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Session 2009 - 10
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Equality Bill


Equality Bill
Schedule 16 — Associations: exceptions

195

 

      (5)  

In relation to the second requirement, a physical feature includes a physical

feature brought by or on behalf of A, in the course of or for the purpose of

providing a benefit, facility or service, on to premises other than those that

A occupies (as well as including a physical feature in or on premises that A

occupies).

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      (6)  

Nothing in this paragraph requires A to take a step which would

fundamentally alter—

(a)   

the nature of the benefit, facility or service concerned, or

(b)   

the nature of the association.

      (7)  

Nor does anything in this paragraph require a member or associate in whose

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house meetings of the association take place to make adjustments to a

physical feature of the house.

Schedule 16

Section 107

 

Associations: exceptions

Single characteristic associations

15

1     (1)  

An association does not contravene section 101(1) by restricting membership

to persons who share a protected characteristic.

      (2)  

An association that restricts membership to persons who share a protected

characteristic does not breach section 101(3) by restricting the access by

associates to a benefit, facility or service to such persons as share the

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characteristic.

      (3)  

An association that restricts membership to persons who share a protected

characteristic does not breach section 102(1) by inviting as guests, or by

permitting to be invited as guests, only such persons as share the

characteristic.

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      (4)  

Sub-paragraphs (1) to (3), so far as relating to race, do not apply in relation

to colour.

      (5)  

This paragraph does not apply to an association that is a registered political

party.

Health and safety

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2     (1)  

An association (A) does not discriminate against a pregnant woman in

contravention of section 101(1)(b) because she is pregnant if—

(a)   

the terms on which A is prepared to admit her to membership

include a term intended to remove or reduce a risk to her health or

safety,

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(b)   

A reasonably believes that admitting her to membership on terms

which do not include that term would create a risk to her health or

safety,

(c)   

the terms on which A is prepared to admit persons with other

physical conditions to membership include a term intended to

40

remove or reduce a risk to their health or safety, and

 
 

Equality Bill
Schedule 16 — Associations: exceptions

196

 

(d)   

A reasonably believes that admitting them to membership on terms

which do not include that term would create a risk to their health or

safety.

      (2)  

Sub-paragraph (1) applies to section 102(1)(b) as it applies to section

101(1)(b); and for that purpose a reference to admitting a person to

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membership is to be read as a reference to inviting the person as a guest or

permitting the person to be invited as a guest.

      (3)  

An association (A) does not discriminate against a pregnant woman in

contravention of section 101(2)(a) or (3)(a) or 102(2)(a) because she is

pregnant if—

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(a)   

the way in which A affords her access to a benefit, facility or service

is intended to remove or reduce a risk to her health or safety,

(b)   

A reasonably believes that affording her access to the benefit, facility

or service otherwise than in that way would create a risk to her

health or safety,

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(c)   

A affords persons with other physical conditions access to the

benefit, facility or service in a way that is intended to remove or

reduce a risk to their health or safety, and

(d)   

A reasonably believes that affording them access to the benefit,

facility or service otherwise than in that way would create a risk to

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their health or safety.

      (4)  

An association (A) which does not afford a pregnant woman access to a

benefit, facility or service does not discriminate against her in contravention

of section 101(2)(a) or (3)(a) or 102(2)(a) because she is pregnant if—

(a)   

A reasonably believes that affording her access to the benefit, facility

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or service would, because she is pregnant, create a risk to her health

or safety,

(b)   

A does not afford persons with other physical conditions access to

the benefit, facility or service, and

(c)   

the reason for not doing so is that A reasonably believes that

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affording them access to the benefit, facility or service would create

a risk to their health or safety.

      (5)  

An association (A) does not discriminate against a pregnant woman under

section 101(2)(c) or (3)(c) because she is pregnant if—

(a)   

the variation of A’s terms of membership, or rights as an associate, is

35

intended to remove or reduce a risk to her health or safety,

(b)   

A reasonably believes that not making the variation to A’s terms or

rights would create a risk to her health or safety,

(c)   

A varies the terms of membership, or rights as an associate, of

persons with other physical conditions,

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(d)   

the variation of their terms or rights is intended to remove or reduce

a risk to their health or safety, and

(e)   

A reasonably believes that not making the variation to their terms or

rights would create a risk to their health or safety.

 
 

Equality Bill
Schedule 17 — Disabled pupils: enforcement
Part 2 — Tribunals in England and Wales

197

 

Schedule 17

Section 116

 

Disabled pupils: enforcement

Part 1

Introductory

1          

In this Schedule—

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“the Tribunal” means—

(a)   

in relation to a school in England, the First-tier Tribunal;

(b)   

in relation to a school in Wales, the Special Educational

Needs Tribunal for Wales;

(c)   

in relation to a school in Scotland, an Additional Support

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Needs Tribunal for Scotland;

“the English Tribunal” means the First-tier Tribunal;

“the Welsh Tribunal” means the Special Educational Needs Tribunal

for Wales;

“the Scottish Tribunal” means an Additional Support Needs Tribunal

15

for Scotland;

“responsible body” is to be construed in accordance with section 85.

Part 2

Tribunals in England and Wales

Introductory

20

2          

This Part applies in relation to the English Tribunal and the Welsh Tribunal.

Jurisdiction

3          

A claim that a responsible body has contravened Chapter 1 of Part 6 because

of a person’s disability may be made to the Tribunal by the person’s parent.

Time for bringing proceedings

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4     (1)  

Proceedings on a claim may not be brought after the end of the period of 6

months starting with the date when the conduct complained of occurred.

      (2)  

If, in relation to proceedings or prospective proceedings under section 27 of

the Equality Act 2006, the dispute is referred for conciliation in pursuance of

arrangements under that section before the end of that period, the period is

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extended by 3 months.

      (3)  

The Tribunal may consider a claim which is out of time.

      (4)  

Sub-paragraph (3) does not apply if the Tribunal has previously decided

under that sub-paragraph not to consider a claim.

      (5)  

For the purposes of sub-paragraph (1)—

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(a)   

if the contravention is attributable to a term in a contract, the conduct

is to be treated as extending throughout the duration of the contract;

(b)   

conduct extending over a period is to be treated as occurring at the

end of the period;

 
 

Equality Bill
Schedule 17 — Disabled pupils: enforcement
Part 2 — Tribunals in England and Wales

198

 

(c)   

failure to do a thing is to be treated as occurring when the person in

question decided on it.

      (6)  

In the absence of evidence to the contrary, a person (P) is to be taken to

decide on failure to do a thing—

(a)   

when P acts inconsistently with doing the thing, or

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(b)   

if P does not act inconsistently, on the expiry of the period in which

P might reasonably have been expected to do the thing.

Powers

5     (1)  

This paragraph applies if the Tribunal finds that the contravention has

occurred.

10

      (2)  

The Tribunal may make such order as it thinks fit.

      (3)  

The power under sub-paragraph (2)—

(a)   

may, in particular, be exercised with a view to obviating or reducing

the adverse effect on the person of any matter to which the claim

relates;

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(b)   

does not include power to order the payment of compensation.

Procedure

6     (1)  

This paragraph applies in relation to the Welsh Tribunal.

      (2)  

The Welsh Ministers may by regulations make provision as to—

(a)   

the proceedings on a claim under paragraph 3;

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(b)   

the making of a claim.

      (3)  

The regulations may, in particular, include provision—

(a)   

as to the manner in which a claim must be made;

(b)   

for enabling functions relating to preliminary or incidental matters

(including in particular a decision under paragraph 4(3) to be

25

performed by the President or by the person occupying the chair);

(c)   

enabling hearings to be conducted in the absence of a member other

than the person occupying the chair;

(d)   

as to persons who may appear on behalf of the parties;

(e)   

for granting such rights to disclosure or inspection of documents or

30

to further particulars as may be granted by the county court;

(f)   

requiring persons to attend to give evidence and produce

documents;

(g)   

for authorising the administration of oaths to witnesses;

(h)   

for deciding claims without a hearing in prescribed circumstances;

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(i)   

as to the withdrawal of claims;

(j)   

for enabling the Tribunal to stay proceedings;

(k)   

for the award of costs or expenses;

(l)   

for settling costs or expenses (and, in particular, for enabling costs to

be assessed in the county court);

40

(m)   

for the registration and proof of decisions and orders;

(n)   

for enabling prescribed decisions to be reviewed, or prescribed

orders to be varied or revoked, in such circumstances as may be

decided in accordance with the regulations.

 
 

Equality Bill
Schedule 17 — Disabled pupils: enforcement
Part 3 — Tribunals in Scotland

199

 

      (4)  

Proceedings must be held in private, except in prescribed circumstances.

      (5)  

The Welsh Ministers may pay such allowances for the purpose of or in

connection with the attendance of persons at the Tribunal as they may

decide.

      (6)  

Part 1 of the Arbitration Act 1996 does not apply to the proceedings, but

5

regulations may make provision in relation to such proceedings that

corresponds to a provision of that Part.

      (7)  

The regulations may make provision for a claim to be heard, in prescribed

circumstances, with an appeal under Part 4 of the Education Act 1996

(special educational needs).

10

      (8)  

A person commits an offence by failing to comply with—

(a)   

a requirement in respect of the disclosure or inspection of documents

imposed by virtue of sub-paragraph (3)(e), or

(b)   

a requirement imposed by virtue of sub-paragraph (3)(f).

      (9)  

A person guilty of the offence is liable on summary conviction to a fine not

15

exceeding level 3 on the standard scale.

Part 3

Tribunals in Scotland

Introductory

7          

This Part applies in relation to the Scottish Tribunal.

20

Jurisdiction

8          

A claim that a responsible body has contravened Chapter 1 of Part 6 because

of a person’s disability may be made to the Tribunal by—

(a)   

the person’s parent;

(b)   

where the person has capacity to make the claim, the person.

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Powers

9     (1)  

This paragraph applies if the Tribunal find the contravention has occurred.

      (2)  

The Tribunal may make such order as it thinks fit.

      (3)  

The power under sub-paragraph (2)—

(a)   

may, in particular, be exercised with a view to obviating or reducing

30

the adverse effect on the person of any matter to which the claim

relates;

(b)   

does not include power to order the payment of compensation.

Procedure etc.

10    (1)  

The Scottish Ministers may make rules as to—

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(a)   

the proceedings on a claim under paragraph 8;

(b)   

the making of a claim.

      (2)  

The rules may, in particular, include provision for or in connection with—

 
 

Equality Bill
Schedule 17 — Disabled pupils: enforcement
Part 3 — Tribunals in Scotland

200

 

(a)   

the form and manner in which a claim must be made;

(b)   

the time within which a claim is to be made;

(c)   

the withdrawal of claims;

(d)   

the recovery and inspection of documents;

(e)   

the persons who may appear on behalf of the parties;

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(f)   

the persons who may be present at proceedings alongside any party

or witness to support the party or witness;

(g)   

enabling specified persons other than the parties to appear or be

represented in specified circumstances;

(h)   

requiring specified persons to give notice to other specified persons

10

of specified matters;

(i)   

the time within which any such notice must be given;

(j)   

enabling Tribunal proceedings to be conducted in the absence of any

member of a Tribunal other than the convener;

(k)   

enabling any matters that are preliminary or incidental to the

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determination of proceedings to be determined by the convenor of a

Tribunal alone or with such other members of the Tribunal as may be

specified;

(l)   

enabling Tribunals to be held in private;

(m)   

enabling a Tribunal to exclude any person from attending all or part

20

of Tribunal proceedings;

(n)   

enabling a Tribunal to impose reporting restrictions in relation to all

or part of Tribunal proceedings;

(o)   

enabling a Tribunal to determine specified matters without holding

a hearing;

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(p)   

the recording and publication of decisions and orders of a Tribunal;

(q)   

enabling a Tribunal to commission medical and other reports in

specified circumstances;

(r)   

requiring a Tribunal to take specified actions, or to determine

specified proceedings, within specified periods;

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(s)   

enabling a Tribunal to make an award of expenses;

(t)   

the taxation or assessment of such expenses;

(u)   

enabling a Tribunal, in specified circumstances, to review, or to vary

or revoke, any of its decisions, orders or awards;

(v)   

enabling a Tribunal, in specified circumstances, to review the

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decisions, orders or awards of another Tribunal and take such action

(including variation and revocation) in respect of those decisions,

orders or awards as it thinks fit.

Appeals

11    (1)  

Either of the persons specified in sub-paragraph (2) may appeal on a point

40

of law to the Court of Session against a decision of a Tribunal relating to a

claim under this Schedule.

      (2)  

Those persons are—

(a)   

the person who made the claim;

(b)   

the responsible body.

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      (3)  

Where the Court of Session allows an appeal under sub-paragraph (1) it

may—

 
 

Equality Bill
Schedule 17 — Disabled pupils: enforcement
Part 4 — Admissions and exclusions

201

 

(a)   

remit the reference back to the Tribunal or to a differently constituted

Tribunal to be considered again and give the Tribunal such

directions about the consideration of the case as the Court thinks fit;

(b)   

make such ancillary orders as it considers necessary or appropriate.

Amendment of Education (Additional Support for Learning) (Scotland) Act 2004

5

12         

The Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4)

is amended as follows—

(a)   

in section 17(1), omit “to exercise the functions which are conferred

on a Tribunal by virtue of this Act”;

(b)   

after section 17(1), insert—

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“(1A)   

Tribunals are to exercise the functions which are conferred on

them by virtue of—

(a)   

this Act, and

(b)   

the Equality Act 2010”;

(c)   

in the definition of “Tribunal functions” in paragraph 1 of Schedule

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1, after “Act” insert “or the Equality Act 2010”.

Part 4

Admissions and exclusions

Admissions

13    (1)  

This paragraph applies if appeal arrangements have been made in relation

20

to admissions decisions.

      (2)  

A claim that a responsible body has, because of a person’s disability,

contravened Chapter 1 of Part 6 in respect of an admissions decision must be

made under the appeal arrangements.

      (3)  

The body hearing the claim has the powers it has in relation to an appeal

25

under the appeal arrangements.

      (4)  

Appeal arrangements are arrangements under—

(a)   

section 94 of the School Standards and Framework Act 1998, or

(b)   

an agreement between the responsible body for an Academy and the

Secretary of State under section 482 of the Education Act 1996,

30

           

enabling an appeal to be made by the person’s parent against the decision.

      (5)  

An admissions decision is—

(a)   

a decision of a kind mentioned in section 94(1) or (2) of the School

Standards and Framework Act 1998;

(b)   

a decision as to the admission of a person to an Academy taken by

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the responsible body or on its behalf.

Exclusions

14    (1)  

This paragraph applies if appeal arrangements have been made in relation

to exclusion decisions.

 
 

 
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