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LORDS AMENDMENT

128

After Schedule 2, insert the following new schedule—

("Schedule 2A
Premises Occupied Under Leases
Part I
Occupation by Employer or Trade Organisation
Failure to obtain consent to alteration

1. If any question arises as to whether the occupier has failed to comply with the section 6 or section (Duty of trade organisation to make adjustments) duty, by failing to make a particular alteration to the premises, any constraint attributable to the fact that he occupies the premises under a lease is to be ignored unless he has applied to the lessor in writing for consent to the making of the alteration.
Joining lessors in proceedings under section 8

2.—(1) In any proceedings under section 8, in a case to which section (Alterations to premises occupied under leases) applies, the complainant or the occupier may ask the tribunal hearing the complaint to direct that the lessor be joined or sisted as a party to the proceedings.
(2) The request shall be granted if it is made before the hearing of the complaint begins.
(3) The tribunal may refuse the request if it is made after the hearing of the complaint begins.
(4) The request may not be granted if it is made after the tribunal has determined the complaint.
(5) Where a lessor has been so joined or sisted as a party to the proceedings and the tribunal finds that—
(a) the lessor has—
(i) refused consent to the alteration, or
(ii) has consented subject to one or more conditions, and
(b) the refusal or any of the conditions was unreasonable,
it may make such declaration as it considers appropriate or order the lessor to pay compensation to the complainant.

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(6) A declaration or order under sub-paragraph (5) may be made in substitution for, or in addition to, any steps taken by the tribunal under section 8(2).
(7) If the tribunal orders the lessor to pay compensation it may not make an order under section 8(2) ordering the occupier to do so.
Regulations

3. Regulations may make provision as to circumstances in which—
(a) a lessor is to be taken, for the purposes of section (Alterations to premises occupied under leases) and this Part of this Schedule to have—
(i) withheld his consent;
(ii) withheld his consent unreasonably;
(iii) acted reasonably in withholding his consent;
(b) a condition subject to which a lessor has given his consent is to be taken to be reasonable;
(c) a condition subject to which a lessor has given his consent is to be taken to be unreasonable.
Sub-leases etc.

4. The Secretary of State may by regulations make provision supplementing, or modifying, the provision made by section (Alterations to premises occupied under leases) or any provision made by or under this Part of this Schedule in relation to cases where the occupier occupies premises under a sub-lease or sub-tenancy.
Part II
Occupation by Providers of Services
Failure to obtain consent to alteration

5. If any question arises as to whether the occupier has failed to comply with the section 15 duty, by failing to make a particular alteration to premises, any constraint attributable to the fact that he occupies the premises under a lease is to be ignored unless he has applied to the lessor in writing for consent to the making of the alteration.
Reference to court

6.—(1) If the occupier has applied in writing to the lessor for consent to the alteration and—
(a) that consent has been refused, or
(b) the lessor has made his consent subject to one or more conditions,
the occupier or a disabled person who has an interest in the proposed alteration to the premises being made, may refer the matter to a county court or, in Scotland, to the sheriff.
(2) In the following provisions of this Schedule "court" includes "sheriff".
(3) On such a reference the court shall determine whether the lessor's refusal was unreasonable or (as the case may be) whether the condition is, or any of the conditions are, unreasonable.
(4) If the court determines that the lessor's refusal was unreasonable it may make a declaration to the effect that if the lessor were to give his consent subject to such condition or conditions as may be specified in the declaration he would be acting reasonably.
Joining lessors in proceedings under section 20

7.—(1) In any proceedings on a claim under section 20, in a case to which this Part of this Schedule applies, the plaintiff, the pursuer or the occupier concerned may ask the court to direct that the lessor be joined or sisted as a party to the proceedings.
(2) The request shall be granted if it is made before the hearing of the claim begins.
(3) The court may refuse the request if it is made after the hearing of the claim begins.
(4) The request may not be granted if it is made after the court has determined the claim.

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(5) Where a lessor has been so joined or sisted as a party to the proceedings and the court finds that—
(a) the lessor has—
(i) refused consent to the alteration, or
(ii) has consented subject to one or more conditions, and
(b) the refusal or any of the conditions was unreasonable,
it may make such declaration as it considers appropriate or order the lessor to pay compensation to the complainant.
(6) If the court orders the lessor to pay compensation it may not order the occupier to do so.
Regulations

8. Regulations may make provision as to circumstances in
which—
(a) a lessor is to be taken, for the purposes of section (Alterations to premises occupied under leases) and this Part of this Schedule to have—
(i) withheld his consent;
(ii) withheld his consent unreasonably;
(iii) acted reasonably in withholding his consent;
(b) a condition subject to which a lessor has given his consent is to be taken to be reasonable;
(c) a condition subject to which a lessor has given his consent is to be taken to be unreasonable.
Sub-leases etc.

9. The Secretary of State may by regulations make provision supplementing, or modifying, the provision made by section (Alterations to premises occupied under leases) or any provision made by or under this Part of this Schedule in relation to cases where the occupier occupies premises under a sub-lease or sub-tenancy.")
The Commons agreed to this amendment with the following amendments— 128A

Line 24, leave out sub-paragraphs (5) and (6) and insert—


'(5) Where a lessor has been so joined or sisted as a party to the proceedings, the tribunal may determine—
(a) whether the lessor has—
(i) refused consent to the alteration, or
(ii) consented subject to one or more conditions, and
(b) if so, whether the refusal or any of the conditions was unreasonable.
(5A) If, under sub-paragraph (5), the tribunal determines that the refusal or any of the conditions was unreasonable it may take one or more of the following steps—
(a) make such declaration as it considers appropriate;
(b) make an order authorising the occupier to make the alteration specified in the order;
(c) order the lessor to pay compensation to the complainant.
(5B) An order under sub-paragraph (5A)(b) may require the occupier to comply with conditions specified in the order.'.
(6) Any step taken by the tribunal under sub-paragraph (5A) may be in substitution for, or in addition to, any step taken by the tribunal under section 8(2).'. 128B

Line 77, leave out sub-paragraph (4) and insert—


'(4) If the court determines—
(a) that the lessor's refusal was unreasonable; or
(b) that the condition is, or any of the conditions are, unreasonable,
it may make such declaration as it considers appropriate or an order authorising the occupier to make the alteration specified in the order.

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(4A) An order under sub-paragraph (4) may require the occupier to comply with conditions specified in the order.'. 128C

Line 92, leave out sub-paragraph (5) and insert—


'(5) Where a lessor has been so joined or sisted as a party to the proceedings, the court may determine—
(a) whether the lessor has—
(i) refused consent to the alteration, or
(ii) consented subject to one or more conditions, and
(b) if so, whether the refusal or any of the conditions was unreasonable.
(5A) If, under sub-paragraph (5), the court determines that the refusal or any of the conditions was unreasonable it may take one or more of the following steps—
(a) make such declaration as it considers appropriate;
(b) make an order authorising the occupier to make the alteration specified in the order;
(c) order the lessor to pay compensation to the complainant.
(5B) An order under sub-paragraph (5A)(b) may require the occupier to comply with conditions specified in the order.'.

Lord Mackay of Ardbrecknish: My Lords, with the leave of the House, I beg to move that this House do agree with the Commons in their Amendments Nos. 128A, 128B and 128C en bloc as amendments to Lords Amendment No. 128. The amendments seek to clarify certain aspects of legal proceedings relating to leases. Under Amendment No. 128 as it stands, an industrial tribunal can make a declaration that the consent required by an employer, should there be a restriction in a lease which prevents a reasonable adjustment, was unreasonably refused by the landlord.

However, that declaratory remedy is insufficient because a declaration that a consent was unreasonably refused does not amount to permission to the tenant to carry out the alteration. For the provisions to be effective for disabled people and employers the tribunal should be able, after hearing all the evidence including the landlord's evidence and arguments, to make an order that the refusal of consent was unreasonable and the tenant is entitled to carry out the alteration. In order for the landlord's interests to be protected, it is also important that the Bill should make clear that the court or tribunal may impose conditions on the way the alteration is carried out; that is, conditions that the landlord could reasonably have attached to his consent.

In Amendment No. 128A we also believe that the schedule should make expressly clear that the issue of the reasonableness of the landlord's actions can only be considered by the tribunal if the landlord has been made a party to the proceedings and hence has the right to appear and argue his case. At the moment this is implicit but clarifying the remedy makes it important to set out clearly this safeguard for the landlord.

The provisions on leases are broadly the same for the right of access to goods and services as they are for the employment right. That explains Amendment No. 128C. On Amendment No. 128B, however, because of the greater number of disabled people and wider range of disabilities which many service providers will encounter, we want to encourage service providers to comply with their duties in advance of being required to

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do so by a disabled person. This will promote a more comprehensive approach to the accessibility of public places. Part II of Schedule 2(A) therefore includes an additional provision which would allow a county court to consider an application made directly by a service provider who feels he has been unreasonably refused permission to make an alteration to his premises required in order to carry out his duty. This means he can have the matter determined even though there has been no specific complaint by a disabled person. Here, too, the purpose of Amendment No. 128B is to make clear that the court has the power in such a situation to make an order authorising the service provider to proceed with the alteration subject to any condition the court might make. The provisions I have mentioned will also apply for trade organisations covered by Part II of the Bill.

These amendments clarify the relationship between the duty of reasonable adjustment on businesses and the implications for landlords. The amendments provide a fair balance between the needs of disabled people and the requirements on businesses and landlords. We will ensure that disabled people, businesses and landlords are among those consulted on the regulations. This is an important area. I commend the amendments to the House. I beg to move.

Moved, that the House do agree with the Commons in their Amendments Nos. 128A to 128C as amendments to Lords Amendment No. 128.—(Lord Mackay of Ardbrecknish.)

4 p.m.

Baroness Hollis of Heigham: My Lords, Amendments Nos. 128A to 128C amend, obviously, Amendment No. 128. We are content with the substance of the amendment and the subsequent amendments, but Amendment No. 128, the original amendment, states in paragraph 4:


    "The Secretary of State may by regulations make provision".

I believe that this is the final time today that the word "regulation" will appear before the House. I wish to discuss that briefly rather than speak to the substance of the amendment.

This Bill contains about 63 regulatory powers. Some three major issues have been fought which I believe define the Opposition parties' thinking on the Bill and that of some opposition-minded people on the Government Benches. The first concerns the definition of disability which we discussed earlier today. That includes perception. The second is the fact that small firms employing fewer than 20 people are exempt from certain provisions. That includes firms in large swathes of our rural countryside. Thirdly, we fought over the issue of the National Disability Council and the powers it would have. As regards regulations on the perception of disability in paragraph 4 of Schedule 1, it is clear that where, for example, social prejudice and stigma or perception of disability have the effect of restricting an individual's ability to function the Secretary of State may rule that that prejudice could, if such a regulation were introduced, bring the person affected within the framework of the Bill.

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On the issue of small firms, the Secretary of State has the power by regulation to reduce the figure of 20 down to the more acceptable figure of, for example, five. Clause 15 contains abundant powers to require employers and the providers of services to make proper adjustments. Clause 23(3) concerns the powers of the National Disability Council. The Secretary of State may by order add any additional functions—except that of investigating complaints—as he sees fit. He may require the body to advise, to assist, to research, to educate and to review. I have no doubt there are many other additional functions we would wish to see bestowed.

The Bill, as I said, contains some 63 regulatory powers. But the issue of regulation in this Bill, as opposed to the Jobseekers Bill, has not been aired in this House. I am authorised to say that the next Minister with responsibility for disabled people will use all of those powers where they extend, expand and strengthen the rights and opportunities for disabled people.

I have to say—and I can say—that my honourable friend in another place, Mr. Tom Clarke, is delighted at the range, extent and armoury of powers that have been bequeathed to him by this outgoing government which will allow him to address the issues of the perception of disability, the size of small firms and the role and function of the National Disability Council. With such an array of powers we will be able virtually—although not completely and entirely—to construct a civil rights disability Bill by regulation. Never have so many regulatory powers been welcomed by so many disabled people and never will they be put to such good and benign use as by the next government. Then, and only then, will this be a good enough Bill.


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