Equality Act 2010 (Amendment) (Disabled Access) Bill [HL]

Baroness Williams of Trafford Excerpts

2nd reading (Hansard): House of Lords
Friday 24th November 2017 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I am the last to have the opportunity to congratulate my noble friend Lord Blencathra on succeeding in getting his Bill before this House for a second time. He is obviously well loved and very much agreed with, and I thank him for the opportunity that it gives me to restate this Government’s commitment to protecting disabled people and improving their life choices and opportunities through the Equality Act 2010.

It is now more than 20 years since Parliament first enacted the duty on specified people to make a reasonable adjustment, a duty that is now enshrined in the Equality Act and remains a cornerstone of the protection offered to disabled people. It achieves the delicate balance of taking account of the rights of disabled people and what is reasonable to expect of those under a duty to make an adjustment.

Specifically, the duty establishes the need for service providers to adjust or provide a reasonable means of avoiding a physical feature, such as a ramp instead of steps to access a building. There is also an expectation that the service provider should take a proactive approach in considering what reasonable adjustments are needed and not simply wait to be asked. However, the legislation recognises the need to strike a fair balance and requires a service provider only to make adjustments that are reasonable in all the circumstances of a particular case, as my noble friend pointed out. For example, if the cost of making the adjustment would put the service provider out of business or would require them to break another part of the law, such as the rules on listed buildings, that clearly would not be reasonable. I should add that while a service provider is able to decline unreasonable requests, if an adjustment is reasonable then it must be made. An adjustment is either reasonable or it is not, to state the obvious.

Separately, Part M of the Building Regulations 2010, which pertains to the access to and use of a building, also requires reasonable provision to be made for wheelchair users to gain access to new buildings or when an existing building undergoes significant alternation or extension. I hope this explanation of the existing duty will help the House to appreciate that the Government believe that the existing legislation is already comprehensive in this regard.

We have every sympathy for the aims of my noble friend’s Bill but there are a couple of areas that I am concerned about, and I will go through those for the benefit of noble Lords. The Bill would essentially remove the reasonableness filter and require service providers, without exception, to provide ramps for wheelchair users wherever there was a single step that was less than six inches in height in a public area. The Bill would also take no account of the cost of the installation, although my noble friend has given his estimate of what the cost might be. Secondly, the existing provisions in the Act are deliberately and carefully worded to allow for greater scope in considering how best to solve the particular problem being experienced by the disabled person.

In Committee my noble friend talked about doing a deal with the Government over some sort of order-making power. Of course we will consider his Bill carefully if he wishes to change it into a different form, but he will be aware of our reservations that this would inevitably result in numerous calls to have other specific remedies spelt out in the Act or in further technical guidance. As my noble friend will appreciate, a one-size-fits-all approach cannot address the many and varied needs of our citizens. The noble Lord, Lord Low of Dalston, also talked about using a regulating power in the Act to increase compliance. I note and very much agree with the noble Lord’s thoughtful speech. As I have made clear, we are looking carefully at the enforcement of the Equality Act, and we will consider his advice very carefully.

The House of Lords Select Committee report The Equality Act 2010: The Impact on Disabled People found that despite the problems described with the statutory provisions on reasonable adjustment, the flexibility that they provide is necessary for their effectiveness. The Government agree on that point. When my noble friend’s Bill was last debated in this House, much concern was expressed that it was all very well to refer such matters to the courts but there are fundamental flaws in how the Equality Act is enforced, especially by disabled people. It is a fundamental principle of anti-discrimination law, accepted by successive Governments since the 1960s, that such law is enforced by the individual who thinks they have suffered discrimination. There are good examples of disabled people enforcing the duty to make reasonable adjustments. Noble Lords will no doubt have heard of the case of Mr Paulley, who has successfully enforced the Act on many occasions. While individual rights of enforcement must remain, the Government have been looking carefully at whether the enforcement of the Equality Act can be improved.

The Equality and Human Rights Commission recently conducted a pilot scheme to increase access to justice for people experiencing disability discrimination. It offered disability groups more than £25,000 of legal assistance in over 100 cases to provide direct routes to justice for disabled people facing a range of problems. The commission is also increasing its legal capacity to advise on discrimination cases.

The Equality and Advisory Support Service equality and human rights helpline refers specific cases that have been raised with it to the EHRC for possible enforcement action. We can ensure that cases of the sort with which my noble friend’s Bill is concerned are included in those earmarked for EHRC referral. In addition, our manifesto earlier this year committed to strengthening the enforcement of equalities law so that private landlords and businesses who deny people a service are properly investigated and prosecuted, and we are considering how best to take that forward.

I shall home in on specific issues that noble Lords have raised. My noble friend Lord Blencathra made the point that the Equality Act does not provide adequately for disabled people who need differential treatment. The 2010 Act is specifically designed to recognise that disabled people may need to be treated differently to achieve equality in three main areas: it is not discrimination to treat disabled people more favourably; there is a duty to make reasonable adjustments, as I have outlined; and the Act prohibits discrimination because of something arising from disability that is unique to disability.

My noble friend made the point that disabled charities are not allowed by law to help with enforcement proceedings. There is nothing in law to prevent disabled charities assisting disabled people to enforce the Equality Act, either financially or with practical support. It is true that charities cannot bring cases on a disabled person’s behalf, but they can help the disabled person to bring them. The EHRC is currently working with disabled charities to assist with individual legal cases, as I mentioned earlier.

The noble Baroness, Lady Brinton, brought a new case of taxi accessibility before us with her story of a taxi driver who did not realise he had a ramp in his boot—he had obviously never looked there. As she will know, the outstanding provisions in Section 165 and 167 of the Equality Act 2010 were commenced in April 2017, ensuring that wheelchair users receive the assistance that they need when travelling in taxis and private hire vehicles designed as wheelchair-accessible. She might remind the next taxi driver of that fact, if he needs to be reminded. The Equality Act powers mean that local licensing authorities may choose whether to publish a list of designated vehicles, and so apply the Section 165 requirements—to provide appropriate assistance and not to charge extra—to their drivers. We have strongly encouraged authorities to do this and will continue to do so.

The noble Baroness also pointed out that the ramp will not necessarily help you to get into a shop: you may still be unable to use it, depending on the steepness of the slope. I agree that many technical issues underlie the concerns that the Bill is intended to address. For example, for 12-inch steps, a ramp would need to be 6 metres long. We need to be very careful that we do not agree new legislation which extends across whole sectors only to find that this legislation, in turn, is unsatisfactory due to unforeseen circumstances.

The noble Lord, Lord Haworth, said that disability should not have been included in the Equality Act 2010 with other characteristics. I can only note that the committee chaired by the noble Baroness, Lady Deech, recommended, and both Houses of Parliament voted for, full harmonisation of all protected characteristics at the time. The Act in fact preserved and added to the protection for disabled people already in the Disability Discrimination Act.

My noble friend Lord Holmes asked what steps the Government have been taking to address accessibility issues. Building regulations now require all building works to consider and allow access for everyone, including wheelchair users. All new-build public buildings must make reasonable provision to be step free.

My noble friend Lord Shinkwin mentioned an issue that he is pursuing with the EHRC and my right honourable friend in the other place. Without talking about individual cases, I can only restate that the roles and responsibilities given to board members of the Equality and Human Rights Commission are matters for the commission itself, and the Government have no power to reinstate the EHRC’s disability commissioner role.

The noble Lord, Lord Hussain, asked whether we are considering access to religious buildings. Building regulations of course come with statutory guidance on use of buildings, and that includes religious buildings—for example, mosques and churches. New buildings of this kind must comply with guidance, independent standards such as BS 8300, and provision on spaces between buildings, for external spaces and for the approaches to and use of facilities in buildings.

The noble Baroness, Lady Deech, talked about access to licensed premises. Licensed premises are where many of us choose to socialise, and are therefore an important part of our daily lives. Too many of these venues are difficult for disabled people to access. I mentioned that the Conservative manifesto in 2017 made a commitment to review disabled people’s access and to amend regulations if necessary to improve disabled access to licensed premises, parking and housing. We will consult disabled people’s organisations better to understand the extent of the problem from the perspective of those with a broad range of disabilities, their carers and families. We will work with the National Association of Licensing and Enforcement Officers, which gave evidence to the Select Committee on the Equality Act 2010 and Disability, and representatives of the licensed trade to explore what practical measures can be taken. We hope that this will result in significant improvements for disabled people without the need for additional regulations.

However, we agree with the recent House of Lords committee report on the Licensing Act 2003 that adding to the licensing objectives is not the answer. The 2003 Act and the licensing objectives must be able to address issues that apply to licensable activities and are therefore unique to licensed premises. The 2003 Act should not be used to control other aspects of licensed premises. This would be outside the scope of the licensing regime and contrary to the principles of better regulation.

The noble Baroness also noted that the EHRC has gone backwards on disability. As I said, the EHRC’s disability committee came to an end by statutory order provided for under the Equality Act 2006. The EHRC now has a disability advisory committee and is working extensively with disability groups. I am sure that the chair of the EHRC would be happy to write to her about this.

My noble friend Lady Anelay of St Johns and the noble Baroness, Lady Jones of Moulsecoomb—no, I would not have been cross had the noble Baroness left and would have still responded to her—made the point that the Equality Act 2010 shows how legislation can be undermined by unintended consequences. I take note of what my noble friend and the noble Baroness said, and I talked about unintended consequences earlier in my response. However, we need to be careful when we try to mend the unintended consequences of legislation by passing more legislation.

My noble friend’s speech also underlined the importance of effective enforcement of existing laws, and it is that which the Government and the Equality and Human Rights Commission is now looking to improve. My noble friend also talked about wheelchair access for employees as well as service users. The Equality Act already imposes a duty on employers to take reasonable adjustments for disabled employees and prospective employees. That would include making places of work wheelchair accessible whenever it is reasonable to do so. That duty is frequently enforced in the employment tribunals, not only in relation to wheelchairs but for other adjustments as well.

Finally, my noble friend made the point that Brexit is not an opportunity to race to the bottom. The Government have already made a commitment to retain all the protections in the Equality Act as we leave the EU, and we will have committed to tabling a government amendment before Report stage of the European Union (Withdrawal) Bill, whereby Ministers bringing in Brexit-related legislation will make statements on its consistency with the Equality Act. I hope that, on that positive note, I can assure noble Lords of this Government’s continued commitment to protecting the rights of disabled people. Our concerns for the Bill do not affect that and our belief that every disabled person has the right to have an adjustment made for them that is reasonable.