Making the Equality Act work for disabled people
Douglas Johnson and Catherine Casserley consider the recent report and recommendations of the House of Lords Select Committee on the Equality Act 2010 and Disability, which concluded that substantial changes are needed to ensure that disability discrimination is tackled effectively through the Act.
Last year marked the 20th anniversary of the passing of the Disability Discrimination Act (DDA) 1995. While there have been some notable successes (for example, Allen v Royal Bank of Scotland Group PLC  EWCA Civ 1213, where the county court awarded an injunction requiring the bank to install a platform lift (a decision upheld by the Court of Appeal) and Archibald v Fife Council  UKHL 32, where the House of Lords set out the importance and difference of the duty to make adjustments for disabled people) disabled people remain subject to considerable discrimination.
So how has the Equality Act 2010 (EA) fared in tackling this discrimination? The House of Lords Select Committee on the Equality Act 2010 and Disability published its comprehensive and forthright report, The Equality Act 2010: the impact on disabled people, on 24 March 2016. In summary, it did not hesitate to make clear that the EA has not advanced the rights of disabled people sufficiently. Witnesses included a range of disabled people (this was the first select committee to take evidence in British Sign Language) as well as government ministers and those involved in inspection regimes and local government. They informed the committee of the drawbacks of including the special aspects of disability rights in an all-purpose EA. The conclusion? ‘Much more needs to be done’ to make the EA work (page 5).
The government is now required to respond in writing to the report to say what it will do in respect of the committee’s 55 recommendations. The matter will then return to parliament for a full debate, probably in autumn 2016.
The committee’s recommendations do not propose costly or extremely radical solutions to address everything – notably avoiding any specific recommendation about legal aid – but instead focus on a practical approach that can be easily implemented by government. While the committee accepts that ‘[t]he needs of disabled people are many and complex’ and ‘[m]uch more could be done with additional resources’, the recommendations, if implemented, are designed to have a very positive impact on the ability of disabled people to participate fully and equally in society (page 6).
The committee’s terms of reference were fairly broad, as follows:
•Adequacy of the law: Has the Act achieved the aim of harmonising and strengthening disability discrimination law? Are there gaps in legal protection against discrimination that impact on the ability of disabled people to participate fully in, and contribute to, society with dignity and respect?
•Implementation: Are the reasonable adjustment provisions of the EA being implemented in access to goods and services available to the public? Does the division of responsibilities across several government departments support effective implementation?
•Enforcement: Are the enforcement mechanisms accessible and effective for people with disabilities and service providers? How effective is the Equality and Human Rights Commission (EHRC) in fulfilling its enforcement and regulatory role in respect of disability discrimination?
The cross-party committee took written evidence from 144 organisations and individuals with an interest in and knowledge of disability and/or legal issues, as well as government officials. Fifty-three people gave oral evidence between July and December 2015, where the committee was able to put searching questions to them. The record of written evidence and transcripts of the oral sessions are available online1www.parliament.uk/business/committees/committeesa-z/lords-select/equality-act-2010-and-disability/
and make up a large and compendious resource of carefully considered knowledge from disability organisations and statements from official bodies.
Adequacy of the law
As set out above, the committee concluded that inclusion of disability as one of the protected characteristics in the EA has not served disabled people well; but it focused its recommendations on how to make disability discrimination law work better within that framework.
So far as the duty to make reasonable adjustments is concerned, the committee found in general a lack of awareness of both rights and responsibilities. The report stated that ‘witness after witness told us that, contrary to the government’s view, the provisions were neither well known nor well understood’ (para 201). Even where there was awareness, understanding was often poor. Nevertheless, the committee concluded that despite the problems described with respect to reasonable adjustments, ‘the flexibility they provide is necessary for their effectiveness’ (para 217) and there was no need to alter the definition. It has to be said that had the Court of Appeal case of Griffiths v Secretary of State for Work and Pensions  EWCA Civ 1265 had a different outcome (regarding the comparator for the purposes of substantial disadvantage in reasonable adjustments), then the committee might have made a different recommendation here.
However, the committee did agree that a separate Code of Practice was needed to provide more examples of what might be reasonable. Furthermore, it was critical of the government’s ‘inexplicabl[e]’ failure to give a statutory basis to the draft codes (for the public sector equality duty, and for schools and the further and higher education duties) (para 232). The committee debunked the government argument that such codes were ‘too long and were going to increase burdens’ by pointing out that ‘Codes of Practice, alongside shorter targeted guidance, reduce regulatory burdens by adding clarity and information’ (para 163).
As for government oversight of disability policy, overall, the committee found a ‘lack of coherence and co-ordination’ within government, with neither the Government Equalities Office nor the Office for Disability Issues having effective roles within government (para 102). This hampered the effective implementation of disability discrimination provisions. Neither took responsibility for any form of ‘policing’ of equality matters within government departments. The role of minister for disabled people had itself been downgraded.
Nor did the EHRC escape criticism. Disabled people and legal advisers tended to be critical of its limited approach to enforcement of rights, whereas government officials were more supportive. The committee commented: ‘It seems that the EHRC are having some difficulty in defining an enforcement role appropriate to their overall strategy’ (para 132).
The committee’s final recommendations include bringing the helpline (currently transferred to the Equality Advisory Support Service) back in-house to the EHRC. Once this is done, the EHRC should develop a strategy to build on the strengths of in-house provision, including face-to-face legal advice, the restored conciliation service and the link to its enforcement function. This is potentially a very important step forward. The committee accepted evidence from the Law Centres Network about the effectiveness of its funding from the former Disability Rights Commission to ‘provide and co-ordinate a service across 15 Law Centres. These provided a pioneering service of awareness-raising in their local communities, coupled with a casework service for those disabled people who wanted to enforce their rights once they became aware of them’ (para 188).
As a result, the committee recommended ‘that the [EHRC] 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 … If this public awareness and education campaign should require the EHRC to access its discretionary programme funds, we expect the government to fully support it in doing so’ (paras 191–192).
Evidence and questioning before the committee looked at the question of whose responsibility it was to take action on discrimination. The committee’s answer was that: ‘Where there is discrimination, it should not be for disabled people alone to seek to assert their rights through the courts. Here the government, by imposing tribunal fees, withdrawing legal aid and changing the costs rules, has hindered, not helped’ (page 6).
Recommendations for better enforcement of the EA include amending the Civil Procedure Rules to ensure that Qualified One-Way Costs Shifting applies to discrimination claims. This would balance the adverse costs risks that disabled people face if they dare use their individual rights to tackle discrimination and would work in the same way that it does for personal injury claims, meaning that costs could only be recovered from unsuccessful claimants with the permission of the court.
Also, the statutory questionnaire procedure and the power of employment tribunals (ETs) to make wider recommendations should be restored. HM Courts and Tribunals Service should collect data on disability discrimination claims from all county courts and the Employment Appeal Tribunal, as the ETs do, and the government should act on the ‘strong evidence that tribunal fees are unfairly obstructing discrimination claims’ (para 389).
A more contentious issue was that of the role of ombudsmen and the possibility of creating a Disability Ombudsman. Some witnesses thought that ombudsmen should be given powers to enforce the EA. Others thought that it was inappropriate because of the often-confused difference between poor customer service and discrimination. The Law Centres Network submitted that ‘the basis of all ombudsman complaints is good administration or good practice, whether or not actions are lawful’ (para 456). Witnesses from the ombudsmen themselves agreed, with one saying: ‘The challenge is to make sure that the existing ombudsmen more self-consciously use the powers they already have …’ (para 458).
The committee adopted this approach, recommending that the mandates of the relevant regulators, inspectorates and ombudsmen should be widened to ‘make the securing of compliance with the [EA] a specific statutory duty’ (para 461).
One early success for the committee came on the eve of publication when the government announced it would finally bring into force the enforcement provisions relating to wheelchair-accessible taxis.2See also Hansard HC Debates Vol 609 col 286, 4 May 2016.
The committee was particularly scathing about the fact that the legislature had passed this provision 20 years ago in the DDA 1995 but that successive governments had continually delayed bringing it into force. It was under ‘constant review’ according to one official (para 306). Transport for All, which campaigns on accessible transport, reported that ‘two out of three wheelchair users say they have been refused a taxi’ (para 308) while the Department for Transport minister, Andrew Jones MP, said the government was committed to ‘reducing the amount of regulation we place on people, particularly small businesses’ (para 307). The committee found this ‘entirely unconvincing’ and stated that: ‘Ministers should be considering the burden on disabled people trying to take taxis, not the burden on taxi owners or drivers’ (para 311). The committee noted that ‘[a]ll too often the government has … made changes under the Red Tape Challenge which increase the problems of disabled people’ and made it clear that ‘[t]hese must be reversed’ (page 5).
It will be interesting to see how the government responds. It is encouraging to hear of the beginning of the end of the 20-year wait to bring the taxi provisions into force but disabled people will certainly want to see progress on the other issues much more quickly. The committee has very carefully identified recommendations that can be carried out easily if the political will is there. As the committee stated: ‘Many are for changes which are simple, and cost-free to the taxpayer. Most could be rapidly implemented. We urge the government to make this happen’ (page 6).
In the meantime, it remains important to raise awareness of the rights and responsibilities that apply in respect of disabled people and to use those rights in litigation to achieve change. ■