Report of Head of Community Protection

AGENDA NO.

DELEGATED

REPORT TOLICENSINGCOMMITTEE

DATE: 27th MARCH 2007

REPORT OF HEAD OF COMMUNITY PROTECTION

DISABILITY DISCRIMINATION ACT 2005 –

IMPACT ON HACKNEY CARRIAGE AND PRIVATE HIRE TRADE

SUMMARY

The purpose of this report is to advise Members of the Disability Discrimination Act 2005 and its associated Regulations and Codes of Practice and the potential impact on the taxi trade.

RECOMMENDATION

Members are invited to note the contents of this report

DETAIL

Background

1. The Disability Discrimination Act 1995 placed responsibilities on hackney carriage proprietors and drivers in relation to the transportation of people with disabilities with sections 3 to 39 of Part V of the Act specifically addressing taxis. The 1995 Act made provision for Regulations to be made in relation to vehicle specifications so that all hackney carriages would eventually be required to be wheelchair accessible. It was initially anticipated that wheelchair accessible vehicles would be phased in over a 10-year period between 2002 and 2012. This date was then put back to between 2010 and 2020 and first phase local authorities were determined for the introduction of such vehicles. Stockton Borough Council was named as a first phase authority. Private Hire Vehicles, however, were excluded from the 1995 Act.

1. In accordance with the requirements of Section 37 of the 1995 Act, Regulations were subsequently made in relation to the carriage of assistance dogs. From 31 March 2001 hackney carriage drivers/proprietors have been required to carry assistance dogs, e.g. guide dogs, travelling with passengers with disabilities and such animals must be carried without extra charge. There is however the provision of an exemption from this requirement subject to medical confirmation that the driver suffers from a medical condition that is exacerbated by the presence of dogs. To date no such exemptions have been applied for.

1. Initially the requirement to carry assistance dogs was restricted to the hackney carriage trade, however, following a Private Member’s Bill the 1995 Act was amended to include Section 37(A), requiring private hire drivers to carry such animals and also private hire operators to accept bookings for fares involving such animals. This took effect from 31 March 2004 and the medical exemption was extended to private hire drivers, again no exemptions have been applied for.

The Disability Discrimination Act 2005

1. On 7 April 2005.The Disability Discrimination Act 2005 received royal assent. The purpose of the 2005 Act is to amend the 1995 Act and extend its scope. The 1995 Act had excluded private hire vehicles and had exempted a range of providers of transport services from its requirements. The 2005 Act will now require these providers to make “reasonable adjustments” to enable disabled persons to use their services and brings private hire vehicles, drivers and operators into the scope of the legislation.

1. The legislation requires that a transport provider must not discriminate against a person with disabilities when providing or not providing such a person with a vehicle or with services when that person is travelling in a vehicle. It makes it unlawful for transport providers to refuse to/deliberately not provide a service that is available to the general public, to provide a poorer service or a service on less favourable terms. It is also unlawful not to make reasonable adjustments so that as a result it is very difficult or impossible for a person with disabilities to access their services.

1. Although Regulations have not yet been made to provide access standards for taxis to ensure full disabled access it is the intention of Central Government that these will be made when appropriate vehicle specifications have been determined. The Regulations are expected to focus on ensuring that people with disabilities can safely access these vehicles and travel in safety and comfort. Furthermore, wheelchair users should be able to expect to access and travel in these vehicles while remaining in their wheelchairs. The Regulations may therefore consider size of door openings, floor and headroom areas of passenger compartments, the availability of suitable restraining devices to safely secure the wheelchair and the provision of equipment to ensure correct access to the vehicle e.g. wheelchair ramps.

The Code of Practice

1. The Disability Rights Commission has produced a statutory Code of Practice in relation to the provision and use of transport vehicles and this document provides clarification relating to the duties of providers in relation to the 1995 Act, as amended by the 2005 Act, its Codes of Practice and Regulations, (with effect from 4 December 2006). This Code supplements the “Part 3 Code” that deals, in terms of transport provision, with the services ancillary to the provision of the vehicle, e.g. waiting areas, timetables etc. Although both Codes do not place any legal obligations on providers they have been approved by Parliament and can be cited in any legal proceedings pertaining to this legislation. The supplementary Code is also a useful guidance document on good practice for transport providers.

1. The supplementary Code of Practice provides examples of both discriminatory behaviour and positive approaches in terms of specific transport providers. It gives as one example the refusal of a taxi driver to pick up a person with disabilities at a taxi rank and another of a taxi driver refusing a fare because the person with disabilities is abusive and disorderly rather than because of his/her disability.

1. The Code also provides advice to providers on their liability for their employees and the defence of due diligence. The Code advises on the steps needed to comply with the requirements of the legislation including consulting with relevant representative groups and customers, drawing up a policy, providing information and training for staff, introducing “reasonable adjustments”, setting up monitoring procedures, dealing with breaches, ensuring a complaints system is in place and regularly reviewing their provision.

1. The Code provides helpful information in relation to “reasonable adjustments” and makes it clear that the purpose of the Act is to provide, where reasonably practicable, the same provision for people with disabilities as that enjoyed by the general public. In the provision of taxi and private hire services this could range from auxiliary aids (e.g. swivel seats in saloons) to a percentage of a fleet becoming wheelchair accessible. It also provides examples of what should be taken into account when considering “reasonableness”, such as the size of the business, financial costs, the level of resources within the business and the availability of funding and other assistance. The Code also reminds transport providers that they must proactively consider adjustments rather than react to a request or situation and should promote any adjustments made to ensure that the information reaches wide audiences.

1. The Code advises transport providers that the costs of making “reasonable adjustments” should not be passed on specifically to passengers with disabilities, e.g. an extra charge cannot be made for carrying a wheelchair. It also reminds providers of the need to ensure that auxiliary equipment is maintained in working order to avoids falling foul of the legislation.

1. A copy of the Code, which was referred to at your last meeting in the item relating to the review of taxi policies, has been placed in the Members library and can be viewed on E-Genda.

The Impact on the “Taxi Trade”

1. The new legislation impacts on the Taxi and Private Hire Trade with immediate effect. To assist operators and proprietors in meeting their responsibilities under the revised legislation advisory letters, containing relevant websites, will be issued to the Trade following this meeting of the Licensing Committee and a copy of this report will be included.

1. Members are reminded that the Council’s policies and conditions relating to the ‘Taxi Trade’ are currently being reviewed and the consultation document does address these issues.

Head of Community Protection M R Vaines

Contact Officer:

Telephone No.526578

Email Address:

Financial Implications: None

Environmental Implications:None

Community Safety Implications:None

Background Papers:Disability Discrimination Acts 1995 and 2005

The Part 3 Code of Practice

The Disability Rights Commission’s Provision and Use of Transport Vehicles Code of Practice.

Ward(s) and Ward Councillors:Not ward related.

Disability Rights Commission

Disability Discrimination Act 1995

Provision and use of transport vehicles

Statutory Code of

Practice

Supplement to Part 3 Code of Practice

Making rights a reality

Disability Rights Commission

Disability Discrimination Act 1995
Provision and use of
transport vehicles
Statutory Code of Practice
London: TSO

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© Disability Rights Commission 2006

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The information contained in this publication is believed to be correct at the time of manufacture. While care has been taken to ensure that the information is accurate, the publisher can accept no responsibility for any errors or omissions or for changes to the details given.

First published 2006

10 digit ISBN 0 11 703632 3

13 digit ISBN 978 0 11 703632 1

Printed in the United Kingdom for The Stationery Office

Foreword

The Disability Rights Commission (DRC) has written and produced this Code of Practice on the provision and use of transport vehicles. The duties outlined in this Code are introduced under Part 3 of the Disability Discrimination Act 1995, as amended by the Disability Discrimination Act 2005, and its supporting Regulations. These new duties come into force in December 2006.

We welcome the Government’s drive to implement these new duties. While other aspects of service provision have been in force since 1996, it has long been a concern for disabled people that access to transport vehicles was not covered by Part 3 of the Disability Discrimination Act. The introduction of these duties governing the provision and use of transport vehicles rectifies this situation, and clarifies the position for all concerned.

Access to transport is fundamental to full and independent participation in society as a whole. I firmly believe that these changes will not only make a real difference to disabled people themselves, but will also benefit transport providers in their determination to offer the highest quality of service to all passengers.

Bert Massie CBE

Chairman,

Disability Rights Commission

Contents

1 Introduction1

Background1

Purpose of the Code2

Status of the Code2

How to use the Code2

Examples in the Code3

References in the Code3

Changes to the legislation4

Further information4

2 Scope of the Code5

Narrowing and lifting the transport exemption5

What is the effect of the 2005 Regulations?6

Provision or use of a vehicle6

What is a ‘vehicle’?7

Which modes of transport are covered by the

2005 Regulations? 7

Breakdown recovery vehicles8

Hire (or rental) vehicles8

Private hire vehicles8

Public service vehicles9

Rail vehicles9

Taxis9

Guided transport9

Modes of transport not currently covered by the Act9

Other issues the Code does not cover10

3. What does the Act say about providing services

and how does this affect transport providers?11

Introduction11

What is a ‘transport provider’?11

What does the Act make unlawful?12

What does the Act mean by ‘discrimination’?13

Who has rights under the Act?14

What happens if a dispute arises under the Act?15

4 The transport provider’s duty not to treat a

disabled person less favourably15

Introduction15

What is unlawful?15

Less favourable treatment16

Must a transport provider know that a person

is disabled?19

A transport provider’s legal liability for its

Employees20

What steps should a transport provider consider?20

Refusal or non-provision of service21

Standard or manner of service22

Terms of service22

Can transport providers treat a disabled person

more favourably?23

5. Making changes for disabled people: the transport

provider’s duty to make reasonable adjustments in

relation to transport23

Introduction23

What does the Act say?24

What is the transport provider’s duty to make

reasonable adjustments in relation to the provision

or use of a vehicle?25

Rental vehicles26

Breakdown recovery vehicles26

General approach to making reasonable

Adjustments26

Use of reasonable adjustment examples27

To whom is the duty to make reasonable

adjustments owed?28

At what point does the duty to make reasonable

adjustments arise?28

Does the duty of reasonable adjustment apply

even if the transport provider does not know that the

person is disabled?29

Must transport providers anticipate every barrier?30

How long does the duty continue?30

What is meant by ‘reasonable steps’?31

Protecting the fundamental nature of a business or

Service36

Cost of providing reasonable adjustments36

What is ‘unreasonably difficult’?37

What happens if the duty to make reasonable

Adjustments is not complied with?38

6. Reasonable adjustments in practice38

Introduction38

Practices, policies and procedures39

What is the duty to change a practice, policy or

procedure?39

What are practices, policies and procedures?40

What are ‘reasonable steps’ in relation to practices,

policies and procedures?41

Auxiliary aids and services42

What is the duty to provide auxiliary aids or

services?42

What is an auxiliary aid or service?43

What are ‘reasonable steps’ in relation to auxiliary

Aids or services?45

Using auxiliary aids or services to improve

Communication46

Provision for people with a hearing disability47

Provision for people with a visual impairment48

Provision for people with other disabilities or

multiple disabilities49

Overcoming barriers created by physical features49

Rental vehicles 50

What is the duty to make reasonable adjustments

In relation to physical features?50

What is a ‘physical feature’?50

Breakdown recovery vehicles52

What is the duty to make reasonable adjustments

in relation to physical features?52

What is a ‘physical feature’?52

7. Can a transport provider justify less favourable

treatment a failure to make reasonable

adjustments?53

Introduction53

Less favourable treatment53

Failure to make reasonable adjustments54

The general approach to justification55

Health or safety56

Incapacity to contract57

Transport provider otherwise unable to provide

the servicein respect of provision or use of a

vehicle to the public58

To enable the transport provider to provide the

Service to the disabled person or other members

of the public59

Greater cost of providing a tailor-made service60

Further limitations on duty not to discriminate61

Appendix 62

Part 5 of the Act: public transport regulations 62

Introduction 62

Trains, buses, coaches and taxis 62

Taxis/private hire vehicles (PHVs) and the carriage

of assistance dogs63

Changes to Part: rail vehicles 63

Index 64

1. Introduction
1.1This chapter outlines the way in which transport has been dealt with by the Disability Discrimination Act 1995 (‘the Act’). It describes the position when the Act was passed, and the changes subsequently introduced by the Disability Discrimination Act 2005 (‘the 2005 Act’) and its supporting regulations. This chapter also explains the purpose and status of this Code of Practice (‘the Code’), providing guidance on how to use it.
Background
1.2The Act aims to eliminate discrimination against disabled people. It is divided into several Parts dealing with, for instance, the meaning of disability (Part 1), employment and occupation (Part 2), and education (Part 4). It also contains a duty on public bodies, such as local authorities, to promote disability equality.
1.3Two Parts of the Act have a particular relevance to transport: Part 3 which deals, amongst other things, with access to services, and Part 5 which allows access standards to be set for certain types of vehicle.
1.4When the Act was passed in 1995, any service so far as it consisted of the use of a means of transport, was exempted from Part 3 of the Act.
1.5However, not all services associated with transport fell within the exemption. Those associated with transport infrastructure, for example, were covered by Part 3 and were thus dealt with in the same way as with other services. This means that most transport providers have always been subject to Part 3 in respect of certain services provided to the public, for example, services at stations and airports, or information and timetabling services.
s 21ZA / 1.6The Act has since been amended by the 2005 Act to clarify the scope of the exemption and enable it to be lifted.
SI 2005/3190 / 1.7Regulations made under the 2005 Act lift this Part 3 exemption in respect of certain types of transport vehicle. These Regulations come into force on 4 December 2006.
Purpose of the Code
1.8The purpose of this Code is to explain these changes in the law.
1.9This Code is a supplement to the Code of Practice for Part 3 of the Act: Rights of Access to Goods, Facilities, Services and Premises (‘the Part 3 Code’). The Part 3 Code explains the duties on those who provide services to the public.
s 53A / 1.10The Disability Rights Commission (DRC) has prepared and issued this Code under the Act on the basis of a request by the Secretary of State for Transport. It applies to England, Wales and Scotland.
Status of the Code
1.11As it is supplemental to the Part 3 Code, it is essential that this Code is read in conjunction with the Part 3 Code.
s 53A(8),
s 53A(8A) / 1.12As with the Part 3 Code, this Code does not impose legal obligations. Nor is it an authoritative statement of the law – that is a matter for the courts. It is, however, a statutory Code. This means that it has been approved by Parliament, and it is admissible in proceedings under the Act. Courts must take into account any part of this Code and the Part 3 Code that appears to them relevant to any question arising in those proceedings. If transport providers follow the guidance in the Code, it may help to avoid an adverse judgment by a court in any proceedings.
How to use the Code
1.13This chapter gives a general introduction to the Code and to Part 3. Chapter 2 sets out the scope of the Code. Chapters 3–7 deal with the new duties of transport providers, including a description of the duty to make reasonable adjustments for disabled people. The Appendix provides an overview of the provisions of Part 5 of the Act which, as mentioned above, has a particular relevance to transport, but which is not covered by this Code.
1.14As with the Part 3 Code, this Code should not be read too narrowly or literally. It is intended to explain the principles of the law, to illustrate how the Act might operate in certain situations and to provide general guidance on good practice. There are some questions which the Code cannot resolve and which must await the authoritative interpretation of the courts. The Code is not intended to be a substitute for taking appropriate advice on the legal consequences of particular situations.