Equality Act 2010 (Amendment) (Disabled Access) Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 10:06 am on 24th November 2017.

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Photo of Lord Blencathra Lord Blencathra Chair, Delegated Powers and Regulatory Reform Committee 10:06 am, 24th November 2017

My Lords, I have pleasure in moving the Second Reading of this innocuous little Bill to amend the Equality Act 2010 to grant 800,000 wheelchair users access to 70,000 shops and public buildings to which we are denied access at the moment. The Bill makes a tiny addition to the 2010 Act, would cost business very little to implement but would make a huge difference to wheelchair users. Let me assure your Lordships that my Bill does not touch in any way the protected characteristics in the Equality Act 2010 of age, gender, marriage and civil partnership, pregnancy and maternity, race, religion or belief, or sex and sexual orientation. It is concerned only with one aspect of disability: the requirement for public buildings to make “reasonable adjustments” so that wheelchair users can access them.

My Bill is identical to one which received a Second Reading in November 2014 but was rejected by the Government. At that time, the Government could say that I and noble Lords who supported my Bill were on our own and that we had no evidence to back up our case. Ironically, within one month of rejecting my Bill, the then Minister for Disabled People published a joint Department for Work and Pensions and DisabledGo report. The press release stated:

“DisabledGo study shocks the Government with evidence of inaccessible British high streets … The Minister of State for Disabled People is urging shops and restaurants to improve their accessibility”.

What a pity the Government did not take that view a month earlier when they dismissed my Bill.

Since then we have had the authoritative Lords Select Committee report, Equality Act 2010: the Impact on Disabled People. The committee was chaired by the noble Baroness—indeed, I may say “my noble friend”—Lady Deech, whom I am delighted to see is speaking today, along with other noble Lords who served on the committee. The committee found that there were severe difficulties with the “reasonable adjustments” provision of the Act, in that no one was enforcing it and disabled people had to take cases to court themselves in order to get access improvements.

The noble Baroness, Lady Campbell of Surbiton, cannot be with us today, but she wrote and asked me to say:

“It is easy to tilt a pram or pushchair up a step but impossible in an electric chair. My chair weighs 90 kilograms alone and takes 3-4 strong people to lift with me aboard!”.

So this time it is not just old Blencathra with a bee in his bonnet; we have the evidence of the Department for Work and Pensions survey, the overwhelming weight of evidence given to the Lords Select Committee and the committee’s own conclusions.

What are the facts and figures about the problem? The NHS estimates that there are 800,000 regular wheelchair users. By “regular”, it means people who are permanently in a wheelchair and, at the other end of the spectrum, those such as me who can stagger around a little bit. That figure is supported by other organisations.

The number of public buildings in the UK comprising shops, fast food outlets, restaurants and pubs is about 355,000. In addition, there are post offices, banks, churches and all the other buildings to which the public have access. The Department for Work and Pensions and DisabledGo study visited and assessed a massive sample of 30,000 shops and restaurants. Its findings were that 20% did not have wheelchair access—and, if wheelchair users did get in, 30% of the places had no disabled changing rooms or toilets. If you extrapolate that 20% of 30,000 shops to the total of 355,000 public retail premises, you get a figure of 71,000 shops, pubs and cafés which wheelchair users simply cannot access. That is a scandalous number in this day and age.

The Equality Act 2010 lists nine characteristics that are all protected against discrimination, including disability. The Act has replaced all separate disability discrimination legislation. It is an offence under the Act to fail to make “reasonable adjustments” to premises so that disabled persons are not discriminated against. What is a “reasonable adjustment” naturally varies between the needs of different disabilities, persons, buildings and circumstances, but it can be enforced only by a person taking a service provider to court to compel that provider to make the adjustment.

The Lords Select Committee found that most disabled persons and disabled organisations felt very strongly that disability issues had taken a retrograde step in the 2010 Equality Act, because all potentially discriminating characteristics were now being treated equally. What is the problem with equal treatment, you may ask? The Committee pointed out that people with other characteristics such as sex, colour, sexuality and ethnicity needed to be treated equally to avoid being discriminated against—but, for disabled people to achieve equality, they needed different treatment. That is an absolutely crucial distinction which was never considered when the 2010 Act was passed—and that is the motivation behind my Bill: to try to get equality for wheelchair users.

I turn to the clauses in my Bill. Section 20 of the Equalities Act defines “reasonable adjustments” as,

“(a) removing the physical feature in question,

(b) altering it, or

(c) providing a reasonable means of avoiding it”.

My Clause 1 states that, if a public building has a step of six inches or less, a ramp suitable for wheelchairs has to be provided. If a building has a step of less than 12 inches, a ramp has to be provided. If the building has more than one step, my Bill does not apply. The difference between a six-inch step and a 12-inch step is simply revealed by Clause 2, my commencement clause, which states that the requirement to remove a step of six inches comes into effect on Royal Assent and the requirement to remove a step of 12 inches comes into effect a year later. That is simply an acknowledgement that removing or replacing a 12-inch step is a slightly bigger undertaking than getting rid of a little six-inch step. Like the Equality Act itself, my Bill would apply to England, Scotland and Wales.

In a nutshell, that is what my Bill does. If noble Lords will permit me, I need to set out why the Government Equalities Office is adamantly opposed to making specific adjustments, is opposed to my Bill and wishes to reject it—and I shall try to persuade noble Lords why it is actually wrong. I and the Select Committee agreed that keeping the general principle of “reasonable adjustments” is sensible, and I do not seek to amend that principle at all in the Bill. However, when we have clear evidence that something is not working in a select, specific area of the Act, and after seven years of experience of the Act, it is not good enough to take the GEO line that the principles of the Act are sacrosanct and cannot be amended.

The Select Committee was highly critical of the failures of the 2010 Act to assist disabled people. On launching the report, the chair, the noble Baroness, Lady Deech, said:

“Over the course of our inquiry we have been struck by how disabled people are let down across the whole spectrum of life. Access to public buildings remains an unnecessary challenge to disabled people … When it comes to the law requiring reasonable adjustments to prevent discrimination, we found that there are problems in almost every part of society, from disabled toilets in restaurants being used for storage … to reasonable adjustments simply not being made”.

The GEO members were the only people giving evidence to the Select Committee who though that there was no problem. The Government Equalities Office head lawyer, Tracey Kerr, said that the concept of reasonable adjustments is well understood because of case law. She said:

“We have found that as the case law has developed it becomes clearer and clearer for people to understand what a reasonable adjustment might be in certain cases. So we think that that has been a successful development of case law”.

But the vast bulk of evidence to the Select Committee was that that was not the case.

Of course, a Government lawyer specialising in this work would lead herself to believe that everyone knew the case law and would be granted their rights—but that is not happening on the ground. The Select Committee said:

“It is worrying, therefore, that evidence of problems in obtaining this right have emanated from almost every part of society. We heard of problems in gaining reasonable adjustments from employers and education providers, on buses and trains, and in taxis, shops, restaurants and hospitals. We were told of sports grounds and other entertainment venues that failed to make necessary adjustment”.

It added that,

“witness after witness told us that, contrary to the Government’s view, the provisions were neither well known nor well understood”.

In evidence to the committee, the Law Centres Network said:

“There is a crucial difference between, on the one hand, awareness of the phrase ‘reasonable adjustments’ or the understanding that a duty exists and, on the other, an understanding of what the duty entails or how to comply with it in practice”.

The committee agreed with that, and said that the evidence suggested that,

“even where there was awareness, understanding was often poor”.

Thus all the evidence to the Lords Select Committee, and its findings, indicate that the duty to make reasonable adjustments is simply not happening. My Bill will not change the duty but will provide additional clarity.

What about the cost? I did my own survey of shops and cafés within half a mile of this Parliament. I looked at public retail buildings on Victoria Street, Strutton Ground, which is a lovely little shopping street, and Horseferry Road. The vast majority of big chain stores and shops on Victoria Street have level access from the pavement or a lip of about an inch at most. New-build shops nearly all have level access. However, in those three streets, within a few hundred yards of this building, there are three premises with multiple steps, two with steps of less than 12 inches, three with steps of less than nine inches, 26 with steps of less than six inches, and 28 with steps of less than three inches. Implementing the six-inch rule provision of the Bill would immediately make 54 of those 62 shops accessible to wheelchair users—an 87% improvement.

I reference the shops in this location because they are right on the doorstep of Parliament, but they are representative of the 71,000 others with the same lack of access in every street of every town and city of this country. The cost of a ramp, either lightweight aluminium or fibreglass, to access premises with a step of up to six inches, is generally less than £100. One-third of the inaccessible shops had a little step of less than three inches, which does not need a special ramp at all, but £10-worth of concrete to make a little slope—then the wheelchairs can get into them, as some shops have done. That is why we are so steamed up about this. We can see tens of thousands of buildings that we could easily get into with less than £100 of investment—and you cannot get a more reasonable adjustment than that.

Some of my noble friends who will follow me will make the case that we should be removing steps of whatever height. I agree that sooner rather than later we should do that, but I do not want cost to be used as another excuse not to get us access to 87% of the premises that we cannot get into now, when the adjustment would cost less than £100. I accept that, in a minority of cases, where the step is 12 inches and the shop door is right on the pavement, a ramp cannot protrude on to the pavement, and that the shop would have to recess its doorway a bit, which could cost possibly £2,000 to £3,000. But many retail premises already have a recessed doorway, and the step could be replaced with a ramp without altering the door or shop facade at all.

So if we cannot get in, what do we do? The Government response from the Despatch Box to my last Bill was:

“They should first approach the service provider to discuss why … they cannot access the service or function in question, and discuss what adjustments they require. If, following discussion, the service provider fails or refuses to make a reasonable adjustment, the disabled person could take their custom elsewhere; alternatively, they might decide to bring a case of alleged disability discrimination before the … courts”.—[Official Report, 21/11/14; col. 664.]

That was the Government Equalities Office’s official response.

Imagine that you are out shopping and you cannot get in. How do we discuss it? Do we sit in our wheelchairs on the pavement and shout for the shopkeeper to come out to discuss it? If he does not have a ramp, what good is discussing it going to do? If he decides to buy one next week, it does not help us very much when we are shopping today, does it? Disabled people are told by the Government that if they cannot be served they should just take their business elsewhere. Would they say that to a black person, a gay person or anyone else in the protected categories? I hope to God that they would not.

The Select Committee concluded, based on the evidence of everyone except the GEO witnesses, that enforcement had failed. It was highly critical that disabled people had to go to court to get access. The following exchange took place during the Select Committee inquiry. Tracey Kerr, the head of legal services at GEO, said:

“We think it is most appropriate and it is quite unusual and it gives claimants quite a lot of power in relation to going to the courts and explaining … what is reasonable … for the courts to decide”.

The chair, the noble Baroness, Lady Deech, interrupted:

“How long is it going to take for something to go to court? Surely you cannot expect a disabled person to go through the whole judicial procedure just to get that determination. It is too late”.

The lawyer replied:

“One would hope that the employer, the service provider … would be aware of the need to make sure that they were taking into account the issues and the person before them … they should be building that into their thinking about how they are going to provide their services”.

What a ridiculous answer. The reason the disabled person has to take the service provider to court in the first place is that the provider has failed to do all the things which the government lawyer wished, hopefully, that they would be doing. It was quite an incredible answer.

Although I cannot understand the complacency of that answer, it was exceeded by the deputy director of the equality framework of the Government Equalities Office who, giving evidence in the same session and in answer to the noble Baroness, Lady Thomas, about the failure of enforcement, said—and noble Lords should listen to this on Parliament TV to get the full flavour:

“Clearly where the difficulty comes … the nub of the issue and an extremely difficult one is trying to get some kind of handle on enforcement at the very earliest stage before in effect there has been any kind of dispute and that is the $64,000 question and the element that is invariably the most difficult to solve”.

I am not making this up. I do not have the imagination for such an extraordinary answer. When asked what the Government will do about the 800,000 wheelchair users who cannot get into public buildings because the Equality Act is failing, the official Government Equalities Office answer is that,

“that is the $64,000 question”.

Well, my Bill is a £100 answer to that question.

I am willing to do a deal with the Government. I acknowledge that six inches and 12 inches are arbitrary figures and we could have different heights—and of course they would have to be in centimetres. I acknowledge that businesses may need more time than Royal Assent or 12 months to implement any change. If we get to Committee, I am willing to fillet the specific details in my Bill and replace them with an order-making power for the Minister to specify in regulations the access requirements that I have outlined today. That would give the Government the chance to correct any errors they may perceive in my Bill. It also removes the excuse to do nothing about this problem. This time we are not just going to go away and shop elsewhere. Passing my Bill, or something like it, will not undermine the principle of “reasonable adjustments” in the 2010 Act—but it would grant 800,000 wheelchair users access to about 60,000 of those 71,000 shops that are currently inaccessible. It is little wonder that the Select Committee concluded:

“Government inaction is failing disabled people”.

I had an excellent meeting yesterday with the new Minister for Disabled People. Like her predecessor, she is caring, compassionate and determined to do all she can to help disabled people. But she has no power to change one comma of disability legislation because it is not in her department. I commend what she is doing with disabled champions and seeking to get an accessibility category added to the Great British High Street Award. I commend the city of Chester, which she told me about and which has excellent disabled access. These are all jolly good things—but we must have an amendment to the law if we are to get fair treatment for disabled people now rather than in the distant future.

I anticipate that the Government will dismiss the Bill. That is why I have tried noble Lords’ patience a bit this morning by setting out in detail why I think the GEO is utterly wrong. Wheelchair users are getting the runaround and being discriminated against multiple times. We cannot get into buildings in the first place; the Government will not change the law to assist us; the ECHR, which can do something about enforcement, does nothing to help; and disabled charities that would like to help are not allowed by law to help. My Bill does not tackle the problem of taxis and buses, or the failure of trains or platforms to have level access. It does not demand government expenditure or great private sector investment. It is confined to tackling one gross inequality which can be fixed cheaply, easily and quickly. I beg to move and commend my Bill to the House.