Clause 19

Equality Bill – in a Public Bill Committee am ar 18 Mehefin 2009.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Duty to make adjustments

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 9:00, 18 Mehefin 2009

I beg to move amendment 170, in clause 19, page 14, line 4, leave out ‘in comparison with persons who are not disabled’.

Photo of Joe Benton Joe Benton Llafur, Bootle

With this it will be convenient to discuss the following: amendment 171, in clause 19, page 14, line 7, leave out ‘in comparison with persons who are not disabled’.

Amendment 172, in clause 19, page 14, line 10, leave out subsection (5) and insert—

‘(5) The third requirement is a requirement to provide an auxiliary aid or service where it would enable disabled persons to make use of, or facilitate the use by disabled persons, of a service or other relevant matter, and to take such steps as it is reasonable to have to take to provide the auxiliary aid.’.

Amendment 173, in clause 19, page 14, line 12, leave out ‘in comparison with persons who are not disabled’.

Amendment 174, in clause 19, page 14, line 13, at end insert—

‘(5A) For the purposes of the application of Parts 3 (services and public functions) and 6 (education), the requirements set out in subsections (3), (4) and (5) apply where disabled persons generally are or may be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.’.

Amendment 154, in clause 19, page 14, line 15, at end insert—

‘(6A) In taking reasonable steps to avoid the disadvantage, A must take such steps as afford disabled people equal access or, if that is not practicable, to approximate access to, that enjoyed by the rest of the public, to the matter in the applicable schedule to which the duty to make adjustments applies.’.

This amendment will clarify that duty holders must implement the most inclusive solution—subject to the usual test of ‘reasonableness’ —in order to comply with the duty to make reasonable adjustments.

Clause stand part.

Amendment 155, in clause 22, page 15, line 26, leave out ‘, 18 or 19’ and insert ‘or 18’.

This amendment removes what is an additional ‘like for like’ comparator test from the duty to make reasonable adjustments.

Amendment 176, in schedule 2, page 147, leave out lines 32 to 34 and insert—

‘“(a) to remove the feature, or

(b) to alter the feature, or

(c) to provide a reasonable means of avoiding the feature, or

(d) to adopt a reasonable method of providing the service or exercising the function.”’.

Amendment 234, in clause 195, page 138, line 44, at end insert—

‘(i) regulations under section 21 (regulations).’.

An amendment to require regulations in relation to reasonable adjustment to be made under the affirmative procedure.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

It is a pleasure to serve under your chairmanship, Mr. Benton. I shall try to brief, although there are quite a number of amendments to explain, some of which are linked. They concentrate primarily on disability. Amendments 170, 171 and 173 are related to the duty to make reasonable adjustments under clause 19 and the comparator that focuses on persons who are not disabled. Our amendments are supported by the Disability Charities Consortium. I want to probe the Minister on such matters.

The consortium believes that the comparator provisions under the clause are undesirable and should be removed as they could lead to serious problems for disabled people when trying to enforce their rights in respect of goods, services and auxiliary aids, where the comparator concept does not currently exist under the Disability Discrimination Acts. Although we understand the Government’s desire to provide consistency across reasonable adjustment provision, my understanding and that of the DCC is that they are doing so by introducing comparators in areas of disability discrimination legislation where they did not previously exist. Therefore, the worry is that such provisions will be weakened.

The problem with the comparator is whether we would then have a rerun of the problems in the Malcolm case. Under clause 19(3), (4) and (5) a reasonable adjustment is required only when a disabled person is put at a substantial disadvantage in comparison with people who are not disabled. The use of a comparator is not new in disability discrimination legislation generally. The same language exists in the employment provisions of the DDA, but the comparator is not used in part 3 for goods, facilities and services when an anticipatory duty is owed to disabled persons as a whole, and nor is it used in relation to the duty to provide auxiliary aids and services.

The reason for the concern is that comparators were brought to light in the Malcolm case when the concept of related discrimination was undermined through the Law Lords’ reinterpretation of how the comparator in a case should be decided. That had previously been established in the case of Clark v. Novacold. Indeed, that problem has been recognised in the Bill in provisions that would put the legislation back to where we thought it was prior to the Malcolm case.

Amendment 172 inserts at the end of the clause new wording that would require providers of goods and services to provide auxiliary aids and services when that would facilitate the use of such services by disabled people. Such a provision would remove the requirement for a comparator. Will the Minister clarify the effect of the change in wording in the Bill, compared with that in the DDA? In part 3 of the DDA, service providers  already have to provide auxiliary aids when reasonable, if those aids would facilitate or enable disabled people to make use of services. The threshold—or trigger—for providing the aid is when it would otherwise be impossible or unreasonably difficult for the disabled person to make use of such services. A comparator would not be needed to establish that discrimination has taken place.

The Bill provides that the aid should be provided when disabled people have a substantial disadvantage in comparison with those who are not disabled, and the DCC is concerned that that substantial disadvantage must be determined through the use of a comparator. It considers that that might weaken the legal protection that disabled people already have under the DDA. The amendment would, in similar language, put the threshold found in part 3 of the DDA back into the Bill. I seek an explanation from the Minister of the changes and their effect in order to ascertain whether the amendment is required.

Amendment 174 would explicitly include the anticipatory nature of reasonable adjustments. As I said, part 3 of the DDA says that the providers of goods and services must anticipate the needs of disabled people, ensuring that the services that they provide are accessible. They must think about such matters in advance, not wait for problems to arise or to be contacted by someone who has had a problem obtaining goods or services. The anticipatory nature of the reasonable adjustment duty is essential to its working. Again, the DCC, on behalf of a range of disability organisations, wants to ensure that that aspect is maintained in the Bill. We believe that the amendment would achieve that.

Amendment 176, to schedule 2, deals with physical features. We wish to retain the approach laid down in the DDA, which is that the focus must be on removing or altering physical features that cause a barrier for disabled people before considering other means that do not involve eliminating it. One cannot just think of a way around the problem—a work-around. One must first consider whether the barrier should be removed. Only if that was unreasonable could one fall back on going around it.

The amendment would omit paragraphs (3)(a) and (3)(b) of the schedule, replacing them with four new sub-paragraphs. The first is on whether the feature can be removed; the second is on whether it can be altered; the third is about providing a reasonable means of avoiding it; the last is about reasonable methods of providing the service or exercising the function in a different way. However, that order must be followed, so that one first thinks about making it as easy as possible. The amendment would provide a clearer and more systematic approach for service providers, which would be an improvement. Will the Minister say how that compares with the Bill, which is effectively different from the DDA?

I hope that the Committee will forgive me for speaking at such length on these wide-ranging amendments. I look forward to hearing the Solicitor-General’s comments.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

Welcome back to the Chair, Mr. Benton.

I wish to speak to amendments 154, 155 and 234, tabled by me and my hon. Friend the Member for Oxford, West and Abingdon. The hon. Member for Forest of Dean made some interesting points, and I shall listen carefully to the Solicitor-General’s response.  

Through amendment 154, we seek clarification from the Minister. The amendment would emphasise that duty holders must not only make reasonable adjustments, but that the asymmetry applied to those with disabilities under discrimination law must be preserved, so that optimum reasonable adjustments are made that are inclusive and a long-term solution, rather than just a temporary one. An example of the latter would be if a disabled customer wanted to enter a bank that had steps but no ramp, and the bank’s reasonable adjustment was to put up a doorbell allowing the customer to ring for someone to get the wheelchair up the steps. In our view, the optimum reasonable adjustment would be for the bank to build a ramp to facilitate the same service.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

In no sense do I wish to subvert the substance of what the hon. Lady says, as I agree that it is important that service providers should make the best possible provision. Indeed, it is often in their own interests. Nevertheless, does she not think that in legal terms it is slightly quaint to impose a double duty—to be both reasonable and optimal? One can meet one without the other. I believe that she is hoping for people to meet the optimum test. In that case, we need to change the law and should say so.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

I thank the hon. Gentleman. That may be a helpful intervention, as I am not a legal expert. I am probing the Minister on which is the best wording to arrive at an optimum solution that maintains the asymmetry for people with disabilities.

Photo of John Mason John Mason Scottish National Party, Glasgow East

Following on from the previous intervention, many people would consider it quite unreasonable just to put a bell in and expect that to be the answer. It might not be optimal, but we are trying to achieve the reasonable, and a bell seems absolutely minimal.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

That may or may not be the case. It would have to be argued in law, but the purpose of the amendment is to try to ensure that the reasonable adjustment is not simply cosmetic, but affords equal access or access that is as near to equal as possible. In particular, adjustments must be made to secure equal participation in society. It is critical to disabled people that the duty is not diluted in any way so as to reduce that participation. We should not be happy with a minimum or a rudimentary gesture towards adjustment, and that is what the amendment says. I am more than happy for the Minister to adjust the wording if she thinks that I am making a point that is worth responding to.

The Equality and Human Rights Commission supports the amendment. It welcomes the introduction of the single substantial disadvantage trigger, but it is concerned that the duty is constructed so that its primary focus is avoiding disadvantage, rather than removing barriers that prevent disabled people’s full participation. The amendment would have the twin benefits of consistency and clarity of approach and would make it clear in the Bill that, for example, a service should, wherever possible, be provided to a disabled person in the same way as for a non-disabled person, and that might, could and sometimes should deliver asymmetric effort.

Amendment 155 relates to the comparison by reference to circumstances, in relation to reasonable adjustment. We want to remove the like-for-like comparator. I shall give an example. We want to make it explicit—there were comments from the Conservatives along these lines—that one should compare a blind person with a guide dog going into a restaurant with a seeing person who has no dog. The defence is not, “We do not allow dogs.” The comparison is with someone who is sighted, and a reasonable adjustment should be made. Therefore, there can be a material difference between the circumstances, because again we come back to the asymmetric nature of the protected characteristic.

Amendment 234 relates to clause 195, page 138, line 44, which deals with the regulations that apply to the provision. They are extremely important regulations that deal with what is probably one of the most fundamental real-world effects or changes that will enable people with disabilities to get something that they need changed for the better. However, that has been left out of the list of orders and regulations in subsection (5), which require the affirmative procedure. Should there be a change to the regulations, it is vital that that they are subject the affirmative procedure; there should be debate and the measure should go before both Houses. I shall be interested to hear the Minister’s response to those points.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I am grateful for the opportunity to set out our response on these matters. The following is a good point for me to make at the outset. Various parties on the Committee may say that a particular provision is supported by x body and another by y body. I am not suggesting for one moment that that is not the case, but on many such occasions that body, rather than asserting that there is something wrong with what we are doing, wants to probe why we are doing something differently. We all need to put assertions that the EHRC supports this or that provision in that context. Of course, I am glad to seize the opportunity to discuss such issues, because they are probably cases in point. The important thing is to understand why we want to proceed, rather than necessarily to find that there is something wrong with how we want to proceed.

The measures deal with the duty to make reasonable adjustments for disabled people, which is obviously unique to the provisions of disability discrimination legislation and a cornerstone of the protection that the Bill provides. We need to ensure that the new provisions work, so it is good to look at whether there are better ways to proceed, although we are pretty satisfied that we have things right.

Amendments 170, 171 and 173 would remove the comparator entirely from clause 19. The reasonable adjustment duty is triggered when the disabled person is

“at a substantial disadvantage... in comparison with persons who are not disabled”.

A substantial disadvantage is a disadvantage that is more than minor or trivial.

It might be worth saying at this stage that the test of substantial disadvantage is a significant clarification. It introduces better consistency to our approach and is a  lighter test for a disabled person to discharge than what preceded it. The hon. Member for Forest of Dean mentioned the trigger for services provision in the DDA, and there are two thresholds—that the use of services is impossible or unreasonably difficult without the reasonable adjustment. Clearly, “impossible” and “unreasonably difficult” are much higher tests for a disabled person to pass than “substantial disadvantage”. The test is now also one single test, so that is definite progress.

The employment provisions in the DDA contain a comparator like that in the Bill. We have no evidence that the use of a comparator in that context has led to any difficulty, and nobody has cited such evidence here. To put things pretty straightforwardly, having a substantial disadvantage test, which is good, raises the question, “Substantial disadvantage in comparison to whom?” We therefore need a comparator to make sense of that steadier, more consistent provision. That comparator has worked well in employment, and we think it will work well in this case. Removing the comparison with people who are not disabled would make it far more difficult to pinpoint when somebody had been disadvantaged.

Amendment 172 would really alter the dynamics of how the reasonable adjustment duty is designed to work. It would increase the circumstances in which the service provider was required to make a reasonable adjustment by providing an auxiliary aid or service—that is in subsection (5)—because it would replace the substantial disadvantage threshold with a reference to enabling or facilitating the use of a service.

Obviously, we have to balance the rights of the disabled person and the other party, but the amendment would have the significant disadvantage of removing the consistent test of substantial disadvantage. It would also unfavourably move the balance towards the service provider. We think that substantial disadvantage is the right approach.

All the evidence that we have is that the reasonable adjustment duty has greatly increased disabled people’s access to services over the years, and we are widening its application in the way that I have suggested. With respect, I therefore invite the hon. Member for Forest of Dean not to press the amendment.

Amendment 174 is about the anticipatory duty against the three reasonable adjustment requirements in relation to education and services. This is not straightforward, but it is none the less clear that if one casts an eye over paragraph 2(2) of schedule 2 on services, and over the education provisions in paragraph 4(1) of schedule 13, one sees that the content of the amendment is already present in the Bill, so there is no need for it.

In an earlier debate, amendment 154, tabled by the Liberal Democrats, was called the optimising amendment. It would achieve the outcome that we seek by means of a service provider making a reasonable adjustment. The disabled person would have similar or equal access to a service, but there are drawbacks in doing it that way. It would introduce another comparator—one level of service against another—which is over-complicated. The example of the bell, which prompted the intervention from the hon. Member for Glasgow, East, is a case in which it was found that that was not sufficient.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry 9:15, 18 Mehefin 2009

A point that has troubled me a little in the past, which might be behind the intervention on the bell, although I cannot speak for my hon. Friend the Member for Forest of Dean in this matter, is whether  there is a frequency test. If that happens once a year, it is clearly very different from something that happens with one bank customer per day. Is that something on which the legislation will be sensitive?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

That is almost the point that I was going to come on to. The adjustments have to be reasonable. I suppose if there was only one occasion a year when something happened or it was foreseeable that it would happen, it might not be reasonable to require those adjustments and they might not be reasonable adjustments.

I was coming on to talk about reasonableness, though briefly. The hon. Member for Hornsey and Wood Green expressed the concern that we might be in danger of requiring merely cosmetic changes, which would not be reasonable adjustments. They cannot be cosmetic; they have to be reasonable. That is the point of the definition, so that danger is not really present. The outcomes of the duty that she seeks are best ensured by the provisions that we have drafted, and there will of course be a code of practice and guidance afterwards.

Amendment 155 seeks to remove the need to make a comparison with a non-disabled person, but it would not achieve that. Where provision or practice puts someone at a substantial disadvantage compared with a non-disabled person, clause 19(3) requires that reasonable steps must be taken to avoid it. We have the comparator and that is the right approach. Otherwise, how would an employer or service provider judge whether they were putting disabled people at a substantial disadvantage? Again, we need to ask the question, “Who?”

To make the comparison work, we must compare like with like. As clause 22 sets out, that means comparing a disabled person with someone whose circumstances are not materially different. Clause 22 makes it clear that the comparator has to be like for like. It works well in clause 22 and the amendment is not necessary.

Amendment 176 would bring the language of the DDA into the Bill where a physical feature puts a disabled person at a substantial disadvantage. We heard evidence in Committee that the absence of a reference to removing the feature as an option is being interpreted as weakening the provision, but that is not the intention and we do not think it is the case. The emphasis is on taking reasonable steps to avoid the disadvantage, which might require removal. If that is at the root of the thinking here, it is not a danger that needs further consideration.

Exemplifying how the duty might be delivered in different circumstances, which is partly what the amendment proposes to capture, is best done in practice. Clause 19 is essential to protect the disabled. Having outlined how we see it working, I respectfully say that we have it balanced, we have it right, and we have improved and simplified the law, particularly the tests.

Amendment 234 relates to the regulation-making power in clause 21, which carries forward DDA section 21 powers, which have been exercised a number of times—for instance, when we extended to service providers the duty to make reasonable adjustments. Most recently, they have been used to make the Disability Discrimination (Transport Vehicles) Regulations 2005, which relate to the duties of transport service providers to make reasonable adjustments. There are all sorts of examples of the powers having been used beneficially.

The regulations tend to be a bit esoteric and technical, because they involve meeting new developments to ensure rights, so I do not think for one moment that Parliament ought to spend its time on them. It is best that the changes are in regulatory power. It is correct that the regulations use the negative procedure, but if we introduce regulations that might change schedules in the Bill—under clause 21(3), for example, not this one—they will use the affirmative procedure.

All such regulations will be affirmative where they can change legislation and negative where they deal with technical, esoteric powers that, due to their nature, we do not feel merit more parliamentary time. There is absolutely no intention to usurp power; we just think that that is a convenient location at the right level for subsidiary legislation.

I hope that that is comprehensive and that I have persuaded hon. Members that the clauses work well as they are and the amendments are not necessary.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I thank the Minister for that and I should say at the outset that I agree with her. When I expressed the concerns supported by the DCC, it was very much because the DCC wants to establish them. I was not intending to set up any kind of contest or to pray in aid lots of people on my side.

The Minister made a good point about the comparator test being in the employment provisions and the fact that that has not led to any issues. I know that the Government are keen to avoid nervousness, but the DCC is concerned simply by the change of goods and services from the DDA to the Equality Bill. I know that Ministers want to make absolutely certain that there is no regression, to use a phrase that we have been using throughout Committee proceedings, and no weakening. She made that point clear.

Given that concerns about the comparator have been particularly highlighted by the Malcolm case, that clause 14 contains provisions to deal with it and that the Minister said during a previous sitting that she is working with the DCC and hopes to introduce changes to the wording of clause 14 to deal with some of the concerns on Report, I think that we can avoid the comparator’s creating a rerun of the Malcolm case.

On amendment 176, the Minister spoke about the Government’s intentions in making it clear to service providers what they should be doing to remove physical difficulties. As long as guidance from Ministers and the EHRC makes it clear that the first thought should be removing the problem, not just looking for a quick work-around, that can be dealt with in guidance. She addressed that concern. Given all those reassurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.

Clauses 20 and 21 ordered to stand part of the Bill.