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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 352-v HOUSE OF LORDS House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE THE JOINT COMMITTEE ON THE DRAFT DISABILITY DISCRIMINATION BILL
DRAFT DISABILITY DISCRIMINATION BILL
Wednesday 3 March 2004 MS KATE NASH, MR BRIAN LAMB OBE, MR STEVE WINYARD and MR DAVID CONGDON Evidence heard in Public Questions 145 - 229
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Joint Committee on the Draft Disability Discrimination Bill on Wednesday 3 March 2004 Members present:
Memorandum submitted by the Disability Charities Consortium
Examination of Witnesses
Witnesses: Mr Brian Lamb OBE, Director of Communications, Royal National Institute for the Deaf, Mr Steven Winyard, Head of Public Policy, Royal National Institute for the Blind, Ms Kate Nash, Director, RADAR (Royal Association for Disability and Rehabilitation), Mr David Congdon, Head of External Relations, MENCAP, examined. Q145 Chairman: Good afternoon. Thank you for coming. I have a few housekeeping notes at the beginning. There is a list of the Members' interests which are relevant to this inquiry, which is at the back there and which you will have seen. Because of the acoustics, if you could speak up, it would be helpful to the Committee because you are some way away from us. There is a chance of a vote in the House of Commons at about 4.00 o'clock. If there is, I will have to interrupt the proceedings for about ten minutes. I repeat my welcome. Would you like to introduce yourselves, and would you like to make a statement before we start the questions. Can I say how helpful it has been to the Committee that the seven organisations, The Leonard Cheshire, MENCAP, MIND, RADAR, RNID, RNIB and SCOPE have joined together to produce a joint submission, which is extremely helpful to us. Thank you. Mr Winyard: Steve Winyard, Head of Public Policy at the Royal National Institute for the Blind. Mr Lamb: Brian Lamb, Executive Director of Communications at the Royal National Institute for Deaf People. Ms Nash: Kate Nash, Director of RADAR. Mr Congdon: David Congdon, Head of External Relations at MENCAP. Q146 Chairman: Thank you very much. Is there a statement that you would like to make on behalf of the consortium? Mr Lamb: Yes, there is, if I may start. I think, firstly, the DCC would very much like to welcome this Bill. It implements many of the outstanding and unanimous recommendations from the Disability Rights Taskforce which have brought together a very wide range of disabled people, business leaders, trade-unionists in the public sector; so there is a lot of consensus around the recommendations. We particularly welcome the extension of "disability" to include HIV, cancer and multiple sclerosis and the extension of the DDA to cover discrimination in relation to transport. We do have issues there which we will come back to. We do welcome the duty to promote disability equality for the public sector, the extension of DDA to cover most functions of public authorities, but again those are things we might want to discuss, the extension of the DDA's duties to landlords, though again that is also qualified by some of our concerns, the coverage of private club, which we welcome, and the coverage of disabled counsellors and also the pledge that the Bill will include a mandate for rail vehicle accessibility. However, we also have some continuing concerns if this Bill is to actually fulfil some of the functions that we hope it will in plugging some of the gaps in the current practice, gaps that have often only become apparent in the functioning of the Act after the taskforce's deliberations. We are concerned that landlords should not be allowed to withhold consent unreasonably from disabled people to make changes to physical features of premises, and no doubt we will come back to that. We are concerned that employment tribunals should be able to order reinstatement or re-engagement under the employment provisions of the DDA. We would like to see a power brought in to take our volunteers into coverage through regulations, and we also need a lot more detail on the transcript measures in terms of the actual start dates; and no doubt the Committee will want to come back to that. Lastly, we are concerned about the timing in relation to this whole process. I would very much welcome the scrutiny committee process, but obviously we are anxious to see deliberations move very quickly, as I think and understand the Committee are, and to see a Bill before Parliament as soon as possible. Thank you. Q147 Chairman: I should also have said that we will be asking you at the end about the new clause 15 which has been published - the relationship between locally elected authorities and their members. We will be asking you for your views on that. If I can start, although in a sense you have answered my first question. What is your overall reaction to the draft Bill? What do you think its impact will be on disabled people? Mr Lamb: If I may continue on impact. Obviously it is absolutely crucial that some of the conditions were left out and are now included and that the extension to those groups is very important. I think one of the acknowledged weaknesses was that there was not a public duty, and I think the extension of public duty is absolutely vital in making sure that public authorities exercise their general duties in favour of disabled people as opposed to the specific rights that were created under the DDA. Obviously landlords being included is crucially important. Housing is absolutely central to disabled people, and we feel that those provisions, as far as they go, are absolutely crucial in extending the impact. Some of the other measures are also very welcome in terms of private clubs, and advertising, for example, is another area. So we welcome those as all being very useful extensions, and obviously democratic accountability and the ability to do more around counsellors is also another very welcome area and taken as a totality, I think, because that is a very large extension of either rights or obligations towards disabled people. Q148 Baroness Wilkins: In the written evidence you make a number of recommendations about the definition of disability. How would you address the concern that a change to the definition might open the door to inappropriate disability discrimination claims? Mr Lamb: I will respond again to this one, but my colleagues will be coming in shortly, I assure you. In relation to definition, as I said, we have already said what we welcome. I think it is very crucial in relation to mental health that we do look at having some extensions, and we have described those as essentially adding to the list of day‑to‑day activities so that we could include a person's thought‑processes: perceptions of reality, emotions and judgment. We want the discriminatory effect of the 12-month test excluded because it discriminates, especially against people who have depression, but with episodes of less than 12 months. We also want the Government to take up the power to define other conditions as and when they arise, but, crucially, what we need to see is the definition extended so that it covers bouts of depression and other mental illness that arise for less than 12 months and where also there is a problem with the definition being clinically well‑recognised. We contend that depression is indeed a clinical condition, and indeed that is something that doctors are very familiar with and can actually diagnose, but it is not helpful to have "clinically well‑recognised" on the face of the Bill in the definition in that way. I understand the concerns about the extensions. I imagine the concern is that this will open up to a lot of claims that perhaps will not have validity. I think our comments on that are, firstly, that you still have to prove discrimination, you still have to show that you have depression ‑ as I have said, that is a clinical condition that is well‑recognised and you would have to show that ‑‑ thirdly, because of the well‑known stigma that attaches to mental health issues, we do not anticipate that many people are going to be voting themselves into the category of having mental health problems simply to get that level of protection. Also, if you look under other jurisdictions, such as Australia, the United States to some extent, where they have broader definitions, it has not been a problem. The flood gates have not been opened, if that is the concern, to having lots of extra people rush through and try to take those claims for erroneous reasons. Q149 Baroness Wilkins: That is in relation to mental illness? Mr Lamb: Yes. Q150 Lord Rix: If mental health is included in the eventual Bill, would you not see it as absolutely essential that there is a clear definition between mental illness, mental health and learning disability, because, as you well know, there is a great deal of confusion in this respect and one which I would like to make sure that the Bill makes clear if the two are, as it were, named on the face of the Bill? Mr Congdon: I think it is right to be clear of the distinction, although I think it is equally the case, as Brian has said, that the main concern at the moment is over the number of people with mental health conditions that do not come within the ambit of the Bill. I do not think so far we have had any particular difficulties with learning disabilities being part of the Bill, so I hope we can avoid that being a difficulty in the future. Q151 Lord Tebbit: Up to now there has been a reasonably clear definition of "disability", and it is one which most members of the public would be able to detect. Are you at all concerned that in future that might be smudged rather and it might be rather difficult for members of the public to tell whether someone was disabled or not. For example, if the Bill is enacted as it is now and persons diagnosed with cancer or HIV were to be included, do you think it would be difficult for members of the public to know that a particular individual exhibiting no symptoms and no evidence of disability was in fact disabled? Ms Nash: I am going to attempt to answer that in a different way, if I may, and if I do not answer the question‑‑‑ Q152 Lord Tebbit: I would rather you answer the question that I asked rather than the one you would like to have been asked. Ms Nash: I think the reality is that there is still some significant confusion from the general public in relation to who is protected by the legislation and who is not. While mindful of our significant wish to see mental health included within the legislation, one of the things that the DCC is concerned about is that by not having a coherent approach to the definition of disability we were endangering that confusion that you have already alluded to. One of the things that the DCC sees directly through its contact, its every day contact, with disabled people is that where those have tried to seek redress through the law it leads us to a view that more efficient and effective use of the legislation would be made easier if there was a comprehensive definition of disability which covers all relevant conditions. I think the danger is that there is a piece‑meal approach already to the development of a kind of list of clinically well‑recognised conditions which unfortunately leads to a kind of hierarchical approach and crucially, I think, does little to assist the Government's intention in seeking a sizeable step change in relation to the UK's attitudes and behaviour towards disabled people. Going back to your question, I think it is our view that being over cautious about the perceived fear that a definition change would open up the door to inappropriate claims would undoubtedly be damaging to the spirit behind the original piece of legislation. Q153 Lord Tebbit: Yes, but I am not clear how you feel that members of the general public would know that someone who exhibited neither disability nor any symptoms other than to a doctor was disabled? Ms Nash: To a certain extent the question is immaterial, because for a disabled person to trigger the legislation of course they have to prove their disability to the perpetrators. So in relation to access to goods and services there has to be a trigger point, and that is where the disabled person has to prove that they are disabled, and at the moment we are seeing a huge amount of wasted energy from disabled people ‑ daily we hear that - in relation to the proof, the burden of proof, rather than having to focus on the nature and the intent behind the discriminator. Q154 Lord Tebbit: One last question, if I may, Chairman. Then should we not include old-age as a disability? Mr Lamb: Perhaps I could answer that and also add something to your previous question. I think what you are raising is a much more general issue about whether we should have human rights legislation rather than just disability legislation in that sense; and, certainly in terms of age discrimination, the European directives will ensure that to some extent there will be legal protection around that, though we have not yet seen exactly how all of that is going to be enforced. Of course, that then does start to lead into arguments about whether we need a single Equalities Act, and I think that is something we would welcome a debate on, but we think it is more important to get these adjustments through now to the DDA and then look at whether, perhaps in respect to whether there is a single equalities body, there is also a single Equalities Act. Just to wrap up on your previous question, of course it is already the case that HIV, where it is asymptomatic, is already covered in the existing legislature, potentially could be covered. So that it is not so much about whether it is perceived by the public or not, it is not about knowledge in that sense, it is about when somebody presents what you can do about it. So I do not think extending it to these groups, which in any case, I think, cancer is certainly very well-recognised as a category. I think the public could easily have explained to them why cancer is covered. Q155 Lord Addington: Following on from this, the hidden disabilities, or the disabilities that only manifest themselves in a given situation. For instance, something I remember when I got my first green card as a dyslexic, I had a pile of rugby kit on the desk beside me as I filled out the form. When you do not think that somebody would regard it as disabled in certain conditions, has that proved to be a difficulty, or have you found it to be fairly easy to establish it once you get into a certain situations? Mr Lamb: This brings in broader questions. I suspect we may be coming to on the triggers, but‑‑‑ Q156 Lord Addington: No, is there a history of being able to identify where this discrimination takes place? Are you aware of current situations where it becomes clear that somebody with a disability which is hidden for X amount of time suddenly it comes into play. Has that proven to be a problem? If you do not know just say so? Mr Lamb: In short, I think we need to take more advice and look more at the cases around that. We can write to the Committee on that. Q157 Lord Rix: If you had HIV or were suffering from cancer and you went for employment, would you, under the terms of the Bill, have to say to people that you had HIV or that you had cancer? Because obviously there are tens of thousands of disabilities that are not visual disabilities, and HIV and cancer could well be two of them. Would you have to say this before you sought employment, or before you sought some form of transport, or whatever it might be? Ms Nash: At the moment, yes. I mean to trigger the legislation, one has to demonstrate, as we know, that it is an adverse condition - 12 months' duration, and so on - and therefore one has to provide evidence that suggests one has a medical condition that is covered by the legislation. Ultimately, most disabled people do disclose the actual impairment, so in this case, yes, HIV and cancer. So, yes, that is the case. Q158 Lord Rix: So that really is the answer to Lord Tebbit, is it not, in as much that you can have a hidden disability but at the same time if you go for certain jobs, or whatever it might be, you have to disclose the fact that you have that disability? Ms Nash: Yes. Chairman: I think you have in fact answered the question I think Ann Begg wants to ask. Q159 Miss Begg: In your written evidence you recommend that substantial disadvantage is adopted as the uniform figure across the DDA. How do you respond to the argument that the trigger for an anticipatory duty should be higher than a duty that arises only in relation to a particular disabled person? Mr Winyard: We feel very strongly that the triggers across the DDA and across the Draft Disability Discrimination Bill should be consistent, should be harmonised, and this is a message that will come out, I think, throughout this session. We do not see a case for a different trigger for anticipatory duties than in relation particularly to a disabled person. We believe strongly that substantial disadvantage works. It was certainly the recommendation of the DRC's legislative review, and we need to be ‑ we are convinced that that would work nicely across all areas. Certainly already in the case of education there is an anticipatory duty, and there the trigger is substantial disadvantage, so that is some thing we feel very strongly about. Q160 Miss Begg: If the different triggers continue to be used, can you give us some examples of the kind of disadvantages that disabled people face because of the different triggers? Mr Winyard: I will try. Certainly the trigger of impossible or unreasonably difficult is, in relation to Part 3 is proving very problematic, and it means that there is case law building up showing that cases where I am sure you or I and any reasonable thinking person would believe that there is a problem, impossible or unreasonably difficult has meant that the case has not been found. The case of Appleby v DWP is one example that we quote in our evidence, and certainly the high threshold of impossible or unreasonably difficult, for example, in the case of a service provider failing to deliver information in an accessible format. If you have got a partner at home who can read the letter to you, then that could easily be taken by the court to be an acceptable method for receiving that information. So certainly impossible or unreasonably difficult is one trigger that we would like to see changed to substantial disadvantage. Q161 Miss Begg: Is that partly because one person's "impossible" is another person's challenge, and different people can see differently, but when it get to the courts it is not as easy to define as that? Mr Winyard: I am sure that when it gets to the courts it is not easy; and going back to the Appleby case, the judge there was quite happy to see the defendant not being able to independently access the information ‑ in this case it was audible announcements ‑ and we feel that that sets the trigger in quite the wrong place. Q162 Miss Begg: But having a single trigger might also have disadvantages. Can you think of any disadvantages across different sectors if you have only one trigger? Mr Winyard: I think none spring to mind, and obviously in all of this there is the balancing of complexity against trying to create legislation that people - both service users and service providers ‑ that disabled people can understand, and I think we are moving towards a situation where we are going to have five or six different triggers throughout the Bill, throughout the legislation, and that is something that people, as I say, neither service providers nor disabled people, will be able to properly grasp. Q163 Miss Begg: On a scale of one to ten where one is not of great effect and ten is of great effect? Mr Winyard: I am sorry, one is what? Q164 Miss Begg: One is the least and ten is the highest. All right. How flawed do you think the Bill will be if there is not a single trigger in the Bill, one being not very flawed but ten being a fundamental flaw that will undermine the whole legislation ‑‑ Mr Winyard: I will go for seven. Q165 Miss Begg: So important then? Mr Winyard: Important, yes. We must remember that statistically if you ask people for a random number between one and ten they always go for seven, or the majority go for seven. Q166 Miss Begg: So not below the waterline but slightly above the perimeter line? Mr Winyard: Certainly above. Q167 Chairman: If it is between one and four people always go for three. On the example you gave of the blind person, I am not sure that example is a good one, because of course the blind person will have to know from a pile of sighted mail which was the one that they wished to have read to them, when you could have some highly personal private mail that you only one want member of your family to read to you and not others. So the idea that just because there is a sighted person available for that piece of mail is not much help because the blind person has a pile of mail and cannot tell which piece is which. Mr Winyard: Absolutely. I totally agree with you, but sadly that is not the view that courts necessarily take. Q168 Lord Addington: You recommend that the public function clause includes an anticipatory duty. Could you give examples of how the anticipatory duty might benefit the disabled and, following on from that, is there a reason that the duty on public authorities to make adjustments carrying out their functions under clause 4 would differ substantially from the duty to make adjustments for a provider of services. Mr Winyard: Examples of how a duty might benefit disabled people. I think, firstly, we would want to warmly welcome the provisions in the Bill around discrimination by public authorities. The way in which the public function could benefit disabled people. A number of examples: one is to clarify the position as regards elections. At the moment it is not clear whether elections are or are not covered whether or not they are a service, and so they would certainly be covered under this new provision; and another example would be disabled people who have been prevented from adopting. An anticipatory duty would require a local authority examine its policies in this respect and it is likely to encourage good practice. Fundamentally, an anticipatory duty will require public authorities to think about things in advance and make appropriate adjustments. This could be in the area of form as accessible information as well, a whole range of areas where it will lead to direct improvements for disabled people. Q169 Lord Addington: Following on from that, you are saying that the anticipatory duty, you think, is probably the best way of making sure that people have best practice in place? Mr Winyard: It will tend to lead things in that direction. I do not know whether it will lead in the direction of best practice, but it will at least ensure across a range of functions that proper account is taken of the needs of disabled people, yes. Q170 Lord Addington: Also this would lead on to the fact that we would not have the reactive situation at the moment. Has anybody actually done any.... Are there any examples where you think this might actually have saved, for instance, a great deal of time or money in trying to get something made available, or a service made available to the disabled user group. Do you have any examples? Has anybody heard of any? Mr Winyard: I do not know if my colleagues have anything to say on this. I think you are absolutely right in terms of timing, that making the duty an anticipatory one would mean that hopefully over time services will be properly taking account of the needs of disabled users and functions will properly take account of disabled people rather than a demand being made, a delay and then an appropriate service being provided. We have certainly had cases in relation to local authority forms with forms not being made available in an accessible format on demand and inappropriate printed material coming through to a visually impaired person. They are unable to read it, access at, and, in one case we have taken, they have lost housing benefit as a result of that. That is a sort of situation which should be dealt with by this particular duty. Mr Lamb: If I could come in there. It is the difference between when an individual presents with a particular problem and then the public body becomes aware of that problem and does something to address it perhaps for that individual, perhaps for a group of individuals, and having, if you like, a moral or systematic or systemic view of equality where you try and anticipate for a whole number of needs at one time, so you then do not have to be bolting on solutions for individuals as you go through practices and procedures at a later stage. So it is to actually get that sense of not just looking at when the individuals present but looking systemically across the whole way an authority provides its services. That may sound very philosophical at one level, but it can come down to reviewing whole sets of policies, practices and procedures in one go and anticipating problems rather than waiting for things to go wrong; someone to make their claim and then fixing on a bolt‑on solution to it actually happening. Q171 Lord Addington: So what might be created here is not only that you have an accessible interchange between a bus and a train station or something going on, but also you have the information, you know, timetables in Braille, etcetera, etcetera, etcetera. The whole thing would be taken care of organically or at least would be accessible. This is what you would anticipate to be an advantage? Mr Winyard: In principle, yes. Q172 Mr Berry: May we stay with clause 4, discrimination by public authorities. Here we have the reasonable opinion test which is also featured in Part III of the DDA, and in your submission in relation to the draft Bill you specifically criticised the reasonable opinion test suggesting it should be removed, as I understand it. Do you have any examples of cases where the reasonable opinion test has prevented a disabled person from accessing services? Mr Lamb: Yes, we have. Can I just take you across them slightly broader to begin with and then answer the specific point. It is already the case that amendment regulations will abolish the justification defence in relation to employers around this. This will not be seen as a reasonable defence in relation to employment. If you look at what has happened in a number of these cases, if we take, for example, Mr Rose is a good example. Mr Rose was blind poet who booked a room at a hotel and on arriving there he found that the hotelier refused to allow him to mount the steps leading to the hotel because he believed it would be dangerous for Mr Rose. The court held that the hotelier was entitled to hold this as a reasonable opinion. So what you have is a situation where what can be elicited as a defence is something where you can go back to an act at the time and say that it was reasonable for you to have held that opinion at the time. When we discussed this on the task force and the whole reason for this defence at the time we were thinking at that point about small companies, small service providers who would not have access to legal advice, would not actually be in a position where they could do this, and we did not want to necessarily hound people that for a very good reason had tried to do something the right way but had failed; but what this test is allowing is a lot of acts that we would think of, whatever the motivation, as being unjustly discriminatory and, in the context which we are talking about here of public duties or public bodies, we can see no reason why a public body would not have the expertise and ability to actually ensure that their staff were fully prepared and were not taking on actions. Indeed, if we go back to anticipatory duty, precisely one of the advantages of an anticipatory duty would be things like staff training and joined up approach. So you would not expect people to be doing it in that kind of way. Can I can give another example. It is slightly at one removed because it covers an area that is not actually covered by the Act; but I am sure you are all aware of the example of EasyJet recently where they had eleven deaf sign‑language users on the plane and the pilot thought that in some sense they were, I do not know, uncontrollable and needed a carer when in fact none of them did, and removed them all from the plane. Again, the defence, were transport to be covered, would still be that the pilot reasonably held the view that in some sense these people needed a carer. We would expect in a situation like that, especially for a large airline or a large employer or service provider, that they would not be in that kind of position. So we think there is a big barrier here and, certainly when we are talking about public duties, we do not think there is any reason to have it in there. Q173 Mr Berry: Let me play devil's advocate here. Perhaps I am missing the key point. The notion of reasonableness is flatly in the system. The two examples that you give, Brian, seem to me ‑ we will argue ‑ perfectly unreasonable judgments for people to make. Our concern with it is not that there is a test of reasonableness, it is that you have given two examples of what might be astonishing decisions for people to make that I think are totally reasonable. I am not sure whether it is the test of reasonable opinion that is the problem or the interpretation of the word reasonable. Mr Lamb: That is an interesting point. Whichever it is, I think you end up in the same place, do you not? The test of reasonableness might be a problem but what we are resting it on here is the justification that they knew at the time ‑ what they have to hold is that they knew that that was a reasonable justification and were deploying it in relation to the way the Act works. Therefore what we are saying is that we should not give people that as a justification because, certainly in relation to clause 4, which is what we are talking about, we are in a position where, would it have been reasonable for them to have held that opinion, and the answer would be, "No". Q174 Mr Berry: So presumably your view is that not only in relation to clause 4 should the notion of reasonable opinion be deleted, but it should also be deleted from Part III of the DDA? Mr Lamb: Certainly there would be potentially still issues around small service providers, but otherwise we are not very happy with that, if that answers your question. Yes, we do see a bigger problem with the whole concept of the defence. Q175 Mr Berry: I have to confess that slightly concerns me, because we are going into a sort of a two‑tier approach where the reasonable opinion seems to be sensible in relation to small business for some reason, but not the‑‑‑ Mr Lamb: I am sorry. I understand your question now. I do not think we are arguing here that we would that removed necessarily from small providers. It is not something we have discussed in relation to our response to this Bill, and would have to give that some further thought, but I do not think that is what we are suggesting at the moment. Certainly in relation to the public duty, we are suggesting it, because, as I said, the whole rationale for a two‑tier approach was what we might expect of a green grocer on the corner is very different from what we might expect from a large public body. Mr Berry: That is the key distinction you are drawing? Q176 Chairman: As a general point, if there is anything which occurs to you from the questions you are asked which you would like to write to us about afterwards, any point you feel you would like to expand on, that is perfectly in order. Just in passing, in the EasyJet example you gave of the deaf people who were turned off the aeroplane: I flew to New Zealand in 1969 and two‑thirds of the aeroplane was full with the athletes who were going to the Deaf Olympics, and there was no problem with the pilot asking them to leave the aeroplane. Mr Lamb: Clearly you were in a much more dangerous situation than you actually thought. Chairman: Private clubs. Q177 Mr Berry: Of course. How can I possibly forget private clubs, because at long last they are being addressed. In your very helpful memorandum you asked the Government to clarify their intentions about the trigger to make reasonable adjustments in relation to private clubs. What trigger would you like to see? Mr Winyard: We again would want to see substantial disadvantage. We really think there is a very powerful case for consistency across the whole of the Act, and we believe that trigger is appropriate in the area of private clubs just as much as in other areas of the draft Bill. It seems perfectly workable, perfectly reasonable and not something that will create undue problems either for the user or for the private club. Q178 Mr Berry: Is that judgment based primarily on consistency, or is it based on some kind of assessment of balancing the rights of disabled people verses a possible burden on private clubs, given that private clubs are special in one sense, in that they are excluded from the DDA, so somebody somewhere thinks that private clubs, or did think that private clubs presented a particular problem? Mr Winyard: We certainly do not see any concept of burden here. I mean, the sort of cases we have come across often are simply ones of just a club, and it is only clubs with more than 25 members, simply saying, "We do not want this disabled person as a member." So it is a pretty blatant case of discrimination, no burden involved. If there is a burden, if there is a burden, then this is, as ever, can be addressed through issues of reasonableness. We feel that, yes, if it is deemed to be a problem, indeed, the ways in which reasonableness is to be determined can also be spelt out. There is a precedent for this in the new employment regulations in relation to private households, so that can be clarified. Q179 Mr Clarke: Brian in his opening statement mentioned that the consultant had a physical interest in transport, and I think that is reflected in many of the witness submissions that we have received. I am going to ask a few questions, if I may, on the subject, beginning with this one. Can I deal with the recommendation that the Class 3 exemption for transport services should be lifted immediately, and can I ask: how do you respond to the view that this would cause unreasonable practical and financial difficulties for certain sectors of the transport industry. Ms Nash: The short answer, before I go for the long answer, the short answer is that we would find the question quite despairing. On the one hand the DCC retained the view that of course there have been real advantages in the notion of reasonableness within the current legislation, and on the other hand we remain fearful that the notion will continue potentially to be used to perpetuate institutional discrimination, which is possibly out of kilter with new thought regarding the UK society's capacity to accept and indeed celebrate human difference. There are two pieces of evidence. One is RADAR's new spirit consultation, where we ask direct questions of disabled people about their view of the usefulness or otherwise of the DDA seven years after its introduction, and the lack of access to transport was cited again and again as the most significant concern of disabled people. I think if we consider that 60 per cent of households with a disabled member do not have access to a car, therefore access to public transport system is naturally a crucial part of many disabled people's lives, as, indeed, all people's lives; and, I think similarly, the recent research, relatively recent research from Leonard Cheshire showed that 23 per cent of disabled people who are seeking employment have to turn down a job offer because of inaccessible transport, and of course that figure does not include the significant number of disabled people who choose not to apply for a job in the first place because of the their perception of the challenges of using the public transport system. Obviously, the DCC because of our contact, our regular daily contact with disabled people, we have numerous examples of where disabled people are refused access on buses, do not stop for wheelchair users or refusing to operate ramps, even where they exist. We have heard of a recent case where it took a young visually impaired man up to four hours to get home because the driver had not indicated the bus had already passed his stop - this is ludicrous - yet at the start of his journey the man was only four miles from home. Similarly, we have heard where a disabled person often asks a passer‑by to hail down a taxi for him while he hides nearby, the reason for that being that, in his experience, taxi drivers do not stop if they see his disability. It is becoming a long answer to your very pertinent short question, but I think these examples of discrimination against disabled people must be put into the overall context of the overall equality debate. I think such forms of discrimination would, and rightly so, we know, be unacceptable for other minority groups; and I think we have much to celebrate from the fact that there are no longer parts of the world where people are separated into different carriages, for example, because of the colour of their skin and yet, albeit those carriages or those trains that still have guards vans are becoming less prominent, we know that they are disappearing, nonetheless they still remain; and I think, you know, we would all agree that the Government naturally needs to be applauded for moving to allow outlawed discrimination on the basis of age and religion and sexual orientation. We see that in the European Directives. We are hopeful about the intent behind the Equality and Single Rights Commission, but I think the reality is the Government must help us run the last mile into transport. I think removing the exemption from all modes of transport will give disabled people significant confidence that the Government is serious about giving people full and enforceable civil rights; and I think the exemption of transport services would be immediately removed, as recommended by the Disability Rights Taskforce many years ago, is important, not on a sector by sector basis. In short, and I hand over to my colleague David, who, I know, wants to add to this, but you ask for our response to the view that it would cause unreasonable practical and financial difficulties to lift with exemption, and it is not that we would be unsympathetic to the challenges for the sector, but we would encourage the Government to create the circumstances by which we acknowledge that to do otherwise is institutional discrimination that is dressed up as being reasonable. Q180 Chairman: Perhaps I could add to that. Have you had any estimate of the cost, the likely cost, if the exclusion was removed? Ms Nash: We could do that job of work for the sector. I am being facetious in my answer, and you must forgive me, because the reason why I say it as I do is that I think the sector itself could do more work to predict the costs. I think that sector in particular has done less of a job of work to create the mindset change that needs to happen as we see, say, in the service industry promoted by in particular the Employers Forum on Disability. So while there is a job of work to promote the business case for doing so within that sector, there is less of an appetite for doing so, I think, because it is perceived to be a physicality that is able to be overcome - not able to be overcome. Mr Congdon: Could I on that last point a take it a bit more broadly, if I may? I think the Regulatory Impact Assessment is petty good in relation to the potential costs of removing Part III exemption, because it makes the point that quite a lot of the industry is already engaged in trying to change staff attitudes and understanding towards disability because a lot of the issues in relation to transport are around that, and I think that the costs, as indicated in the Impact Assessment are frankly relatively modest. Could I make a broader point? When the DDA was brought in in 1995, I think everybody recognised that transport was different from other services, and that was why there is a Part V that relates to rolling‑stock and buses, etc. Nobody expected to have a situation within a number of years where all transport would be fully accessible, but I think if anyone was asked in 1995, would we have a situation in 2004 where it is acceptable for a bus driver or a train drive to say, "No, we are not going to take you on our bus, or train because you have got a disability", people would say, "Well, that must be illegal, surely, under the Disability Discrimination Act", but it is not; and I think that is really the fundamental answer to the question. Transport was rightly treated differently, but too differently, as has been proven now by the passage of nine years, and removing the exemption would send a very, very powerful signal, not only to disabled people, which would be important, but to the public and transport operators that it is wrong to discriminate against people in any way, and it would also add force to some of the things that have already started to happen and some of which will happen more after October in relation to the provisions that come in then, and that is about issues about signage and time tables and all those aspects which cause so much difficulty, particularly for travellers with a learning disability who do not always understand the signs and the timetables, but also, frankly, many other people. It would also reinforce some of the difficult issues around audio/visual equipment. There are some specific problems in relation to buses where, as I understand, even the regulations for new buses do not yet insist on the provision of audio/visual equipment because of certain technical reasons, although I think we would argue perhaps some interim solutions could be provided. You could have a situation where, even when you have got the equipment, it is not always used; and that puts people at a serious disadvantage, because there is nothing worse than relying on an audio announcement, it is not given and you end up hundreds of miles away from where you intended to be. So the message would be: it is not too costly, according to the impact assessment, to fully exempt Part III, and it would be a major step forward and would be much closer to bringing transport in line with other services. Q181 Chairman: I would like to turn to Part III in just a moment or two, but in the meantime, I put up both supplementaries, especially in relation to what Kate had to say. Let us assume there is no immediate lifting of the exemption, what do you think would be a reasonable time scale for the different forms of transport to be become part of the proposed regulations; and also are there any arguments for greater action in varying these exemptions for different types of transport? Ms Nash: I suppose for simplicity we would encourage an approach that provides for comparable timescales. I know that later we will be talking, for example, on end dates for rail vehicles; and while we would the strongly discourage the current preferred timescale of 2025, we would very much strongly advocate, for example, 2017, as many others have suggested. I know that this Committee has heard other submissions that suggest, as the DCC believe, but there is always a rush towards the end of the time period for which provisions need to be made. So to a certain extent, though very mindful of the need to reflect the features of the industry that need to be provided for by way of making adjustments, simplicity and congruence throughout the sectors and timescales would be advantageous. Q182 Chairman: I would like later too, if there is time, to turn to 2017, but for the moment could I develop this particular theme and ask a very specific question on rail, remembering that my questions, as with my colleagues, are based on some of the submissions that we have received and are not necessarily the views that we might hold by the end of our discussions. On rail, do you consider it reasonable for rail operators to maintain a 24‑hour book ahead requirement to guarantee disabled assistance, given what they consider, and I underline that, what they consider to be the significant costs implications for them if this requirement were to be removed? Ms Nash: If I start to answer, David, and you jump in. I think it is reasonable to expect the service provider to provide for a system that is demonstrating a reasonableness that I think most disabled people would understand and accept. I think it is unreasonable to expect that where that system fails, and we do have ‑ we are aware of many examples where that is the case, it is unreasonable that there is not another additional service or that that failure cannot be accommodated at the point of failure. David, do you want to add to that? Mr Congdon: I do not think there is a great deal to add. My understanding is that many, many people who do use rail services do book in advance, so it is less of a real problem than may be imagined. I was also conscious of again the Regulatory Impact Assessment, the costs of actually doing it for every single rail station. So there is an issue of reasonableness. Maybe, as Kate said, some flexibility round the margins would actually be a way of achieving the objective without necessarily meaning that everyone could be guaranteed to turn up on the morning, and I am conscious also obviously that the DRC gave evidence on this point last week. Q183 Chairman: Do you think it would be more ever more important, the 24‑hour requirement, or the fact that having booked it 24‑hour in advance it is actually there when you need it ‑‑ Mr Congdon: I am sure the latter is absolutely crucial. I think you heard from the fact there can be nothing more frustrating that if there is only one place for a disabled person and you turn up and find that place is taken, yes, the certainty must really be crucial. Q184 Mr Clarke: Briefly on Part III, which David mentioned, I think you will know that Leonard Cheshire, which, I think, is part of the consortium.... Yes? Mr Congdon: Yes. Q185 Mr Clarke: That they have suggested that if regulations are used to remove the transport operator's exemption under clause 3, they should include, and I quote from what they have to say, the obligations of the October 1999 duties of Part III as well as the 1996 obligations. Can you explain what impact this would have on disabled people, as you see it? Mr Congdon: My understanding is that this would get us to a situation whereby it would bring public transport basically in line with other services. So, for instance, as I understand it, the 1996 Regulations would relate to basic gratuitous discrimination and the 1999 relates to ancillary equipment. So I think we would fully support Leonard Cheshire's line in relation to encompassing those obligations as well. Q186 Mr Clarke: My last question on transport which is obviously very crucial to what we are all considering, is on the issue of 2017, because we are all very much aware of the end date and the consultation on trains and so on, but we have got conflicting advice on this, to say the least, from yourselves, from the Disability Rights Commission and, of course, from the Government. How do you respond to the DRC's proposal that an end date of 2020 would be a reasonable compromise? I think that is between year 2017 and the Government's 2025, if I have got that right? Ms Nash: Again, I will endeavour to answer this on my colleagues' behalf. We are mindful of other submissions. While on the one hand there was a positive rebuttal from the DRC that they were not necessarily suggesting a third way in signalling that 2020 might be an acceptable compromise to the Government's preferred date of 2025, we understand that there may be a growing feeling that 2020 is the year to focus on. I thing to answer the question straight, there is little or no evidence that we are aware of, and I am conscious that I am not a technician here, so you will jump on me, I am sure, Tom, if I am inaccurate here. There is little or no evidence that we are aware of that the industry has signalled that 2017 would be achievable and appropriate, but neither has the industry signalled that 2020 is achievable and appropriate, and equally neither has the industry signalled that 2025, the Government's preferred option, is achievable and appropriate. In other words, the industry has spectacularly failed to signal whether it welcomes moves to comprehensively address the issue. I think that leads the DCC to conclude that the end date is not of material concern, and it would be sensible to factor in the time frame under which trains undergo, for example, major refurbishments, where they are taken into workshops and stripped down, which I believe is something like 15 years. So it is equally sensible to factor in the reality, as I said before, that the panic sets in anything between three years and five minutes before the legislation and/or the regulation comes into effect. I think then the end date, according to that fact, means we might want to suggest, for example, and again I am exaggerating to make a point here, that 2007 might just as well suffice. As I say, I am exaggerating the point; but I suppose what we are trying to suggest is that too much scrutiny or meticulous planning does not take into account the tendency to avoid things until the last minute. Of course, there is an on‑going Department of Transport consultation and, despite the introduction of the DVAR standard where many disabled people still feel that the majority of the rail industry has yet to demonstrate a sincere commitment to meeting the reasonable requirements of disabled people. We know, for example, of a disabled person, RADAR heard of recently, who has to travel to work from Folkestone three times a week. They have questioned the train operating companies something like 57 times in writing as to why they are still travelling within a guards van. One can only guesstimate that the replies, when or if they come in, boil down to the fact that they do not have to. So I suppose we are a bit disappointed to see ‑ a bit disappointed: we are disappointed to see that the Government is expressing a strong preference for 2025 as an end date when all rail vehicles must be accessible, though there may well be difficulties, and we are mindful of those, in replacing significant numbers of trains ahead of schedule. This date means that trains will remain inaccessible long after other modes of public transport come into play, which leaves a crucial link in the transport chain, and that is broken for disabled travellers. Another good example, before I hand over to David, another disabled person who contacted recently in relation to our submission, informed us on several occasions they had to jam a train's doors open with their own wheelchair to prevent it from leaving the station until either the requested assistance was provided or a helpful member of the public gets that person off the train; and we call this reasonable! We think not. Mr Congdon: I think that is really the point. Here we are in 2004 where people are putting up with dreadful conditions as disabled people in terms of getting on trains, and it is fair to say that even some of the newer rolling‑stock, some introduced in the last 10 years, is not really that brilliant. The point I would really want to make, although it could be said it is unreasonable to say that they have to comply in 13 years time, we are nine years on from the original DDA. It is hardly a surprise that at some point in time transport operators will be required to make their rolling stock absolutely accessible. 2017 is 22 years after the DDA and frankly I would say to the committee that that says it all. Q187 Lord Rix: I totally agree with that response because in 2025 I will certainly be in need of the DDA because I shall be 101. It seems to me to be rather a long time to wait for transport to be fully accessible for disabled people. What you have just said about the ongoing date to 2017 itself seems to be ridiculous, does it not? Where did that magic figure come from? Is it because of the transport lobby who have made the government think of this as a figure or is it for other reasons as well? It seems to me to be totally unrealistic to have to wait even the minimum of a further 13 years before transport complies with the Bill. Ms Nash: We would agree with you. We are very encouraged by that response, Lord Rix. Again, I hesitate to add that I am not a technician and I believe that one of the rationales for 2017 is in relation to the 15-year rotation around the strip down and refurbishment of trains. Q188 Mr Berry: As a person who accused the DRC of adopting a third way I can confirm that they immediately denied it and went straight back to 2017. David's point is incredibly important. The regulator of the industry and the government can hardly be unaware of the debate that has taken place for many years about what is the end date. There have been countless parliamentary questions about it. Can you confirm what you said earlier, that despite the fact that everyone knows this is an issue and the year 2017 has been mentioned, to the best of your knowledge neither the regulator nor the industry nor anybody else has said this cannot be done, because I have never heard them say it cannot be done? Ms Nash: We are unaware of that. Mr Berry: That is quite illuminating. Thank you. Q189 Lord Addington: Could you confirm something, because I happen to agree with the idea that these are just arbitrary limits and plucking out the one that puts it off the longest? Would it not be more realistic to base your timescale around financial planning rather than these things and could there not be an argument for saying that if you were negotiating loans, for instance, that would be a much more realistic timescale than saying, for instance, "Oh, well, if we carry on working on the same bit of technology at the same rate we will come and it will all be done by X"? Would you not be able to build an argument around that much more easily by saying that financial planning is more important than the current rate of our engineering work? Ms Nash: Yes. Think there could be logic in that argument. To a certain extent financial planning is not divorced from the process by which ----- Q190 Lord Addington: Could you not build an argument saying that that would be the driving force? Mr Congdon: Would that not partly depend on what the length of the leasing arrangements are because obviously if you were in a situation where it was relatively new rolling stock and the leasing arrangement was over 15 years it could push the whole thing back more? I am not sure anyone has done the work to look at what the average length of the leases is. The information must be there with the companies but it would be very interesting to find out what the average length of the leasing arrangements are because you are right in terms of how they are going to structure the financial arrangements for the rolling stock and what the term is that they are assuming on that. That would all be factored into what they say they could afford and therefore what would be reasonable in terms of altering it. Mr Lamb: If it was 30 years, for the sake of argument, some people have had leasing arrangements for 30 years and if we then took that approach it could lock you in for 30 years of not having any change. Q191 Lord Addington: What I was trying to get at is that you can renegotiate a loan. Mr Lamb: Yes. Q192 Mr Clarke: Can you be persuaded that there might just be a case for some exemptions in terms of the end date and, if you cannot, what criteria do you think should be used? Ms Nash: Can I probe a bit more? Can you suggest where you have heard that there may be exemptions? Chairman: That is called leading a witness. Q193 Mr Clarke: First I think I ought to say that that is what it says on my script! Secondly, I am sure that when the evidence is published that will be the reply to the question. Mr Lamb: Was the assumption we were looking at things like hobbyist railway tracks such as Bluebell Railway with deliberately old rolling stock where the whole point would be that you get on something that is 90 years old or whatever? Would that be the concern, that somehow those would be swept in in some unreasonable way when the whole point of why someone would go on those is precisely because they look like that? That is not something we have considered but it is obviously something that would need to be looked at. Presumably some concept of reasonableness would apply there. In terms of the major transport networks I find it very difficult to see why anyone should have a derogation. Q194 Lord Tebbit: Can I suggest to the witnesses that the way out of this problem surely is to establish a very early date beyond which transport operators, particularly for rolling stock, must be fully accessible with new stock, so we say that in perhaps three years' or five years' time all new stock, as it is brought into service, has to be fully accessible with a longer date for the phasing out of the older stock because of the long life scales that there are in some of those stocks? We would then get progress without causing undue expense to the operators. Ms Nash: We are just conferring because we are unsure ourselves as to whether new stock is not currently covered. We think it is. Miss Begg: It is. Q195 Lord Tebbit: All stock is already covered, is it? Ms Nash: All new stock. Q196 Lord Tebbit: Then we are only talking about a phasing out date, are we not? Ms Nash: And refurbishment, yes. Mr Lamb: Missing out on refurbishment, so I think our starting point would be the earlier one, not the later one. Q197 Lord Tebbit: That really indicates that one should be relatively hawkish about this? Mr Lamb: We feel so, yes. Q198 Lord Rix: Let us turn to aviation and shipping. I am also going to ask a supplementary about EasyJet. They have got top billing today, I am afraid. First of all, DPTAC have suggested that the voluntary approach needs to be given time to work and that the voluntary approach having been issued in March 2003, DPTAC recommend that the end of 2005 is the time when the government should determine whether the voluntary approach has been effective. However, the DCC suggest that this should be ignored and that immediate statutory intervention should take place. Would you agree with this and what evidence can you give to support this immediacy? Ms Nash: Again I will endeavour to answer that for my colleagues. Our view is that the voluntary codes are simply not working. I could answer the question in one word by saying "Ryanair". There is a simple pattern of behaviour from airlines and ferry operators who continue to discriminate and at the moment we feel there is simply no incentive to make the reasonable adjustments that are required. The Ryanair case, a very well documented, very public, case, shows that a major carrier will unashamedly discriminate against disabled people, and I think the idea that corporations who run airlines do not want to court bad publicity simply does not apply. Where there is no threat of action I think the DCC would say, regrettably, that even major carriers do not feel that they have to make reasonable adjustments. We have from that a system in place where it allows for a disability tax. If there is no other illustration for the need for compulsion rather than voluntary codes and keeping our fingers crossed, then let that be it. Mr Congdon: I think it really goes back to the earlier general points I made about the exemptions for transport. It means as things stand at the moment under the voluntary code that discrimination does occur and there is no action that can be taken. Much of it is about good practice and having a legal backing for it would strengthen that, and the cases that have been quoted do illustrate that point. There have been examples, I understand, on shipping as well, so there are examples around where people are being discriminated against currently and the law does not protect them and that is what we want to see. Q199 Chairman: Surely Ryanair is a bad example because in fact they were found to be in breach under the existing law? They are appealing, I know, so we must not discuss it in too much detail, but in fact the existing law found them to be in breach. Mr Congdon: That is a very interesting point you made. I was thinking about that only this morning. I think that was not totally to do with being on the plane. It was much more about getting from the airport building to the plane. A better example in a sense is that we had students from a Mencap college flying and they were asked to have one carer for every two disabled persons. The net result was that people on the plane volunteered to be carers, which is an interesting solution to a problem, but it should not reach that stage. You should not be faced with that sort of situation, and changing the law would remove that problem. Q200 Lord Rix: I was going to ask that question about EasyJet, not Ryanair. Does that not lead to a further worry that a court could eventually rule that a person with, say, a learning disability or with other disabilities as well has to be escorted by a carer when using public transport? Is that a possibility that you think could arise? Mr Congdon: I very much hope it does not arise but who can predict? The problem, as I am sure all members of the committee appreciate, is that once laws are passed it is how the courts interpret them. To a certain extent that is why we have proposals on the table to amend the legislation, to try to see if the legislation can be strengthened. It would be a very brave person who predicted what a court might or might not say because obviously operators do have to take into account issues of health and safety and so on. Mr Lamb: I think it should prevent this to the extent that the whole problem with the EasyJet example was that EasyJet have a policy about the number of carers per number of people. What it seems happened, although we do not know, and again I have to be careful because this may yet be the subject of some litigation of one sort or another, if not under the DDA necessarily, is that the airline had a policy of not allowing people with learning disabilities or other people as they defined it who would need carers in some way and that was then inappropriately applied to the deaf and hard of hearing people. What you would be looking at with a policy like that anyway is that it did not have discriminatory policies and practices and that those were only applied in genuine cases where people did need carers and they would have to have much more regard to how they worked through that policy and the judgments they made as a result of those policies. To go back to our previous discussion, it would have to be objective. It would not have to be that the subjective was "reasonably believed" in that case. It would have to be an objective view and what we are trying to get to with the courts in both examples that we were talking about before and in the current one is a much more objective test, so if transport was brought in we would accept a much more objective test about what could be reasonably believed. What it does show is that EasyJet is a big company, Ryanair is a big company. It is not unreasonable to expect them, if they had goodwill, to be implementing voluntary codes now. What was absolutely farcical and is not known about is that the next day two of my colleagues were also flying on EasyJet. One was a British sign language user, the other was a colleague that could converse with some British sign language. They were sitting in the EasyJet departure lounge and you know you get corralled into groups of 30 and then they let on women with children first. In some desperate attempt to make up they had a number of very good and well-meaning EasyJet staff coming up to them and going, "Are you all right?", and putting their thumbs up, which was very nice but did not actually mean anything to a British sign language user. Women and children were held up so that they could be ushered on to the plane first. They did not need that adjustment at all; it was not their problem. They just needed to be left on the plane. They were put at the front, they were served first, and it got to the point where they had to say, "Please: this is fine. We can cope for ourselves, and indeed my friend is hearing and not here to look after me". The point I am trying to make again is that they clearly have goodwill at one level within the airline but they are hopelessly flapping around trying to work out what it is they should do. If there were statutory regulations in place, if it was covered by the law, there could be guidance from the DRC and they could do the right thing. Q201 Lord Tebbit: Our witnesses will be aware, of course, that the captain of an aircraft has an absolute duty concerning the safety of those on board his aeroplane. In the light of that do they think it is reasonable or unreasonable for a captain to put a limit on the number of people who are unable to walk, such as wheelchair-bound passengers, on their aircraft? Ms Nash: We would be loath to suggest that was reasonable. There are a whole host of cases where there is conflict between the DDA and health and safety legislation. We see that in other trades and other sectors. We would suggest too that there could equally be a conflict here, but of course it would be improper for the DCC to suggest that it would be reasonable to limit the number of disabled people on a flight. Mr Lamb: Our point would be that if it was brought within the law there would be a perfectly proper legal process to test out within that transport system, depending on the size of the plane, the type of operation, whether it is an EasyJet one with just three people on the plane or a British Airways type of operation with a much more full service, and all those factors would affect whether one wheelchair user or ten could easily be evacuated from a plane. With a voluntary code without a framework of legislation and case law around what is reasonable, I think you are absolutely right that in this sense the pilot is left in the worst of all possible situations at the moment, having an absolute duty of care to the passengers and very little proper guidance about whether a British sign language user poses a threat or not. Q202 Lord Tebbit: So it is a case where the test of reasonableness would be the best test to apply? Mr Lamb: Absolutely, and you cannot apply that unless it is covered by legislation. Q203 Lord Tebbit: Secondly, I have recently heard of a case of a blind passenger who, on a long haul flight, was told that he could only put his dog on board the aeroplane in a container in the freight hold. As those of us who have dogs know, that is calculated to leave a dog in a fairly hysterical state, but against that, as you may also know, urine has a pretty devastating effect on the light alloys of which an aeroplane is made, so where does the responsibility lie there in deciding whether a dog may be carried in the passenger cabin and whose responsibility is it to ensure that it does not foul the floor of the cabin? Is that another one where tests of reasonableness should be applied and the captain should be able to say, "No; look, I am terribly sorry. For a four-hour flight, yes, but for a 12-hour flight, no"? Mr Lamb: I think the short answer in terms of the principles again is that unless it is covered by the legislation you do not have a process by which to make those decisions because obviously that is quite a tricky circumstance. I do not think voluntary codes with different interpretations of what you might do are the best way to resolve that. I think the very sensible approach of the legislation being in place and the DRC getting involved and working out what might be sensible guidelines, which may well include those defences on behalf of airlines if they were found to be reasonable, helps everyone because they are all clear where they are. Ms Nash: A brief but important point from Leonard Cheshire. They are reminding us that the regulatory impact assessment also states on page 29 that relying on the voluntary compliance from the transport sector crucially "would not provide disabled people with confidence in the transport network as a whole and would not deliver against the government's manifesto and policy commitments", and of course the need to build confidence is quite critical. Q204 Mr Williams: If we can move on to clause 8, the public authority duty, the Bill gives a proactive duty on public authorities to ensure that discrimination and harassment of disabled people under the DDA is eliminated, and the trigger here is "where opportunities for disabled persons are not as good as those for other persons". Do you anticipate that this will pose a difficulty for public authorities to determine and decide when they will be required to have due regard to the need to improve opportunities for disabled people? Mr Winyard: In broad terms we very warmly welcome this clause and the introduction of public authority duty. That needs to be said at the outset. We feel that the wording of 49(a)(i)(c) will in itself create difficulties This is a wonderfully obscure piece of writing: "The need, where opportunities for disabled persons are not as good as those for other persons, to promote equality of opportunity between disabled persons and other persons by improving opportunities for disabled persons". A much easier way of putting this would be "the need to promote equality of opportunity for disabled persons". That would work quite well and it would give public authorities a much better chance of knowing what is expected of them, so that is a starting point. I do not think we do anticipate any great difficulties in determining what would be required. It would certainly require public authorities to think much more systematically about the full range of activities they undertake. There will be a greater use of audits, I am sure, to monitor how they are undertaking their duties. We anticipate this duty having an enormously positive impact and one area in particular would be in public procurement. We do have new European legislation in this area but it needs to be implemented in the UK and this public sector duty will certainly require public authorities to think about the equipment that they purchase and ensure that it is fully accessible for disabled people, so that is going to be of real importance. Q205 Mr Williams: Do you think it would be reasonable for a person who is disabled but not recognisably disabled to have to inform the public authority that he or she was going to access some of its services before that person did access those services? Mr Winyard: Clearly this duty is meant to be an anticipatory one. We expect it to lead to duties being undertaken in a way which will properly meet the needs of disabled people. I guess in some areas people will need to spell out that they have specific requirements that may not be met. I do not see any problem with that. Q206 Lord Addington: Following on from that idea of hidden disabilities being a very important one, and certainly including the idea of dyslexics and the very basic interchange of that information normally being provided on a piece of paper and having to ask someone to explain it to you or for you to put the information down, would that not be an example where you should train your staff to carry out that function and be available to do that function once it has been described to you? Surely that would not be something that would be covered in this situation? Mr Winyard: I imagine that is one way in which this duty might be met, yes. Q207 Lord Addington: Also the idea here would be that if you are training your staff to respond it would be taken into account. Mr Lamb: This partly perhaps goes into the next question. Certainly the point is that it is anticipatory duty so we would be expecting ----- The Committee suspended from 4.10 pm to 4.23 pm for a division in the House of Commons Q208 Mr Williams: Mr Winyard gave us an alternative wording for the trigger. Do you think that will better enable public authorities to get out of or avoid the comprehensive approach to this duty? Mr Winyard: The duty is very much an anticipatory one. The expectation is that public authorities will take a whole variety of actions in order to promote equality of opportunity for disabled people and the rewording of that clause would be very helpful in terms of clarifying and simplifying what is expected of them. Q209 Mr Williams: So you are recommending that to us? Mr Winyard: Yes. Q210 Mr Berry: Many people have invoked the Race Relations (Amendment) Act and said that we should have parallel obligation in relation to disability and, of course, the draft Bill does not include a requirement to promote good relations and you asked the question in your memorandum why has not the government included the duty to promote good relations between disabled people and non-disabled people. What activities do you think public authorities would undertake in order to fulfil that objective? What kinds of things do you have in mind that would not be embraced by the general commitment to promote equality and equal opportunities? Mr Lamb: I think the most obvious answer to that is that we look at the kinds of activities that are being promoted under the Race Relations Act. There are four broad areas you can see within that and I have some more specific examples. The first is work bringing communities together and building community cohesion, and you can obviously see how that might transfer and apply across disability; secondly, addressing issues of harassment and violence outside the workplace in the specific sense that at the moment there is no DDA duty specifically on the public to behave well towards members of the disabled community, although there is now a separate duty that has been brought in separately from the DDA to do that. Thirdly, there is the promotion of general understanding and awareness in the community and, fourthly, improving civic participation and combating social exclusion and deprivation. If you look at what that might look like, if you look first inside a local authority service provider and someone who is thinking about how they make reasonable adjustments, this would obviously give the whole issue a higher profile within there. Public authorities could ensure that all staff receive disability equality training. Public authorities should stop seeing disability as an additional issue but regard it as part of their integral functions and service delivery. They could also factor disability into planning processes in the way they exercise their duties. What it is trying to ensure is that equality is built in and not bolted on, so it is very much part of that anticipatory role about being much more proactive about how you do that within the community. I hardly need remind this committee that some of the reasons behind that for what happens in the community is very simply that hate crime affects one in five disabled people, and that was very clear from the DRC Attitudes and Awareness Survey, and that nine out of ten people with learning difficulties face some form of violence or abuse. Our case book service has many examples right down to where deaf and hard of hearing people have been texted because people could not make them hear so they have texted them instead with abusive language and behaviour in that way. We feel that if there is not a more positive duty and public authorities are not setting a more public example and promoting that, even outside their own service provision, we will not have any chance of addressing the fairly endemic violence and discrimination that takes place against disabled people within their communities. Q211 Mr Williams: You have made what many would regard as a strong case, and you have already discussed this issue with officials and possibly ministers. We will have the minister at a subsequent session but why do you think the government has excluded this? Mr Lamb: I think that would be better addressed to the minister rather than me trying to speculate. As far as we have discussed it with officials, my understanding is that there is a rather technical argument that relates to symmetry of obligations between DDA legislation and race relations legislation. Whereas race relations creates obligations on both sides of the party DDA legislation requires obligations to positively treat disabled people differently. I think there is an unwarranted worry that there might be a case for saying that the local authority in some way, by doing all this promotional activity, is disadvantaging non-disabled people; at least I understand that is part of the concern. In a way I think it is better to have that elucidated by the minister because it is not one that we agree with and I do not want to be making the minister's case, if that indeed is the case. Q212 Lord Addington: What criteria would you use to decide which public authorities should be included in a list of those subject to the positive duty under this clause and how would you respond to the view that the creating of a list or schedule of public authorities would become overly cumbersome and subject to constant revision? This is a very old political point. Do we have a big list with everybody in or do we have a short list going down here and if you want to fill up vast amounts of parliamentary time it is almost as good as my own example(?)? Mr Lamb: Let me start by saying intuitively why on earth would you want to have a list if in some way you could cover something with a general duty? It almost seems counter-intuitive to go the other way. First, it is important to say that that was the approach taken in the race equality duty and that is very helpful, together with the definition in this Act, in starting to define how you would identify those public bodies. What happens in the reality of considering these lists is that in fact, whether you specify it or not, when anybody thinks of starting to try and work with it and identify who you need to work with and who is responsible, the net effect is that, whether formally or not, you start producing a list because you need to know who is in and who is out and what is actually going to happen. I think the practical effect, whether you have a stated list or not, is that you have one. Thirdly, that list does not have to be exhaustive. It is not that you do have this enormous laundry list and you are always adding or taking away from it every other day. There are lots of other examples in the Act where you do have administrative lists around reasonable accommodation within employment, for example, and there is a great debate about whether you should list it or not. In the end a very pragmatic approach was taken where you had a list of the types of things you should do in the same way as you would have a list of the types of bodies that were undertaken but it would not necessarily be an exhaustive list. Also, what it would remove is the need for litigation in courts about whether an organisation is a public authority under the meaning of the Act and it would also allow the DRC to develop guidance aimed at specific sectors if you mentioned them in that way. Lastly, we also have a concern that there have been examples where what we thought had been public bodies - and I expect everybody knows of the case that Leonard Cheshire took in relation to a body under the Human Rights Act that we thought was a public body and it was found not to be - and the tendency, especially in housing associations and the housing field, is to escape duties by redefining yourself as not a public body. If there was a list there could be no prior dispute about whether something was a public body or not. Therefore, unless we could be convinced that in some way having just the general definition would really capture those issues and would not lead to problems around deciding who is in and who is out and the need to produce lists anyway, I think we would want to go with a list approach, but a sensible one in the sense that you could have an illustrative list and add to that, even though to some extent that may appear counter-intuitive at first sight. Mr Congdon: Could I add a couple of points, Chairman? There have been issues in relation to examination boards and whether they are all public bodies or not and therefore not making reasonable adjustments when a blind student is taking an exam. That is a particular reason why we would like the definition to be clear, but within the context of what was being said earlier, we regard the obligations under the public authority clause as being very fundamental and important. There are other aspects in relation to disability discrimination that are not really dealt with satisfactorily today, and in some respect are surprising. There are a number around the field of education where we have obviously had both the DDA and the Special Education Needs and Disability Act. We have come across a number of cases where children are being denied their education in school either by being formally excluded or usually informally excluded from school because their health needs cannot be met. That may involve medication, it may not involve medication. What we think would be really useful is if the committee were able to ask the government to set out what specific duties under this clause would apply to schools, further education colleges, etc, and to see whether the government would be prepared to review the specific guidance which is given to schools in this respect under the 1996 circular which really needs reviewing in the light of the Special Education Needs and Disability Act. One would have thought that the issue of children being denied education because of health needs would have been met already by legislation but it has clearly not been and therefore the public authority power is a powerful weapon and lever that could be used to bring about real improvement. Q213 Chairman: Are you claiming that the Special Education Needs and Disability Act is not meeting this, is failing in this regard? Mr Congdon: That is correct. We have certainly had informal discussions with the DRC on this point. An example would be, and I do not think there has been much in the way of case law on this, that a school could have a blanket policy to refuse to administer medication to all pupils, and so that would not under the current law necessarily be discriminatory because they would be discriminating against everybody but, of course, with disabled pupils they are more likely to have medical needs that needs to be addressed. What you get and what is particularly difficult about this area, because parents do not necessarily want to kick up a great fuss because they realise the industry might damage their relationships with the school, is that what parents often do is put up with it or take their child to another school and so you do not get the resolution by legal routes. It just means they have to put up with all those difficulties and aggravation and it would be a very powerful message if the government way was set out very clearly on how they could see this public authority power being used to address issues like that. Chairman: Any parent of a disabled child is fully aware of the point that you have just made about what happens if they make a fuss.. Q214 Lord Tebbit: Perhaps I can draw their attention to what is on the monitor with regard to the business in the House of Lords today. Should not those needs be attacked through education legislation rather than through this legislation? Secondly, surely one either has to define the public bodies to which this legislation applies by defining what is a public body or one has to give a list of every body to which it applies? You cannot compromise between those two surely? You cannot have illustrative lists in legislation. Mr Lamb: Can I come back on the first point? We are not saying either a list or the definition. We totally agree that you need the definition but we think you also need an illustrative list. It is not an either/or; it is both. I think the view you were putting to us was that just to have the definition is enough. We are saying absolutely you need the definition and we can give you an illustrative list of what would appear as bodies covered under that, but then I think you do need a list of areas and sectors as illustrative of what is expected to be covered, and I think the education one is a very good example of that. In another role I am Chair of the Special Education Consortium, which includes all the bodies representing the DDC, which is a much broader group of bodies around education, and they are all extremely concerned as well about what is covered and what is not covered in the way that David has outlined. In terms of your question about would it not be better covered in education legislation, I think the short answer is yes, but we go back to our opening statements and the practicalities of the types of negotiations that would have to go on within different government departments and amendments in other areas of the legislation and not currently in the current Bill, whereas we can see a way through providing a list approach that it would be able to be simply covered under the powers that are already in the Bill and therefore that might simply be a way of doing it. In an ideal world the answer is yes, it should be covered under education legislation. Q215 Lord Addington: So what you are actually saying is that you have got to have a definition of what you think a public body is and a huge list of everything that is a public body and it has got to be updated regularly? Mr Lamb: On the second, that we would have an illustrative list, that would ideally be by sectors to give people guidance as to the types of bodies and some illustrations of those but it would not necessarily have to be an exhaustive list. Q216 Lord Addington: If you get a list like that the argument always is, as I set out, do you have a very short thing that states, "These are the bodies that shall be ...", or do you have a huge list? Then you have an argument which goes through, and I think I was one of the first Members who spoke on it, that you then say everything should be in or you just say "all the public bodies", and you end up having to go for one or the other, so I take it from what you are saying that you would like a definition of what you think a public body is, "These are the bodies we think are covered", bang? Mr Lamb: But not necessarily an absolutely comprehensive list. I understand what you are saying but we could easily point to other areas in the DDA, for example, the whole idea of what reasonable accommodations an employer has to make where in a way precisely the same issues were discussed, whether you had a whole list or whether you had a general definition. It was felt that the general definition did not give enough guidance but it was accepted that a complete list was almost impossible, so what you have is a general definition of reasonable accommodation and then in guidance you have a list of the types of accommodation that might be followed but which is not an exhaustive list, and so it is a guidance. What it helps you to do is pick up any organisations where you want to give absolutely no doubt that these are covered and why but it leaves latitude that you are suggesting that you do not have the issue of "Let's look at this week's list". I would also add that in relation to the way the race relations duties have worked within the Race Relations Act we are not aware of there being any massive problems in relation to the way that list is maintained, and that is a list approach. I think this improves on it since it is a definition and a list. Q217 Baroness Wilkins: Can you highlight some of the difficulties that have been experienced by disabled tenants who sought redress under the provisions of the Landlord and Tenant Act 1927? Ms Nash: We are not aware of any cases where disabled people have been able to seek redress under the 1927 act, although we can illustrate some of the challenges and the difficulties by example. Obviously, we welcome the suggested introduction of the "reasonable adjustment" duty for landlords when renting to disabled tenants, and obviously this would mean where a disabled person might not have been able to seek redress through current means, for example, allowing a tenant with mobility impairment to leave her rubbish in another place if she cannot access the designated place. Another case, for example, is changing or waiving a term of the letting to allow a tenant to keep an assistant's dog on the premises. It would allow for a change in the term of letting that forbids, for example, alterations to the premises so that a disabled tenant could make the necessary alterations with the consent of the landlord. A simple case would be where it would allow for a landlord potentially to read out a tenancy agreement to a visually impaired person. The current difficulties of obtaining permission are quite clearly illustrated by a recent case brought to RADA's attention. The case concerns a man who lives in sheltered accommodation, he has chronic emphysema, spends significant amounts of time at home and is unable to climb stairs. He recently asked for a stair lift, offered to pay for the installation and maintenance of it, but his neighbour objected and the management committee stated that they could overrule the objection but that work could only take place if all four people of the block agreed. In relation to the 1927 Act only current lettings are provided for, providing no right of reasonable adjustment to be made in prospective lettings. It also does not cover, I believe, the common parts of the building, which is a significant problem. We hear many cases where a disabled occupier needs, for example, alterations to the external parts of the building, such as installation of grab rails or additional lighting or a ramp and so on. We understand that currently the DCC has no power to take a case under the 1927 Act and therefore at the moment disabled people are left without reparation on this issue. One further case highlights the difficulties that disabled tenants face. I will just read a quote here about a woman we heard of: "I live in a block of flats. Though I own the flat it is on a leasehold basis. I am a wheelchair user and would like a ramp to be put in. The management company has consistently refused my requests and I cannot afford to bring action against them because the terms of my grant state that I cannot start work until all necessary consents are obtained". Another case the DCC are aware of is about a resident of a block of flats who had an impairment following an accident. He owned his flat in the same way as other residents and through the management committee he put forward proposals for a lift to be installed to enable him to gain access to his flat, but again two members of the management committee refused it. A ballot of all the residents in his block of flats and those of the surrounding block took place to decide whether the permission should be granted. It is extraordinary. Two members of the board refused to give the permission, stating that the lift would restrict access and bring down property values. Some residents of the block of flats next door objected on the grounds that it would make all the flats look like an old people's home. The short answer is we are unaware ----- Q218 Chairman: Ms Nash, I think it would be easier if you submitted them in writing. Ms Nash: I am boring the committee. Q219 Chairman: No, you are not boring the committee at all. Ms Nash: I have come to the end of my examples. The last sentence is that we would urge the government to bring management committees and wardens into the scope of the new housing provisions and to make it clear that landlords cannot and should not unreasonably withhold consent to disabled tenants to carry out physical alterations. Q220 Baroness Wilkins: The 1927 Act does not work basically? Ms Nash: Indeed. Q221 Baroness Wilkins: Your evidence raises the prospect of the draft Bill being amended to cover prospective lettings of accommodation. Does this mean that the prospective tenant could require reasonable alterations to be made before they had moved into the property? Ms Nash: I believe so. Q222 Baroness Wilkins: Or before the letting had been given to that tenant? Surely this potentially could lead to major problems. A landlord would say, "Why should I take this tenant because it is going to cause me a lot of trouble?". Ms Nash: Anticipating that the disabled person would not then take the flat? Q223 Baroness Wilkins: Or that the landlord would not let the flat to the disabled person. How would you see it working? Ms Nash: Of course, there are tensions that we would need to legislate for. The reality is that at the moment there are such significant weaknesses within the 1927 Act that they allow for a state of play where disabled people quite simply cannot make the alterations to be able to live in the way that they would wish for themselves. Q224 Baroness Wilkins: That is for existing tenants, is it not? Ms Nash: Yes. Q225 Baroness Wilkins: It is prospective tenants I am asking about. Ms Nash: Can any of my colleagues help me out here? We are just conferring. Q226 Chairman: What you might like to do is that if you need some advice from other colleagues you can write to us after you have taken the advice. Ms Nash: Yes, we can. A colleague has just submitted a little piece of paper here suggesting that the flat would be taken on on the basis that the consent would be given. Mr Lamb: We will write to the committee. Q227 Chairman: There are two areas which we have not quite reached. I am sure you are familiar with our interest in employment tribunals and volunteers. Perhaps you would like to write to us on that because we are now, I am afraid, a little tight for time. Before the last question, you see in the new draft clause 15, and I think I did mention that: relationships between local electable authorities. We have only just received this. Is there anything that you would like to say on that briefly? Mr Lamb: Obviously we welcome it. It was one of the recommendations that the government promised they would come back with. We do have a slight concern regarding the powers that are given to the Secretary of State within the legislation because it allows the Secretary of State to designate at a later date amendments "relating to the justification for less favourable treatment" and under what circumstances this is not justified. It is our position that under no circumstances would we accept anything other than less favourable treatment not being justified, so there are one or two issues we have around how the powers will be used, but in terms of the intention and who it covers and those kinds of issues I think we are quite content so far. I would also have to say that we have only seen this this week. We have not had time as a group to discuss it. So far, so good, but I would like to reserve judgment to come back after we have cogitated. Q228 Chairman: If you would like to write to us on that, that would be extremely helpful. Thank you very much. Are there any comments you would like to make about the Bill? Mr Winyard: Before you come in can I just say one thing? In terms of Anne Begg's test of one to ten, I would like to get on record that on the whole issue of employment tribunals being a better forum for the determination of discrimination cases that would come out as a ten, so I want that message to come through very strongly. Otherwise the whole of Part 3 becomes a voluntary code. It is terribly wrong. Q229 Chairman: Would you like to write to us in some detail on both tribunals and volunteers? Mr Winyard: We will. Q230 Chairman: Are there any other final comments you would like to make? Ms Nash: Two final comments. One is that we want to reiterate how important this Bill is. We very much want this to achieve Royal Assent. We would not want this to be done at any cost. We recognise that it is not quite the last chance saloon but it is a moment in history which provides for an opportunity to ameliorate the huge weaknesses in the current legislation. We would like to write to you about pre-employment questions on disability but we can supplement that later. Chairman: Thank you. You do realise that there is the commitment which has been underlined by the minister that this Bill must pass by the end of this Parliament, so we will definitely get this Bill without a doubt. Thank you very much for coming. It has been an extremely helpful session. If there is anything you wish to write to us about please do. |