Committee on the Equality Act 2010 and Disability Report

Baroness Thomas of Winchester Excerpts

Tuesday 6th September 2016 Lords Chamber

[Baroness Thomas of Winchester (LD)]

My Lords, I have been about this House in one capacity or another for nearly 40 years, and it struck me at the beginning of last year that the progress disabled people have made and the noise they have had to make in order for things to change had all but ceased. I pay tribute to all the many disabled Peers who manned the barricades during that time from this position in the Chamber, which led to this area being called the mobile Bench—almost certainly the smallest but most formidable group in the House during the 1980s and 1990s.

Cut to 2010, when the Equality Act hoovered up all people with protected characteristics into a single Act, repealing the landmark Disability Discrimination Act 1995, which my noble colleague Lady Campbell of Surbiton had such a lot to do with. Was this why the voices of disabled people had stopped being heard and progress seemed to have ground to a halt? Or was it simply assumed that the rights of disabled people were done and dusted? Whatever the reason, it was a worry, so I was very pleased that the Liaison Committee agreed to set up this committee to look afresh at the disability provisions in the Equality Act under the banner of post-legislative scrutiny. We could not have been better served by our chairman and staff, and I feel immensely proud of our report. It is so clearly written that it is a really good read, and we all hope it will inform the debate on the rights of disabled people for many years to come, especially if its recommendations are acted upon.

All through the report, the voices of disabled people who gave us their views come through loud and clear. I just wish that these same voices could be heard more of the time across all government departments. We do not just talk about dry-sounding, although important, matters such as the public sector equality duty but about the lived experiences day to day of disabled people and what happens to them when no one appears to be checking to see whether the Act is being adhered to.

There was one subject dear to my heart which we could not tackle, and that is the benefits system as it affects disabled people, because that flows from various welfare reform Acts, not the EA, and so was outside the scope of our inquiry. But there was a crossover in our recommendation 35 for a cumulative impact assessment—which has already been referred to this afternoon—to be undertaken on fiscal measures introduced by the Government which may disadvantage disabled people. This is something many organisations have been calling for, as there is now an increasing number of disabled people living in poverty. As we have heard, there is a difference of opinion between the Government and the EHRC on this. I urge the Government to listen to the EHRC and carry out the impact assessment as a matter of urgency.

There was a real problem with including disability in one Act with the other protected characteristics, because disabled people do not just want equal treatment; they want reasonable adjustments made so that they can live their lives to the best of their ability—which does, yes, in many cases mean receiving special rather than equal treatment. But the report does not call for the Equality Act to be unpicked, and nor did most of our witnesses. We certainly suggest changes to both primary and secondary legislation—we have heard about many of them already this afternoon—but many of our recommendations do not require legislation and are cost neutral.

Before leaving the question of disability being swept into the EA, it has been illuminating to note, as our chairman did, that inequalities are now top of the new Prime Minister’s agenda, but she has not so far talked about disability as a subject to be addressed under that headline. I hope that that changes soon.

While on the subject of the Prime Minister’s agenda, it is worth looking at where disability sits in government. Our Minister is now Penny Mordaunt MP, whom I welcome to her role, and who I am pleased to say is a Minister of State, unlike her predecessor. She is the sixth Minister for Disabled People in six years—there is no long service medal in this role—and we hope that she will really champion the rights of disabled people across government. It has been very dispiriting for those of us who try to establish a good relationship with a Minister over several months to find that we have had to start all over again with yet another Minister after such a short time.

We are now in a time of flux when there is a great deal of change in how the Government are organised. The Government Equalities Office sits at present in the Department for Education under the Secretary of State for Education and Minister for Women and Equalities, but the Office for Disability Issues, which was set up to provide coherence across Whitehall on disability matters, sits in the DWP, along with the benefits system, thus not helping with the perception that all disabled people are to be characterised as benefit claimants at best and scroungers at worst. It is important for this part of the DWP to stop emphasising what it cannot do, take a grip and start being much more proactive, particularly if the Government are serious about trying to halve the disability unemployment rate, which needs a huge step change of activity from both the Government and the EHRC if it is ever to happen. We were expecting a Green Paper about that later this year, but goodness knows where that has got to.

Thousands of disabled people are very keen to contribute to this country’s economy and become active participants rather than just recipients of benefits, but they need help to make employers aware of what they need, or do not need, in the workplace by improved guidance and examples from the EHRC of reasonable adjustments and transport, including taxis, that is accessible and reliable, with disability training made mandatory.

Before leaving the whole subject of where disability sits across Whitehall, I wonder whether the very fact that it spans almost all departments of state without anyone having an overview is the reason why the government response to our report is so inadequate. It is deeply complacent, and I endorse the call of the noble Baroness, Lady Deech, for it to be withdrawn and rewritten. How can “initiating conversations” achieve more than “the blunt instrument of regulation”? When did a conversation ever equate to enforcement?

I was at one such conversation or round table held with people from the hospitality industry and the former Minister for Disabled People earlier this year. It was a perfectly amicable event, but I have still put my name to an amendment through the Policing and Crime Bill to the Licensing Act 2003 to make failure to comply with the Equality Act a ground for refusing a licence. In other words, local authorities would have power to revoke any licence of a restaurant, pub, club et cetera, in extreme circumstances when reasonable adjustments were not made to existing premises—something that local authorities cannot do at present.

Let us get rid of this ridiculous characterisation of regulation as a bad thing in itself, as the noble Baroness, Lady Prosser, said. This comes from the Red Tape Challenge, which is about ridding the business world of burdensome regulations. Often getting rid of such so-called burdens on business puts a greater burden on disabled people, as the report makes clear. Why was no one in government pointing that out? For example, the power of tribunals to make wider recommendations was repealed, and the EHRC’s conciliation powers were abolished. Why did no one in government speak up? Presumably, it was because it was not the job of any one of them.

The question of “reasonable adjustment”—an anticipatory requirement for services, although not for employment—was at the top of the page when we identified five items from the report. Should those two words be defined more clearly in statute, because they sound quite vague? A disabled employee, or a carer of a disabled person, might need their working hours adjusted to become more flexible. What about a ground-floor business premises which has no room for an accessible toilet? A local authority access officer, or one from the Access Association, might be able to advise on making an existing facility suitable for everyone to use. The little-known Access to Work scheme run by the DWP for disabled employees might help to pay the cost. An access officer might also be able to find a practical solution to making a listed building accessible. It is a myth that listed buildings are untouchable.

In the report, we recommended keeping the flexibility of the words “reasonable adjustment”, but urged the EHRC to issue more guidance and examples, which is what our evidence called for. So our message to the Government is, “Please implement our recommendations without delay. There is no excuse for not doing so”.