Services and Public Functions under the Equality Act 2010: Commencement Provisions for Part 3

Wednesday 29 September 2010

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Services and Public Functions under the Equality Act 2010: Commencement Provisions

Part 3 of the Equality Act 2010


The provisions of Part 3 (including Schedule 2 (reasonable adjustments) and Schedule 3(exceptions)) came into force on 1 October 2010 by the Equality Act 2010 (Commencement No. 4, Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010, article 2(3), except:

(a) So far as they apply to the protected characteristic of age, and

(b) Paragraph 2 of Schedule 2 (of the 2010 Act) so far as it relates to the ‘third requirement’ in a case where ‘A’ is -

(i) In England and Wales, a local authority exercising functions under the Education Acts (the Education Act 1973, the Education Act 1980, the Education (Fees and Awards) Act 1983, the Further Education Act 1985 (except sections 4 and 5), the Education Act 1986 , the Education Act (No 2) Act 1986, the Education Reform Act 1988, the Further adn Higher Education Act 1992, the Education Act 1994, the Education ACt 1997, theEducation (schools) Act 1997, the Teaching and Higher Education Act 1998, the Schools Standards and Framework Act 1998, the Education Act 2002, the Higher Education Act 2004, the Education Act 2005, the Learner Travel (Wales) Measure 2008), or

(ii) In Scotland, an education authority exercising functions under the Education (Scotland) Act 1980, the Education (Scotland) Act 1996, the Standards in Scotland’s Schools etc. Act 2000 or the Education (Additional Support for Learning) (Scotland) Act 2004.

Regarding (b) (above), in summary, in respect of the duty to make reasonable adjustments for disabled persons, a local authority in England and Wales and an education authority in Scotland, exercising education functions, are exempt from the third requirement concerning auxiliary aids, see below.

What else do I need to know to make sense of this commencement provision?

A: Paragraph 2 of Schedule 2 of the 2010 Act

Schedule 2 concerns reasonable adjustments. Paragraph 2 of Schedule 2 makes provision where a duty to make reasonable adjustments is imposed on ‘A’ by Part 3.

Regarding the provision of services under Part 3, s 29(7) provides that a duty to make reasonable adjustments applies to (i) a service-provider, and (ii) a person who exercises a public function that is not the provision of a service to the public or a section of the public.

In respect of the duty imposed on a ‘service-provider’, the duty applies to a person concerned with the provision of a vocational service, but a failure to comply with that duty in relation to such provision is a contravention of Part 5 (Work) for the purposes of Part 9 (enforcement), see s 55(7).

B: The Third Requirement

The third requirement is found in s 20(5) of the 2010 Act, concerning the duty to make adjustments for disabled persons, and concerns auxiliary aids:

“The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.”

However the third requirment is qualfiied so that the reference to 'a disabled person' is to 'disabled persons generally', see para 2(2) of Sch 2 of the 2010 Act; in order to make plain that the duty is an anticipatory one. Further, the 'relevant matter' referred to is the provison of the service or the exercise of a function by 'A', see para 2(4) of Sch 2 of the 2010 Act.

C: ‘A’

‘A’ is defined in s 20(1) of the 2010 Act:

Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

Sections 20, 21 and 22 of the 2010 Act concern adjustments for disabled persons.

Transitional Provision and Savings

Commencement Order No 4 makes transitional provision so that the 2010 Act applies where an act carried out before 1 October 2010 is unlawful under a previous enactment, and continues on or after that date and is unlawful under the 2010 Act, see article 7. Further provision is also made by way of savings in respect of the application of previous enactments in relation to acts occurring wholly before 1 October 2000, see article 15ff.

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