Equality Commision Investigates C&RT

[Alan de Enfield]

 

 

In neither case will it matter, should the claim come to court, whether or not CaRT published their considerations that led them to conclude that their current statements are compliant, although either party may wish to make comments on whether they are reasonable. However, I suspect that CaRT could readily show that they do consider special cases but they only have cite one example to establish that premise. This would leave the claimants needing to show that CaRT have acted unreasonably by not doing the same in every relevant case.

 

 

And, as I posted earlier in this thread - between May 2015 and March 2016 (Bear in mind that there are around 5000 boats declared as 'no home mooring',)

 

Since May 2015 over 860 requests for extended stays or a longer term adjustment under the Equality Act from boaters without a home mooring were granted.

 

An example was given earlier by a participant in this thread, where due to requiring dialysis she was allowed to stay within a restricted range of the facility.

 

That does not look to me like an organisation abrogating its responsibilities.

 

In that period some 2240 boaters failed to meet the conditions of their licence, of those 1130 failed to convince the board that they would meet the condition in the future and were issued a 'short term restricted' licence.

652 took up the offer whilst the balance either complied with the requirements and regained a 'full' licence, the boat was sold, took a mooring or taken off C&RT waters,

68 were refused any licence, of which 45 remain in enforcement process.

[Geo]

 

Privilege is where you are where you are through sheer good fortune. Disadvantage is where sheer bad luck is to blame.

 

The majority of us are somewhere in between, where in large part, we make our own "luck".

 

I am not privileged to have enough money to own a boat, I have that money because I worked hard to get somewhere so that I would have enough money. I don't live in New Mills. I can get personal credit because I have spent years building a good credit history.

 

Did people help, guide and support me? Yes they did, but unfortunately to no avail.

 

I've seen it from both ends. I've chucked away that advantages that I had, dropped out of university, ended up in the worlds grottiest bedsit (putting 50p in the meter), worked on a casual basis on the grottiest jobs. I didn't end up there because of bad luck. I ended up there because I was idle.

 

I didn't pull back from there because of a stroke of luck, but because I decided to pull my socks up and start again in a completely different field.

 

Over the years, yes things have come in from left field, both bad luck and good luck. Quite a lot of bad luck actually, but I don't see that as an excuse. I can be a victim of circumstance or master of my own destiny. I CHOOSE the latter.

 

I also choose to be the source of "luck" to others where I can, but whatever I can do for others to allow them to make their way in the world will be of no use to them if they just expect the luck to do it for them.

 

Success is about application to make use of good fortune and work round adversity.

 

So I guess you would say you have the things and situation etc as of right because you worked for them and you owe nothing to society as a whole.

[Mike Todd]

 

my apologies. Let me show you the evidence. Also - I just picked up the monkey from someone else, but was using 'non-core monkey' to describe any political argument without a basis in law or fact. Not to describe people.

 

In 2012, Sally Ash stated that

 

' With only one exception, our plans and policies don’t depend on us knowing whether a boat is being used as a primary residence. Residency definitions are notoriously difficult to pin down and we have no need or desire to use bureaucratic processes for trying to record this. It only matters when we need to exercise our ‘Section 8’ powers to remove a boat if it’s the person’s only home.'

 

see here - https://canalrivertrust.org.uk/media/library/2305.pdfp2

 

This means that the question of whether boats are used as homes, and therefore the questions of human rights relating to residential use are only considered to be relevant by the Trust when they are enforcing against a boat for a breach of the Guidelines. Not when they are setting them.

 

You can see this again here - https://canalrivertrust.org.uk/media/library/3516.pdf, on p13: 'In any case where the boat is the licence holder’s primary residence, we seek a court order before exercising these powers (s8). This provides the judge with the opportunity to consider the proportionality of the sanction in the context of the Human Rights Act.'

 

​​the Trust admits that it has no desire to use 'bureaucratic processes' (i.e. proper procedure) to record or consider when boats are used as homes other than when they are enforcing against them.

 

They need to consider Human Rights when they are setting​ the guidance, not just when they are enforcing for its' breach. It is not just the s8 sanction which will have an affect on human rights, it is also the need to follow the guidance under threat of homelessness. The child's human right to access to an education will not be relevant to eviction proceedings - it is necessary for the Trust to consider it in advance - when setting the guidance. that's what the law says - its a 'core obligation' rather than a 'non-core monkey'.

 

I think that meets the necessary burden of proof.

Not at all! Not knowing whether a specific boat is or is not a home is very different from knowing that some boats are used as homes. It is the latter that is relevant to policy setting.

[Teasel]

I suspect that CaRT could readily show that they do consider special cases

 

You're right - in the case of individuals whose rights come from the Equality Act I think they can demonstrate that.

 

The Human Rights Act works differently. It prohibits the blanket application of rules and regulations which will interfere disproportionately with a persons human rights. An example from another context is in policing of protest - it is a disproportionate interference with rights to privacy and freedom of association and expression for the police to have a blanket policy of collecting personal information about all persons present at a protest. If they want to collect information, they have to choose the individuals who they target on the basis of that individuals' criminal activity.

 

Here, the Trust apply and enforce (mostly by forcing behavioural change rather than evicting) a 'blanket' set of guidelines, which have a disproportionate effect on the rights of some of the individuals - the children. They admit that they don't consider whether the boat is used as a home in setting the guidelines, and say that 'As a navigation authority, we are not concerned with how people use their boats, only that they comply with licensing rules.' - https://canalrivertrust.org.uk/media/library/2305.pdfp2.

 

Given the controversial nature of this debate, you might imagine that if the Trust had considered HR in setting the guidance, they would say so. They don't - they say the opposite.

 

The Equality Act sometimes requires an individual to come forward to be granted adjustments, whereas the Human Rights Act requires that the public authority concerned does not set blanket policy which disproportionately affects human rights. To avoid this, they need to consider it themselves when they set the guidance - not wait for people affected to come forward.

 

If they did that, and said so and said how, there would be a lot less for us all to argue about.

[Teasel]

Not at all! Not knowing whether a specific boat is or is not a home is very different from knowing that some boats are used as homes. It is the latter that is relevant to policy setting.

 

OK Mike, if this was in court and we were lawyers for CRT and the children on boats, it would be your job to show that CRT did consider the educational rights of the children when setting the guidance - not my job to show that they didn't - although, I think I have done. I'd just have to show they were disproportionately affected - which I think is common ground.

 

How would you demonstrate that CRT have considered childrens educational rights when setting their guidance, and how they have decided that this interference is proportionate?

[costalot]

 

Good point. Two of those Core Responsibilities are

 

1. to ensure that they consider the Equality Act when setting their guidance. This requires them to make anticipatory reasonable adjustments for any disabled person who is likely to be disadvantaged by any 'provision, criterion or practice' that they follow or impose.

 

2. To interpret the law (in s17(3)©(ii) of the British Waterways Act 1995) in such a way that it does not disproportionately interfere with Human Rights - here, the right to education.

 

At the moment, the guidelines are set and enforced without regard to either of these things. This is the only reason there is anything here for the 'non-core monkeys' to grab hold of. The non-core monkeys come from all sides of this argument and are as monkey-like as each other. All CRT need to do is consider their legal obligations when they set their guidelines. At the moment they don't do this and it's left a big hole for us all to fill with our politics.

You didn't provide a reference or link to either of the above points?

 

I went to the CRT Articles of Association <link here> and neither of the above is mentioned!

 

The nearest I could find is para 2.6

 

2.6 to promote sustainable development in the vicinity of any Inland Waterway for the benefit of the public, in particular by:

 

2.6.1 the improvement of the conditions of life in socially and economically disadvantaged communities in such vicinity; and

2.6.2 the promotion of sustainable means of achieving economic growth and regeneration and the prudent use of natural resources

Edited November 23, 2016 by costalot

[Sir Nibble]

Surely cart don't SET the guidance at all. It is simply their best reading based upon court judgements of what the law requires.

[Iain_S]

 

OK Mike, if this was in court and we were lawyers for CRT and the children on boats, it would be your job to show that CRT did consider the educational rights of the children when setting the guidance - not my job to show that they didn't - although, I think I have done. I'd just have to show they were disproportionately affected - which I think is common ground.

 

How would you demonstrate that CRT have considered childrens educational rights when setting their guidance, and how they have decided that this interference is proportionate?

 

Quote from CC cruising guidelines (and I'm saying nothing about their legal basis or standing

 

 

Unacceptable reasons for staying longer than 14 days in a neighbourhood or locality are a need to

stay within commuting distance of a place of work or of study (e.g. a school or college).

 

They do appear to have considered "children's educational rights"

[Teasel]

You didn't provide a reference or link to either of the above points?

 

 

Sorry costalot -

 

1. is in the Equality Act 2010 - s20 is 'reasonable adjustments' for disability. There are a load of other provisions here as well about non-discrimination on the basis of protected characteristics - disability is just one. The provisions apply differently to each, but everyone has to act in accordance with the Equality Act when providing services and facilities etc.. not just public authorities.

 

http://www.legislation.gov.uk/ukpga/2010/15/contents

 

2. Is the Human Rights Act 1998 - here http://www.legislation.gov.uk/ukpga/1998/42/contents

 

CRT have to act in accordance with this when performing their 'public functions'. That means the functions they perform that are set out in statute, so it applies to issuing licences and setting guidance - as these are in the British Waterways Act 1995 and the Transport Act 1962 (s43 (3))

 

s 3(1) of the Human Rights Act 1998 says - 'So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

 

This means that when CRT interpret the relevant legislation - s(17)(43)©(ii) BWAct 1995 - to set their guidance, they need to do so, so far as is possible, in a way that gives effect to Convention Rights.

 

The right to access to education is enshrined in Article 2 to the First Protocol of the European Convention on Human Rights - see here http://www.echr.coe.int/Documents/Convention_ENG.pdfp32; and that protocol is enshrined in domestic law under s1(1)( of the Human Rights Act 1998. - that face should be a 'b'

 

The Charitable Objects are the Objects the Trust has to further to meet their obligations under Charity Law - they are not the only law that applies, but they are also relevant. The Trust are bound by Human Rights and Equality law as well.

 

Art 2.2.1. of the charitable objects says that the first Object of the trust is to 'preserve, protect, operate and manage Inland Waterways for public benefit for navigation - including for navigation by boats also used for human habitation - see 'navigation' in the defined terms.

Edited November 23, 2016 by Teasel

[Murflynn]

it's all a load of PC nonsense set up by lawyers to feather their own nests, if you ask me - which you didn't

 

signed:

 

a tory reactionary

[Guest]

it's all a load of PC nonsense set up by lawyers to feather their own nests, if you ask me - which you didn't

 

signed:

 

a tory reactionary

A lawyer feathering their own nest? Surely not?

[costalot]

 

Sorry costalot -

 

1. is in the Equality Act 2010 - s20 is 'reasonable adjustments' for disability. There are a load of other provisions here as well about non-discrimination on the basis of protected characteristics - disability is just one. The provisions apply differently to each, but everyone has to act in accordance with the Equality Act when providing services and facilities etc.. not just public authorities.

 

http://www.legislation.gov.uk/ukpga/2010/15/contents

 

2. Is the Human Rights Act 1998 - here http://www.legislation.gov.uk/ukpga/1998/42/contents

 

CRT have to act in accordance with this when performing their 'public functions'. That means the functions they perform that are set out in statute, so it applies to issuing licences and setting guidance - as these are in the British Waterways Act 1995 and the Transport Act 1962 (s43 (3))

 

s 3(1) of the Human Rights Act 1998 says - 'So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

 

This means that when CRT interpret the relevant legislation - s(17)(43)©(ii) BWAct 1995 - to set their guidance, they need to do so, so far as is possible, in a way that gives effect to Convention Rights.

 

The right to access to education is enshrined in Article 2 to the First Protocol of the European Convention on Human Rights - see here http://www.echr.coe.int/Documents/Convention_ENG.pdfp32; and that protocol is enshrined in domestic law under s1(1)( of the Human Rights Act 1998. - that face should be a 'b'

 

The Charitable Objects are the Objects the Trust has to further to meet their obligations under Charity Law - they are not the only law that applies, but they are also relevant. The Trust are bound by Human Rights and Equality law as well.

 

Teasel,

 

I've taken some time to skim through your links. It could only be a light read because you supplied links to the entire legislation rather than the specific area. However I think I'm correct in summarizing your position as CRT being non compliant in the area of disability and education for customers?

 

Disability

 

I believe we are focussed on the disability aspect of The Equality Act 2010. Your reference specifically relates to disability and "a duty to make reasonable adjustment!".

 

I would imagine CRT feels they have addressed this requirement with respect to their infrastructure by the provision of ramps and special toilets and showers at their facilities. I doubt CRT have any legal requirement to provide a disabled boater with a purpose built disabled mooring?

 

Education

 

I agree Article 2 of the EU Convention does include a right to an education.

 

However I suspect it would be an interesting legal argument for a boater to claim CRT were preventing their children from acquiring an education because of the decision they (the boater) made to live the life of a boater without a home mooring.

 

Art 2.2.1. of the charitable objects says that the first Object of the trust is to 'preserve, protect, operate and manage Inland Waterways for public benefit for navigation - including for navigation by boats also used for human habitation - see 'navigation' in the defined terms.

 

Actually it is 2.1.1 and Yes precisely! Navigation is defined in the Terms as " includes navigation by any ship or boat used for the carriage of freight and by any ship or boat used also for human habitation". Navigation in a ship or boat means it has to move.

[Teasel]

Hi Costalot, I linked the whole Acts so you could have a look around - as I said, there is more than one provision in each that applies here, and I told you where to find some of them. You can click on any of the sections I specified in the contents of the Act and go from there.

 

'Reasonable adjustments' apply to 'provisions, criterion and practices' as well to physical access like ramps etc. The ‘practice’ of enforcing the Trusts’ interpretation of the law in the form of the guidelines is covered by this – they should adjust that practice where required by the Equality Act.

 

I'm not necessarily saying they don't make reasonable adjustments, since I have never asked for one and wouldn’t know. In fact I said it’s likely they sometimes do. Given that the Trust have updated their policies after the Equality and Human Rights Commission intervened however, it looks like the EHRC probably did say that CRT are not meeting their obligations under the Equality Act. See here - http://narrowboatworld.com/index.php/news-flash/9415-carts-reply-to-bargees. I’m sure you’ll agree, their judgment on this is far more authoritative than mine.

 

The Trust very probably do have a duty to provide a purpose built, or at least retro-fitted mooring to a disabled boater who wins the auction to secure one, if that’s what is needed to ensure they can access and use it properly.

 

On the Schools – it’s not the choice to live on a boat which is denying access to education, it’s the interpretation that the Trust have made of the law in their guidance. This has been done without regard to the Human Rights Act, and since the decision to live on a boat is a legitimate and valid lifestyle choice (confirmed by the first of the Trusts charitable objectives amongst various other sources) this is unlawful.

 

The fact that the Trust now says it is ‘currently seeking to assist boaters with school aged children establish compliant patterns of movement—any request to relax our requirements for this group will be balanced against a number of other legitimate aims’ suggests that contrary to the provisions in the human rights act, they have not already done this.

 

There is nobody anywhere that I know of, and certainly not here, arguing that boats without home moorings should not ever have to move – rather, that they should not have to move in accordance with guidelines that have been set without regard to human rights, and which interfere disproportionately with access to education.

 

 

Human Rights are designed to protect individuals from political extremism - i.e. fascism. The ECHR was drafted after ww2 to ensure that political extremism in Europe would never again be able to result in particular groups and individuals being separated off and victimised by European States for political reasons. As it is performing a function of the State, CRT need to respect Human Rights like all other public bodies. As far as I understand it, any lawyer hoping to 'feather his nest' wants to go into corporate and contract law, Human Rights law is a comparatively poorly paid and mostly socially motivated area of practice.

[Jerra]

On the Schools – it’s not the choice to live on a boat which is denying access to education, it’s the interpretation that the Trust have made of the law in their guidance. This has been done without regard to the Human Rights Act, and since the decision to live on a boat is a legitimate and valid lifestyle choice (confirmed by the first of the Trusts charitable objectives amongst various other sources) this is unlawful.

 

Surely it is the parents choice to live on a boat using a declaration that they have no home mooring which is denying the children education.

 

They could choose to live on a boat with a mooring or in a place where it is possible to CC and still get the kids to school.

 

As I have pointed out before a child needing school or for that matter a birth isn't suddenly sprung on you. You make arrangements and plans. It would appear to me the parents aren't prepared to make the required arrangements with regard to their children's education and so want somebody else to take on that responsibility for them.

[Teasel]

No, it's the interpretation of the law that has been made without regard for the rights of the people it will be applied to.

 

Once CRT interprets the law in a way that is Human Rights and Equality Act compliant, we can see then about blaming parents for making what is probably in most cases the best choice they could possibly make for their children. Let's let CRT do their bit first and then work from there.

[MtB]

Surely it is the parents choice to live on a boat using a declaration that they have no home mooring which is denying the children education.

 

They could choose to live on a boat with a mooring or in a place where it is possible to CC and still get the kids to school.

 

As I have pointed out before a child needing school or for that matter a birth isn't suddenly sprung on you. You make arrangements and plans. It would appear to me the parents aren't prepared to make the required arrangements with regard to their children's education and so want somebody else to take on that responsibility for them.

 

 

Not only that, but you have five years AFTER the birth to organise your life in such a way that your child goes to the skool you wish.

 

That's what we did anyway. We even bought a house in the right place for a skool we wanted them to attend.

[Graham Davis]

No, it's the interpretation of the law that has been made without regard for the rights of the people it will be applied to.

 

Once CRT interprets the law in a way that is Human Rights and Equality Act compliant, we can see then about blaming parents for making what is probably in most cases the best choice they could possibly make for their children. Let's let CRT do their bit first and then work from there.

 

I would suggest that if you (and NBTA) keep "pushing" this line then CaRT will eventually clamp down even harder and this will affect ALL boaters, not just those currently moaning.

Beware what you wish.

Edited November 23, 2016 by Graham Davis

[Murflynn]

Surely it is the parents choice to live on a boat using a declaration that they have no home mooring which is denying the children education.

 

They could choose to live on a boat with a mooring or in a place where it is possible to CC and still get the kids to school.

 

As I have pointed out before a child needing school or for that matter a birth isn't suddenly sprung on you. You make arrangements and plans. It would appear to me the parents aren't prepared to make the required arrangements with regard to their children's education and so want somebody else to take on that responsibility for them.

no, apparently it is CRT's fault because they don't facilitate the children of continuous (non) cruisers going to skool.

 

all the fault of CRT.

 

................. it's all a load of tosh.

[Teasel]

The line i am 'pushing' is that CRT should act lawfully when they set their guidance. What is the problem with that?

[MtB]

The line i am 'pushing' is that CRT should act lawfully when they set their guidance. What is the problem with that?

 

 

It is a matter of opinion, not fact, what the law requires.

 

So far...

[Teasel]

Well no, it is a matter of fact what the law requires, and you can find out what that fact is by reading the law. I did that and i've shown you - the law requires that primary legislation is interpreted as far as possible so as not to interfere disproportionately with human rights. That's a fact about what the law says, not an opinion.

 

CRT say they will start to consider the needs of children to access their education now. That means they have been enforcing their guidelines without having done that.

 

I'm not saying what the guidelines will look like when they have been interpreted in accordance with the law, just that the fact is, they haven't been, and if we let them do that and then see how it works out, maybe then we can think again about whether parents are at fault here specifically with regard to this particular issue.

 

What facts or opinions are in dispute?

[matty40s]

 

 

It is a matter of opinion, not fact, what the law requires.

 

So far...

It is a matter of fact, not opinion.

Which is why CRT have now allowed boaters with school aged children to move short distances respecting the 14 day rule during term time, then expecting them to go for a good cruise during holiday periods.

This has been seen i official notifications on the K&A and has also been seen in official emails from the GU enforcement teams.

Boaters like the crew seen in Mikes(Victoria) recent video on the Marsworth flight have kids in school in the east midlands, they chunter around and then do long distances in holiday periods, so do people like Poshratz, who have 2 kids.

It isnt the boaters that are pushing the rules, its the people that have bought floating houses and signed the guidelines under false pretences..

[Iain_S]

No, it's the interpretation of the law that has been made without regard for the rights of the people it will be applied to.

 

Once CRT interprets the law in a way that is Human Rights and Equality Act compliant, we can see then about blaming parents for making what is probably in most cases the best choice they could possibly make for their children. Let's let CRT do their bit first and then work from there.

 

Do you have any suggestions as to how CRT would do this?

[MtB]

It is a matter of fact, not opinion.

 

 

No it isn't.

 

If it was a matter of fact then the Equality Commission would not be needing to investigate, it would be cut and dried.

[Allan(nb Albert)]

 

Do you have any suggestions as to how CRT would do this?

CaRT should interpret the law as BW told select committee they would on 1 July 1993. They need to change their guidance to reflect that.

 

**** Edited to take into account the following post.

Edited November 24, 2016 by Allan(nb Albert)