Chapter 3: Oversight and Advice
Oversight within Government
93.Responsibility for the rights of disabled people under the Equality Act runs across the whole spectrum of Government. The box below sets out the main departments, but others will need to be aware of their responsibilities.
Box 2: Main government departments responsible for disability issues
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Source: Information taken from www.gov.uk 84
94.Formal responsibility for the Equality Act 2010 sits with the Minister for Women and Equalities, supported by the Government Equalities Office (GEO). Charles Ramsden, Deputy Director of the Equality Framework Team in the GEO, described their role as “the oversight of the 2010 Act … the remaining segments of the 2006 Equality Act and, along with that, a sponsorship responsibility for the Equality and Human Rights Commission.”85
95.The Minister for Disabled People, currently Justin Tomlinson MP, is responsible for cross-government disability issues and strategy, supported by the Office for Disability Issues (ODI). He is also responsible for disability benefits,86 mental health matters, carers, appeals reform, Access to Work and the Health and Safety Executive. Both the Minister and the ODI sit within the Department for Work and Pensions.
96.Pat Russell, Head of the ODI, explained that their four main functions were to: “develop and monitor the cross-government disability strategy, currently the Fulfilling Potential strategy”; “co-ordinate the representation of UK interests” in the UN Convention on the Rights of People with Disabilities; “promote engagement with disabled people as part of routine policy and programme development and delivery”; and “promote actions and activities that remove the barriers that disabled people face.” This included “challenging others to take account of the needs of disabled people and to involve them in matters that impact on them.”87
Who is ‘policing’ the Act in Government?
97.The Discrimination Law Association reflected the concerns of many when they commented on: “the lack of strong commitment and leadership within central government to achieve the aims of the Equality Act 2010.”88 They felt that:
“Neither the GEO nor the past or present Minister for Women and Equalities seems to want to take on the role of monitoring or influencing in any way the decisions by various other Ministers when policies which are likely to have adverse impact on disabled people are being considered or adopted.”89
98.Rt Hon Nicky Morgan MP explained that: “At the Government Equalities Office, we give advice to departments about the application of the duty and the Equality Act. We run training exercises for staff in other departments. We circulate guidance on the duty. But we do not, as the Government Equalities Office, take decisions for other departments.”90
99.Ms Russell emphasised the enabling nature of the ODI, making it clear that despite the aim of “challenging” others91, they were “not a policing forum” and had “no powers to require other departments to do things.” 92 Responding to a question on how the Equality Act fits with current government policy, Ms Russell responded that: “All government departments in developing policy have to take account of the public sector equality duty, and the GEO has published guidance to ensure that departments understand what that is. It is not the role of the Office for Disability Issues to police that.”93 When pressed further on what the ODI would do if they felt that the Government was moving in the direction of a breach of the Act she repeated that: “In terms of individual policy areas, we very much expect individual departments to ensure that they meet the public sector equality duty.”94
Developing effective cross government policy and strategy
100.The Government told us that “the Minister for Disabled People meets regularly with Ministerial colleagues and chairs the Interdepartmental Ministerial Group on Disability to ensure progress of the disability strategy Fulfilling Potential across government.”95 The Inter-Ministerial Group was set up in 2014, “has 14 government departments represented on it and met three times last year.”96 It is intended to be “a vehicle by which Ministers can get together and identify areas of common interest where there is a need to get better co-ordination across government.”97
101.Neil Crowther, an independent expert who had worked on disability policy at the EHRC and its predecessor, the Disability Rights Commission, explained that the ODI was “specifically conceived to achieve cumulative impact. The idea was to coordinate across government policy so that it was more effective; to tie different strands of activity together; to create some kind of coherence.” He was concerned that “that coherence has gone. We do not have that level of direction.”98 Aspire, a national charity providing practical help to people with spinal cord injury, similarly felt that it was “difficult to find evidence of cross departmental work that focuses on the wider needs of disabled people.” This had not always been the case; in the past there had been greater transparency, with “ambitious targets” and the involvement of disabled people.99
102.Despite the formal structures set out above, the lack of coherence and coordination became apparent when we questioned the Government on the closure of the Independent Living Fund, a decision that did not sit well with the objectives of the Fulfilling Potential strategy. Ms Russell distanced the ODI and the strategy from the fund, telling us that it was now “under the remit of the Department of Health, which will have responsibility for monitoring how local authorities are delivering against their new requirements.”100 However, the Minister for Disabled People was unable to identify a Minister and department with overarching decision-making power for the fund, despite being asked this five times.101 It appeared that responsibility had in fact been dispersed, with no single point of accountability. This perhaps explains why, when we asked the Department of Health how they had worked with the ODI on the transfer of responsibility for the Independent Living Fund, the official appeared unaware of concerns.102 This was despite reporting positive relationships with both the GEO and the ODI and telling us that the ODI kept “tabs” on their progress.103
103.When the Secretary of State was asked for information on the involvement of the Government Equalities Office in the decisions around the closure, she confirmed that “neither GEO officials nor its legal advisers were involved in any decisions or legal advice to the DWP on either judicial review” of the decision to close the fund. Instead, she highlighted the role of the GEO in offering, on request, “advice to other Departments on good practice compliance with the public sector equality duty”.104 Had they been more involved it might not have helped. Charles Ramsden told us that they had been focussed on attempts to “scale back what was seen as overcompliance.”105 He acknowledged, however, that “how the courts have interpreted compliance with the duty has sometimes been rather different and much more substantive”106 and the Secretary of State told us the guidance was now being updated.107
104.The “confusing and ineffective”108 arrangements affecting both the GEO and the ODI seem to be one reason for this state of affairs. In July 2015 Charles Ramsden described the arrangements for the GEO:
“We report to the Secretary of State for Education, Nicky Morgan, who is the senior Minister for Women and Equalities, but our junior Minister, Caroline Dinenage, has joint responsibilities in Education and the Ministry of Justice. Our spokesman in the Upper House is Baroness Williams, who is actually a Communities and Local Government Minister. This is a pattern with which the Government Equalities Office has become fairly familiar over the years—a number of splits of responsibility.”109
105.Mr Ramsden felt that this helped them with “the mainstreaming of equalities consciousness in Whitehall”.110 The Equality and Human Rights Commission, for which the GEO is responsible, felt differently. Baroness O’Neill of Bengarve, the Chair of the EHRC, told us of the effect of such changes:
“One member of staff told me she thought that, if you counted the switches … it added up to eight switches. Each switch is very costly, in terms of building relationships, achieving continuity and educating a new group of colleagues in the Civil Service.”111
106.For the ODI, its ability to fulfil its cross-government role was put into question by its location in the Department for Work and Pensions. Paul Breckell, speaking for the Disability Charities Consortium, explained that:
“Of course the department needs to sit somewhere, but it sits within DWP. The cross-government role is so, so important for the ODI, because disabled people live their lives and this is not confined to the disabled person as an employee, or an Access to Work claimant, or somebody who is receiving benefits or social security. It is much broader than that … it takes one small slip of rhetoric to move from there to talking about disabled people as benefit claimants.”112
107.Witnesses also wondered where the Minister’s loyalties lay when spending cuts were proposed. Reflecting on campaigning on the cap on Access to Work, Paul Breckell told us that the Disability Charities Consortium felt that “at the end of the day the loyalty in that case was to deliver to the DWP budget.” In contrast, the ODI had supported Action on Hearing Loss to raise concerns with the Department of Health about cuts to hearing aid provision, albeit with little success.113
108.A further concern was that in 2015 the Government had downgraded the role of Minister for Disabled People from Minister of State to Parliamentary under Secretary of State, the most junior Ministerial position. This risked undermining the influence of the cross-government role114 and “seemed to suggest to the disability movement that disability issues were less important.”115 The solution advocated by the British Deaf Association was to relocate the role into the Cabinet Office.116
109.The position of the GEO has, at least to a degree, been resolved. The Government informed us on 27 July 2015 that the Office was being “brought fully into the Department for Education.”117 The Minister responsible for policy on the Equality Act is now also responsible for the relevant budget and we agree this should “create more coherence in the GEO’s ways of working”.118
110.Locating both the Minister for Women and Equalities and the Government Equalities Office within the same department is welcome, and we hope that the Government will keep in mind the need for coherence and stability if and when any future changes are made to the location of the equalities portfolio.
111.The problems facing the Minister for Disabled People and the Office for Disability Issues are not so straightforward. We have sympathy for the concerns of witnesses regarding the location of the ODI in the Department for Work and Pensions, though it does not seem to us that any other single department is better suited. The risk of split loyalties is a real one, especially given the downgrading of the status of the Ministerial role.
112.The ability of the Minister to influence policy and practice across Government is more important than the location of the Minister’s portfolio. We agree that this has been diminished by the change in status of the Minister for Disabled People, and greatly regret the decision of the Government to downgrade the role in this manner. The effectiveness of the role is also affected by the lack of power to challenge policy that may impact adversely on disabled people.
113.The Cabinet’s Social Justice Committee, whose terms of reference are “To consider issues relating to poverty, equality and social justice”, has 16 members, but the Minister for Disabled People is not one of them. He should be made a member.
114.The Committee should ensure that government departments do not take any major initiatives which will or may affect disabled people without first obtaining the Committee’s agreement.
115.The Minister responsible for Children and Families has the rank of Minister of State, and until 2015 so did the Minister responsible for cross-government disability policy and strategy. The Minister for Disabled People should have the rank of Minister of State restored, to emphasise the importance of the post.
The Equality and Human Rights Commission
The Disability Rights Commission
116.British anti-discrimination law has traditionally provided for national bodies charged with oversight of the relevant enactments and with powers to take strategic action. As far back as 1975 the Sex Discrimination Act established the Equal Opportunities Commission (EOC) which was followed not long after by the Commission for Racial Equality (CRE), set up under the Race Relations Act 1976. Barbara Cohen of the Discrimination Law Association, quoting from the White Paper that led to the 1976 Race Relations Act, told us that the CRE and EOC had been “given quite substantial enforcement powers” with the expectation “that the bulk of the enforcement of those laws would fall onto those bodies rather than onto individual complainants.”119
117.As explained in Chapter 2, the Disability Discrimination Act 1995 did not initially follow suit. Instead it established an advisory National Disability Council. It was not until 2000 that the Disability Rights Commission (DRC) was created.120
118.The duties of the Commissions were set out in their founding statutes, and evolved with each new Commission: the Race Relations Act gave the CRE a good relations brief121 in addition to the equality and non-discrimination duties of the EOC122. The Disability Rights Commission was required to work towards the elimination of discrimination against and harassment of disabled persons; to promote the equalisation of opportunities for disabled persons; and to take such steps as it considered appropriate with a view to encouraging good practice in the treatment of disabled persons.123
119.The powers of the Commissions were also similar, and are reflected to a large extent in the powers of the Equality and Human Rights Commission (EHRC) set out in Box 3 below. Powers covered statutory and non-statutory guidance, enforcement, research and educational activities and the ability to support such activities undertaken by others. The DRC, but not the EOC or the CRE, had the power to make arrangements for the provision of conciliation services and could enter into statutory agreements in lieu of enforcement.
120.Witnesses showed considerable affection for the DRC. The Business Disability Forum told us that “the Disability Rights Commission made a lasting impact on how the law was understood by disabled people, employers and service providers through the provision of guidance and through cases it supported and took in the Courts.”124 On the Disability Equality Duty, it had been “very energetic” and “produced some fantastically good guidance and codes.”125 The TUC felt that the helpline had been a particular success: “When the DRC was in existence, its helpline was well advertised and received over 100,000 calls a year.”126 This view was shared by Andrew Lee of People First (Self Advocacy), who told us that one reason for this was that “when the DRC was running it … they went into every town and city and spoke to self-advocacy organisations and told them about it. They had a card and it said, “Here’s the telephone number: if you have a problem, use it”.”127 Engagement with disability organisations was reported to have been good128 and George Selvanera, speaking for the Business Disability Forum, felt that the DRC “really did make a lasting impact.” 129
121.The DRC operated across England, Wales and Scotland and set itself the goal of “a society where all disabled people can participate fully as equal citizens”.130 It ceased to exist in 2007, when the EHRC came into being. The new Commission clearly had a lot to live up to when it took over this work. We explore further below how effective it has been in meeting this challenge.
Role, duties and powers of the Equality and Human Rights Commission
122.The duties and powers of the Equality and Human Rights Commission are set out in the Equality Act 2006, and include specific duties and powers in respect of human rights, which have been used by the Commission as part of its work on disability.131 The Commission’s duties on equality are to:
- Promote understanding of the importance of and encourage good practice in relation to equality and diversity;
- Promote equality of opportunity;
- Promote awareness and understanding of rights under the Equality Act;
- Enforce the Equality Act; and
- Work towards the elimination of unlawful discrimination and unlawful harassment.132
123.The 2006 Act specifies in section 8(3) that when “promoting equality of opportunity between disabled persons and others, the Commission may, in particular, promote the favourable treatment of disabled persons.”133 The enforcement powers of the Commission, set out in the box below, are extensive and flow from these duties, building on those held by the EOC, CRE and DRC.
Box 3: Powers of the Equality and Human Rights Commission
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The Equality Act 2006 gives the Commission powers to:
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124.The EHRC was “extensively reviewed” by the Government between 2010 and 2015 “to ensure that its work focused properly on its key regulatory and enforcement functions.”134 A number of changes resulted from that review. Probably the most significant was the removal of the EHRC helpline and its replacement with the Equality Advisory Support Service. It also lost its power to arrange for the provision of conciliation services, a loss that we consider in Chapter 10, and had funding for its grants programme removed, as well its duties in respect of groups.135
Effectiveness
125.Given the breadth of its mandate, some witnesses questioned whether the EHRC was able to make disability a priority. Jonathon Fogerty, a tetraplegic wheelchair user who provided written and oral evidence on his experience of seeking to enforce the Act, felt that “disability sits quite far down on the agenda of the EHRC” as “there is an enormous amount of work for that Commission to do.”136 To some the Commission appeared to have taken a positive decision to distance itself from disability groups:
“When the Equality and Human Rights Commission first started I think it was very concerned, which I understand, to reach out to the wider British public and not to be overly involved with the disability groups, the BME groups, the lesbian and gay groups or whatever. They did not want to be seen as a lobby group; they wanted to be there for the whole of society. To my mind, I think the pendulum has swung a bit too far. For a while we felt that there were no real mechanisms for involvement.”137
126.The Business Disability Forum said: “The EHRC … is not an organisation to which either disabled people or employers or service providers routinely turn for help and advice.”138 Barbara Cohen felt that the EHRC was failing in its “fundamental educational role”. She recalled “the excellent poster campaign of the Disability Rights Commission that helped all of us to understand how disability is part of our society.” She felt that “we miss the strong influence which a single statutory equality body should be providing.”139
127.Doug Paulley, a wheelchair user with experience of bringing disability discrimination claims, told us:
“I was quite surprised the other day to see the extent of the various powers that the Equality and Human Rights Commission could use; to be frank, I wish it used them a lot more. I think it is important that where it sees something significant affecting disabled people, it should jump in and start to do some work on that instead of waiting until disabled people, who struggle in so many ways and who are facing increasing adversity in this country, to bring up the issue.”140
Similar concerns of a “perceived lack of enforcement capability” were expressed by George Selvanera and Paul Farmer, Chief Executive of Mind.141
128.The EHRC did not, however, appear to be overlooking disability in its enforcement action. Rebecca Hilsenrath, then Chief Legal Officer at the EHRC, told us that “in the past year, out of full funding that we have given under Section 28 [support to individual litigants], six out of 16 cases were disabled-focused. In terms of part funding that we gave under that provision, it was five out of seven. We made 18 interventions, of which eight were disability-focused and nine were relevant to disability and other protected characteristics.”142 Tracey Kerr, the Head of Legal Advisers at the GEO, argued that “in the important pieces of litigation that we have seen, it is very common for the EHRC to intervene.”143 Lesley Cox of Ofsted praised the EHRC’s enforcement record as “impressive, particularly in terms of the number of court interventions.”144
129.The EHRC received a similarly positive assessment of its work in the area of health. Flora Goldhill, the Director for Children, Families and Communities at the Department of Health told us that the Department “has a long relationship with the EHRC.”145 John Holden, the Director of Policy, Partnerships and Innovation at NHS England, regularly met with the relevant EHRC policy director and NHS England and the EHRC had “codesigned and codelivered a series of workshops for NHS England and CCGs around the country … talking about the public sector equality duty and the EHRC’s expectations.”146 Sally Warren, of the Care Quality Commission,147 felt they had a “very good relationship with the EHRC” and were members of the its Regulators, Inspectorates and Ombudsmen Forum—”a very useful forum for discussing issues with other regulators and keeping up to date.”148
130.Perhaps one explanation for the, quite stark, difference between these two sets of views is the tendency of the EHRC to intervene in cases on appeal, rather than support individual litigants at first instance—leading some to criticise the Commission for becoming involved at too late a stage. Doug Paulley told us that he was “very grateful and lucky” that the EHRC was supporting a case that he was bringing, but that:
“The case would not have happened, however—they would not have had the opportunity [to support the case on appeal]—unless campaigning lawyers and I had gone out on a limb first to bring this case. Not many people would be in a position to do that.”149
131.In response to such criticisms, Rebecca Hilsenrath, by then the Chief Executive, wrote to us to explain why the EHRC had chosen this approach. We explore their reasons in Chapter 9. Rebecca Hilsenrath also told us that the Commission was actively seeking strategic first instance cases in goods and services and in education “because the paucity of discrimination cases outside the employment sphere means that a successful judgment in a first instance case is likely to have wider impact, even without setting a precedent.”150 Identifying such cases had, however, become more challenging since the removal of the helpline, 151 an issue we return to below.
132.Another explanation may be a tendency, shown in the evidence of Baroness O’Neill and Lord Holmes of Richmond152, to describe their role as a “strategic regulator”153 in terms of what they are not—”it is the courts that enforce, not the Commission”154; “we are not a front-line organisation”155;”we are not a campaigning organisation”156—rather than what they are. This contrasts with the DRC approach of practical action towards the clear goal of “a society where all disabled people can participate fully as equal citizens”157. It seems that the EHRC are having some difficulty in defining an enforcement role appropriate to their overall strategy; what Sally Warren called the difficult balance “between where they collaborate, encourage and cajole and where, as regulators, they hit people over the head.”158
Resources
133.The budget of the EHRC has dropped by 75% since 2010, first as a result of the 2010 comprehensive spending review, then following a comprehensive budget review in 2012. Their core funding for 2015–16 is £17.1m, “with access to additional discretionary programme funding” of £6.5m.159 In 2014–15 the Commission employed 201 staff.160 This contrasts with the DRC, which “in 2006/07 had a budget of £21.2m and 205 staff.”161 The EHRC argued that:
“If budget reductions had been applied to the DRC in the same proportion as they have been to the EHRC, its budget this year would have been around £5m (assuming zero inflation for a rough and ready comparison). The EHRC’s remit is far wider than that of DRC, our powers are different, and our budget is significantly lower relative to the scope of our remit.”162
134.Nevertheless, when asked about the budget reductions Baroness O’Neill told us that: “Our budget is adequate for us to fulfil our functions”.163 Other witnesses were not so sure. Action on Hearing Loss and Scope had found that it was now “difficult for the EHRC to work with individual charities due to their limited budget”.164 Andrew Lee told us that “there are a lot of dedicated individuals within the Equality and Human Rights Commission but because of the cuts the Commission no longer has the capacity to meet its legal responsibilities.”165 Dr Peter Purton of the TUC echoed the sentiments of many witnesses when he said that:
“We are very strong supporters of the existence of an EHRC. We think what has happened is that progressive reductions in the resources provided to that organisation … have made it much less effective in terms of the support it is able to give to any of the protected characteristics, but disability particularly, because the DRC was such an excellent example of a really effective equality commission”.166
135.Crucially, the loss of resources had undermined the ability of the EHRC to have the kind of strategic impact at which it aimed. Neil Crowther, an independent consultant and former director of disability and human rights programmes at the EHRC, told us: “where the Disability Rights Commission was making strategic choices on what to do about disability rights, the Equality and Human Rights Commission has to choose whether to do anything about disability rights”167. This led him to conclude that the Commission had “become more of a bit player than a strategic leader on disability rights issues.”168
136.We support the EHRC’s intention to be strategic, in the sense of taking action that has the greatest impact, but our evidence suggests that disabled people and their organisations are not seeing or feeling the effects of that strategy. The EHRC does have a wider set of duties than the DRC, but it also has a stronger set of powers at its disposal and we believe that these could be used to much greater effect than is currently the case.
137.We recommend that the EHRC engage with disabled people and their organisations to co-produce a disability specific action plan covering the full range of the Commission’s powers. The Disability Committee’s involvement will be fundamental to the development and implementation of the plan, but it must belong to the whole organisation. Many of the recommendations we make in this report, in respect of the helpline, conciliation powers, Codes of Practice, guidance, and the Disability Committee, would give the EHRC additional tools to understand and respond to the expectations of disabled people through its strategic approach.
The Disability Committee
138.The Equality Act 2006 provided for a statutory Disability Committee, viewed by disability organisations as “a really important component in the governance of the EHRC to ensure that disability was not lost in this.”169 Government officials viewed the Committee as giving the Commission “a slight but perceptible leaning towards disability interests”.170
139.The 2006 Act provided that the EHRC was treated as having delegated to the Committee certain of its duties and powers as they relate to disability matters. Commenting on its role in enforcement matters,171 Lord Holmes of Richmond, the current Disability Commissioner and Chair of the Disability Committee, explained that: “No decision can be made to turn down a case on disability, or even concerning disability being an element of that case, without the Disability Committee’s view being taken on board.”172
140.The 2006 Act also provided for an independent review to consider the length of time the Committee should continue as a statutory body. This was conducted in 2013, and found that: “The Committee has some substantial achievements to its credit and has been involved or led some of the best-thought of work of the Commission in its first five years.”173 However, it also found that it had not been “hard-wired in” to the Commission and it had not been as effective as it might have been “as a result of a lack of strategic leadership.”174 The report recommended that the Committee should not continue in statutory form beyond March 2017, and made a number of recommendations to improve its impact. As a result the Government put forward, and Parliament approved, the Equality Act 2006 (Dissolution of the Disability Committee) Order 2014 and the Disability Committee will cease to be a statutory committee from 31 March 2017.
141.Far from supporting the removal of the statutory basis for the Disability Committee, witnesses argued that it “needs to be more prominent in order to have greater public recognition. This would allow disabled people to view the Committee as a strategic enabler and enforcer of equality, in the same way they could with the Disability Rights Commission.”175 Neil Crowther, however, cautioned that placing the Disability Committee back onto a statutory footing would not in itself be sufficient to address the concerns of disabled people as “whatever its statutory remit, its operating context is the commission as a whole.”176
142.It appears that the EHRC intends to continue the work of the Committee. The Committee has three dedicated staff posts, reserved for its operation and work programme, and an annual budget of £110,000. Lord Holmes was clear that “My intention and the intention of my fellow board members is that the change … from statutory to nonstatutory, should not impact the work of the committee, or indeed the work of the commission, as pertains to the disability strand.”177 He also told us of steps that he had taken to improve the functioning of the Committee:
“It was clear when I got involved that we needed to be far more engaged with stakeholders, to be on the ground, to go to them to get all of that information and have a twoway debate and dialogue. … We had a new engagement strategy, whereby now I am taking the committee around the country. Each year, we will visit Scotland, Wales and another English region, rather than previously, before my time, when we just had meetings based in London.”178
143.We regret the removal of the statutory underpinning of the Disability Committee, which gave a clear status and priority to the work of the Commission on disability, but do not believe it is realistic to reverse this. The Equality and Human Rights Commission has the power under Schedule 1 to the Equality Act 2006 to establish decision making committees, and it is open to the Commission to use this to re-establish the Disability Committee as a decision-making body. Doing so would enable the Committee to build on the work begun by Lord Holmes to increase its visibility and influence.
144.We recommend that, from 1 April 2017, the Equality and Human Rights Commission use its powers under Schedule 1 to the Equality Act 2006 to re-establish its Disability Committee as a decision making body, in a way that as closely as possible mirrors the current statutory functions and powers of the Disability Committee. We welcome the fact that the EHRC continues to provide dedicated staff support for the Committee, in the face of staffing reductions, and recommend that it ring-fence specific resources for the Committee.
The Equality Advisory and Support Service
145.The Government decided to remove the helpline function from the EHRC following a 2011 review into information advice and support on equality and human rights issues. The Secretary of State explained:
“The EHRC’s helpline was criticised. The Disability Alliance described its performance in 2010 as “hugely disappointing”. When we reviewed it in 2011 … it was costing [£28] a call which was more than double the cost of any benchmarked comparator. … It also was not integrated into some of the EHRC’s key regulatory functions and it had no systematic data on customer satisfaction.”179
146.This decision was much regretted by our witnesses. The TUC described it as “a major blow in terms of providing an ability for early resolution of … problems.”180 The Oxford Transport and Access Group and the National Aids Trust both complained that the outsourcing of the helpline had led to a “side-lining”181 or “disconnect”182 between the EHRC and disabled people, and the National Deaf Children’s Society felt that it had led to the EHRC no longer being able to pick up on trends in cases, preventing it from responding effectively.183
147.Baroness O’Neill agreed that this was a real problem, telling us that: “We have had considerable difficulty in accessing sufficient information about the inquiries coming into [the EASS].” In written evidence, the EHRC further explained that “the current service is not yielding the sort of strategic case referrals to the Commission that we would expect to see. While we have been working with Government and the EASS to improve the information flow from EASS to the Commission, this has been with limited success.”184
148.The Equality Advisory and Support Service (EASS) was commissioned in 2012 to replace the EHRC helpline. The contract to provide the service was awarded to Sitel, working with Disability Rights UK, the Law Centres Federation, Voiceability (an independent advocacy organisation), the British Institute for Human Rights, and the Royal Association of Deaf People.185 It offers advice directly to individuals and accepts referrals “from organisations who are unable to provide ‘in depth help and support’ for their local service users.”186 The Government told us that it received approximately 2,200 calls per month on the Equality Act and that: “Disability was the most frequently quoted protected characteristic for calls connected to the 2010 Act, representing over 60% of all enquiries.”187
149.The Oxford Transport and Access Group characterised the EASS as “a phone line manned by inexperienced staff via a completely independent agent”188, and Andrew Lee complained that the helpline had been closed down and the replacement “stuck on the website.”189 More common, however, was a feeling that its profile was low and that the advice and support it could provide too limited.190 Douglas Johnson, speaking for the Law Centres Network, told us that:
“The helpline does not provide advice … it will very explicitly steer clear of giving any sort of view on the merits of whether someone has a discrimination complaint that is valid or not, or what they should do about it, which is the bit that people really need. So it is quite ineffective.”191
150.Michele Brenton illustrated the limitations of this approach when describing her experience of seeking help to challenge discrimination by the university attended by her husband:
“I found the Equality Advisory and Support Service were very helpful up to a point. They could signpost me to the relevant areas of law so I could direct the university’s attention accordingly but even when they wrote a letter on our behalf to the university it had no force other than to give our complaints and concerns some validation. It had no effect on changing a culture of discrimination and adversarial behaviour.”192
151.The Secretary of State defended the Government’s decision to remove the helpline from the EHRC, telling us that she “would dispute the contention of people who have called it [the EASS] a failure” and that she believed it was now “providing the EHRC with a substantial volume of information” including “351 referrals between October 2014 and September this year, up from 79 in the previous 12 months.”193
152.Given that the EASS receives approximately 2,200 calls per month, it seems surprising that the Minister viewed an average of 29 referrals per month, barely 1.3% of the total calls received, as substantial—although admittedly this is a significant increase on the 6.6 referrals per month seen the year before. This may account for why the EHRC did not agree with the Minister’s assessment.
153.We also asked the Secretary of State for a comparison between the cost of the EASS and the helpline provided by the EHRC. She was initially unable to provide this, but later wrote with a comparison of £10 per call for the EASS, and £28 for the EHRC helpline. She told us that: “Costs are calculated on a per-case basis, covering everything from an initial inquiry through to final action on behalf of the customer.” This comparison was on the basis of “the call element of a case”, which the Government felt “most closely replicates the service EHRC provided”.194 We wonder if this is, in practice, the most suitable comparison, given the range of supports that witnesses felt had been lost as a result of the outsourcing of the helpline.
Box 4: The Disability Rights Commission helpline in action
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“The DRC were very helpful, telling me how to communicate and (later) communicating direct with the service provider. They further offered recourse to the (then) Disability Conciliation Service; then when the service provider refused, they made a referral to see if the DRC’s lawyers wished to take it on as a piece of strategic litigation. When their lawyers refused, the DRC sent me a copy of their publication “Goods and Services: How do I make a claim? A guide to taking a Part 3 DDA case to the County Court”. I litigated this case myself and lost, but in the process I learned a considerable amount about my rights under the Act and how to enforce them as a litigant in person.” |
Source: Supplementary written evidence from Doug Paulley (EQD0176)
154.Creating an entirely new service, divorced in practice if not in intent, from the work of the national enforcement body has failed to provide disabled people with the level of service they require. Bringing the service back in-house to the EHRC would enable it to embed the helpline into its role as a strategic regulator and make it more responsive to the needs of disabled people. It would also provide the helpline with access to expert legal advice, a restored conciliation service, and, where appropriate, assistance in bringing forward litigation. Far from costing more, such an approach would remove possible duplication and confusion between the roles of the EASS and the EHRC and might ultimately produce savings.
155.We recommend that the Equality Advisory and Support Service be returned to the Equality and Human Rights Commission, either in-house or as the contract managers for a tendered-out service.
156.We further recommend that, once the Equality and Human Rights Commission is again responsible for the services provided by the EASS, it should develop a service specification and strategy to realise fully the advantages of in-house provision, including face-to-face legal advice, the restored conciliation service and the link to its enforcement function.
Codes of Practice
157.The EHRC has a power to issue codes of practice in connection with any matter in the Equality Act 2010.195 It consults widely before doing so, and submits the Code in draft to the Minister who then lays it before Parliament. It is then approved by Order. Such Codes do not themselves impose legal obligations, but the Equality Act 2006 provides that they “shall be admissible in evidence in criminal or civil proceedings, and shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.”196
158.On 6 April 2011 the Minister for Women and Equalities made an Order197 giving statutory force to three Equality Act Codes: the Services Code,198 the Employment Code199 and the Equal Pay Code.200 Some witnesses felt that the Codes were too generic: Fazilet Hadi of the Royal National Institute of Blind People (RNIB) said “it is all very rational and it is all very tidy, but does it really make people emotionally own the issue and the need for change?”201 We hope that our recommendation, in Chapter 5, for a new Code of Practice on Reasonable Adjustments will meet some of these concerns. The Law Centres Network felt that, while in need of updating, the Codes provided “practical and useful guidance”. 202 The Disability Law Service found the Employment Code particularly useful “as it sets out a range of possible adjustments.”203
159.The EHRC drafted codes of practice on the Public Sector Equality Duty (PSED), and for Schools and the Further and Higher Education duties, with the intention that they become statutory Codes. The Government, however, decided not to lay the draft Codes before Parliament. This was much criticised by witnesses, especially in respect of the Code on the Public Sector Equality Duty. The Discrimination Law Association felt that this could be one of the reasons for the PSED not being as effective as it could be: “A statutory code could have assisted public authorities and disabled people to have a fuller understanding of what compliance entails.” This could have helped avoid “the stress and expense of litigation.”204 Equity, a trade union representing performers and creative workers, felt that the lack of such a Code “gives the message that the duty is a less important part of the law.”205
160.These concerns were echoed by the Law Centres Network, Lord Low of Dalston, and Mind, all of whom argued for detailed guidance, with Douglas Johnson describing the draft Codes prepared by the EHRC as “very helpful, very clear and very practical.”206 In education, both Anna Kennedy, an autism charity, and IPSEA were concerned that “schools do not have their own Code of Practice. A draft Code was issued but the progress of this work was truncated … in our opinion this was a mistake.”207
161.The EHRC decided to produce the original text of those draft Codes as technical guidance which, despite the lack of a statutory basis, they believed “will still provide a formal, authoritative, and comprehensive legal interpretation of the PSED and education sections of the Act.”208 The Discrimination Law Association told us that this was “very useful, but both qualitatively different and lacking the influence of a statutory code.”209
162.On 21 July 2015 Rebecca Hilsenrath, then the Chief Legal Officer of the EHRC and now its Chief Executive, told us: “We had quite a serious degree of correspondence with [the Government] last year, and in fact we have written to them very recently since the general election. Within the last month or so, we wrote asking if they would reconsider. We are waiting to hear back from them.”210 Eight months later, and despite two reminders, the EHRC had still not received a reply from the Government.
163.We do not know what prompted the Government to agree to give the guidance drafted by the EHRC the status of a Code of Practice in three cases, but to decline to do so in three other cases. The Secretary of State told us that it was “simply because they were just too long and were going to increase burdens.”211 This is unconvincing and ignores the burdens on disabled people resulting from the lack of such statutory guidance. We applaud the aim of brevity but evidence shows support for the level of detail in those already drafted by the EHRC. Codes of Practice, alongside shorter targeted guidance, reduce regulatory burdens by adding clarity and information. Given this, the Government’s decision seems to us perverse.
164.We recommend that the Government lay before Parliament as Codes of Practice the technical guidance on the Public Sector Equality Duty, Schools, and Further and Higher Education that have already been drafted and extensively consulted on by the Equality and Human Rights Commission.
86 Listed on www.gov.uk as: Disability Living Allowance, Personal Independence Payment and Attendance Allowance
88 Written evidence from Discrimination Law Association (EQD0129). Such concerns were echoed by: Aspire (EQD0025), Douglas Johnson Q 49, Lucy Scott-Moncrieff Q 51, Paul Breckell Q 106, and Equity (EQD0064)
94 Ibid.
97 Ibid.
103 Ibid.
106 Ibid.
110 Ibid.
112 Q 111 (Paul Breckell). These concerns were shared by Aspire (EQD0025) and the RNIB (EQD0164) among others.
116 Ibid.
118 Ibid.
120 By the Disability Rights Commission Act 1999
121 Race Relations Act 1976, Part VII
122 Sex Discrimination Act 1975, Part VI
123 Disability Rights Commission Act 1999
130 Disability Rights Commission, Evaluating the Impact of the Disability Rights Commission: Final Report, September 2007, p 9
133 Equality Act 2006, section 8(3)
134 Written evidence from HM Government through the Department for Education (EQD0121). The most relevant review document was: HM Government, Building a fairer Britain: Reform of the Equality and Human Rights Commission, response to the consultation, May 2012 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/85308/EHRC-consultation-response.pdf [accessed 11 March 2016]
135 Legislative changes to the Equality Act 2006 were made by the Enterprise and Regulatory Reform Act 2013. That Act repealed the EHRC’s powers and duties to promote good relations between and within group and its power to make arrangements to provide conciliation. The EHRC helpline and grants programme were removed by a transfer of the relevant budgets to the Government Equalities Office.
147 Deputy Chief Inspector of Adult Social Care
151 Ibid.
152 The EHRC Disability Commissioner.
153 A term used by the EHRC and the Government, but not any other of our witnesses.
157 See para 121
160 Equality and Human Rights Commission, Annual Reports and Accounts 2014–15 (July 2015) p 66: http://www.equalityhumanrights.com/sites/default/files/publication_pdf/2904124_EHRC_AnnualReport2015_acc.pdf [accessed 2 March 2016]
162 Ibid.
171 Equality Act 2006, Schedule 1, Part 5
173 Agnes Fletcher, Independent Reviewer, Independent Review of the Equality and Human Rights Commission’s Statutory Disability Committee, June 2013, p. 53: http://www.equalityhumanrights.com/sites/default/files/publication_pdf/independent_review_report_final_for_web.pdf [accessed 2 March 2016]
174 Ibid., p 53
185 Press Release from the Government Equalities Office, New Equality Advisory and Support Service is launched, 15 November 2012: https://www.gov.uk/government/news/new-equality-advisory-and-support-service-is-launched [accessed 2 March 2016]
186 Equality Advisory and Support Service, ‘About Us’: https://www.equalityadvisoryservice.com/app/about [accessed 29 February 2016]
195 Under section 14(6) of the Equality Act 2006
196 Equality Act 2006, section 15(4)
197 The Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment, and Equal Pay) Order 2011, (SI 2011/857)
198 Covering Part 3 of the Act, which makes it unlawful to discriminate against, harass or victimise a person when providing a service.
199 Covering provisions which make it unlawful to discriminate against, harass or victimise a person at work or in employment services, and that restrict the circumstances in which potential employees can be asked questions about disability or health.
200 Covering provisions of the Act relating to equal pay between men and women; pregnancy and maternity pay; and provisions making it unlawful for an employment contract to prevent an employee disclosing his or her pay. It is therefore not directly relevant to disability.
202 Written evidence from Law Centres Network (EQD0135). A need for greater clarity on what constitutes a reasonable adjustment tended to be the basis of calls to update these Codes and we deal with that in Chapter 5.
206 Written evidence from Law Centres Network (EQD0135), Lord Low of Dalston (EQD0165), Mind (EQD0147) and Q 103 (Douglas Johnson)
208 Equality and Human Rights Commission, ‘Equality Act guidance, codes of practice and technical guidance’: http://www.equalityhumanrights.com/legal-and-policy/legislation/equality-act-2010/equality-act-guidance-codes-practice-and-technical-guidance [accessed 11 March 2016]