Equality Act 2010 (Amendment) Bill [HL]

Baroness Jolly Excerpts

Friday 21st November 2014 Lords Chamber

[Baroness Jolly (LD)]

My Lords, I, too, take the opportunity to congratulate my noble friend Lord Blencathra on succeeding in getting his Bill read a second time in this House. It has given the House an opportunity to consider a very important legislative protection provided to disabled people in the Equality Act 2010.

My noble friend’s Bill seeks to amend the wording of the duty set out in Section 20 of the Act, which imposes a requirement on specified people to make reasonable adjustments for those with a disability. This ensures that those who meet the Act’s definition of a disabled person are not put at a disadvantage compared with those who are not disabled.

The Bill would require service providers and others to provide ramps for wheelchair users where there is a single step at the entrance of their building. Initially, this would apply to steps of less than six inches in height, with a longer period to allow compliance where the step is between six and 12 inches. Under the Bill, this would be a legal requirement irrespective of the physical location of the building.

I have a good deal of sympathy for my noble friend and the frustration that he feels in being unable to enter some shops and other premises. Like the noble Baroness opposite, I myself experience the same feelings when caring for my mother. She is a wheelchair user. I have to push her around on Cornish granite cobbles. The two of us—her in the wheelchair and me pushing—frequently encounter the same sort of obstacles and difficulties that my noble friend has vividly described, and of the sort that he pointed out to me when we made our tour of Strutton Ground in Westminster yesterday.

The reasonable duty is a cornerstone of the protection offered to disabled people under the Equality Act 2010. It has a wide application—in the fields of employment, service provision and the exercise of public functions—and it applies to both the public and private sectors. The adjustment duty as it applies to the provision of goods, facilities and services is anticipatory, as we have already said. The rationale for that is that while a service provider’s relationship with a customer is often transitory, it is reasonable for the service provider to “anticipate” particular adjustments, which will prevent a disabled person from being put at a substantial disadvantage in comparison to a non-disabled person. The question of whether there has been a failure to comply with the duty therefore hinges on what is reasonable.

My noble friend and I did indeed see a number of premises yesterday where reasonable adjustments had been made simply and cheaply, as well as others where they could have been made but had not been; and yet others where they would not have been feasible, at least within any proportionate cost.

I entirely accept that the use of the adjective “reasonable” in the legislation recognises the need to strike a fair balance between the needs of disabled people and the interests of service providers. The Act therefore requires a service provider only to make adjustments that are reasonable in all the circumstances of particular situations. For example, if the cost of making the adjustment would put the service provider out of business, that clearly would not be reasonable.

I should also explain that building regulations control certain types of building work, principally the erection, extension and demolition of buildings and the provision or extension of certain services or fittings, so as to ensure that buildings meet certain standards of health, safety, welfare, convenience and sustainability. For buildings in England and Wales, Part M of the Building Regulations 2010 includes a requirement to ensure that reasonable provision is made for wheelchair users to gain access to buildings, including premises used as shops.

This is where we begin to encounter difficulties with the proposal for the automatic installation of ramps in my noble friend’s Bill. Clearly, for some existing premises giving out directly on to the street, there would be significant difficulties in finding even a fairly small area to construct a ramp. For some, it might create a potential hazard for pedestrians. Yesterday, we looked at the issue of dropped kerbs where there are bobbles in the pavement. The dropped kerbs are for disabled users and the bobbles are for blind people to know when they are approaching a road. Sometimes one part of the disabled community can be served and not the other, so there is a balance. Also, some buildings open directly on to a highway that belongs to a third party, and in such circumstances it would be impossible to provide a wheelchair access ramp without cutting back into the building’s entrance floor. In some cases that could be quite an expensive operation.

The existing provisions in the Act are deliberately worded so as not to specify what an individual with obligations under the Act should do. This wording allows for greater scope in considering how best to solve the particular problem being experienced by the disabled person. We have had examples of where workarounds could not possibly fit under the “best fit” description. Specifying the remedy to a particular problem in the Act will inevitably result in proposals to have other specific remedies spelt out in it or in future technical guidance. In practice, this could risk the Act becoming a series of technical specifications which might actually be easier for employers and service providers to circumvent than the “reasonable adjustment” duty. Under the Bill, many service providers are likely to assume that building a ramp of the sort proposed will now constitute fulfilment of the duty—end of; nothing further would be required. This would result in provisions that might well suit some disabled people but not others, so I hope that noble Lords will agree that rather than changing the law, it might be helpful if we consider ways of trying to make effective use of the existing law with the duty—it is quite a powerful one—that we currently have.

Ultimately, there is the option of bringing a case against a service provider if all else fails, although I fully acknowledge that this always has to be the last resort and that many disabled people may be deterred by the effort and cost. Yet Allen v RBS, Paulley v First Group plc and some cases involving other types of disability show that it can be done. It is against this background that the Government have doubts about the need for and, indeed, the feasibility of the noble Lord’s Bill. Even if some noble Lords may not accept that the current arrangements are ideal, I hope that they recognise that the physical location of some buildings would make it impossible for businesses to build ramp access, and indeed we did see a few like that yesterday. As such, this Bill would impose a duty that is impossible to comply with.

Let me assure noble Lords that the Government have a continued commitment to disabled people, and more specifically to our belief that every disabled person has the right to have an adjustment made for them if it is reasonable. What is in contention here is the best way of achieving that aim. The Government believe that the current system is both fair and balanced, and works in the main satisfactorily for disabled people, businesses and employers.

[Baroness Flather]

Forgive me, but I cannot agree that the law works in a fair way. It really does not. There are so many places where things could be done quite easily, but they are not done, and if you complain, they still do not do it. Can the Minister tell us how to get these things done?

[Baroness Jolly]

The noble Baroness makes a fair and very good point. My noble friend mentioned the Access Association. It may be that noble Lords need to work with such organisations. However, I take the point that taking someone to court is a bit excessive, although a certain amount of naming and shaming would do no harm. I would not mind betting that the PR organisations that deal with some of the organisations which have been named today will pick stuff up in Hansard tomorrow. Actually, that will be no bad thing.

Legislation does not stay the same for ever, and indeed changes were made from the Disability Discrimination Act 1995 to the Equality Act 2010. Like other recent statutes, the Equality Act will in turn be subject to post-legislative review. In this case it will cover the period 2010 to 2015; that is, the first five working years of the Act. Under the normal rules, we can expect the next Administration to publish, as the outcome of the review, a memorandum for the relevant Select Committee, which itself may choose to take forward aspects of the review or indeed its own conclusions on whether and how the legislation has worked relative to the stated aims of the Act. I realise that this does not offer any immediate solution to my noble friend’s concerns, but hope it will reassure him that the Government, and indeed Parliament, remain mindful of the sort of problem he has raised.

The Box has just given me an answer to the point made by the noble Baroness, Lady Flather, about what action a disabled person can take if appropriate adjustments are not made. They should first approach the service provider to discuss why they feel they cannot access the service or function in question, and discuss what adjustments they require. If, following discussion, the service provider fails or refuses to make a reasonable adjustment, the disabled person could take their custom elsewhere; alternatively, they might decide to bring a case of alleged disability discrimination before the civil courts. I can see from the noble Baroness’s face that that does not satisfy her.

For the present, however, the Government are unable to support my noble friend’s Bill for the reasons that I have set out to the House.