The Equality Act 2010: the impact on disabled people Contents

Summary of Conclusions and Recommendations

Background

1.We believe that combining disability with the other protected characteristics in one Act did not in practice benefit disabled people, but that separating statutory treatment of disability from the other protected characteristics would be impractical. We prefer to concentrate on improvements to the Equality Act 2010 which will give greater prominence to disability and will increase the protection of disabled people. (Paragraph 50)

2.We call on the Government to make a commitment that it will give due consideration to the provisions of the UN Convention on the Rights of Persons with Disabilities when formulating new policy and legislation which may have an impact on disabled people. (Paragraph 84)

Oversight within Government

3.Locating both the Minister for Women and Equalities and the Government Equalities Office within the same department is welcome, and we hope that the Government will keep in mind the need for coherence and stability if and when any future changes are made to the location of the equalities portfolio. (Paragraph 110)

4.The ability of the Minister to influence policy and practice across Government is more important than the location of the Minister’s portfolio. We agree that this has been diminished by the change in status of the Minister for Disabled People, and greatly regret the decision of the Government to downgrade the role in this manner. The effectiveness of the role is also affected by the lack of power to challenge policy that may impact adversely on disabled people. (Paragraph 112)

5.The Cabinet’s Social Justice Committee, whose terms of reference are “To consider issues relating to poverty, equality and social justice”, has 16 members, but the Minister for Disabled People is not one of them. He should be made a member. (Paragraph 113)

6.The Social Justice Committee should ensure that government departments do not take any major initiatives which will or may affect disabled people without first obtaining the Committee’s agreement. (Paragraph 114)

7.The Minister responsible for Children and Families has the rank of Minister of State, and until 2015 so did the Minister responsible for cross-government disability policy and strategy. The Minister for Disabled People should have the rank of Minister of State restored, to emphasise the importance of the post. (Paragraph 115)

The Equality and Human Rights Commission

8.We recommend that the Equality and Human Rights Commission engage with disabled people and their organisations to co-produce a disability specific action plan covering the full range of the Commission’s powers. The Disability Committee’s involvement will be fundamental to the development and implementation of the plan, but it must belong to the whole organisation. (Paragraph 137)

9.We recommend that, from 1 April 2017, the Equality and Human Rights Commission use its powers under Schedule 1 to the Equality Act 2006 to re-establish its Disability Committee as a decision making body, in a way that as closely as possible mirrors the current statutory functions and powers of the Disability Committee. We welcome the fact that the EHRC continues to provide dedicated staff support for the Committee, in the face of staffing reductions, and recommend that it ring-fence specific resources for the Committee. (Paragraph 144)

10.We recommend that the Equality Advisory and Support Service be returned to the Equality and Human Rights Commission, either in-house or as the contract managers for a tendered-out service. (Paragraph 155)

11.We further recommend that, once the Equality and Human Rights Commission is again responsible for the services provided by the Equality Advisory and Support Service, it should develop a service specification and strategy to realise fully the advantages of in-house provision, including face-to-face legal advice, the restored conciliation service and the link to its enforcement function. (Paragraph 156)

12.We recommend that the Government lay before Parliament as Codes of Practice the technical guidance on the Public Sector Equality Duty, Schools, and Further and Higher Education that have already been drafted and extensively consulted on by the Equality and Human Rights Commission. (Paragraph 164)

Communication and language

13.All government departments, local authorities and official bodies should review their means of communication with the public, especially online, from the point of view of people with a variety of disabilities. The Office for Disability Issues should coordinate this and lead by example. (Paragraph 170)

14.We recommend that the Equality and Human Rights Commission work with local and national disabled people’s organisations to undertake a wide programme of educational activity, raising awareness of the rights of disabled people and the responsibilities of those subject to duties under the Equality Act 2010. (Paragraph 191)

15.If this public awareness and education campaign should require the Equality and Human Rights Commission to access its discretionary programme funds, we expect the Government to fully support it in doing so. (Paragraph 192)

Reasonable adjustment

16.We have carefully considered the statutory provisions on reasonable adjustment and conclude that, despite the problems described, the flexibility they provide is necessary for their effectiveness. (Paragraph 217)

17.We have sympathy for those calling for greater clarity on how ‘reasonable’ cost is determined, but question how far this is possible given that this can be a matter of judgment rather than objective criteria. Exercising this judgment does, however, require information, and guidance should make it clear that an adjustment should not be rejected as unreasonable on grounds of cost unless the expected cost is known. (Paragraph 225)

18.The Equality and Human Rights Commission should prepare a specific Code of Practice on reasonable adjustments to supplement the existing Equality Act Codes. This would provide an appropriate balance between flexibility and clarity. (Paragraph 231)

19.Alongside the new Code, the Equality and Human Rights Commission should produce, in consultation with organisations of and representing disabled people, industry-specific guidance on reasonable adjustment. Where appropriate this should be done in partnership with relevant professional and regulatory bodies. Regular updates on case law developments will be essential to the effectiveness of these guides, and should be provided by the EHRC. (Paragraph 234)

20.We do not understand why yet another review is needed of the commencement of the provisions dealing with alterations to common parts. There is no justification for further delay. They must be brought into force forthwith. (Paragraph 244)

21. We recommend that the Government include provisions similar to those of the Accessible Sports Grounds Bill in a Government Bill. (Paragraph 248)

22.We recommend that ministers report regularly to Parliament on the progress made (a) by the Premier League and by the Football League, and (b) on comparable action by the operators of other large stadia. (Paragraph 249)

Carers

23.The Equality and Human Rights Commission should work with carers’ organisations to produce and disseminate guidance on the rights of carers under the Equality Act 2010. (Paragraph 269)

24.The Government Equalities Office, the Office for Disability Issues, the Department for Business, Innovation and Skills and the EHRC should undertake joint work to encourage employers to respond positively to flexible working requests from carers of disabled people. (Paragraph 270)

Transport

25.Network Rail, Transport for London, train operators and bus companies should put more of their resources towards making their stations and vehicles more easily accessible to those in wheelchairs. (Paragraph 285)

26.The Driver and Vehicle Standards Agency must enforce strictly the Regulations governing access to vehicles. (Paragraph 286)

27.More resources should be devoted to providing annunciators on trains and buses which do not have them. No new vehicles should be put into service which do not have audio and visual annunciators. The Public Service Vehicles Accessibility Regulations 2000 should be amended accordingly. (Paragraph 293)

28.Training of all rail, bus and coach staff to a level agreed in consultation and set out in law is in our view essential. If no adequate level of training can be agreed, Ministers have power under section 22(2) of the Equality Act 2010 to make Regulations prescribing the level of training which is reasonable. They should be prepared to use these reserve powers if necessary, and to enforce the Regulations they make. (Paragraph 298)

29.The reasons offered by the Government for failing to bring section 165 of the Equality Act 2010 into force 20 years after its enactment are entirely unconvincing. Ministers should be considering the burden on disabled people trying to take taxis, not the burden on taxi owners or drivers. Section 165 and the remaining provisions of Part 12 of the Act should be brought into force forthwith. (Paragraph 311)

30.The Department for Transport should update its 2011 Local Transport Note to offer guidance to local authorities on how shared spaces schemes can best cater for the needs of disabled people. Local authorities should review existing schemes in the light of that guidance, make changes where necessary and practicable, and base any new schemes on that guidance. (Paragraph 324)

The Public Sector Equality Duty

31.Our evidence has demonstrated that there is a fundamental flaw in the current Public Sector Equality Duty, namely that a public authority can make no progress towards the aims of the general duty and yet be judged compliant with it by the courts. We have heard convincing evidence that an amendment is needed to remedy this. (Paragraph 345)

32.We recommend that a new subsection should be added to section 149 of the Equality Act 2010: “To comply with the duties in this section, a public authority in the exercise of its functions, or a person within subsection (2) in the exercise of its public functions, shall take all proportionate steps towards the achievement of the matters mentioned in subsection (1).” (Paragraph 346)

33.We recommend that the Government replace the Equality Act 2010 (Specific Duties) Regulations 2011 with provisions that require a listed public authority to develop and implement a plan of action setting out how they will meet the requirements of the general duty in all of their functions. (Paragraph 360)

34.Duties to involve disabled people in the development and implementation of actions, to collect and publish data to measure progress against the aims of the general duty, and to report regularly on progress should also be specified in the Regulations. (Paragraph 361)

35.We recommend that the Government produce an assessment of the cumulative impact of budgets and other major initiatives on disabled people. It should be supported in this by the Government Equalities Office and the Office for Disability Issues. (Paragraph 372)

36.We recommend that our findings and recommendations regarding the Public Sector Equality Duty form the basis of the planned Government review. (Paragraph 375)

Enforcement through the judicial process

37.We recommend that HM Courts and Tribunals Service be required to collect from all county courts and from the Employment Appeal Tribunal, and to make publicly available, data relating to disability discrimination claims separately from other claims, as they do in employment tribunals. (Paragraph 386)

38.We recommend that the Ministry of Justice, in its ongoing review of fees, act on the strong evidence that tribunal fees are unfairly obstructing discrimination claims under the Equality Act 2010. (Paragraph 389)

39.The Civil Procedure Rules should be amended to apply Qualified One-Way Costs Shifting to discrimination claims under the Equality Act 2010. (Paragraph 402)

40.The Government should reinstate the statutory questionnaire procedure. (Paragraph 410)

41.We recommend that the Government restore the power of tribunals to make wider recommendations with a view to preventing discrimination experienced by the claimant from happening to others. (Paragraph 416)

42.The Government should consider changing the law to allow charities and other bodies which do not themselves have a legal interest to bring proceedings in the interests of classes of disabled people who are not themselves claimants. This would enable them to remedy action already taken by a public authority or to prevent anticipated action. (Paragraph 434)

43.Section 14 of the Equality Act 2010 on dual discrimination should be brought into force forthwith. (Paragraph 439)

Other remedies for discrimination

44.We recommend restoring the Equality and Human Rights Commission’s power to arrange the provision of conciliation services for non-employment discrimination claims. The service specification should provide for a range of delivery methods to ensure it is accessible, including provision of face-to-face conciliation, and the service should take direct referrals from the Equality Advisory and Support Service or its replacement. (Paragraph 450)

45.We recommend that the Government amend the mandates of those regulators, inspectorates and ombudsmen that deal with services most often accessed by disabled people to make the securing of compliance with the Equality Act 2010 a specific statutory duty. (Paragraph 461)

46.We recommend that any new relevant public sector ombudsman be given an explicit remit to secure compliance with the Equality Act 2010 in the services for which it is responsible. (Paragraph 462)

47.We recommend that section 4(2) of the Licensing Act 2003 be amended to make a failure to comply with the Equality Act 2010 a ground for refusing a licence. (Paragraph 473)

48.We endorse the recommendation of the Law Commission “that the Secretary of State require holders of taxi and private hire driver licences and dispatcher licences to comply with the Equality Act 2010 as a condition of the licence.” (Paragraph 480)

49.We recommend that all local authorities should exercise their powers of persuasion and coercion so that no drivers are licensed unless they have had disability awareness training, and no taxis are licensed unless they are wheelchair accessible. Where the driver or operator fails to comply with the Equality Act 2010, local authorities should be prepared to take action against the licence. (Paragraph 481)

50.Local authorities must ensure that building control officers, whether or not employed by them, have access to the necessary expert advice to monitor compliance not just with Part M of the Building Regulations, but also with the Equality Act 2010. (Paragraph 491)

51.We believe that other local authorities should follow the example of London and revise their planning policy to require a significant proportion of new dwellings to be wheelchair accessible or wheelchair adaptable (standard M4(3)), and all other new dwellings to comply with optional standard M4(2). (Paragraph 496)

52.Local authorities and other licensing bodies are uniquely well placed to deal with many of the problems which prevent disabled people from enjoying life to the full. When exercising their licensing powers and their powers under the Building Regulations, they should always bear in mind their obligations under the public sector equality duty—revised, we hope, in accordance with our recommendations—to take all proportionate steps to eliminate discrimination and to advance equality of opportunity. (Paragraph 498)

Disabled children and children with special educational needs

53.Schools should be encouraged and supported to make the kinds of adjustments that can help to address the educational inequalities faced by disabled children and young people, including those whose disability gives rise to challenging behaviour. This is undermined by Regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010, and we recommend that the Regulations are amended so that a tendency to physical abuse of other persons ceases to be treated as not amounting to an impairment for the purposes of the definition of ‘disability’. (Paragraph 503)

54.It is unfortunate that the Ofsted and Care Quality Commission consultation on the inspection of local areas’ effectiveness in “identifying and meeting the needs of children and young people who have special educational needs and/or disabilities” did not make mention of the Equality Act or schools’ and others’ duties under it. This ought to be remedied in the development of the inspection framework and inspection handbook. (Paragraph 506)

55.The inclusion of equality matters in the Common Inspection Framework on education, skills and early years is welcome. Ofsted’s inspection methodology will also need to be adequate to identify where schools are practising informal exclusion or internal segregation of disabled pupils. (Paragraph 507)





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