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Lord Rix: My Lords, I was under the impression that it was I who came from the world of farce, but not even in my day could I have envisaged a "responsible body" being adjudged to be a responsible body if it had not even bothered to find out whether a person was disabled. Even the Marx brothers would have had problems with that double entendre. Normally, double entendres are intended to get laughs, but they are out of place in this Bill.
Baroness Blackstone: My Lords, I thank the noble Baroness, Lady Darcy de Knayth, for highlighting this concern. I am aware that this section of the Bill is complex, although I hope that it is not farcical. I welcome the opportunity to clear up any misunderstandings.
Subsections (3) and (4) provide defences to protect institutions from being found in breach of the law when their actions or inactions arise out of a genuine lack of knowledge. Subsection (3) provides that defence in relation to the duty to make reasonable adjustments in anticipation of the needs of disabled
This amendment seeks to delete subsection (4) on the grounds that since it does not require the discrimination in question to relate to the institution's lack of knowledge, it would provide a blanket justification for discrimination of any sort against a disabled person if the institution could reasonably claim that it did not know, or could not be expected to know, about an individual's disability at the time. The amendment is based on the view that subsection (4) is flawed compared with subsection (3), which provides that the failure to act where there is a lack of knowledge is defensible only if that failure was attributable to the lack of knowledge.
However, this view seriously underestimates the limited circumstances in which we would expect an institution to be able to claim both that it did not know and that it could not reasonably have been expected to know about an individual's disability.
I understand that SKILL may be concerned about the position of potential students who have not yet applied and about whom the institution may reasonably know nothing or next to nothing. The concern is that institutions may discriminate against them with impunity, for example, in relation to admissions arrangements.
Perhaps I may try to explain the position. Under Section 28R institutions must not discriminate against disabled people in their admission arrangements. If a student tried to apply and was turned down because of his disability, that would be discrimination against that individual. In the same vein, if a prospective student asked the institution if he could apply, mentioned that he was disabled and was told that it would not accept disabled students, that would be discrimination against that individual. However, if a prospective student had found out that an institution did not accept disabled students and had decided that he would therefore not apply to that college, he would probably be unable to prove that the college had discriminated against him as an individual. In those circumstances he probably would have no basis for a claim under the less favourable treatment provisions which concern discrimination against an individual. Therefore removing or somehow amending the knowledge requirement in relation to the less favourable treatment duty, which this amendment seeks to do, would not help that student.
Where, then, is the provision to prevent discrimination of this type? It lies in Section 28T, not in Section 28S. Under Section 28T the institution has to take reasonable steps to ensure that its admission arrangements, among other things, do not place disabled students at a substantial disadvantage in comparison with persons who are not disabled. This duty operates to disabled students at large, unlike the less favourable treatment duty in Section 28S, and is anticipatory. Using Section 28T, a student who has
In summary, prospective students who are unknown to an institution will get a remedy through the anticipatory nature of the reasonable adjustments duty, which is a more appropriate approach for this type of blanket discrimination. I am confident, therefore, that this Bill, if enacted, will require any college which may have a policy of not enrolling disabled students to review and revise that policy and that the Bill is not in fact flawed in the way that some may have feared.
Baroness Darcy de Knayth: My Lords, I thank the noble Baroness for that careful and lengthy reply. I shall certainly withdraw the amendment for the moment. I believe that she has covered every circumstance. But I shall go back to SKILL and check. I beg leave to withdraw the amendment.
The noble Baroness said: My Lords, the next three blocks of amendments are all in my name. They are all probing amendments. In view of the lateness of the hour, I shall not move them but perhaps have a word with the Minister outside the Chamber. I may bring them back at Third Reading.
Clause 29 allows for damages where discrimination has taken place under this chapter to include compensation for "injury to feelings". As we said in Committee, that exactly mirrors the provisions for compensation for "injury to feelings" under Parts II and III of the Disability Discrimination Act. The amendment substitutes the words "any personal offence caused" for "injury to feelings", presumably in pursuit of clarity. However, we still contend that, far from contributing to clarity, the amendment would introduce a difference in wording between identical provisions in the Bill and the rest of the Disability Discrimination Act, and thus introduce confusion.
Furthermore, the concept of "injury to feelings" is common not only to the Disability Discrimination Act but also to the Sex Discrimination Act and the Race Relations Act. The Government's argument is not, as has been suggested, simply that "injury to feelings" has been used before; it is that that concept has been successfully used and that the argument that it cannot be measured or assessed by courts or tribunals is not borne out by the evidence.
The main cases about the meaning of "injury to feelings" have arisen in the employment context. In that context, the Employment Appeals Tribunal has given general guidance on the need to be just to both parties. Such awards should compensate fully without punishing the person who has discriminated. The principle is that the victim should be compensated in a way that is broadly similar to personal injury cases.
Employment tribunals have wide discretion in deciding what amount to award for injury to feelings, but assess the degree of hurt, humiliation and distress that the discrimination has caused to the person. They have a good record for taking injury to feelings into account and in assessing different degrees of injury to feelings. For example, in 1999 compensation for injury to feelings accounted for just over one-third of the
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