In March this year The House of Lords Select Committee on the Equality Act 2010 and Disability published its report on the Act’s impact on disabled people and concluded that the Government was failing disabled people. In July the Government published its response.
In this post Alice Richardson considers the findings and recommendation of the report so far as it relates to housing.
THE EQUALITY ACT 2010
Disability is a protected characteristic for the purposes of the Equality Act 2010 (“the Act”): s.4. A person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities: s.6(1).
A person who manages premises must not discriminate, harass or victimise occupiers with certain protected characteristics including, inter alia, disability: s.35. For example, a person who manages premises must not, discriminate against a person who occupies the premises by evicting them (or taking steps for the purpose of securing their eviction): s.35(1)(b).
s.15 of the Act prohibits direct discrimination and was introduced with the aim of restoring the protection of the Disability Discrimination Act 1995 following Lewisham LBC v Malcolm  UKHL 43;  3 W.L.R. 194. In addition, s.19 prohibits indirect discrimination and ss.20-21 contain the duty to make “reasonable adjustments”.
s.149 introduced the Public Sector Equality Duty (“PSED”) which requires a public authority to have due regard to the need to:
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
THE HOUSE OF LORDS REPORT & THE GOVERNMENT RESPONSE
In summary the committee considered that much more needs to be done towards fighting disability discrimination. Changes made by the Government under the ‘Red Tape Challenge’ increase the problems of disabled people. The Government, instead of concentrating on the burden on businesses, should be looking at the burden on disabled people.
The PSED was considered the be fundamentally flawed. The Committee felt that the provision allows public authorities to consider all the evidence, but still to pursue plainly discriminatory policies. The committee recommend that the wording be strengthened, so that the discriminatory consequences of decisions can no longer be ignored. The report recommend that a new subsection should be added to section 149: “To comply with the duties in this section, a public authority in the exercise of its functions, or a person within subsection (2) in the exercise of its public functions, shall take all proportionate steps towards the achievement of the matters mentioned in subsection (1).”
The Select Committee also made recommendations regarding changes to the Equality Act 2010 (Specific Duties) Regulations 2011.
The Government response to all of the recommendations on the PSED was that following Lord Haywood’s review in 2013, which recommended a further review in 2016, the Government is considering a further review and will ensure that the Select Committee’s concerns and recommendations are taken into account in any such review.
The Committee also recommended that the Government produce an assessment of the cumulative impact of budgets and other major initiatives on disabled people. In response the Government stated that they continue to keep the issue under review but are not convinced by the argument that such analysis would be practical. Moreover, the Government felt it important to recognise that once funding has been allocated, individual departments have the delegated authority/responsibility for determining their spending priorities which they do in a way that fully complies with the Public Sector Equality Duty.
s.36 and schedule 4 of the Act contain provisions on reasonable adjustments to the common parts of buildings, such as blocks of flats. These provisions are not yet in force. They would require those responsible for common parts to agree to adjustments when requested by a disabled tenant if, after consultation with other residents, they considered it reasonable. The landlord could require the disabled tenant to pay for the alteration.
The report heavily criticised the delay in bringing s.36 in to force which is largely due to the Government awaiting the outcome of implementation of a similar provision (s.37) in Scotland. s.37 is in force in Scotland but has no effect until regulations are made. As yet there are no regulations in Scotland and so, as yet, there is no Scottish experience to draw on.
In its response the Government expressed concern that the consequences of implementing the provisions is unclear. In particular, the Government stated that although requests for reasonable adjustments to common parts are in the first instance matters between disabled tenants and their landlords, these have wider implications concerning the funding of any adjustments, the impact on private landlords, any consequences for landlords’ willingness to let premises to disabled tenants. There will therefore be further review of s.36 before any decision on implementation will be taken.
County Court discrimination claims
It was recommended that HM Courts and Tribunals Service be required to collect from all county courts and to make publicly available, data relating to disability discrimination claims separately from other claims, as they do in employment tribunals. In response the Government stated that HMCTS does not currently track equality related claims because the numbers are small and staff do not routinely inspect this level of detail in the grounds for claim. Collecting this data for civil court claims and in the Employment Appeal Tribunal (EAT) would require a potentially significant investment of resources which could not be justified given the need to address the ongoing fiscal challenge.
Claims brought by charities
The committee recommended that the Government consider changing the law to allow charities and other bodies which do not themselves have a legal interest to bring proceedings in the interests of classes of disabled people who are not themselves claimants to enable them to remedy action already taken by a public authority or to prevent anticipated action.
In response the Government reiterated that judicial review claims can be brought in matters in which the groups they represent have an interest. Therefore, groups can, to a considerable extent, take remedial action against a public authority or prevent anticipated action by public authorities.
The committee considered that local authorities should revise their planning policies so as to require new houses to be wheelchair accessible or adaptable. London has already done so and other authorities were encouraged to follow.
The Government believes that local planning authorities remain best placed to determine the extent to which provision of more accessible housing is necessary and appropriate in their local area, and have appropriate powers to introduce development plan policies to meet these needs.
The Government’s response to the Select Committee report was described by Committee chairman, Baroness Deech, as “buck-passing and dragging of heels” when the report was debated in the House of Lords on 6th September 2016. So far as the recommendations which affect housing lawyers are concerned there does seem to be an element of heel-dragging.
A further review of the PSED, if there is one, will take some time. The duty is not, of course, an obligation to achieve a particular result, only to have regard to the identified factors: R (Karia) v Leicester CC  EWHC 3105 (Admin). Requiring public bodies to demonstrate that they have taken all proportionate steps towards the achievement of the matters at s.149(1) is welcome and may, in some cases, result in the public body turning its mind to the PSED more carefully but ultimately will not require that they reach a particular decision. It is unlikely, therefore, that the provision will, even if amended, have the “bite” that some groups seek.
The failure to bring s.36 in to force was rightly criticised. The Government’s explanation for the delay is not at all satisfactory given that it is now six years since the Act received Royal Assent. The original decision to await the outcome of implementation of the Scottish provisions was entirely misconceived in any event given that leasehold interests do not even exist in Scotland. Nevertheless, we shall have to await the outcome of another review before any progress is made.
With regards to the Government’s response to the recommendation that HMCTS record and publish the number of Equality Act claims it is not entirely convincing that court staff wouldn’t be able to record the number of Equality Act claims relatively easily and without large investment of resources. Further it is unclear how the Government reached its conclusion that that the numbers of such claims are as small, given the apparent lack of data.