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We therefore tabled an amendment to come after Clause 159. This contains the order-making power which would allow the Secretary of State to make regulations to ensure that disabled people could get into and out of private hire vehicles in safety, get into and out of private hire vehicles in wheelchairs and travel in private hire vehicles in safety and comfort. These reasonably far-reaching regulations could also specify the size of door openings for passengers, the floor area and the amount of headroom in the passenger compartment and the fitting of restraining devices to prevent a wheelchair from moving while the vehicle was in motion.
Will the Minister let us know whether any research has been carried out to show how many private hire vehicles are currently accessible for people with disability? Is she able to provide any figures which would demonstrate the disadvantage currently experienced by people with disability, thereby pointing to the need for regulation-making powers? We on these Benches are concerned to ensure that, where necessary, changes are made.
Throughout the passage of this Bill, we have tried to underline the point that, where it is necessary to ensure equality, people with disability can be treated in a more favourable way than people who are not disabled. We are pleased to see the Government's letter of 26 January, which stated that they were "minded" to accept Amendment 120A tabled by the noble Baroness, Lady Wilkins. This amendment would seek to ensure in a new clause that suitable numbers of wheelchair-accessible taxis operate throughout England and Wales.
We welcome the intention of this clause, but I ask for clarification on a couple of points. The amendments appear to give further powers to the Secretary of State, thus removing them from the local authorities. Can the noble Baroness explain why this is necessary if the local authorities will already be subject to the public sector equality duty? Is this a symptom of the vague, and so far undefined, nature of the duty, making it necessary to give powers to the Secretary of State, or is it an indication that the Government already doubt the way this duty will work?
I hope that in her response the noble Baroness will also indicate what consultation and discussion have taken place with the Local Government Association and taxi organisations about this matter, and what views were expressed. I also wonder whether she might be able to address some more specific questions to do with the capability of a vehicle to accommodate a wheelchair. We have been informed that no wheelchair is crash-tested for a situation where it is rear-facing. Despite this, most private hire vehicles can accommodate only rear-facing wheelchairs.
Is the noble Baroness aware that this is the case, and does she agree that it seems unsuitable and that perhaps changes need to be made? We are also informed that no council arranging school transport carries out checks to see whether wheelchairs are crash-tested and certified. Can the noble Baroness inform the Committee whether such checks or similar are required to be carried out, and does she not think that there is a case for calling for such safety measures? I look forward to the Minister's response. I beg to move.
Baroness Wilkins: My Lords, I shall speak to Amendment 120A in my name, which concerns the lack of accessible taxis available to disabled passengers. I welcome the support of the noble Lord, Lord Hunt. The proposed new clause would mean that taxi-licensing authorities which have a policy of controlling taxi numbers could not refuse to grant a taxi licence for a wheelchair-accessible vehicle if fewer than a prescribed proportion of taxis in the district were wheelchair-accessible. At present, a taxi-licensing authority outside London can refuse to grant a licence if it is satisfied that there is no significant unmet need for taxi services in the district. As a result, a licensing authority with a quantity-control policy and relatively few or no accessible taxis in its fleet can refuse applications for wheelchair-accessible vehicles. Noble Lords can imagine what that means for a wheelchair user who needs a taxi when, for instance, they arrive in the area by train. They are stranded. One must also think what it means for those living in the area when they need to get to an urgent appointment or visit friends and have a social life.
The new clause would mean that a licensing authority could not refuse to grant a licence for any wheelchair-accessible vehicle if it had fewer than a prescribed proportion of accessible taxis in the district. The proportion of accessible taxis would be prescribed by the Secretary of State following economic assessment and consultation. The provision of accessible transport is essential for equality of opportunity. I hope that the Minister will accept the amendment.
Lord Wallace of Tankerness: My Lords, I welcome the debate initiated by the noble Lord, Lord Hunt, and in particular the proposed new clause spoken to by the noble Baroness, Lady Wilkins. Her last point, that accessibility to transport is crucial for equality of opportunity, sums it up. We on these Benches are happy to support her amendment.
Baroness Howe of Idlicote: My Lords, I speak briefly to support the amendment, not least because, on Sunday evening, a disabled friend came to visit. A licensed taxi came to pick him up and could not take
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The Archbishop of York: My Lords, when the noble Baroness, Lady Campbell of Surbiton, moved her amendment last time on the question of need, the right reverend Prelate the Bishop of Liverpool spoke out clearly in the debate. In the General Synod of the Church of England, we received a report from a number of disabled people, and access was one of the greatest areas of concern. The amendment tabled by the noble Baroness, Lady Wilkins, would address that concern, and I support it, because it strikes the right balance. Access is absolutely critical.
Amendments 121, 122 and 123 relate to the ability of taxi-licensing authorities to maintain lists of wheelchair-accessible taxis and private hire vehicles that operate in their area. Drivers of such designated vehicles are required to perform the duties in Clause 163 to carry and assist disabled passengers who use wheelchairs. Clause 165 enables Scottish licensing authorities to maintain lists only of wheelchair-accessible taxis and private hire vehicles that hold a special licence to operate a local bus service. They will be unable to list wheelchair-accessible taxis and private hire vehicles that operate under conventional licences. This would mean that the drivers of vehicles with a conventional licence would not be obliged to carry out the duties in Clause 163, even though their vehicle was capable of carrying disabled passengers who use wheelchairs.
The amendments will align the position in Scotland to that in England and Wales. This will give greater assurance to disabled people that, when they require a wheelchair-accessible taxi or private hire vehicle, the driver will assist them to enter and exit the vehicle and, if they decide to remain in the wheelchair while travelling in the vehicle, will ensure that the wheelchair is secure and safe and that they travel in reasonable comfort.
Amendment 120A is in the name of my noble friend Lady Wilkins. Taxi licensing and provision is a complicated area, and steps to improve access to taxis for disabled people are always welcome. It is unacceptable that a licensing authority which controls taxi numbers can routinely refuse applications for wheelchair-accessible taxis when it has very few wheelchair-accessible taxis in the district or, indeed, none at all. This new clause provides an ideal means of enhancing accessible taxi provision in these areas.
I thank my noble friend Lady Wilkins for her amendment, which is compatible with the aims of the Bill and has the effect of improving accessibility for disabled people. In making any regulations under this clause, the Government would, of course, consult interested parties before reaching a decision on the proportion of taxis which must be wheelchair accessible and on the specifications of the wheelchair which taxis must be capable of accommodating. Therefore, the Government will accept Amendment 120A.
I now turn to Amendment 120 and the legitimate points raised by the noble Lord, Lord Hunt. I have already mentioned the issues of safety and the appropriate provision to be provided in taxis and licensed vehicles. The noble Lord raised a very reasonable point about safety and taxis. This is not in my notes but it should be. I have already mentioned that checks on safety are included and would be included in the regulations that arise out of my noble friend's point. I will undertake to ensure that the issue is properly addressed in the regulations and guidance which arise out of these provisions. I shall also write to the noble Lord and the Committee on this matter. From the wisdom that is offered to me from time to time, I can say that vehicles used for taxis are tested in accordance with European safety regulations and those requirements include crash testing. They must also be designed to accommodate wheelchairs safely in rear-facing orientation. We have taken that on board.
The noble Lord's amendment is a probing amendment on this subject, and its principal objective would be to require all private hire vehicles to be wheelchair accessible. That would be incredibly burdensome to the private hire industry. Looking at the range of private hire vehicles which are available, we need information to be available to disabled people about what is in their area so that we can move forward in an orderly fashion. To say that all private hire vehicles have to provide for wheelchair access may be a step too far. However, the private hire vehicle trade is fundamentally different from the taxi trade: taxis can ply for hire, stand in ranks and be hailed in the street, whereas private hire vehicles must be booked in advance through a licensed operator.
I should point out that, as the amendment is drafted, it could be seen to be technically defective as it refers to private hire vehicles plying for hire and of course the noble Lord will be aware that that is illegal. We think that converting or replacing all private hire vehicles would be so costly to the trade that it would no doubt force many operators out of business. Given the important role that private hire vehicles play in providing public transport, I am sure the noble Lord would not want to go in that direction.
However, there is scope for using legislation to enhance the service which disabled people receive from private hire vehicles. In addition to the general duty not to discriminate, drivers of private hire vehicles designated as wheelchair-accessible vehicles will, under Clause 163, be required to assist their wheelchair passengers. I hope that explains why we do not agree with Amendment 120 and why we would like to accept Amendment 120A.
Lord Hunt of Wirral: First, I am very grateful to the noble Baroness. I hasten to reassure her that it was, as I pointed out, only a probing amendment. We are well aware of the importance of the private hire vehicle industry, which plays a critical part in making the necessary provision available. I am very grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Wilkins.
I too am very pleased indeed that the Government are minded to accept Amendment 120A. So far as the other comments of the noble Baroness are concerned,
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(a) an application for a licence in respect of a vehicle is made under section 37 of the Town Police Clauses Act 1847,
(b) it is possible for a disabled person-
(i) to get into and out of the vehicle in safety,
(ii) to travel in the vehicle in safety and reasonable comfort, and
(iii) to do the things mentioned in sub-paragraphs (i) and (ii) while in a wheelchair of a size specified in regulations made by the Secretary of State, and
(c) the proportion of taxis licensed in respect of the area to which the licence would (if granted) apply that conform to the requirement in paragraph (b) is less than the proportion that is specified in regulations made by the Secretary of State.
(2) Section 16 of the Transport Act 1985 (which modifies the provisions of the Town Police Clauses Act 1847 about hackney carriages to allow a licence to ply for hire to be refused in order to limit the number of licensed carriages) does not apply in relation to the vehicle; and those provisions of the Town Police Clauses Act 1847 are to have effect subject to this section.
(1) A landlord does not contravene this Act so far as relating to disability by doing anything to obtain possession of the premises from the tenant pursuant to the provisions of section 21 (obtaining possession from an assured shorthold tenant) of Part 1 of Schedule 2 to the Housing Act 1988 (mandatory grounds for possession).
Lord Hunt of Wirral: My Lords, this amendment refers to the effect of the decision of the House of Lords in the Lewisham v Malcolm case, in which-your Lordships may recall it-landlords seeking possession from tenants with disability, particularly those suffering from a mental disability, did not need to justify their decision to take possession proceedings. In the light of that case, I lay out very clearly that our position is firmly in support of the new provisions that address the hole left by this judgment. We want to ensure that people with disability receive the right level of protection from disability-related discrimination. We are fully supportive of the alterations that need to be made to the letter of the law to return to what it was mistakenly thought that the spirit of the law already encapsulated.
We ask, however, what has happened so far as consultation is concerned, in particular between the Equality and Human Rights Commission and the landlord associations. We on these Benches believe that reversing the Malcolm decision is necessary and right. Nevertheless, we would want to ensure that this was done in such a way as to make certain that there were no loopholes whereby a landlord could not get rid of a problem tenant simply because they claimed to have a disability that was not in fact the case.
The effect of the reversal of the Malcolm decision will be that the mandatory grounds of possession-Section 8 of the Housing Act 1988 for a rent arrears of two months and Section 21 for shorthold tenants who have reached the end of their tenancy-will mean that landlords still have to justify possession. However, landlords are rightly concerned that in cases of indirect discrimination, the grounds of possession will become discretionary. This could become important if, for example, a tenant blamed their anti-social behaviour
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Will the noble Baroness inform the House what discussions have been had with landlord associations here and what reassurances she can offer them? Furthermore, will she inform the House how much evidence of proof would be needed to justify obtaining an order for possession against a person with disability in a situation of indirect discrimination? What form can that proof take? Moreover, does the Minister accept that in practice it will be very difficult for landlords to recoup the costs of defending claims of possession, even where the claims are won?
I have posed a lot of questions. If the Minister cannot answer them tonight, perhaps she might do so before Report. We are fully supportive of the changes which would see the Malcolm decision reversed, but there are other important considerations to take into account and other key players to protect. I beg to move.
Baroness Thornton: My Lords, Amendment 125C would set out in the Bill a provision that ensured that the duty of the courts in England and Wales to grant possession to a landlord in certain cases under the Housing Act 1988 was not hampered by the disability provisions of the Bill. I appreciate that the amendment has been tabled to explore the avenues explained by the noble Lord.
The noble Lord appears to have concerns that the disability provisions which we debated earlier in Committee might prevent landlords taking action under the auspices of the Housing Act. Noble Lords will recall that similar issues have arisen in the past, such as when a disabled tenant was evicted by Lewisham Council because of a breach of his tenancy agreement.
This Committee is not considering landlord and tenant legislation, I am relieved to say, which can be complex. I am sure noble Lords will forgive me if I do not delve too deeply into details of the Act referenced in the amendment. However, as the noble Lord was asking me about the consultation process, I recalled that when in 2008 I was involved in the discussions on building this Bill and the Malcolm case was concurrent, the DWP conducted a public consultation late in that year. I cannot give the noble Lord chapter and verse on who took part in that consultation in terms of landlord organisations, but I undertake to find out and let him know. However, I know that the consultation took place and informed how we proceeded with the Bill.
I appreciate that this amendment is meant to clarify the relationship between the disability provisions of this Bill and housing legislation, and that that relationship has caused some confusion in the courts. However, the difficulty in those cases was that the scope of the landlord to justify his treatment of the tenant under the DDA was very limited. One of the changes the Bill has made to the disability provisions is to provide a defence of objective justification to discrimination arising from disability and to include disability within
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