Committee on the Equality Act 2010 and Disability Report

Lord Northbrook Excerpts

Tuesday 6th September 2016 Lords Chamber

[Lord Northbrook (Con)]

My Lords, first, I thank the noble Baroness, Lady Deech, for her excellent chairmanship of our committee. Major thanks are also due to our clerk, Michael Collon, and his assistants Andrew Woollatt and Joseph Coley. Tansy Hutchinson is also on the roll call of thanks as our policy analyst, and Catherine Casserley, our legal adviser, also deserves the committee’s great gratitude for all her hard work. For me, the committee’s visit to Real, the disabled people’s organisation in Tower Hamlets, was moving and enlightening.

The 169-page report, with its 55 recommendations, is a major piece of work on the impact of the Equality Act 2010 on disabled people, yet the government response to it has been very disappointing. A major theme of the response to recommendations about the Equality and Human Rights Commission is to pass the buck to the EHRC to deal with the issues, although I can support the Government’s responses to some of the recommendations where they produce detailed, sensible arguments.

In the time available, I shall focus on our recommendations where the EHRC is involved or has an interest. The government response to these and the further response by the EHRC refer to a few other report recommendations. Looking at our recommendations in detail, number 8 says that the EHRC should co-produce a disability plan with disabled people and disabled people’s organisations. The EHRC accepted this in principle but rejected the mechanism as it wants it to be integrated into its whole work programme. To me, this seems to demote the interests of disabled people compared to the regime before the Equality Act came into being.

Our recommendation 9 states very sensibly that the EHRC should re-establish the disability committee from April 2017, closely mirroring the statutory disability committee, and ring-fence resources. The EHRC rejected this recommendation—wrongly, in my view—stating far too vaguely that,

“it is essential that … we think more broadly about how we engage all people affected by our work”.

Our recommendations 10 and 11 have received very different reactions from the Government and the EHRC. This has been well covered by the noble Baroness, Lady Campbell, so I will not go over all the detail, but I should just like to reiterate that the Government contradicted the EHRC. In their response, the Government say:

“In early discussions between the GEO and the EHRC about the future of the”,

EASS,

“the EHRC did not express an interest in taking it ‘in-house’”.

However, as the noble Baroness, Lady Campbell, said, the EHRC response directly contradicted that.

Recommendation 12 states—again, the noble Baroness, Lady Campbell, went into detail on this—that the Government should lay before Parliament technical guidance on the public sector equality duty, schools and further and higher education as codes of practice. This is strongly supported by the EHRC but the Government disagree. Their argument is that courts can already take into account this technical guidance, and they are not in favour of publishing substantial extra statutory material unless there is clear evidence that it would ensure or facilitate compliance with the legislation. However, as the noble Baroness, Lady Campbell, said, this is not a code of practice.

Moving on to the area of communication and language, our recommendation 14 requires the EHRC to work with local and national disabled people’s organisations on a wider educational programme to raise awareness of disabled people’s organisations’ rights and dutyholders’ responsibilities under the Equality Act. The government response has referred this to the EHRC. The EHRC agrees in principle. It is helping to fund a report by disabled people’s organisations for the UN Convention on the Rights of Persons with Disabilities, an examination of the UK in 2017, and will shortly publish a report on disability with an analysis of evidence according to impairment. It will explore with disabled people’s organisations the best way to raise awareness of rights and responsibilities.

Moving on to reasonable adjustments—RAs—the EHRC reacted less positively to our recommendation 18, which requires it to produce a specific code of practice on RAs, preferring our recommendation 19 in principle. This states that the EHRC should consult disabled people’s organisations in producing industry-specific guidance on RAs, in partnership with professional and regulatory bodies where appropriate. The EHRC says that it is assessing the best way to supplement existing codes and guidance and will work with disabled people’s organisations on how best to promote RAs. Also, the EHRC will put disability case law updates on its website.

Recommendation 20 states that common parts provision should be implemented without further delay, as other speakers have mentioned. The EHRC agrees. The Government acknowledge our committee’s frustration and agree that landlords should seek to co-operate with reasonable requests by disabled tenants to make adjustments to hallways and foyers. The rest of their response is difficult to understand. Will the Minister explain why the consequences of the Scotland experience are unclear and what the implications are for the better care fund, which supports local authority health and social care services?

Recommendation 21, about accessible sports grounds, is welcomed by the EHRC. However, the Government feel that, at present, the EA legislation is untested and therefore does not need alteration. They will report annually to Parliament on progress on sports strategy commitments, work with football authorities to ensure that clubs make reasonable adjustments for disabled spectators, and enable the Sports Ground Safety Authority to help sports grounds reach required accessibility standards. The EHRC will be monitoring the Premier League’s commitment to comply with accessible stadia guidelines by the start of next season. So I congratulate the noble Lord, Lord Faulkner, although he may not feel he has achieved all that he wished for.

I move on to the subject of carers, covered by our recommendation 23. The committee advised that the EHRC should work with carers’ organisations to produce and disseminate guidance on the rights of carers under the Equality Act. The government response referred this to the EHRC, which accepted it in principle. Recommendation 24 requests that the GEO, the Office for Disability Issues, the Department for Business, Innovations and Skills, and the EHRC jointly encourage employers to respond positively to carers’ flexible working requests. The EHRC accepted this fully. The Government gave a very detailed response. The most important points I picked out were as follows. First, nine local authority pilots are engaging local businesses on the benefits of supporting carers, including through flexible working. Secondly, the DWP is working with employers on the best practice to support carers in work. Guidance also will be tested soon on responding to flexible working requests for carers in a new disability-confident self-assessment accreditation scheme. The EHRC emphasised that it will be testing capacity to encourage employers to increase flexible and part-time job adverts.

Moving on to the area of transport, recommendation 25 asks for train operators and bus companies to put more resources into making stations and vehicles more easily accessible to wheelchair users. The Government’s response can be summarised as follows: rail companies are doing quite well; refurbished and replacement stock will comply with accessibility standards by 2020; stations are a more gradual process; and buses are up to local authorities to sort out. The EHRC response is that there is a good opportunity in the bus Bill to improve the accessibility of buses.

Continuing with the theme of transport, recommendation 28 says that the training of rail, bus and coach staff to a proper level is essential. The Government, in principle, agree in the case of rail, but point out that it is the duty of Network Rail and the train operators to carry this out. In the case of buses, their opinion is much vaguer, talking about disabled people’s “inter-reaction with drivers”. The EHRC rightly takes a firmer line, agreeing with our committee that there is a lack of disability awareness training for support staff. It is supporting legal cases challenging barriers to disabled people—for instance, Paulley v FirstGroup—

“because of the importance of public transport for many disabled people”.

I turn now to the subject of taxis, which was also covered by my noble friend Lord McColl of Dulwich. A considerable success of the committee has been the promise to bring Sections 165 and 167 of the Equality Act into force. This will ensure that disabled people can access taxis and private hire vehicles at no extra cost. As, bizarrely, Section 166, which has already been in force, grants an exemption from Section 165—an exemption from a non-existent part of the law—the decision is to be warmly welcomed. However, while Section 165 alone may suggest all vehicles are covered, it imposes duties on drivers designated by a local authority to assist wheelchair users. The EHRC points out that Section 167 provides for a local authority to keep a list of accessible vehicles, but this is only optional.

Our recommendation 30 asks the Department for Transport to update the 2011 local transport note to give local authorities guidance on meeting disabled people’s needs in shared space schemes. The Government’s response is that they would rely on the Chartered Institution of Highways & Transportation to issue new guidance on shared space. The Department for Transport would, however, have some input into the steering group. The EHRC also plans to contribute to the CIHT guidance.

I now turn to the subject of the public sector equality duty, the PSED. Report recommendation 35 asks the Government to produce a cumulative impact assessment of budgets and other major initiatives on disabled people, supported by the GEO and the ODI. The Government’s response is that considering impacts is already part of the policy. However, they should draw upon the EHRC research. The EHRC says that this has already modelled the impact of tax, welfare and spending policies. Contrary to the Government, it concluded that the task is feasible.

On enforcement through the judicial process, our recommendation 38 asks the Ministry of Justice and its ongoing fees review to act on the strong evidence that tribunal fees are unfairly disrupting discrimination claims. The Government’s response is to consider this as part of the review. They have argued that fees have an impact but that other likely factors, such as changes in employment law, the improving economy, alternative dispute resolution services—and particularly the success of the ACAS early conciliation service—have all helped. The Government have a point here. The EHRC will use its strategic litigation powers to challenge the lawfulness of the new tribunal fees but will only use formal enforcement as a last resort.

Two final areas are commented on by the EHRC. First, our recommendation 44 calls for the Government to restore the EHRC’s power to arrange conciliation for non-employment claims. The Government responded that conciliation is not a core function of the EHRC and would need primary legislation. I tend to agree with the Government on this. The EHRC opposed the removal of this service.

Secondly, the EHRC examined our recommendation 53. The subject area of this is disabled children and children with special educational needs. We asked for the Equality Act 2010 (Disability) Regulations 2010 to be amended so that a tendency to physical abuse is no longer considered an impairment for the purposes of disability. I support the Government’s response, which says that strong public policy reasons remain behind the excluded behaviours. The EHRC supports our committee’s recommendation. However, I issue a note of caution: this must not be a licence for acceptance of certain types of intolerable behaviour by disabled children and children with special needs. The EHRC, in its response, supports the committee’s recommendation.

I believe this is a major landmark report. A former member of the EHRC told me off the record that she felt that the EHRC had become too unfocused on disabled people and was giving priority to other matters such as LBGT issues, which of course are important, but not at the expense of disabled people.

We have once again brought the needs and concerns of disabled people to the Government’s attention. The promise of enacting Sections 165 and 167 of the Equality Act shows that our committee has achieved results, and the EHRC’s encouraging response under its new chairman gives us high hopes for the future.