Chapter 5: Reasonable Adjustment
193.Sections 20 and 21 of the Equality Act 2010 require those to whom the provisions apply, including employers, service providers, educational institutions, transport providers, and sports bodies, to “take such steps as it is reasonable to have to take” to avoid putting disabled people at “a substantial disadvantage”264. Failure to comply with this duty is a form of discrimination. The duty is not offered on other grounds and reflects the social model of disability which requires changes to the environment, as well as attitudinal and behavioural changes, if disabled people are to participate in society on an equal basis and with dignity and respect. The precise duty has evolved over time and varies across the different aspects of life with which the Act is concerned, as explained in the box below.
Box 5: The Reasonable Adjustment Duty
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In general, the duty to make reasonable adjustments requires the taking of “such steps as it is reasonable to have to take” to avoid a disabled person being put at a “substantial disadvantage” by any of the following: (a) A “provision, criterion or practice”. This could be, for example, adjusting a uniform or dress policy to accommodate different impairment types. (b)A physical feature. This could include, for example, steps, parking areas, signage, floor covering, furniture and toilets or washing facilities. (c)Lack of an auxiliary aid or service. Examples here are providing a specialist piece of equipment, a videophone, or a sign language interpreter. Adjustments under a) or c) could include making information available in an accessible format. It is not permissible to pass the costs of making an adjustment on to the disabled person.265 The duty in employment Employers are required to meet all three limbs of the duty in respect of disabled job applicants and employees. The duty is ‘reactive’: it requires there to be an identified applicant or employee, and for the employer to know, or be reasonably expected to know, that that person is disabled, and that they are likely to be at the substantial disadvantage without the adjustment. The duty also applies in respect of some other types of work, such as contract work and barristers. The duty in respect of premises Similarly, a controller of let premises or of premises to let is required to react to the needs of tenants, but not to anticipate them. So they may be required to provide a rent agreement in an alternative format such as large print, but are not required to plan for this themselves. Nor do the controllers of premises have to make adjustments to physical features, other than certain auxiliary aids that might otherwise be classified as physical features—such as an entry phone system. The duty in the provision of services and public functions Those providing services and exercising public functions are bound by all three requirements. The key difference with employers is that in the case of services and public functions the duty is ‘anticipatory’: it is owed to “disabled persons generally” and requires service providers and those exercising public functions to proactively remove barriers that could put disabled people at a substantial disadvantage without waiting for a disabled person to seek to use their services first. The duty in schools and further and higher education The duty on schools and in further and higher education is again ‘anticipatory’. Schools, universities, and higher and further education institutions are required not only to respond to the needs of disabled pupils, but to anticipate access needs of disabled people. Schools are not subject to the requirement to adjust physical features, but they must prepare accessibility strategies and plans to address disadvantages associated with physical features. The only exception is in respect of qualifications and competence standards, which are not subject to the duty to make reasonable adjustments, but instead may need to be justified if they are indirectly discriminatory. |
194.The Government has recognised the reasonable adjustment duty as the “cornerstone”266 of disability discrimination law and “a consistent key element of disability discrimination … legislation for the past 20 years.” This led it to believe that “the concept of reasonable adjustment is by now well known to employers and service providers alike.”267 The concept has evolved through a large body of case law. This was viewed by Tracey Kerr, the Head of Legal Advisers at the Government Equalities Office, as to be expected “given that it is an objective test and it is usually for the courts to set that out.”268 Indeed, she argued that:
“We have found that as the case law has developed it becomes clearer and clearer for people to understand what a reasonable adjustment might be in certain cases. So we think that that has been a successful development of case law.”269
195.We agree with the Government on the importance of the reasonable adjustment provisions of the Equality Act. They are a clear example of the need for what may appear to be more favourable treatment to achieve equality for disabled people, and a practical expression of the social model of disability. The Public Interest Research Unit (PIRU) cited research showing that adjustments had “enabled organisations to recruit and retain valuable staff and helped disabled individuals to work and progress in their careers” They argued that such provision “could substantially reduce the disability employment gap.”270
196.It is worrying, therefore, that evidence of problems in obtaining this right have emanated from almost every part of society. We heard of problems in gaining reasonable adjustments from employers271 and education providers,272 on buses and trains, and in taxis273, shops, restaurants and hospitals.274 We were told of sports grounds275 and other entertainment venues276 that failed to make necessary adjustments.277 Problems were reported in the criminal and civil justice systems278 and with bodies charged with enabling disabled people to access their rights.279
197.We heard of employers responding to requests for reasonable adjustment by making an employee redundant280 and of “disabled people being offered a termination package as a first response to a grievance being raised in respect of a reasonable adjustment.”281 We were told that pubs and restaurants sometimes used their disabled toilets as storage facilities,282 while cleanliness was often a problem at sports venues283. Attitude is Everything, a charity working to improve disabled people’s access to live music, told us that festival organisers and those responsible for entertainment venues lacked “creative thinking” on adjustments.284 Andrew and Michele Brenton described the practical and attitudinal barriers they faced when seeking to secure reasonable adjustments at a university.285 The British Deaf Association cited the refusal of schools to provide BSL interpreters for deaf parents.286 Mencap told us of how the Confidential Inquiry into Premature Deaths of People with Learning Disabilities had found many examples of where reasonable adjustments should have been made and were not, “thereby disadvantaging people with learning disabilities at crucial stages of the care pathway”.287 The RNIB and many others cited problems with receiving information in inaccessible formats, a concern we considered in more detail in Chapter 4.288 Fazilet Hadi said:
“This is not rocket science. They should have been doing it since 1999 and they are still not doing it. We have inaccessible websites, inaccessible streetscapes, inaccessible services, and government really should be leading the way. They should be role models for this stuff and they are not. There are countless examples of government departments that still send me bits of paper that I cannot read.”289
198.Some told us that they were often not recognised as disabled, or as having a right to reasonable adjustments. This was particularly so for those with mental health problems,290 dementia291 and for people living with HIV/AIDS.292
199.This is not to say that good practice did not exist. The Business Disability Forum and Disability Rights UK both spoke about employers who made adjustments as a matter of good business practice.293 The Association of Convenience Stores had produced guidance to help small shops be more welcoming to disabled customers,294 and Barclays Bank told us of the work they were doing in employment and service provision.295 Action for M.E. cited an example of the Open University making reasonable adjustments.296 Essex County Council told us about their work on inclusive communications that had won a number of national awards, including an Employee Network for Equality and Inclusion award.297 Such practice shows what can be done with understanding and determination.
Awareness and understanding of the duty to make reasonable adjustments
200.The evidence presented two main reasons why the duty often did not appear to be respected in practice. Firstly, there were barriers to individual disabled people enforcing their rights under the duty, with some questioning the appropriateness of this approach. The Discrimination Law Association were not alone in arguing that: “The need for a private law action to determine the responsibilities of a bus company to make adjustments so that the bus can be used by disabled passengers seems to us to be wholly undesirable and to place an unreasonable burden upon the individual.”298 We consider these and other issues related to enforcement in Chapters 9 and 10.
201.Secondly, witness after witness told us that, contrary to the Government’s view, the provisions were neither well known nor well understood.299
Awareness of the anticipatory duty
202.As set out above, service providers, those exercising public functions and schools, are subject to what is known as the ‘anticipatory duty’. Awareness, although not necessarily understanding, of the reactive reasonable adjustment duty in employment appeared to be better than awareness of this anticipatory duty. The Equality and Human Rights Commission told us that:
“The duty could be better understood; a quarter of disability discrimination-related enquiries to the Equality Advisory and Support Service … concern failures to make reasonable adjustments in employment and service-provision. Many of the problems we come across occur because of poor understanding of the anticipatory nature of the duty, especially among service-providers.”300
203.This view was shared by the Discrimination Law Association, the Law Society, Manchester Disabled Peoples Access Group and Transport for All.301 Autistic UK felt that the anticipatory duty was enjoyed only by those with “physical or sensory disabilities” and that “the access issues of autistic people (and others), both to the built environment and otherwise, will in all probability remain unaddressed.”302 The University of Leeds referred to “confusion about the anticipatory reasonable adjustment duty”,303 and one disabled woman, who worked as a disabled students’ adviser, explained the problems in the following terms:
“Reactive adjustment isn’t really understood so anticipatory adjustment is even worse. In my day job we highlight issues and are told “we need a named person to adapt this for” because they do not appreciate anticipation. Then when a named person who needs access appears “It’s too late to ask for that” “It’s too expensive” “It’s too difficult” … Double-bind and nothing changes.”304
Understanding the ‘reasonable adjustment’ concept
204.As the Law Centres Network said: “There is a crucial difference between, on the one hand, awareness of the phrase ‘reasonable adjustments’ or the understanding that a duty exists and, on the other, an understanding of what the duty entails or how to comply with it in practice.”305 Our evidence suggests that even where there was awareness, understanding was often poor.
205.This included understanding among disabled people themselves. The Disability Law Service, which provides direct advice to disabled people, told us that: “Our experience is that the majority of our service users, although recognising that there is a law that may provide them with some protection, do not understand the scope and ambit of the reasonable adjustment duty.”306 As a result, many were “often reticent to express what adjustments are necessary in the workplace.”307 The RNIB had sought to raise awareness of the provisions, but found them difficult to explain.308
206.As discussed in Chapter 2, a significant problem was the failure to appreciate that adjustments may require what looks like more favourable treatment. Doug Paulley told us that:
“Some people begrudge disabled people’s “special treatment” and “perks” of reasonable adjustment. They resent parking permits, disability benefits and discounted admissions etc. Some do not understand that this “special treatment” is necessary to afford disabled people some access to services others take for granted. Some people with this attitude provide public services.”309
207.Many of those contacting the Disability Law Service for advice reported that their employer had “specifically told them that they cannot show any ‘favouritism’ to them, when altering working arrangements.”310 Ultimately, the problem was that: “In many cases the ‘one size fits all’ attitude applies—the social model of disability has been lost for the returning medical model or charity model.”311
208.Understanding was also particularly low in respect of those with ‘hidden’ disabilities. Diverse Cymru reported a “general perception by employers and the public that reasonable adjustments duties apply in relation to physical or sensory impairments only.”312 Mind told us that “among individuals, employers, service providers and others who have duties under the Equality Act there’s currently such an obvious lack of confidence and understanding about what an adjustment could look like for someone living with a mental health problem.” They cited cases where people had been told by their employer “that they cannot make adjustments for them because they are not physically disabled” and of “people on public transport using a disabled travel pass being challenged by staff because they ‘don’t look disabled’.”313 The Mental Health Foundation told us that people with dementia were often not recognised as disabled.314 People living with HIV and Aids faced similar problems. Many did not see themselves as disabled, did not know they could request adjustments, or were concerned that to do so would require disclosure of their HIV status—with a consequent risk of discrimination and stigma. 315 Peter McTigue of Nottingham Trent University cited a research participant who contrasted his experience of reasonable adjustments in relation to HIV with that for his dyslexia diagnosis:
“Compared to the dyslexia, what was really interesting was that, there’s a whole load of work needs assessments, specialists out there for dyslexia and work pay for somebody to come and do a full assessment on what I’d benefit from … With HIV, and particularly with potential side-effects, there isn’t anything like that.”316
Clarity versus flexibility and the cost factor
Clarity
209.Jade Hamnett, a disabled person and former chairperson of her local disability access group, told us that:
“I used to like the term ‘reasonable’ as most shops/services can provide some improvements, and how much would depend on how big they are. Now it just seems to be used in the negative—it’s unreasonable to provide that. So too bad. There’s no middle ground.”317
210.Such problems led some witnesses to call for greater clarity: some through better guidance, which we consider below, but some through primary or secondary legislation that they believe is necessary to make the Equality Act more specific. Portsmouth Disability Forum sought explicit standards for the built environment and the delivery of services.318 Scope wanted “primary or secondary legislation … making specific provision for disabled employees to take flexible adjustment leave”, suggesting part time sickness absence or flexible adjustment leave as particularly beneficial.319 A survey by Guide Dogs found that:
“75 percent of all assistance dog owners surveyed have been refused access to a service at some point because they had an assistance dog with them. 49 percent had been refused access in the past year, and 33 percent within the last six months.”320
Guide Dogs therefore wanted regulations to specify that shops, restaurants and other service providers are obliged to admit assistance dogs, in order to “remove ambiguity for service providers and remove the need to rely on case law and precedents for providers to fully understand their obligations.”321
211.Communication barriers were another area where greater specificity was called for by many, especially where the communication method on offer was not felt to meet the actual needs of the individual. In response to failures by a range of services to provide a BSL interpreter, the BDA argued that: “Parliament must strengthen the Act to ensure a clear interpretation of what “reasonable adjustments” are in the context of Deaf BSL users”.322 Andrew Lee, of People First (Self Advocacy), explained how he and his wife were refused an EasyRead version of their tenancy agreement, because the local authority assumed that they had support as they were in “a warden-controlled set up”. In reality they did not, and found themselves having to wait three months for an advocacy worker to read it to them.323 Scope pointed out that “there is currently no UK case-law precedent to provide clarification, guidance or criteria around what constitutes “reasonableness” in the context of adjustments to enable access to a website.”324
212.These problems emerged despite the fact that, as Lord Low of Dalston highlighted, section 20(6) of the Equality Act makes it clear that the duty to make reasonable adjustments includes “a duty to provide information in an accessible format where appropriate”.325
Flexibility
213.The Government has consistently argued against further specificity. Tracey Kerr explained:
“What is reasonable to one disabled person may not be reasonable to another, so it is very difficult to set standard criteria or give a standard example of what is reasonable. For example, on wheelchair access, there are different types of wheelchairs and different types of disabilities. We think it is most appropriate … for claimants to go to the courts to explain what is reasonable for them and for the courts to decide.”326
214.The Equality and Human Rights Commission also opposed a more prescriptive approach. They felt that:
“The flexibility and sensitivity to different needs and circumstances offered by the reasonable adjustment duty has advantages over a more prescriptive, one-size-fits-all list of steps for people with particular impairments; for example, a flexible duty is better at keeping up to speed with technological developments.”327
This latter point was acknowledged by the British Deaf Association, although they remained concerned with the subjective nature of the term ‘reasonable’.328
215.The National Deaf Children’s Society felt that: “One of the advantages of the concept of reasonable adjustments is that it takes into account the individual facts of a case and can be flexibly applied to different circumstances. We would be concerned that any move to ‘standardise’ what a reasonable adjustment is would remove that flexibility in a way that would not always be positive.”329
216.Representatives of employers felt much the same. The Business Disability Forum told us that “a principles-based approach to what constitutes reasonable adjustments is sensible. It is impossible to legislate for every type of adjustment that might be necessary in every situation.”330 Others who argued for flexibility included the Law Society, the Disability Law Service, Disability Rights UK and the Discrimination Law Association.331
217.We have carefully considered the statutory provisions on reasonable adjustment and conclude that, despite the problems described, the flexibility they provide is necessary for their effectiveness. We make recommendations below that we believe will provide the necessary clarity on how to meet the reasonable adjustment duty in practice.
Cost
218.A person who is subject to a duty to make reasonable adjustments is not entitled to require a disabled person to pay the costs of meeting that duty.332 Costs can, however, be a consideration in determining whether a particular adjustment is reasonable. This question was considered in Cordell v Foreign and Commonwealth Office, where the Employment Appeal Tribunal upheld the finding that the provision of lip speakers for the purposes of a diplomatic posting in Kazakhstan, estimated to cost in the region of £250,000, was not reasonable.333 The British Deaf Association criticised this decision as effectively capping the costs an employer is expected to pay for adjustments. David Buxton, of the British Deaf Association, told us:
“This woman had an opportunity to get a job as a Deputy Ambassador—what an achievement. Deaf people thought, “How great”, and then the deaf people were let down. If you want the opportunity to train as a lawyer or some other sort of profession, you think, “No, my progression is blocked because of cost”. Of course, we accept that it is about cost. That is a reality. But there are alternative ways. You could have used videorelay services, for example. Technology has improved so much. There are better technological solutions.”334
219.Paul Breckell, Chief Executive of Action on Hearing Loss and Chair of the Disability Charities Consortium, agreed that there was a cost, but felt that the bill was worth paying. This was because it not only met the rights of the individual, but also provided role models for other deaf and disabled people in society.335 The finding of the Employment Appeal Tribunal in Cordell does not, however, prevent reliance on such considerations. Rather it found that:
“A decision about what steps are reasonable … cannot be a product of nice analysis. … judgment of what level of cost it is reasonable to expect an employer to incur can be informed by a variety of considerations that may help them to see the required expenditure in context and in proportion. … Ultimately there remains no objective measure for calibrating the value of one kind of expenditure against another.”336
220.Where costs are high, the availability of Access to Work funding for more expensive adjustments was welcomed by respondents, although some felt that individuals and employers did not know of the scheme and the description of it as ‘the Government’s best kept secret’ still applied.337 Access to Work provides grants for support that is more costly than an employer would normally be expected to meet, and at least one of our witnesses had themselves been enabled to give evidence by the support provided.338 The Minister for Disabled People, Justin Tomlinson MP, was enthusiastic about the scheme. He told us that the Government had significantly increased the funding to extend Access to Work and that it was an important part of the Government’s Disability Confident campaign.339 Disability Rights UK, however, feared that the scheme had started to face restrictions and that any shifting of cost to employers could have a negative impact on their willingness and ability to make reasonable adjustments.340
221.In October 2015 the Government introduced a cap of £40,800 per year on Access to Work grants. While significantly above the average grant of just over £3000 per person in 2013/14,341 this cap was criticised as effectively removing support from those with “high value”342 access needs. The Government’s equality impact assessment of the changes estimated that 200 people would be affected, of which 181, or 89.5%, were deaf or had hearing loss. In the context of the 35,540 people assisted in 2013/14 this may seem a small number, but the impact on those affected may be that they are unable to work.343 As Mr Breckell said, “imposing a cap is basically saying, ‘There comes a point when supporting a disabled person in the workplace is not affordable’”.344 The equality impact assessment acknowledged this, stating that: “One of the significant strategic questions we face is how to establish the right balance between the need to support as many disabled people as possible and what it is reasonable to offer individual users.”345
222.Disability Rights UK argued that: “Placing more responsibility on employers for supports and adjustments risks deterring employers from employing disabled people.” They added that “without Access to Work, employers in effect may be expected to pick up the costs of adjustments that are not ‘reasonable’, particularly in the case of small employers.”346 This concern was also acknowledged in the Government’s equality impact assessment.
223.Similar concerns have been expressed regarding possible reductions in the support provided to disabled students through the Disabled Students Allowance. The National Deaf Children’s Society told us that:
“This is being justified on the basis that universities are already subject to a duty to make reasonable adjustments … No additional funding has been provided to universities to reflect this change nor does there appear to have been any substantive consideration on whether disabled students will be able to hold universities to account if the university fails to make reasonable adjustments in a timely and effective way.”347
224.Not all reasonable adjustments will be high cost. As Sense told us: “Many reasonable adjustments, such as providing information in large prints at restaurants or a shop owner helping a person to find the goods they need are not costly, and can be very easy to make.”348 The problem can be that employers and service providers lack knowledge of the actual cost involved and, as Catherine Yates, a family carer to her husband and son, both of whom are disabled, said: “Some organisations immediately assume that the term “reasonable adjustments” will automatically require a substantial cash investment even though this is most often not the case.”349 Basing decisions on such assumptions is likely to result in problems for employers or service providers, as case law has established that “once a potential reasonable adjustment has been identified by the claimant, the burden of proving that such an adjustment was not a reasonable one to make shifts to the defendants”.350 This will be difficult to do without knowledge of the expected cost.
225.We have sympathy for those calling for greater clarity on how ‘reasonable’ cost is determined, but question how far this is possible given that this can be a matter of judgment rather than objective criteria. Exercising this judgment does, however, require information, and guidance should make it clear that an adjustment should not be rejected as unreasonable on grounds of cost unless the expected cost is known.
Code of Practice and guidance
226.Clarity is important, but there are ways of clarifying what adjustments are reasonable and what are not, which do not involve either more specific legislation or frequent resort to the courts. The case for better guidance was made forcefully by Muscular Dystrophy UK:
“But why hasn’t the tide turned? Why didn’t every business buy a folding ramp in 2010 and install a hearing loop? Why didn’t the double glazing salesmen suddenly have a special offer on level threshold doorways with an extra discount for lightweight doors? Why didn’t pasta sauce manufacturers demand that the designers of the labels for the jars use a bigger font that’s actually readable? The simple answer is, no one told them to, and no one told them how.
It’s not easy to find an “Accessibility for Dummies” book, even if you look for one. Generic “How to … business” books have very little, if any, information on accessibility. Even if they did, we run into the same questions: What is a “reasonable adjustment” anyway?”351
227.The Business Disability Forum agreed that more statutory guidance may be needed to “minimise the need for legal challenge while increasingly removing the barriers disabled people face to equal participation because of their disability.”352 The RNIB were in favour of statutory guidance as it would “provide significantly more detailed advice as to when the duty arises, what constitutes a reasonable adjustment, what constitutes substantial disadvantage, how the anticipatory duty can be met and what the continuing/evolving nature of the duty means in reality.”353 Witnesses also felt it important that guidance should use examples and explain how cost is taken into account.354
228.IPSEA supported using a Code of Practice to be more explicit on what constitutes a reasonable adjustment,355 and the Bar Council asked for consideration to be given to “augmenting the Codes of Practice” with further examples of reasonable adjustments and to see the Codes taken into account “prior to judicial decision-making.”356 The University of Leeds argued that: “Alongside the current codes, which integrate guidance on reasonable adjustments into more generic guidance, we suggest that there is a need for a separate code on reasonable adjustments”.357
229.Almost all the issues discussed in this chapter were cited as problems that statutory guidance could help with: the Nuffield Council on Bioethics felt that practical guidance would help people understand adjustments for people with dementia;358 the Newcastle Society for Blind People wanted guidance on the role of cost in deciding what is reasonable;359 and Muscular Dystrophy UK wanted examples of best practice and how to complain if reasonable adjustments were not made.360 The proactive nature of the duty had recently been put in doubt by a case in the Employment Appeal Tribunal (EAT), Griffiths v Secretary of State for Work and Pensions,361 which equated disability-related leave with sickness absence not related to disability. The Business Disability Forum felt that this suggested that “if a policy, procedure or criteria applies to everyone it cannot place a disabled person at a substantial disadvantage”362. The Bar Council and Disability Rights UK both wanted clarity on this matter, particularly as the judgment appeared to contradict the relevant Code of Practice.363 Since our call for evidence, the Court of Appeal has ruled on Griffiths and overturned the EAT decision, holding that “The duty arises once there is evidence that the arrangements placed the disabled person at a substantial disadvantage because of her disability.”364 It is nevertheless of concern that 20 years on from the original Disability Discrimination Act this question required a Court of Appeal judgment to set it right.
230.We agree that guidance is the appropriate means by which to provide the clarity that our witnesses sought. Given the considerable problems outlined above with compliance, this guidance must have teeth, and we agree with the University of Leeds that the best way to achieve this is by a Code of Practice. While keeping in mind the caution, offered by the Association of National Specialist Colleges, that guidance and attempts to be “over explicit” can “go out of date quite quickly”,365 we believe that the EHRC, whose guidance is already well respected, is ideally placed to manage this risk.
231.The Equality and Human Rights Commission should prepare a specific Code of Practice on reasonable adjustments to supplement the existing Equality Act Codes. This would provide an appropriate balance between flexibility and clarity. Without it there is a real risk of employers and service providers acting illegally because of ignorance of their obligations.
232.We have explained in Chapter 3 how Ministers have in three cases inexplicably refused to lay draft Codes of Practice before Parliament and make Orders giving them statutory force. This cannot be allowed to happen in the case of a new Code on reasonable adjustments.
233.Of course, guidance is only as good as the use to which it is put. We heard some good examples of organisations that used membership structures to promote information on the requirements of the Equality Act. Marie-Claire Frankie, giving evidence for the National Association of Licensing and Enforcement Officers (NALEO), told us that Sheffield Council used its regular newsletter to taxi drivers to detail successful prosecutions under the Act and remind drivers “of what they should do and that their licences could be at risk if they did not take guide dogs, for example.”366 Ms Frankie also spoke about how NALEO kept their members up to date:
“In relation to case law and stated cases that come up, NALEO, as an organisation, circulates that to all the members, so all 600 members then get notification of this case, the requirements and all the commentary from it. It is for them to feed that into their day-to-day licensing role.”367
234.Alongside the new Code, the Equality and Human Rights Commission should produce, in consultation with organisations of and representing disabled people, industry-specific guidance on reasonable adjustment. Where appropriate this should be done in partnership with relevant professional and regulatory bodies. Regular updates on case law developments will be essential to the effectiveness of these guides, and should be provided by the EHRC.
Common parts
235.Section 36 of the Equality Act 2010, and Schedule 4, include provisions on reasonable adjustments to the common parts of buildings such as blocks of flats. These provisions have not yet been commenced. If they were, those responsible for the common parts (such as a landlord in a leasehold block of flats) would have to agree to changes to common parts if asked by a disabled tenant and if, after consulting the other residents, they concluded that it would be reasonable to do so. It is always legal for the landlord to ask the disabled tenant to pay for the alteration.
236.The failure to commence these provisions was criticised by the Equality and Human Rights Commission, the Discrimination Law Association, the Disability Law Service, University of Leeds, Disability Rights UK, and the Law Centres Network.368 Justin Bates of the Housing Law Practitioners Association gave us a practical example of a case in which he had been involved:
“An elderly leaseholder has a flat on the second and third floor. There is absolutely no reason why she cannot live independently, save that she has mobility issues. She wants to install a stair lift to get up to her second or third floor flat. She asks the freeholder for permission. The freeholder says no. She offers to pay the installation costs and all the running costs herself so there is no drain on the service charge. The freeholder says no. On the face of it, that is a lawful refusal.”369
237.The Government explained that the previous Government delayed implementation of the provision “until Scottish Government experience in implementing section 37 (adjustment to common parts in Scotland) was available”, and that it was “currently considering the future of these un-commenced provisions.”370
238.The Minister justified this position on the basis that:
“The decision to wait for the Scottish experience of implementation was taken in light of concerns about how the provision would work in practice and what it would cost. We wanted to see how that worked, regardless of the different legal position, in terms of the cost.”371
239.Although section 37 is in force for Scotland, it has no effect unless Regulations are made to put it into practice. No such Regulations have yet been made, although Justin Bates told us that there had been consultation on draft Regulations.372 There is thus no Scottish experience to draw on, nor will there be in the foreseeable future.
240.Even if Scottish Regulations were made, the duties imposed would be different: section 36 would impose in England a duty on landlords to make reasonable adjustments, while section 37 in Scotland would entitle both a disabled owner and a disabled tenant to make ‘relevant’ adjustments (to be defined in Regulations), but would not impose a duty on anyone. Further, as Justin Bates points out:
“Scotland is not that helpful to look at: one, they do not have leasehold land in the way that England and Wales do, so the underlying legal structure will not be the same; two, the draft regulations … come at it from a slightly different perspective as to whose consent you would need and how it would work, primarily because they do not have leasehold land. You will not be able to transpose the Scottish experience to the English one anyway, so it does not work as a reason not to do this.”373
241.We are also unconvinced by concerns of cost and ‘red tape’, especially given that the cost of any adjustment would fall to the leaseholder or tenant and not the landlord. The Committee asked the Government to provide the evidence on which such concerns were based, and were guided to the impact assessment of the Equality Act.374 This outlined some of the history of the provisions:
“During the Lords’ stages of the Disability Discrimination Bill which led to the Disability Discrimination Act 2005 there was strong cross-Party pressure to give disabled people the right to make alterations to the common parts of let residential premises. The amendments were resisted at the time because of lack of time to resolve the complex legal issues involved. Peers accepted instead that a review should be mounted into the issues and that this review would report, by the end of 2005.”375
242.The Government subsequently set up the Review Group on Common Parts to undertake this detailed examination. The Group included representatives of disability organisations, the former Disability Rights Commission, landlord organisations, and officials from relevant Government departments and the Scottish Executive. It concluded that both legislative and non-legislative measures were needed. The non-legislative proposals were addressed by a statement to Parliament on 13 July 2006 by the Minister for Disabled People, but the impact assessment highlights that:
“A Court case, correspondence from landlords and tenants and the response to the consultation document has shown that there are still people who need alterations but are unable to get them under the current system. The legislation would balance the needs of the disabled person and the needs of the landlord or manager of the premises.”376
243.Far from supporting the Government’s concerns, the impact assessment demonstrates the extensive consideration already given to the costs and technical difficulties of these provisions. It is to be regretted that disabled people have had to wait over 10 years for a solution to what is a clear problem, especially as the law has been on the statute book for over half that time. The Secretary of State told us that she has now asked the Government Equalities Office to review the question of commencement of the provisions on common parts as a separate exercise “to see where we go from here, given the non-experiences of the Scottish Government.”377
244.We do not understand why yet another review is needed of the commencement of the provisions dealing with alterations to common parts. There is no justification for further delay. They must be brought into force forthwith.
Sports grounds
245.The accessibility of sports grounds has long been a matter of concern. We considered written evidence from the charity Level Playing Field on the provision of disabled access facilities at Britain’s sports grounds,378 and questioned Justin Tomlinson MP, the Minister for Disabled People, about this. He confirmed his previously expressed view that:
“Most football clubs in this country are behind when it comes to disability access to their grounds. It is my belief that football should be a game enjoyed by everyone, and someone with a disability should have as much of an opportunity to watch the game as someone without a disability”.379
246.On provision for disabled people, he similarly confirmed his view that: “Frankly, some of it is disgraceful. There is not provision in some grounds. Supporters are split up or are put in with the away fans. I find that totally unacceptable. We are in the last chance saloon with those football bodies, saying, ‘You need to get your house in order’”.380
247.The Equality Act 2010 has not succeeded in giving disabled sports fans the access to stadia to which they are entitled, and new measures are needed. A particular problem—to which we refer elsewhere in this report—is the law’s requirement that only individuals may bring actions against institutions which are failing in their duty to comply with the Act. The nature of the relationship between a football fan and his or her own club is often deep-rooted and passionate, and makes it hard for the fan to initiate proceedings.
248.One member of this Committee381 introduced into the House of Lords the Accessible Sports Grounds Bill which would give local authorities a discretionary power to refuse a safety certificate to any large sports stadia—not just football grounds—which do not comply with the accessible stadia guidelines published by the Sports Grounds Safety Authority. His Bill was supported by other Committee members at second reading, and we support it as a Committee. It was agreed by this House, but blocked by the Government on second reading in the House of Commons on 11 March 2016. We recommend that the Government include provisions similar to those of the Accessible Sports Grounds Bill in a Government Bill.
249.As a response to the Bill, the FA Premier League gave an undertaking that all its clubs would comply with the accessible stadia guidelines by August 2017.382 We welcome that commitment, which does not depend on the Bill being enacted, but we are unclear on how the Government intends to monitor its fulfilment. We recommend that ministers report regularly to Parliament on the progress made (a) by the Premier League and by the Football League, and (b) on comparable action by the operators of other large stadia.
264 Equality Act 2010, section 20
265 The exception to this is under the un-commenced provisions on the common parts of leasehold premises, where the landlord can require the leaseholder or tenant to pay the costs of the adjustment. We consider this below at paras 235–244.
266 HL Deb, 21 November 2014, col 662 . Baroness Jolly speaking for the Government during the second reading debate on the Equality Act 2010 (Amendment) Bill, moved by Lord Blencathra.
271 Written evidence from Inclusion Scotland (EQD0082), Jane Young (EQD0009), Equality and Human Rights Commission (EQD0083), Action for M.E (EQD0117) and Equity (EQD0064)
272 Written evidence from Jeanine Blamires (EQD0171), Alliance for Inclusive Education (EQD0110), Inclusion London (EQD0075), Michele Brenton (EQD0096), Andrew Brenton (EQD0095), Action for M.E. (EQD0117), Anthony Hall (EQD0046) and Muscular Dystrophy UK (EQD0052)
273 Written evidence from Disabled Persons Transport Advisory Committee (EQD0094); Hertfordshire Equality Council (EQD0120)
274 Written evidence from Mencap (EQD0157), Catherine Scarlett (EQD0004) and Scottish Disability Equality Forum (EQD0167)
275 See para 245 regarding stadia
277 We later discuss the specific case of sports stadia. This is not to say that other entertainment venues are not equally important, and what we say there can be of equal application to other large venues.
279 Supplementary written evidence from Doug Paulley (EQD0176) and David and Jeanine Blamires (EQD0197)
281 Ibid.
282 Q 151 (Marie-Claire Frankie) and written evidence from Newcastle Society for Blind People (EQD0100)
288 Written evidence from RNIB (EQD0164), Discrimination Law Association (EQD0129), the British Deaf Association (EQD0101), Manchester Disabled Peoples Access Group (EQD00092), Newcastle Society for Blind People (EQD0100), People First (Self Advocacy) (EQD0134), Portsmouth Disability Forum (EQD0084) and Sense (EQD0122)
293 Written evidence from the Business Disability Forum (EQD0093) and Disability Rights UK (EQD0105)
299 Written evidence from the Equality and Human Rights Commission (EQD0083), the Discrimination Law Association (EQD0129), Autistic UK (EQD0170), University of Leeds (EQD0125), Diverse Cymru (EQD0109), Manchester Disabled Peoples Access Group (EQD0092), Transport for All (EQD0116), Natalya Dell (EQD0005), National Association of Disabled Staff Networks (EQD0156), Disability Law Service (EQD0051) and Royal College of Nursing (EQD0059)
301 Written evidence from the Discrimination Law Association (EQD0129), The Law Society (EQD0163), Manchester Disabled Peoples Access Group (EQD0092) and Transport for All (EQD0116)
321 Ibid.
322 Written evidence from the British Deaf Association (EQD0101). We consider this issue in detail in Chapter 4.
331 Written evidence from the Law Society (EQD0163), the Disability Law Service (EQD0051), Disability Rights UK (EQD0105) and the Discrimination Law Association (EQD0129)
332 Except for common parts, if brought into force.
333 Cordell v Foreign and Commonwealth Office, Appeal No. UKEAT/0016/11/SM, 5 October 2011
336 Cordell v Foreign and Commonwealth Office, Appeal No. UKEAT/0016/11/SM, 5 October 2011., at para 30
341 Department for Work and Pensions, Equality analysis for the future of Access to Work (May 2015): https://www.gov.uk/government/publications/future-of-access-to-work [accessed 9 March 2016]
343 Department for Work and Pensions, Equality Analysis for the future of Access to Work (May 2015) p 11: https://www.gov.uk/government/publications/future-of-access-to-work [accessed 2 March 2016]
345 Department for Work and Pensions, Equality Analysis for the future of Access to Work (May 2015) p 10: https://www.gov.uk/government/publications/future-of-access-to-work [accessed 2 March 2016]
350 Finnigan v Chief Constable of Northumbria Police [2013] EWCA Civ 1191, cited by Sheffield Citizens Advice and Law Centre (EQD0102)
361 Griffiths v Secretary of State for Work and Pensions, Appeal No. UKEAT/0372/13/JOJ, 15 May 2014
364 Griffiths v The Secretary of State for Work & Pensions, [2015] EWCA Civ 1265, at para 63
367 Ibid.
368 Written evidence from the Equality and Human Rights Commission (EQD0083), the Discrimination Law Association (EQD0129), the Disability Law Service (EQD0051), University of Leeds (EQD0125), Disability Rights UK (EQD0105) and the Law Centres Network (EQD0135)
374 Supplementary written evidence from the Department for Communities and Local Government (EQD0191)
375 Government Equalities Office, Equality Act Impact Assessment, Version 5 (Royal Assent), April 2010, p 115: http://www.parliament.uk/documents/impact-assessments/IA14-02F.pdf [accessed 11 March 2016]
376 Ibid., pp 115–116
379 Justin Tomlinson MP, ‘Local MP Joins Trust STFC To Talk About Football In Swindon’: http://www.justintomlinson.com/news/3450-local-mp-joins-trust-stfc-to-talk-about-football-in-swindon [accessed 11 March 2016]
380 Q 184 (Justin Tomlinson MP, agreeing with comments he had previously made to BBC Sport, cited by Lord Faulkner of Worcester)
381 Lord Faulkner of Worcester
382 Premier League, Premier League clubs commit to improving accessibility for disabled fans (September 2015) http://www.premierleague.com/en-gb/news/news/2015–16/sep/140915-premier-league-clubs-commit-to-improving-accessibility.html [accessed 9 March 2016]