House of Commons - The Equality Bill: how disability equality fits within a single Equality Act

The Equality Bill: how disability equality fits within a single Equality Act - Work and Pensions Committee Contents

6 Equality in Goods, Facilities and Services

Effectiveness of existing legislation in Goods, Facilities and Services

249. DWP argues that the DDA is already succeeding in driving systemic change in provision of goods, facilities and services (GFS): "Research conducted in 2006 shows that compared with 2003 service providers were more likely to have made, or be planning, reasonable adjustments for disabled people. Nearly 90% of service providers had made, or planned, adjustments and 72% of service providers that had made an adjustment had done so because it was the right thing to do for the disabled person."[314]

250. Cloisters agree that the existing GFS provisions - in particular the fact that the duty to make reasonable adjustments is anticipatory - could drastically improve the lives and social participation of disabled people. However, it adds that it "is not difficult to see on any high street the number of service providers who have failed to comply with the reasonable adjustment duty specifically in relation to physical features."[315]

251. The Employers' Forum on Disability runs a benchmarking audit for its members called the Disability Standard. Of the participants in the most recent survey, 73% do not anticipate the needs of over 10 million disabled customers and 79% have no relevant marketing plans. Only 43% of service providers ensure information is provided to disabled customers in accessible formats as required in law. A further 64% of participants operate inaccessible e-commerce systems.[316]

252. Ms Scott-Parker of the Employers' Forum on Disability emphasised that: "this legislation as a whole has to be credible in the eyes of both disabled people and employers. […] Our members are saying that some of us invest a lot in getting it right for customers and then we watch organisations that are doing very badly and there is no sanction at all. We hear organisations say it is cheaper to keep a fighting fund and pay off a few disgruntled, disabled customers than to invest in making the changes that the law is trying to drive."[317]

253. We have heard that the provisions of the DDA in goods, facilities and services lack teeth. We believe that local authorities have the necessary outreach potential and leverage through existing inspection functions to promote fuller compliance with the provisions in facilities and services and should take a more proactive role in ensuring compliance. This should come from their requirement to comply with the public sector Disability Equality Duty.

Compliance and enforcement

254. Douglas Johnson, an Equality Rights Worker at Sheffield Law Centre, points out that few GFS cases ever reach the courts and those in the higher courts are in single figures.[318] Cloisters confirm that in comparison to employment cases, very few cases have been brought. A Disability Rights Commission (DRC) report in 2004 established that "No evidence was found of a major growth in Part III [GFS] claims since 2001 when the Monitoring Report (Phase 2) identified a total of 53 cases which had been lodged in the County Court or the Sheriff's Court."[319]

255. Cloisters argues that this relates in part to the venue for such claims.[320] The Employers' Forum on Disability agrees that "part three of the DDA often lacks credibility in the eyes of service providers and disabled citizens alike, due mainly to its enforcement mechanism being in the county courts."[321]

256. A number of submissions highlighted the complexity of the county court rules and cost implications of pursuing claims through county courts, for example the possibility of a claim being listed in the fast or multi-track means that the claimant risks the possibility of considerable costs being awarded if they do not succeed.[322] Ms Casserley of the Discrimination Law Association stressed:

"It is not like employment; you do not fill in a form and send it into the tribunal. You have to apply to a county court, you have to pay money in order to put in your application, then you have to pay more money for them to decide which bit of the county court your case is going to be allocated to. If it is not allocated to what is called the small claims then you risk paying the other side's costs if you lose. For disabled people that is a very significant deterrent in actually bringing those cases. I think there is a very big problem with enforcement."[323]

257. Most submissions advocated an equality tribunal, empowered to hear all types of discrimination claims (but with the ability to transfer certain types of case - such as housing or actions against the police - to the county court where appropriate) as better suited to hearing such cases.[324] Ms Scott-Parker of the Employers' Forum on Disability states: "One of our proposals - and the members certainly have endorsed this in a round of consultations - was that we would have an employment tribunal turned into an employment and equality tribunal intervention system, a place that really understands how discrimination works for disabled customers as well as employees. The court systems just do not seem to be the right place for it."[325]

258. Mr Willman of the Federation of Small Businesses (FSB) was also in favour of this proposal: "We quite like the tribunals because they should be learned people knowing the position of disabled people. Also, hopefully, they take the same role as the DRC and take appropriate action so that reasonableness for the smaller business is different from the reasonableness for the bigger business."[326] However, the Minister, Maria Eagle, said: "We are not currently planning on doing that, although we would always keep these matters under review. I do not think there is an enormous difference between the small claims in the county court and the tribunal, and, of course, the tribunals, which were designed originally to be simple and clear and cost-free, have not exactly turned out to be such."[327]

259. Help the Aged and Age Concern state that if the county court retains responsibility for goods and services cases, it would be possible to make radical improvements to the way that these cases are handled: "For example, it would be possible to provide specialist training to a small number of County Court judges. It would also be possible to establish a circuit system, with 'ticketed' discrimination judges covering on a rota several County Courts in one region. The Ministry of Justice and the Court Service could also consider allowing goods and services claims to be handled under the County Court small claims track, to a maximum value of (say) £50,000. This would provide access to a faster and less formal procedure and limit the parties' exposure to costs."[328]

260. Ms Williams of the CBI argued that: "the answer must lie in improving the expertise, training and experience in the judiciary itself."[329] The Minister, Maria Eagle, confirmed that the Government is: "planning that all judges have some module with the Judicial Studies Board to make sure that all judges over the next three years have training in discrimination law, which I think will be helpful. If and when judges do come across such cases they will have had some training, and I think that has got to be a good thing."[330]

261. Citizens Advice points out that training of judges does not address the issue of the paucity of claims brought before the county courts. It states that this "has resulted in unpredictability and decisions of variable quality."[331] Douglas Johnson stressed that "as regards judicial training, it is clear that judges cannot be expected to have a good understanding of the principles and practice of discrimination law unless they see a reasonable number of cases in practice. Employment tribunal judges now have this experience. Judges of the court generally do not."[332]

262. The Disability Rights Commission's DDA Monitoring Report (Phase 1) reported that "In all of the case study cases that were heard in court, the case in question was the judge's first DDA case. Some of these judges themselves pointed out to the parties that there was very little case law and admitted that the DDA was new to them. In several of these cases, it was necessary for an adviser or representative to provide the judge with copies of the Act and/or codes of practice and guidance because they did not have copies themselves."[333]

263. Cloisters point out that in any event, relying upon individuals to bring about systemic change through individual litigation places a heavy burden upon disabled people who, in many instances, experience discrimination on a daily basis which it would be time consuming and exhausting to challenge on each and every occasion.[334]

264. There is a lack of data on the number of DDA cases on goods, facilities and services in the county courts, although a number of witnesses presume the numbers to be very small. We recommend that the Government monitors the trends in the number of cases taken and their outcomes.

265. A number of submissions highlighted the complexity of county court rules and potential liability for significant costs as barriers to those seeking to pursue goods, facilities and services claims through county courts. We welcome the Government's pledge that all judges will go through training in discrimination law over the next three years. However, we do not think this alone will address the reasons why so few goods, facilities and services cases are brought to court. We recommend that the Government introduces an equality tribunal with the single Equality Act, empowered to hear all types of discrimination claims, but with the ability to transfer certain types of case - such as housing or actions against the police - to other courts where appropriate.

266. In any event, relying upon individuals to bring about systemic change through individual litigation places a heavy burden upon disabled people. We believe that there is a role for the Equality and Human Rights Commission in proactively undertaking formal investigations and bringing strategic cases to improve enforcement. The Equality and Human Rights Commission should also take a strategic role in monitoring and researching enforcement. We also recommend that the Government introduces the provision for class/representative actions in goods, facilities and services cases.

Potential impact of draft EU Directive in GFS

267. On 2 July 2008, the European Commission adopted a proposal for a Directive which provides for protection from discrimination on grounds of age, disability, sexual orientation and religion or belief beyond the workplace. The draft Directive prohibits direct and indirect discrimination. It requires harassment and the denial of reasonable accommodation to a disabled person to be treated as discrimination.

268. Article 4 concerns the equal treatment of people with disabilities. It requires providers to make appropriate modifications or adjustments to enable people with disabilities to have non-discriminatory access to housing, transport, and other services, goods, social security, social and health care and education. It also provides, however, that such modifications and adjustments should not impose a disproportionate burden. The Article includes a definition of how to assess the burden.

269. Cloisters have, nevertheless, some concerns about the Directive, in particular, it does not address the definition of disability and the relatively broad justification for discrimination by insurance providers.[335] Cloisters and Citizens Advice (CAB) call for an explicit coverage of multiple discrimination between strands. CAB also calls for an explicit reference to transport as an example of goods and services; and reference to public procurement as a means of achieving the objectives of the Directive.[336] The EHRC added that the scope of protection in the Directive must be sufficiently wide to cover those areas where discrimination is most prevalent, for example in education and housing. Although the Directive generally prohibits discrimination in education, there is an exception for special educational needs provision. It argues that "There appears to be no objective justification for this exemption and it believes that disabled pupils and those with SENs should have the same protection as any other pupil."[337]

270. Other submissions feel that the Directive may go too far.[338] The CBI believes that the draft EU Directive is "fundamentally an unsuitable legislative approach to the area of non-discrimination. We have concerns that the complex drafting, filled with exceptions and conditions, would make the legislation indecipherable to business. Furthermore, we are alarmed at the potential for 'scope creep' in EHRC's definitions of discrimination."[339] CBI members are also concerned about the financial and bureaucratic implications for companies of the reversal of the burden of proof in access to goods and services. It argues that both the challenges involved in keeping elements of proof in a customer relationship and the limited administrative capacities of SMEs for this function must be acknowledged.[340]

271. The Association of British Insurers is concerned that legislation to restrict the use of age in pricing products would have negative unintended consequences for all consumers, including elderly consumers, by making products more expensive. The draft Directive includes a special clause for financial services, which recognises the need to differentiate between consumers in the fields of age and disability factors in the assessment of risk when developing and pricing insurance policies. However, the ABI have concerns about the wording of the clause, which it believes restricts unnecessarily the data sources it can use.[341]

272. We strongly welcome the draft EU Directive, as it will harmonise legislation across Europe and ensure a minimum standard of rights for people across all protected discrimination strands. This sends out a clear message that there is no hierarchy of inequalities. However, we do believe that the Directive must clarify the definition of disability and we recommend that the social model should be used. The Directive should also extend to cover multiple discrimination.

273. We have heard concerns from some parts of the business community that the draft EU Directive puts too great a burden on businesses. Without diminishing any of the existing obligations on business, we recommend that the Government considers these concerns in its negotiations on the draft Directive. We would not want to see disproportionate burdens being imposed on business.

274. DWP states that the UK strongly supports the aims of the draft Directive. "The Government believes that […] a good level of minimum protection across all States is important. The Government believes the Directive should build on the experience that the previous Directives have provided and that it is important to get the scope right when it comes to issues such as education, healthcare and other areas of social policy."[342]

275. Most submissions state that the draft Directive is welcome.[343] Mr Crowther of the EHRC stressed: "Clearly setting a standard that applies across the EU is beneficial and obviously our hope would be that that is a standard that is at least as developed as that which we have in the UK, improving the opportunity for disabled people to move across European states. That consistency of provision is clearly important in its own right."[344] Mr Lamb of the Disability Charities Consortium added that: "obviously it helps in terms of standardisation and increased protection and also the fact that the Government has to deal properly with association."[345]

276. DWP states that domestic legislation already anticipates several provisions of the draft Directive, for example protection against discrimination on grounds of sexual orientation, religion and belief and disability, in the provision of goods, facilities and services. These protections will be incorporated in the Equality Bill. It is proposed in the Equality Bill that the protection from age discrimination should be extended to GFS and the Directive will require this to happen.[346]

277. Cloisters suggest that the Directive will as presently drafted have a number of significant implications for UK law. "In particular, it will necessitate the introduction of the concept of indirect discrimination to disability discrimination legislation the introduction of a concept of harassment for a reason relating to disability in services and premises changes to the housing provisions (expanding the duty to make reasonable adjustments); expansion of the duty to make adjustments in relation to transport and education shifting of the burden of proof."[347]

278. The Young Equals Coalition states that as it stands, the Directive will provide legal protection from unfair age discrimination for all people, including children.[348] It argues that the Government has consistently failed to acknowledge age discrimination as an issue that affects children. It quotes a statement to Parliament on 26th June 2008 where the Equalities Minister, Harriet Harman MP stated; "The provisions will not cover people under 18. It is right to treat children and young people differently, for example through age limits on alcohol consumption, and there is little evidence of harmful age discrimination against young people. Harmful age discrimination is basically against older people."[349]

279. The Disability Charities Consortium states that if the new obligations under the draft Directive are not reflected in the Equality Bill, this will lead to amendments through regulations. It argues that this carries the risk that the aim of the Equality Bill will be undermined. It calls for the Government to anticipate the EC Equality Directive in the Equality Bill.[350] Ms Scott-Parker of the Employers' Forum on Disability agreed: "We would like to see it drafted in such a way that there are no big surprises when the EU thing does come through. It should be drafted with an understanding of the potential impact of this thing when it does come in."[351]

280. The Minister, Maria Eagle, responded that the Directive reflects: "much of our domestic law and the law we are proposing in the Equality Bill will already be in line with it. To the extent that it is not we will have to look at that as and when the negotiations in respect of it are completed and it is adopted. We hope it will not be too different from what we already see."[352]

281. The Saga Group argued: "the Equality Bill is unlikely to be able to incorporate all the provisions of the Directive as it emerges from the legislative pipeline. We think that it would make more sense for the Equality Bill to be legislated after the Directive is completed. Otherwise, the UK may be faced with returning to Parliament to amend or legislate anew."[353] However, Age Concern & Help the Aged feel, given the likely timescale to agree any Directive, that it would not be acceptable to delay the Equality Bill while the Directive is finalised.[354]

282. We recommend that the Government should anticipate the implications of the draft EU Directive for domestic legislation in the Equality Bill. The Bill should be drafted with an understanding of the potential impact of new EU legislation. Given the likely timescale to agree the draft EU Directive, it would not be acceptable to delay the Equality Bill while the Directive is finalised.

Housing

283. In premises it is perfectly clear that courts are bound by the Malcolm decision, which was a housing case. Ms Casserley of the Discrimination Law Association states: "The Malcolm case has had a massive effect on housing cases. […] there have been a few cases where people with either mental health issues or learning difficulties have fallen behind with their rent because they had not filled in the benefit forms. […] Before Malcolm they would have been able to resist the possession proceedings on the basis that the reason they had not paid the rent was because they had not filled the form in, that was because of their disability and the result there would have been essentially for the authority to help them to backdate their benefit so that they could make sure their rent was paid. After Malcolm they cannot use the DDA any more at all; there is no scope for using it as a result of that judgment."[355]

284. Douglas Johnson, Equality Rights Worker at Sheffield Law Centre, assisted a client who was a tenant of a large social landlord. The client had both physical and mental disabilities, of which the main symptoms were isolation and reclusiveness. Because he could not manage to pursue his entitlement to social security and housing benefits, his landlord decided to evict him. Douglas Johnson states that "The judge did not seem to accept that depression was an acceptable form of disability and commented, 'I get depressed when my cricket team loses.' He also seemed to understand that Lewisham v Malcolm meant that no account could be taken of any disability unless the defendant could prove malicious motivation by the landlord."[356]

285. Cloisters confirm that "It is our experience that premises cases have had to be abandoned in light of Malcolm - for example, where a disabled person has failed to pay rent because their depression has resulted in their failing to complete a housing benefit form, then they will no longer have a basis on which to resist any possession proceedings brought against them on this basis."[357]

286. As the duty to make adjustments is much more restrictive in premises, there are not the same options for mitigating the effects of Malcolm as there are in GFS and education. DWP state that the Government recognises that further improvements should be made to the legislative provisions on premises. DWP states that the Government intends to include provisions in the Equality Bill requiring landlords, where it is reasonable for them to do so, to make disability-related alterations to the common parts of let residential premises. This duty will only apply where the request for a disability-related alteration is made by or on behalf of the disabled person and the costs of the alteration, including reasonable maintenance costs and reinstatement costs, will be the responsibility of the disabled person.[358]

287. However, Cloisters, the Discrimination Law Association and the Housing Law Practitioners Society suggest that, in the interests of consistency and effectiveness, the premises duties to make reasonable adjustments should be made anticipatory.[359] The Discrimination Law Association argues that: "Given that the steps to be taken are limited in any event by what is 'reasonable' this should not impose an undue burden upon landlords and would result in more effective removal of barriers to disabled people's participation."[360]

288. Ms Casserley added that: "There is no free standing anti-harassment provision in the parts that deal with housing. There is in employment so if you are harassed because of your disability you can bring a claim based on that, but there is not in relation to housing or goods and services. […] The DDA has not been able to tackle harassment in housing. Reasonable adjustments are few and far between."[361]

289. A 2007 DWP research report found that there is a clear divide between social landlords (local authorities and housing associations) and private sector landlords (letting agents and private landlords) in terms of policy, experience and practice with the DDA in housing. Key findings include:

All of the social landlords had disabled tenants and they covered the full range of disabilities covered by the DDA. The private landlords and letting agents had limited experience of (knowingly) housing disabled tenants, and the tenants they knew about tended to have visible disabilities but few, if any, specialist housing requirements.
Local authorities and housing associations had a good awareness of DDA legislation in general, although awareness of the duties for landlords was lower. There was very low awareness amongst the private sector landlords of disability legislation and little awareness of the new DDA duties for landlords.
Local authorities and housing associations were making a wide range of adjustments and arrangements for disabled tenants which often surpassed the requirements of the new DDA duties. Letting agents and private landlords had made some adjustments to policies, practices and procedures on request.
The DDA duties for landlords were felt to have little potential impact on the social housing sector, although the DDA more generally had brought about a considerable change in policy and practice. Private landlords generally felt that the DDA duties would rarely apply to them.
Disabled tenants felt that the DDA duties for landlords could assist them in the future. They would require more information, advice and support around the DDA duties in order to be able to use them effectively.[362]

290. The Malcolm judgment has had its most direct effect in limiting disabled tenants' rights of redress in the face of discrimination. We recommend that the Government takes steps to reverse the effects of the Malcolm judgment in the Equality Bill. As the duty to make adjustments is much more restrictive in premises, there are not the same options for mitigating the effects of Malcolm as there are in employment, goods and services and education.

291. In the interests of consistency and in order to make the provisions as effective as possible, the premises duties to make reasonable adjustments should be made anticipatory in nature. Given that the steps to be taken are limited in any event by what is 'reasonable' this should not impose an undue burden upon landlords and would result in more effective removal of barriers for disabled people. Having similar duties in this area to those in goods, facilities and services would make the law easier to apply and for premises providers to understand. In addition we recommend that harassment of disabled people in the housing context be explicitly prohibited.

292. Research shows clearly the difference in awareness and practice between local authorities/housing associations on the one hand and private landlords on the other. We believe that unless the Equality Bill introduces an anticipatory duty in housing, we can expect that as the public sector duty becomes more widely embedded, the difference between social housing providers and private sector providers in this respect is likely to get even wider than was observed in the research.

314 Ev 199 Back

315 Ev 117 Back

316 Ev 142 Back

317 Q 148 Back

318 Ev 137 [Douglas Johnson] Back

319 DRC Monitoring the Disability Discrimination Act (DDA) 1995: Phase 3 Back

320 Ev 117 Back

321 Ev 142 Back

322 Ev 126 [The Law Society] Back

323 Q 14 Back

324 Ev 118 Cloisters, Ev 126 [The Law Society], Ev 94 [DCC,] Q 120 [CAB], Ev 139 [Douglas Johnson], Ev 176 [TUDA] and Ev 142 [Employers' Forum on Disability] Back

325 Q 148 Back