Written submission from The Access Association (EEA0044)
The Access Association is a national network of individuals who are passionate about access and inclusive design. In 1991 a group of dedicated local authority professionals came together to form the Access Officers Association. Over time our membership has grown and the Association opened its membership up to anyone with an interest in access and inclusion, becoming the Access Association in 1999. Now in its 25th year, the Access Association is a national membership organisation with a regional structure and members work in a diverse range of roles including; access officer, access consultants, inclusion and diversity officers/ advisors, architects, building control officers, surveyors, landscape and urban designers, transport planners and local access group members.
Our aim is to encourage the creation of a barrier free inclusive environment that is accessible for everyone; including disabled people. The Association is about providing peer support, sharing knowledge and having an influential voice. The Association is an essential resource for everyone committed to improving access, working to:
Support people working in access and disability fields
Facilitate the exchange of knowledge and experience amongst members
Promote development and training of access professionals and volunteers
Seek to ensure consistency in practice and standards
Monitor and advise on the effectiveness of current legislation
Liaise with other organisations locally, regional and nationally
Advise on technical matters
Represent the views of the membership
The following response is being submitted on behalf of the Access Association.
AA members who responded to the survey sent out to them which informed this response predominantly worked in a local authority setting, and most held a role which involved them providing advice:
- at a local authority level/ to their employer
- to the general public
- to groups of disabled people/ organisations of/ for disabled people
- disabled individuals
The majority of respondents stated that received requests from disabled people to address access issues they had encountered, many on a regular basis. They highlighted the fact that disabled people expected them to fulfil a role that current legislation would not allow them to, as there is an expectation for local authorities or access professionals to be able to enforce improved physical access. Most felt local authorities or other third parties should have such a role- to ensure a fair and inclusive approach and environment for disabled people.
If the Committee requires any further information on the Association or this response- we stand ready to assist and would be happy to provide this.
The Association would also be happy to present this evidence in person at any evidence sessions/ hearings.
The Access Association is very interested in the content of this enquiry and the questions it is asking, and would like to be kept informed of any findings, publications or future work in relation to the subject.
How easy it is for people to understand and enforce their rights under the Equality Act?
Access Association members felt that it was extremely difficult for individual disabled people to understand and enforce their rights under the Equality Act.
Members cited evidence in the 2015-16 House of Lords Select Committee on the Equality Act 2010 and disability:
https://publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf
and supported its questioning of the effectiveness of the act in combatting ‘disability discrimination’.
They felt that disabled people understanding or attempting to enforce their rights would be a daunting task, and some stated if an individual was not connected to or involved with an organisation of disabled people, didn’t have a computer or was not good at searching online- it would be very difficult for them to know what their rights were, or where to find out about them, and some respondents felt many disabled people who contacted them were not aware of the Equality Act at all (however some felt awareness of the Disability Discrimination Act may be slightly higher) or that it could offer them rights.
Many members felt the Equality and Human Rights Commission would be the logical starting point- however awareness levels of the information on here were felt to be low and some stated it was difficult to navigate or find information relevant to individuals as opposed to service providers or public bodies. It was felt that the information and professional advice available to service providers on their duties and obligations under the Equality Act was far superior to that available to disabled people- who are required under the legislation to effectively play that ‘enforcing’ role.
If disabled people do not undertake this ‘enforcing role’ due to a lack of information, awareness, support, or because they want to get on with their lives as opposed to spending time challenging others, for example service providers- the effectiveness of the Equality Act is questionable. Service providers have recognised this and therefore do not necessarily take their duties and obligations as seriously as they could- with many willing to take the ‘risk’ of legal challenge as opposed to making the physical or service alterations required to ensure they are including disabled people protected under the Act.
Complex arguments often arise when the Equality Act is discussed- for example, the Act requirements do not apply as the building is a listed heritage asset and individual disabled people often do not and should not be expected to have an understanding of these to ensure that they can, for example, access a service.
Of the guidance which is available, some members felt it may not be easily understood by all users.
How well does enforcement action under the Equality Act work as a mechanism for achieving widescale change?
Access Association members felt that disabled people should have the right to challenge discriminatory actions/ decisions- however that this i.e. the Equality Act as it stands, should not be the mechanism for achieving widescale change in terms of access and inclusion.
This is because it relies on those who experience discrimination, due to their disability or impairment, to take the time to legally challenge the source of said discrimination.
This approach could in itself be seen as discriminatory, or as a minimum further disadvantages people who have experienced discrimination i.e.:
a disabled person is treated less favourably due to their disability or impairment
only that disabled person can challenge the discrimination they have experienced- which takes time, money and a lot of effort
This in effect by making disabled people responsible for achieving positive change themselves places in many people’s eyes ‘blame’ on that person for being disabled. It is their ‘fault’ that they cannot access a service and this view would be reinforced by the individual then having to do something about it themselves- which is a very medicalised and dated approach.
Members felt that the built environment which surrounds us all is evidence that the Equality Act does not work as a mechanism for widescale change- citing in particular inaccessible hotels, pubs, shops, cafes and venues.
It was felt that for the Equality Act to achieve change- high profile court cases were required to give the legislation and threat of challenge the ‘teeth’ it needs, and that the theoretical and practical approach of enforcement action achieving change was ineffective, fundamentally flawed, with one AA member referring to the Equality Act as “the toothless tiger”.
Some members highlighted the fact that the Disability Discrimination Act was introduced in 1995- and widescale change has not been achieved in over 20 years, existing buildings are still inaccessible and still exclude disabled people from participating in society.
How effective are accessible tribunals and other legal means of redress under the Equality Act are, and what changes would improve those processes?
Members felt that the lack of legal aid makes it very difficult for many people to take a case to a tribunal. For many the potential cost is the prohibitive factor.
Some members felt that the legislation should be amended to allow identified suitably qualified and experienced officials, possibly within the local authority, to challenge service providers under the Equality Act.
Some members felt that the EHRC should be funded to re-open their helpline for disabled people, and then be able to act on complaints on behalf of complainants, achieving positive changes to the built environment for disabled people in general i.e. in accordance with national guidance rather than for an individual and their personal requirements.
How effective are current remedies for findings of discrimination in achieving change, and what alternative or additional penalties should be available?
Generally Access Association members felt current ‘remedies’ or routes to challenge discrimination are not effective.
Suggested additional or alternative additional routes or penalties included:
- Amended Building Regulations to require retrospective improvements to existing buildings in terms of access and inclusion where works are carried out
- Temporary closures of premises
- Heavy fines
- Local authority/ designated officials (suitably qualified and experienced- probably accredited somehow) being able to ‘enforce’ i.e. 3rd party representation
- Broader remedies than existing as monetary compensation for one individual does not remove the barrier for others
It was also felt that the concept of ‘reasonableness’- even after 20 years of legislation, lacked definition and required clarity. This has not been clarified by case-law due to a lack of case law and a lack of awareness around the Equality Act.
Are the powers of the Commission sufficient and effective?
Members generally felt that EHRC powers are not sufficient in relation to disabled people, and due to this- where they have intervened this has lacked impact.
It was also felt that there was a lack of awareness of the Commissions powers, and that they are not publicised, and that the EHRC should support more cases.
Some members in response to this question described powers and enforcement as ‘lightweight’, and felt that the Commission should take more enforcement action- to take responsibility away from individual disabled people.
Is the Commission using those powers well?
The general response to this from Access Association members was no, however many questioned whether the Commission was adequately resourced to use their powers to a greater extent than they currently do.
Some members cited an apparent lack of understanding on the Commissions part in terms of the importance of the issues they were contacting them about, and a seeming lack of specialist expertise in the field of access and inclusion.
Are changes are needed to the Commission’s approach to using its enforcement powers as set out in its policies or as implemented in practice, and the way it identifies and selects legal cases to lead or support?
Many members felt the Commission should have increased resources, capacity and specialist expertise to take on more cases and publicise them- to help the Equality Act grow the teeth it is lacking.
Some AA members felt the Commission should have more direct powers to enforce changes necessary to make a building accessible. This could be via them accrediting suitably qualified ‘commissioners’ who could- with the necessary changes to the legislation respond to disabled peoples complaints and require alterations to ensure changes are made. The Commission could provide the 3rd party representation which is, some members feel, the ‘missing piece’ in the Equality Act jigsaw.
Others highlighted the need for the Commission to apply enforcement powers following EHRC reviews. One example cited by one member was their 2017 review which revealed that many Premier League football clubs had not made adequate progress in bringing their stadia up to the most basic minimum standards in terms of accessible viewing facilities- the EHRC report highlighted this, and the lack of Changing Places toilets for spectators with profound and multiple impairments. The EHRC report highlighted these issues- however there was no subsequent enforcement or follow up actions- effectively weakening any strength such a report could have.
It was suggested by some that the Commission’s approach could be improved by taking a more pro-active site visit based approach- visiting members of the community and the barriers they highlight, to get more context to the issues raised.
Does the Commission use enforcement action appropriately and effectively as part of its wider strategies for advancing equality?
Some respondents felt they could not answer this question as they did not have access to the necessary information i.e. to all the referrals made to the Commission- to evaluate the efficacy of enforcement action.
Members responses also highlighted a lack of awareness of enforcement powers.
This lack of visibility of their work could it itself highlight an area which could be improved.
Most agreed that not enough enforcement action is taken, and one AA member explained:
“If they did there would not be so many inaccessible buildings. Yet nearly 25 years after the DDA there are still places that are inaccessible, including places where access has been made worse after building alterations”
Is the Commission’s role as an enforcer is widely known and understood and acts as a deterrent to discrimination?
AA members who responded to this question unanimously stated that the Commission’s role as an enforcer is not widely known, needs to be more widely publicised so that:
- Service providers are aware that an enforcement body exists, and
- Disabled people understand the options which should be available to them within the existing legislation/ structure
Both sides of the equation above appear to have the general perception that there is no effective enforcement of the Act.
In response to this question AA members also highlighted the complexity of the Equality Act 2010 and that this will have contributed to a lack of understanding and awareness of the Commission’s role- therefore negatively impacting on its role as an enforcer and therefore the potential effectiveness of this as a deterrent to discrimination.
Are there are other models of enforcement, in the UK or other countries, that could be a more effective means of achieving widespread compliance with the Equality Act 2010, either overall or in specific sectors?
Suggestions from Access Association members in response to this question included:
- Look at the Access to Premises Standards in Australia. This legislation is directly linked to their ‘DDA’ but is called up as part of the Building Regulation process and forces those responsible for the built environment to consider accessibility every time they made physical changes to their building
- Environmental Health Officers and Trading Standards officers in local authorities in the UK have to enforce food hygiene, noise pollution rules, housing standards and many others. The process of serving formal notices, taking court enforcement action and even carrying out works in default, works to a degree. The principles of that process could be applied to say, disability discrimination if the legislation allowed/ required this, if funding was available and appropriate people were trained to recognise barriers to access and inclusion in key services- for example, shops, cafes, venues and offices.
- USA model- an Access Board produce guidance, and if public bodies are applying for federal funding the design must meet the requirements of the Access Board- if not funding is not granted.
- USA Americans with Disabilities Act 1990. Government has an enforcing role and can ‘shut down’ premises which present a barrier to disabled people. The Act itself provides that facilities constructed after 26th January 1993 must be “readily accessible to and usable by individuals with disabilities” (ADA 1990 p42).
- 3rd party representation/ ability to challenge discrimination
- Educate the construction industry and elevate the importance of inclusive design within that sector
- Could business be closed down if they do not provide an inclusive service?