Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

It is a pleasure to serve under your chairmanship, Mr. Benton. I shall try to brief, although there are quite a number of amendments to explain, some of which are linked. They concentrate primarily on disability. Amendments 170, 171 and 173 are related to the duty to make reasonable adjustments under clause 19 and the comparator that focuses on persons who are not disabled. Our amendments are supported by the Disability Charities Consortium. I want to probe the Minister on such matters.

The consortium believes that the comparator provisions under the clause are undesirable and should be removed as they could lead to serious problems for disabled people when trying to enforce their rights in respect of goods, services and auxiliary aids, where the comparator concept does not currently exist under the Disability Discrimination Acts. Although we understand the Government’s desire to provide consistency across reasonable adjustment provision, my understanding and that of the DCC is that they are doing so by introducing comparators in areas of disability discrimination legislation where they did not previously exist. Therefore, the worry is that such provisions will be weakened.

The problem with the comparator is whether we would then have a rerun of the problems in the Malcolm case. Under clause 19(3), (4) and (5) a reasonable adjustment is required only when a disabled person is put at a substantial disadvantage in comparison with people who are not disabled. The use of a comparator is not new in disability discrimination legislation generally. The same language exists in the employment provisions of the DDA, but the comparator is not used in part 3 for goods, facilities and services when an anticipatory duty is owed to disabled persons as a whole, and nor is it used in relation to the duty to provide auxiliary aids and services.

The reason for the concern is that comparators were brought to light in the Malcolm case when the concept of related discrimination was undermined through the Law Lords’ reinterpretation of how the comparator in a case should be decided. That had previously been established in the case of Clark v. Novacold. Indeed, that problem has been recognised in the Bill in provisions that would put the legislation back to where we thought it was prior to the Malcolm case.

Amendment 172 inserts at the end of the clause new wording that would require providers of goods and services to provide auxiliary aids and services when that would facilitate the use of such services by disabled people. Such a provision would remove the requirement for a comparator. Will the Minister clarify the effect of the change in wording in the Bill, compared with that in the DDA? In part 3 of the DDA, service providers  already have to provide auxiliary aids when reasonable, if those aids would facilitate or enable disabled people to make use of services. The threshold—or trigger—for providing the aid is when it would otherwise be impossible or unreasonably difficult for the disabled person to make use of such services. A comparator would not be needed to establish that discrimination has taken place.

The Bill provides that the aid should be provided when disabled people have a substantial disadvantage in comparison with those who are not disabled, and the DCC is concerned that that substantial disadvantage must be determined through the use of a comparator. It considers that that might weaken the legal protection that disabled people already have under the DDA. The amendment would, in similar language, put the threshold found in part 3 of the DDA back into the Bill. I seek an explanation from the Minister of the changes and their effect in order to ascertain whether the amendment is required.

Amendment 174 would explicitly include the anticipatory nature of reasonable adjustments. As I said, part 3 of the DDA says that the providers of goods and services must anticipate the needs of disabled people, ensuring that the services that they provide are accessible. They must think about such matters in advance, not wait for problems to arise or to be contacted by someone who has had a problem obtaining goods or services. The anticipatory nature of the reasonable adjustment duty is essential to its working. Again, the DCC, on behalf of a range of disability organisations, wants to ensure that that aspect is maintained in the Bill. We believe that the amendment would achieve that.

Amendment 176, to schedule 2, deals with physical features. We wish to retain the approach laid down in the DDA, which is that the focus must be on removing or altering physical features that cause a barrier for disabled people before considering other means that do not involve eliminating it. One cannot just think of a way around the problem—a work-around. One must first consider whether the barrier should be removed. Only if that was unreasonable could one fall back on going around it.

The amendment would omit paragraphs (3)(a) and (3)(b) of the schedule, replacing them with four new sub-paragraphs. The first is on whether the feature can be removed; the second is on whether it can be altered; the third is about providing a reasonable means of avoiding it; the last is about reasonable methods of providing the service or exercising the function in a different way. However, that order must be followed, so that one first thinks about making it as easy as possible. The amendment would provide a clearer and more systematic approach for service providers, which would be an improvement. Will the Minister say how that compares with the Bill, which is effectively different from the DDA?

I hope that the Committee will forgive me for speaking at such length on these wide-ranging amendments. I look forward to hearing the Solicitor-General’s comments.

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