Clause 3 - Application of Sections 19 to 21 of the Act to transport vehicles

6. Clause 3 of the draft Bill allows the Disability Discrimination Act to be extended to cover discrimination in relation to the use of a means of transport. At present section 19(5) of the Disability Discrimination Act 1995 excludes the use of a means of transport from Part III of the Act. As a result disabled people are denied a right of access to transport. For example, a transport official could refuse them access on the grounds of their disability, even to a service that is otherwise accessible to them. Therefore DPTAC welcomes the proposal to replace the current exemption of transport services from sections 19 to 21 with the more precise exclusion of the provision and use of a vehicle, which is set out in the new section 21ZA(1) and (2).

7. DPTAC also commends the proposal in new section 21ZA(3) to disapply this exclusion by regulation. This has the potential to bring within the scope of the Disability Discrimination Act 1995 services such as tourism, leisure transport, private rental, car hire and vehicle breakdown operations, as well as taxis, private hire vehicles, trams, buses and trains. DPTAC sees no justification for the continued exclusion of these services from the scope of the Act.

8. DPTAC believes that regulations need to set out in detail what is needed to address the needs of the widest range of disabled people, including wheelchair users, ambulant disabled people, and those with sensory or learning impairments or mental health problems. There is a risk that these last two categories can be excluded from consideration. Ministers, officials and commentators have been known to use expressions such as 'accessible buses' and 'accessible taxis', when what is meant is vehicles that are accessible to people in wheelchairs. This can promote an inaccurate and incomplete view of what the term 'disability' means.

9. DPTAC appreciates the value of the flexibility that is proposed in allowing the exclusion to be lifted for different types of vehicles, or types of service, at different times. However, DPTAC is concerned at the absence of any commitment to a timescale by which the new exclusion will be lifted for any service or type of vehicle whatsoever. DPTAC recommends that the Government sets out its intended timetable for regulations to lift the Part 3 exemption from transport operators before the Bill is introduced into Parliament.

Clause 3 - Power to make regulations for aviation and shipping

10. The Government has stated that it plans to introduce regulations covering public transport services - buses and coaches, trains (including trams and light rail), taxis and private hire vehicles. It maintains that this would have the biggest impact on the mobility of disabled people in their day-to-day activities.

11. In addition, the Government has stated that it plans to make regulations to cover aviation or shipping only if the voluntary approach fails to produce results. DPTAC agrees with the principle that the voluntary approach needs to be given time to work. The Government has worked in partnership with DPTAC to develop Codes of Practice, and the setting of benchmarks is well in hand.

12. DPTAC therefore recommends the early announcement of dates by which the Government expects to be ready to take a view as to how effective the voluntary approach has proved. DPTAC recommends a date of the end of 2005 for this purpose as providing sufficient time for the aviation and shipping sectors to have shown evidence of significant progress. If progress has not been achieved by then, the Government should be prepared to introduce regulations for aviation and shipping.

Clause 3 - Rail Vehicle Accessibility Regulations

13. The Government has stated that the Bill it will bring to Parliament will include powers to set a final date for all rail vehicles to comply with the Rail Vehicle Accessibility Regulations 1998 (RVAR). The Government also plans to take a power to make accessibility regulations, which will apply to the refurbishment of rail stock before existing trains have to be replaced. DPTAC appreciates that the inclusion of these powers in the Bill will depend on the outcome of a consultation exercise that the Department for Transport has recently concluded.

14. DPTAC has responded fully to this consultation, and a copy of the response is attached at Annex 2 to this memorandum. In its response, DPTAC welcomed assurances from the Department for Transport that draft regulations would be ready for inclusion and that rail provisions would be fully covered when the Disability Bill was presented to Parliament. DPTAC now recommends that Ministers give the drafting of these powers the priority and resources needed to ensure that the powers could be included in the Bill by the time that it is introduced into Parliament.

15. It is DPTAC's view that the most practical and pragmatic way forward is to achieve a balance between end dates and refurbishment regulations to achieve optimum accessibility within the shortest timescale.

16. DPTAC's recommendation is for an end date of 2017, which would bring rail in line with the bus industry, We also recommend the implementation of a 'Menu Plus' approach to refurbishment regulations which will improve access (if not achieve full compliance) in the interim. This would be a major step towards the 'seamless' journey that is required to give disabled people the confidence and ability to travel independently with ease, safety and in comfort. We commend it to the Committee.

17. DPTAC is aware that for any agreed end date and refurbishment regulations to be effective in ensuring compliance and accessibility, that they need to be backed up by robust and proactive monitoring and enforcement regimes. DPTAC urges the Government to ensure that these schemes are adequately resourced and implemented by appropriately trained and resourced staff.

Clause 3 - Exclusion of the Blue Badge Scheme

18. DPTAC believes that there is a real danger of the Government missing the opportunity to legislate in respect of the Blue Badge Scheme in its draft Disability Discrimination Bill. The Blue Badge Scheme is the popular name for the Disabled Persons' Parking Badge Scheme, introduced in 1971.

19. The Scheme provides an on-street parking concession enabling people such as those with severe walking difficulties, who travel either as drivers or passengers, to park close to their destinations. The Scheme also applies to registered blind people and people with severe upper limb disabilities who cannot turn a steering wheel by hand.

20. In November 2001 Ministers invited DPTAC to co-ordinate the collation and assessment of responses to the Department for Transport's consultation on the review of the Blue Badge Scheme. DPTAC made recommendations to Ministers (including Scottish Ministers). These included three changes that required primary legislation: creating powers of inspection by the Police and parking attendants to assist with enforcement; adopting an alternative form of wording to 'institutional' to better reflect eligible organisations; and the creation of a national database.

21. The then Parliamentary Under Secretary of State for Transport (Mr. David Jamieson) said to the House of Commons on 18 December 2002: 'There are a number of areas in which we have undertaken to look at amending primary legislation... We will be seeking opportunities to introduce those changes as soon as possible.'

22. Almost exactly a year later, the Government appears to DPTAC to have missed a clear chance to legislate in the original Traffic Management Bill that Ministers introduced into Parliament on 11 December 2003. An amendment was recently tabled in Committee, which would have brought into the Traffic Management Bill a provision giving Blue Badge enforcement powers to constables, traffic wardens and parking attendants. The Parliamentary Under Secretary of State' clearly stated his intent, on the withdrawal of this amendment on 10 February, to 'come back to the issue at a later stage in the Bill's progress with something that reflects the sentiment of the new clause'.

23. DPTAC warmly welcomes this statement, but is aware that Traffic Management Bill, at the end of the day, may not contain this provision. DPTAC also remains concerned that two of its other recommendations which require primary legislation - adopting an alternative form of wording to 'institutional' and the creation of a national database - have not been included in the Traffic Management Bill statement. DPTAC notes that the draft Disability Discrimination Bill could be another missed opportunity, particularly as the equivalent powers on enforcement in Scotland were included in the Transport (Scotland) Act 2001 and introduced in January 2004.

24. Pre-legislative scrutiny offers the ideal opportunity for the Government to make the changes to the draft Disability Discrimination Bill that are necessary for it to include these changes to the Blue Badge Scheme. DPTAC recommends that this be done by amending the long title of the Bill to read 'To implement the recommendations of the Disability Rights Task Force by amending the Disability Discrimination Act 1995 and other legislation'.

Clause 4 - Discrimination by Public Authorities

25. DPTAC welcomes the proposal to extend the Disability Discrimination Act, making it unlawful for public authorities, without justification, to discriminate against a disabled person when exercising its functions. This will be in addition to the provision of services, which is already covered by the Disability Discrimination Act. DPTAC's interest in this is in respect of transport and built environment functions, including those relating to access to pavements and highways and to planning and housing. The proposal should also clarify the status of the pedestrian environment, which is one of DPTAC's key concerns.

26. However DPTAC is concerned at the very high threshold that has been set for making reasonable adjustments. These are required where an authority carries out a function and where, for a reason related to the disabled person's disability, the outcome is very much less favourable for her or him than it would be for others to whom that reason would not apply. This creates the very high threshold that there must be a 'very much less favourable' outcome. In addition this duty does not appear to be anticipatory, unlike the equivalent and current duty that local authorities have in relation to delivery of services.

27. DPTAC therefore recommends that the Government amends the Bill to make clear that public authorities have an anticipatory duty to make reasonable adjustments and not to discriminate. DPTAC further recommends a more appropriate trigger for reasonable adjustments. This could be 'adversely affect' (as in Clause 5) of the Bill.

28. Additionally, DPTAC is concerned that the 'reasonable opinion standard' in discrimination cases could be applied to the carrying out of public sector functions. This allows for a defence of discrimination where it is based on wrongly held prejudices and stereotypes about disabled people, provided that such beliefs are viewed by the judge as 'reasonably' held. DPTAC finds the subjective 'reasonable opinion standard' objectionable in all cases, and particularly inappropriate to the carrying out of public functions.

29. DPTAC also recommends that arbitration should be encouraged as a method of resolving disputes in cases of discrimination. DPTAC therefore recommends that the Disability Rights Commission's arbitration service be extended to cover public functions, in addition to the provision of services, or an equivalent service provided by its successor, the Commission for Equality and Human Rights.

Clause 6 - Discrimination in relation to the letting of premises

31. DPTAC also supports the proposal to create a duty for public authorities to promote disability equality in the exercise of their functions. DPTAC wishes to see early clarification of what other bodies, in addition to Government Departments, local authorities, the police and other governmental organisations, would be regarded as 'public authorities' for this purpose. Where bodies are excluded, DPTAC believes that this needs to be justified on a case-by-case basis.

Clause 9 - Codes of Practice

32. DPTAC welcomes the proposal to change section 53A of the Disability Discrimination Act to enable the Disability Rights Commission to issue Codes of Practice in relation to the new public authority duties. Codes will be particularly useful in helping local authorities, the courts and those who advise disabled people to employ correct and consistent definitions of what adjustments and opinions are 'reasonable'.

33. DPTAC notes that the Government aims to make regulations with respect to the transport provisions, along with issuing these Codes, as soon as practicable after the Bill in its final form receives Royal Assent. DPTAC seeks assurances from the Government that it will provide DPTAC, the Disability Rights Commission, and other bodies involved, with the resources and support they need to allow them to complete this process in good time.

Clause 12 - Meaning of 'disability'

34. DPTAC acknowledges that it is difficult to legislate around a purely social model of disability . DPTAC does remain concerned that naming specific conditions in legislation can have the effect of placing excessive emphasis on medical aspects of the definition of disability. This should be kept to a minimum.

35. DPTAC does welcome the Government's acceptance of the Disability Rights Task Force's recommendation that the definition of disability be extended to clearly include more people with HIV and cancer from the point of diagnosis. At present, coverage of these conditions is not guaranteed. This action acknowledges the disabling effect of stigma associated with these conditions.

36. The Government also plans to extend the definition of disability to cover multiple sclerosis. This was not a Disability Rights Task Force recommendation. DPTAC believes that multiple sclerosis does not differ in kind from similar progressively disabling conditions, such as motor neurone disease and rheumatoid arthritis, and that these should also be included in the scope of the Bill. DPTAC sees merit in simply extending the definition to cover all progressive conditions from the point of diagnosis.

37. DPTAC recommends that another appropriate and flexible way of including specific conditions would be to include a regulation making power in the Bill. This would permit Ministers, with the agreement of Parliament, to establish and modify a list of eligible conditions. This would also allow for the inclusion of mental health problems and learning impairments. Additionally, the list could be updated to reflect changes in treatment that could in future render certain disorders less disabling than they are at present. It would complement the Government's proposal for a power to enable the Secretary of State to issue guidance on the definition of disability.