorities). It has rejected such solutions in favour of the
Government intervening in the public interest as a third part
in cases where it can press the case for a bread functional interpretation
of the meaning of public authority. It has also produced guidance
on the meaning of public function (principles of interpretation),
which it hopes will be adopted.
2.3 RNIB would ask the Committee to consider
the efficacy of the current definition in light of the comments
in the JCHR report.
3. GOVERNORS
3.1 We welcome the Minister's confirmation
that the appointment of governors is covered as those appointing
them will be covered by the public functions provisions of the
draft bill. However, we have additional concerns that have not
been addressed.
3.2 Appointed governors may be covered,
but the status of elected governors has not been clarified.
3.3 In addition, whether or not the appointment
of the governors is covered, our main concern will not be addressed
by the public function provisions; and that is that disabled school
governors need to have access to reasonable adjustments to enable
them to carry out their duties effectively (in the same that the
government has acknowledged is necessary for councillors, by virtue
of Clause 15). We believe that it is essential that the DDA's
protection extends to governors after they have been appointed
or elected. In order, for example, for blind or partially sighted
governors to be able to carry out their responsibilities it is
vital that they receive information in an accessible format such
as large print, tape, braille or an electronic format.
4. ENFORCEMENT
4.1 Maria Eagle disputed the figures that
Tom Levitt quoted, which were in the Disability Charities Consortium
submission and RNIB's submission. We want to confirm our commitment
to those figures and belief in the genuine need for part 3 DDA
cases to be heard in Tribunals in order to improve access to redress
for disabled people.
4.2 The two figures, (from "Monitoring
the Disability Discrimination Act 1995 (Phase 2)", Income
Data Services & DWP, February 2002) were for the periods 1996
to September 2000 and 1996 to February 2001. We do not consider
that the five-month difference within the context of nearly five
years is relevant when the figures are so vastly unequal:
— 8,908 Part 2 cases were issued and/or
decided from when Part 2 came into force up until 1st September
2000.
— 53 known Part 3 cases were issued
from when the DDA came into force up until 1st February 2001.
4.3 The Minister also claimed that we should
not regard a low number of cases as indicating that legislation
is not working. We would dispute this view in relation to the
low level of part three cases heard. To support this we have attached
a Campaign Report "Price of Justice" that RNIB produced
in 2001 on the problems disabled people are experiencing in taking
goods and services cases in the County or Sheriff courts. For
example, we would contend that it is clear that the £250
fee for issuing a claim, the £100 fee for the allocation
questionnaire and the possibility of losing and having to pay
all costs, are deterring disabled people from taking service providers
to the County Courts. We feel sure that the number of cases taken
since February 2001 has not significantly increased, whilst levels
of discrimination experienced by disabled people has not, in our
view, decreased.
5. LANDLORD AND
TENANT ACT,
1927
5.1 In her evidence the Minister did not
address the additional concerns we have in relation to the 1927
Landlord and Tenant Act.
5.2 The Act does not apply to Scotland and
therefore we will have a situation where different standards will
apply.
5.3 The Disability Rights Commission has
no powers to take cases under the LTA 1927, meaning that disabled
people will be unable to get comprehensive assistance in relation
to premises, when they can in relation to other areas such as
goods and services.
5.4 The LTA will not be of assistance to
disabled people who have contracts stating explicitly that they
cannot make changes to their premises. In order for this to be
challenged the policies, practices and procedures clauses of the
draft bill are needed to ensure the policy is either waived or
changed.
5.5 We do not know how the concept of reasonableness
in the LTA (land law) will relate to or complement the concept
of reasonableness in the DDA.
March 2004
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