Office of Public Sector Information
Section 19(1)
1 The 1995 Act shall have effect with the following amendments.
2 (1) Section 2 (past disabilities) is amended as follows.
(2) In subsection (1) (Parts 1 to 4 apply also to persons who have had a disability), after “to 4” there is inserted “and 5A”.
(3) In subsection (3) (regulations and orders may include provision about persons who have had a disability), after “made under this Act” there is inserted “by the Secretary of State, the Scottish Ministers or the National Assembly for Wales”.
(4) In subsection (4) (timing issues under Part 2, 3 or 4), for “II, 3 or 4” there is substituted “2, 3, 4 or 5A”.
3 (1) Section 3 (guidance) is amended as follows.
(2) Before subsection (1) there is inserted—
“(A1) The Secretary of State may issue guidance about matters to be taken into account in determining whether a person is a disabled person.”
(3) In subsection (1) (power to issue guidance about particular matters)—
(a) at the beginning there is inserted “Without prejudice to the generality of subsection (A1),” and
(b) after “may” there is inserted “, in particular,”.
(4) In subsection (2) (elaboration of the power under subsection (1)), for “The guidance” there is substituted “Without prejudice to the generality of subsection (A1), guidance about the matters mentioned in subsection (1)”.
(5) In subsection (3) (duty of adjudicating body to take guidance into account), for the words from “an impairment” to “activities” there is substituted “a person is a disabled person”.
4 In the heading to Part 2, after “The employment field” there is inserted “and members of locally-electable authorities”.
5 In section 4C(2) (provisions whose application to an office or post prevents sections 4D and 4E applying), for “and section 14C” there is substituted “, section 14C and section 15B(3)(b)”.
6 For section 14C(3) (provisions about practical work experience do not apply where certain other provisions operate) there is substituted—
“(3) This section and section 14D do not apply—
(a) to anything which is unlawful under any provision of section 4, sections 19 to 21A, sections 21F to 21J or Part 4; or
(b) to anything which would be unlawful under any such provision but for the operation of any provision in or made under this Act.”
7 In section 16A(2) (meaning of “relevant relationship” in section 16A)—
(a) in paragraph (a) (relationships during which certain acts are unlawful under preceding provisions of Part 2), after “under any preceding provision of this Part” there is inserted “, other than sections 15B and 15C”, and
(b) in paragraph (b) (which refers to employment services within the meaning of Part 3), the words “(within the meaning of Part 3)” are omitted.
8 (1) Section 16B (discriminatory advertisements) is amended as follows.
(2) After subsection (2B) (which is inserted by section 10 of this Act) there is inserted—
“(2C) Subsection (1) does not apply in relation to an advertisement so far as it invites persons to apply, in their capacity as members of an authority to which sections 15B and 15C apply, for a relevant appointment or benefit which the authority is intending to make or confer.”
(3) In subsection (3)(i) (which refers to employment services within the meaning of Part 3), the words “(within the meaning of Part 3)” are omitted.
9 Section 17A(1B) (which defines “enactment” in section 17A(1A) but is unnecessary given the definition of “enactment” in section 68(1)) is omitted.
10 (1) Section 17B (enforcement of sections 16B and 16C) is amended as follows.
(2) In subsections (1), (3) and (4)(a), and in the section’s heading, for “16B” there is substituted “16B(1)”.
(3) In subsection (4)(c), for “that section” there is substituted “section 16B(1) or (as the case may be) section 16C”.
11 In section 18D(2) (interpretation of Part 2)—
(a) in the definition of “duty to make reasonable adjustments”, after “14D” there is inserted “, 15C”, and
(b) in the definition of “physical feature”, after “in relation to any premises, includes” there is inserted “(subject to any provision under section 15C(4)(e))”.
12 In Part 2 (the employment field and members of locally-electable authorities), after section 18D there is inserted—
(1) This Part does not apply in relation to the provision, otherwise than in the course of a Part 2 relationship, of premises by the regulated party to the other party.
(2) For the purposes of subsection (1)—
(a) “Part 2 relationship” means a relationship during the course of which an act of discrimination against, or harassment of, one party to the relationship by the other party to it is unlawful under sections 4 to 15C; and
(b) in relation to a Part 2 relationship, “regulated party” means the party whose acts of discrimination, or harassment, are made unlawful by sections 4 to 15C.”
13 (1) Section 19 (discrimination in relation to goods, facilities and services) is amended as follows.
(2) In subsection (2) (interpretation of sections 19 to 21), for “and 21” there is substituted “to 21ZA”.
(3) For subsection (5) (services to which sections 19 to 21 do not apply) there is substituted—
“(5) Regulations may provide for subsection (1) and section 21(1), (2) and (4) not to apply, or to apply only to a prescribed extent, in relation to a service of a prescribed description.”
(4) For subsection (5A) (relationship between Parts 3 and 4 of the 1995 Act) there is substituted—
“(5A) Nothing in this section or sections 20 to 21A applies to the provision of a service in relation to which discrimination is unlawful under Part 4.”
14 In section 20(7) (regulations may provide for a person’s lack of capacity not to justify discrimination where another person has been appointed to act on that person’s behalf), for paragraph (c) (appointments under the law of Scotland) there is substituted—
“(c) powers are exercisable in relation to a disabled person’s property or affairs in consequence of the appointment, under the law of Scotland, of a guardian, tutor or judicial factor.”
15 (1) Section 21A (employment services) is amended as follows.
(2) In subsection (1) (meaning of “employment services” in Part 3), for “this Part” there is substituted “this Act”.
(3) In subsection (4) (application of section 19 in relation to employment services), for paragraph (c) (application of section 19(2)) there is substituted—
“(c) in subsection (2), for “sections 20 to 21ZA” there is substituted “sections 20 to 21A”.”
16 In section 22 (discrimination in relation to premises), after subsection (3) there is inserted—
“(3A) Regulations may make provision, for purposes of subsection (3)—
(a) as to who is to be treated as being, or as to who is to be treated as not being, a person who manages premises;
(b) as to who is to be treated as being, or as to who is to be treated as not being, a person occupying premises.”
17 After section 22 there is inserted—
(1) It is unlawful for any person whose licence or consent is required for the disposal of an interest in a commonhold unit by the unit-holder to discriminate against a disabled person by withholding his licence or consent for the disposal of the interest in favour of, or to, the disabled person.
(2) Where it is not possible for an interest in a commonhold unit to be disposed of by the unit-holder unless some other person is a party to the disposal of the interest, it is unlawful for that other person to discriminate against a disabled person by deliberately not being a party to the disposal of the interest in favour of, or to, the disabled person.
(3) Regulations may provide for subsection (1) or (2) not to apply, or to apply only, in cases of a prescribed description.
(4) Regulations may make provision, for purposes of this section—
(a) as to what is, or as to what is not, to be included within the meaning of “dispose” (and “disposal”);
(b) as to what is, or as to what is not, to be included within the meaning of “interest in a commonhold unit”.
(5) In this section “commonhold unit”, and “unit-holder” in relation to such a unit, have the same meaning as in Part 1 of the Commonhold and Leasehold Reform Act 2002.
(6) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled.
(7) This section applies only in relation to premises in England and Wales.”
18 In section 23(6) (meaning of “relevant occupier”), after paragraph (a) there is inserted—
“(aa) in a case falling within section 22(3), the person managing the premises, or a near relative of his;”.
19 (1) Section 24 (meaning of “discrimination” in section 22) is amended as follows.
(2) In subsection (1) (which defines discrimination for the purposes of section 22), for “section 22” there is substituted “sections 22 and 22A”.
(3) In subsection (3) (justifications), after paragraph (d) there is inserted—
“(e) in a case to which subsection (3A) applies, the terms are less favourable in order to recover costs which—
(i) as a result of the disabled person having a disability, are incurred in connection with the disposal of the premises, and
(ii) are not costs incurred in connection with taking steps to avoid liability under section 24G(1);
(f) in a case to which subsection (3B) applies, the disabled person is subjected to the detriment in order to recover costs which—
(i) as a result of the disabled person having a disability, are incurred in connection with the management of the premises, and
(ii) are not costs incurred in connection with taking steps to avoid liability under section 24A(1) or 24G(1).”
(4) After that subsection there is inserted—
“(3A) This subsection applies to a case if—
(a) the case falls within section 22(1)(a);
(b) the premises are to let;
(c) the person with power to dispose of the premises is a controller of them; and
(d) the proposed disposal of the premises would involve the disabled person becoming a person to whom they are let.
(3B) This subsection applies to a case if—
(a) the case falls within section 22(3)(c);
(b) the detriment is not eviction;
(c) the premises are let premises;
(d) the person managing the premises is a controller of them; and
(e) the disabled person is a person to whom the premises are let or, although not a person to whom they are let, is lawfully under the letting an occupier of them.
(3C) Section 24G(3) and (4) apply for the purposes of subsection (3A) as for those of section 24G; and section 24A(3) and (4) apply for the purposes of subsection (3B) as for those of section 24A.”
(5) After subsection (4) there is inserted—
“(4A) Regulations may make provision for the condition specified in subsection (3)(b) not to apply in prescribed circumstances.”
20 After section 24L (which is inserted by section 13 of this Act) there is inserted—
(1) Sections 22 to 24L do not apply—
(a) in relation to the provision of premises by a provider of services where he provides the premises in providing services to members of the public;
(b) in relation to the provision, in the course of a Part 2 relationship, of premises by the regulated party to the other party;
(c) in relation to the provision of premises to a student or prospective student—
(i) by a responsible body within the meaning of Chapter 1 or 2 of Part 4, or
(ii) by an authority in discharging any functions mentioned in section 28F(1); or
(d) to anything which is unlawful under section 21F or which would be unlawful under that section but for the operation of any provision in or made under this Act.
(2) Subsection (1)(a) has effect subject to any prescribed exceptions.
(3) In subsection (1)(a) “provider of services”, and providing services, have the same meaning as in section 19.
(4) For the purposes of subsection (1)(b)—
(a) “Part 2 relationship” means a relationship during the course of which an act of discrimination against, or harassment of, one party to the relationship by the other party to it is unlawful under sections 4 to 15C; and
(b) in relation to a Part 2 relationship, “regulated party” means the party whose acts of discrimination, or harassment, are made unlawful by sections 4 to 15C.
(5) In subsection (1)(c) “student” includes pupil.”
21 In section 25 (enforcement etc. of Part 3), for subsections (7) and (8) (claims in relation to employment services to be made to employment tribunal) there is substituted—
“(7) Subsection (1) does not apply in relation to a claim by a person that another person—
(a) has discriminated against him in relation to the provision of employment services; or
(b) is by virtue of section 57 or 58 to be treated as having discriminated against him in relation to the provision of employment services.
(8) A claim—
(a) of the kind referred to in subsection (6A) or (7), or
(b) by a person that another—
(i) has subjected him to harassment in a way which is unlawful under section 21A(2), or
(ii) is by virtue of section 57 or 58 to be treated as having subjected him to harassment in such a way,
may be presented as a complaint to an employment tribunal.”
22 In section 26 (validity and revision of certain agreements), for subsection (1A) there is substituted—
“(1A) Subsection (1) does not apply to—
(a) any term in a contract for the provision of employment services;
(b) any term in a contract which is a group insurance arrangement; or
(c) a term which—
(i) is in an agreement which is not a contract of either of those kinds, and
(ii) relates to the provision of employment services or the provision under a group insurance arrangement of facilities by way of insurance.”
23 In section 27 (alterations to premises occupied under leases), in subsection (1) (circumstances in which section applies)—
(a) in paragraph (a), after “provider of services” there is inserted “, a public authority (within the meaning given by section 21B) or an association to which section 21F applies”,
(b) in paragraph (b), for “he” there is substituted “the occupier”, and
(c) in paragraph (c), at the end there is inserted “or a duty imposed under section 21E or 21H”.
24 (1) Chapter 1 of Part 4 (schools) is amended as follows.
(2) In section 28D (accessibility strategies and plans), for subsection (17) (interpretation of section in its application to Wales) there is substituted—
“(17) In this section—
“prescribed” means prescribed in regulations;
“regulations” means—
in relation to England, regulations made by the Secretary of State, and
in relation to Wales, regulations made by the National Assembly.”
(3) In section 28N(5) (enforcement in Scotland of Chapter 1 of Part 4: application of Part 3 of Schedule 3)—
(a) for “that Part” there is substituted “paragraph 10”,
(b) in paragraph (a), for “sections 28I, 28K and 28L, or any of them,” there is substituted “section 28I”, and
(c) in paragraph (b), after “Tribunal” there is inserted “or Welsh Tribunal”.
25 In section 31B (conciliation for disputes under Chapter 1 or 2 of Part 4), for subsections (9) and (10) (meaning of “dispute”) there is substituted—
“(9) “Dispute” means a dispute arising under an earlier Chapter of this Part concerning an allegation of discrimination or harassment, and here—
(a) “discrimination” means anything which is made unlawful discrimination by a provision of the Chapter concerned, and
(b) “harassment” means anything which is made unlawful harassment by a provision of the Chapter concerned.”
26 (1) Section 33 (hire car services at designated transport facilities) is amended as follows.
(2) In subsection (2), and in the definition in subsection (4) of “designated”, for “Secretary of State” there is substituted “appropriate national authority”.
(3) In subsection (3), for “Secretary of State” there is substituted “authority making the regulations”.
(4) In subsection (4), before the definition of “designated” there is inserted—
““appropriate national authority” means—
(a) in relation to transport facilities in England and Wales, the Secretary of State, and
(b) in relation to transport facilities in Scotland, the Scottish Ministers (but see subsection (5));”.
(5) In that subsection, in the definition of “hire car”, for “prescribed” there is substituted “specified by regulations made by the appropriate national authority”.
(6) After that subsection there is inserted—
“(5) The Secretary of State may, for the purposes mentioned in section 2(2) of the European Communities Act 1972 (implementation of Community obligations etc. of the United Kingdom), exercise the powers conferred by this section on the Scottish Ministers.”
27 In section 46 (rail vehicle accessibility regulations)—
(a) subsections (3) and (4) (offence of using rail vehicle that does not conform with accessibility regulations) are omitted, and
(b) in the definition of “regulated rail vehicle” in subsection (6), for “the” there is substituted “provisions of”.
28 (1) Section 53A (codes of practice) is amended as follows.
(2) In subsection (1) (persons to whom codes may be issued)—
(a) after paragraph (b) there is inserted—
“(ba) public authorities within the meaning given by section 21B;
(bb) associations to which section 21F applies;” and
(b) in paragraph (d), after “Chapter 2” there is inserted “or 2A”.
(3) After subsection (1B) there is inserted—
“(1C) The Commission may prepare and issue codes of practice giving practical guidance to persons subject to duties under section 49A or 49D on how to perform those duties.”
(4) After subsection (4) there is inserted—
“(4A) Where a draft of a code of practice that deals with performance of duties under section 49A or 49D is submitted to the Secretary of State for approval, he shall consult the Scottish Ministers and the National Assembly for Wales before deciding whether to approve it.”
(5) After subsection (6) there is inserted—
“(6A) Before appointing a day under subsection (6)(a) for the coming into effect of a code of practice that deals with performance of duties under section 49A or 49D, the Secretary of State shall consult the Scottish Ministers and the National Assembly for Wales.”
(6) In subsection (8A) (account may be taken of code of practice in proceedings under Part 2, 3 or 4), for “or 4” there is substituted “, 4 or 5A, or any proceedings relating to a relevant improvement,”.
(7) In subsection (9), after the definition of “40 day period” there is inserted—
““relevant improvement” means an improvement (within the meaning of section 49G(9)) to premises which, having regard to the disability which a disabled person who lawfully occupies or is intended lawfully to occupy the premises has, is likely to facilitate his enjoyment of the premises.”
29 (1) Section 55 (victimisation) is amended as follows.
(2) In subsection (1) (victimisation is discrimination for the purposes of Parts 2, 3 and 4 of the 1995 Act), for “Part II, Part 3 or Part 4,” there is substituted “Part 2 or Part 4, or Part 3 other than sections 24A to 24L,”.
(3) In subsection (2)(a)(iii) (discrimination on account of something done under the Act), after “done anything under” there is inserted “, or by reference to,”.
(4) In subsection (5) (provisions of Part 2 under which discrimination includes victimisation of a non-disabled person), after “14C” there is inserted “, 15B”.
(5) Subsection (6) is omitted.
30 In section 59(1) (statutory authority), for paragraphs (b) and (c) (acts done in pursuance of instruments made under enactments or to comply with conditions etc. imposed by virtue of enactments) there is substituted—
“(b) in pursuance of any instrument made under any enactment by—
(i) a Minister of the Crown,
(ii) a member of the Scottish Executive, or
(iii) the National Assembly for Wales; or
(c) to comply with any condition or requirement—
(i) imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment,
(ii) imposed by a member of the Scottish Executive (whether before or after the coming into force of this sub-paragraph) by virtue of any enactment, or
(iii) imposed by the National Assembly for Wales (whether before or after the coming into force of this sub-paragraph) by virtue of any enactment.”
31 (1) Section 64 (application to Crown etc) is amended as follows.
(2) Before subsection (1) there is inserted—
“(A1) The following provisions bind the Crown—
(a) sections 21B to 21E and Part 5A, and
(b) the other provisions of this Act so far as applying for the purposes of provisions mentioned in paragraph (a);
and sections 57 and 58 shall apply for purposes of provisions mentioned in paragraph (a) as if service as a Crown servant were employment by the Crown.”
(3) In subsection (1) (Act applies to certain acts done on behalf of the Crown as to acts done by private persons), after “This Act” there is inserted “, other than the provisions mentioned in paragraphs (a) and (b) of subsection (A1),”.
(4) In subsection (2A) (subsections (1) and (2) have effect subject to section 64A), for “(1) and” there is substituted “(A1) to”.
32 In section 65(5) (which refers to proceedings before employment tribunals under Part 2 of the Act), for “Part II” there is substituted “Part 2 or 3”.
33 (1) Section 67 (regulations and orders) is amended as follows.
(2) In subsection (1) (powers to be exercised by statutory instrument), after “Any power under this Act” there is inserted “of the Secretary of State, the Scottish Ministers or the National Assembly for Wales”.
(3) In subsection (3)(a) (power to make such incidental etc. provision as appears to the Secretary of State to be expedient), for “Secretary of State” there is substituted “person by whom the power is exercisable”.
(4) After subsection (3) there is inserted—
“(3A) Where regulations under section 21D(7)(b) provide for the omission of section 21D(5), the provision that may be made by the regulations in exercise of the power conferred by subsection (3)(a) includes provision amending section 21D for the purpose of omitting references to section 21D(5).
(3B) The provision that may be made by regulations under section 21G(5)(b) in exercise of the power conferred by subsection (3)(a) includes provision amending or repealing section 21G(4).
(3C) The provision that may be made by regulations under any of subsections (1) to (4) of section 49D in exercise of the power conferred by subsection (3)(a) includes provision amending or repealing an enactment.”
(5) For subsections (4) and (5) (instruments containing orders under section 50(3), which has been repealed, to be subject to affirmative procedure and, with certain exceptions, other instruments to be subject to annulment) there is substituted—
“(4) Subsection (4A) applies to—
(a) the first regulations to be made under section 21H(1);
(b) the first regulations to be made under each of subsections (1), (2) and (4) of section 31AE;
(c) regulations under section 31AE(1), (2) or (4) that amend this Act;
(d) regulations under section 31AE(1) that make provision as to remedies;
(e) regulations under section 47J(3);
(f) regulations under section 49D(1) or (2) that, in exercise of the power under subsection (3)(a), amend or repeal an enactment contained in an Act or in an Act of the Scottish Parliament;
(g) regulations under section 67A(3);
(h) regulations under paragraph 6A(2) of Schedule 1.
(4A) No regulations to which this subsection applies shall be made unless a draft of the statutory instrument containing the regulations (whether containing the regulations alone or with other provisions) has been laid before, and approved by a resolution of, each House of Parliament.
(4B) Subsection (4C) applies to regulations under section 49D(3) or (4) that, in exercise of the power under subsection (3)(a), amend or repeal any enactment contained in an Act or in an Act of the Scottish Parliament.
(4C) No regulations to which this subsection applies shall be made unless a draft of the statutory instrument containing the regulations (whether containing the regulations alone or with other provisions) has been laid before, and approved by a resolution of, the Scottish Parliament.
(4D) A statutory instrument—
(a) that—
(i) contains regulations under section 49D(3) or (4), and
(ii) is not subject to the requirement in subsection (4C) that a draft of the instrument be laid before, and approved by, the Scottish Parliament, or
(b) that contains regulations or an order made by the Scottish Ministers under section 33,
shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.
(5) A statutory instrument—
(a) that—
(i) contains regulations made by the Secretary of State under this Act, and
(ii) is not subject to the requirement in subsection (4A) that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament, or
(b) that contains an order made by the Secretary of State under this Act that is not an order under section 3(9), 47(1), 53A(6)(a) or 70(3),
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Disability Discrimination Act 2005