Are you listening?

While many of us have become adept at advising clients about the complexities of Part III of the DDA, it is worth considering its very wide application to the legal practice – be it sole practitioner or large commercial outfit. In Scotland, according to the Disability Rights Commission, 830,000 people are likely to be covered by the DDA and, across Britain, the combined spending power of the disabled population is £50 billion a year. To exclude such potential clients makes no sense and risks costly and embarrassing litigation. So being proactive on this issue is not just a question of compliance, but sound commercial judgment.

The duties

From 1 October 2004 firms must consider making reasonable adjustments to premises where physical barriers to access are an issue. This might involve removing a feature, altering it, ensuring it can be avoided, or providing services by alternative means.

Not all of this is new, as service providers’ obligations have been phasing in since December 1996, when it first became unlawful, by the DDA, to treat the disabled less favourably than others, because of their disability. For a legal practice, this could include a refusal to accept a disabled person as a client, providing a lower standard of service, or offering worse terms.

Since 1 October 1999 we have been required to make reasonable adjustments for disabled people in three ways:

1. to change practices, policies and procedures which make it impossible or unreasonably difficult for disabled people to make use of your services;
2. to provide auxiliary aids and services if it would enable or make it easier for disabled people to make use of your services; and
3. to provide a reasonable alternative method of making services available to disabled people where a physical feature makes it impossible/unreasonably difficult for disabled people to make use of those services.  

The implementation of Part III of the DDA has been phased to give service providers time to make the more substantial adjustments required to improve access to premises. Accordingly, it’s unlikely that a court will be sympathetic to any legal practice that has failed to consider the barriers encountered by disabled people and to assess adjustments which might overcome them.

Adjustments to premises

In the 2001-02 Scottish Household Survey, 52% of disabled people cited climbing stairs as an obstacle to accessing services. If your practice is above a row of shops, has front steps, or is situated across several floors, half the disabled population may struggle to get to you. Possible adjustments will depend largely on the size and resources available to your firm but solutions might include having a bell at pavement level, used by a client requiring assistance, replacing stairs with a wheelchair ramp or having a temporary one available if required, fitting a stair lift, or allowing use of a lift normally restricted to staff.

A variety of obstacles are likely to exist in many practices. Examples of other adjustments might include:

Restricted mobility: Providing a ramp for external stairs, widening doors, replacing heavy doors or fitting automatic opening and closing devices, fitting grab rails, laying non-slip flooring or low-pile, high-density carpet, removing bulky doormats, ensuring toilets are accessible and offering a ground floor meetingroom.

Hearing impaired: Installing an induction loop in reception areas and meeting rooms, fitting an audio-visual fire alarm, or installing a voice synthesiser in a lift.

Visually impaired: Consider improved lighting and signage, use of contrasting colours on furniture, and having Braille on signs in public areas.

What amounts to reasonable?

The duty is to take such steps as are reasonable in all the circumstances. While the Act does not set out the factors which should be taken into account, what is reasonable is likely to turn on factors such as the type of services being provided; the nature of the firm, its size and resources; the effect of the disability on the disabled person; the effectiveness of a particular step in overcoming the difficulty faced; and the extent of any disruption caused by taking the steps.

In weighing up the effect on the disabled person, consider whether the time, inconvenience, effort or discomfort experienced would be seen as unreasonable by an able-bodied client facing such difficulties.

The comments about reasonableness also apply to the other duties in relation to practices, policies and procedures, auxiliary aids and providing an alternative method of making services available. Firms should be tackling these areas on an ongoing basis given that the duties have been effective since 1999.

Practices, policies and procedures

Many adjustments cost little or nothing and can be more obvious than you think. For example, if you are having a meeting with someone who has a hearing impairment you can make life much simpler for them by allowing longer for the meeting, keeping background noise to a minimum, and writing things down for them if necessary (perhaps providing a note of areas to be discussed in advance). Also, ensure the meeting room is well lit and that you aren’t sitting with your back to direct sunlight, to aid lip-reading.

In considering adjustments to practices, policies and procedures, it won’t simply be a case of one size fits all. Take as an example two clients who are blind or partially sighted. The first might want to receive correspondence in larger print but the second to correspond via email as he has software which can read typescript back to him. Even these solutions are not exhaustive so it becomes important to ask the client what you can do to assist them.

Alternative service provision

The most common method of doing this is likely to be meeting with the client somewhere accessible, whether in their own home or elsewhere offsite. As a significant proportion of disabled people have difficulty using transport, you should actively consider home visits, but equally, you should be prepared to make maximum use of tools such as email and the internet as alternatives.

Justification

A failure to make reasonable adjustments can be justified on a challenge by a disabled person under the DDA. The circumstances in which this can be done are however limited and, as the Code of Practice states, a service provider “should not be looking for reasons or excuses to discriminate against disabled people who wish to use its services. It is in the service provider’s own best interests to ensure that its services are fully accessible to all customers”.

The only conditions which can be used to justify a failure to make reasonable adjustments are:

Health and safety, although arguments based on general and commonly incorrect assumptions about being unable to evacuate the disabled safely in the event of fire will rarely suffice;

The disabled person being incapable of entering into a contract, though unless there is clear evidence to the contrary, you should assume that a disabled person has capacity;

The service provider being otherwise unable to provide the service to the public (a lower standard of service can also be justified in these circumstances);

The prohibitive cost of providing a tailor-made service.

Steps to be taken

The duty to make reasonable adjustments is a cornerstone of the Act and the needs of disabled people should be anticipated. You shouldn’t simply wait until a disabled person approaches you to act on their behalf before turning your mind to adjustments which could be made. Instead, you should carry out an access audit with the aim of anticipating the types of disabilities which may be encountered and the appropriate adjustments that could be made. The views of any existing disabled clients and/or staff will also help in this process. Once you have carried out an audit, this should be reviewed at least annually.  

Undertaking such an audit is also essential so that the cost of making any adjustments can be estimated. Costs of making adjustments should not be added to the fees of disabled clients alone, but treated as general expenses of the firm.

As the duties are owed to “disabled persons” and apply whether or not you are aware of an individual’s disability, staff awareness is essential. You could be held vicariously liable if an employee acts in a discriminatory manner towards a disabled person and one way to avoid this is to undertake appropriate staff training. Training should be centred on asking the disabled person about adjustments which could be made rather than simply making assumptions as to what should or should not be done.

In an increasingly competitive legal market, we cannot afford to alienate a significant market sector, and potentially their families and friends. Nor can we afford to ignore the requirements of the DDA from a risk management perspective. Getting to grips with the law now is therefore vital to every legal practice.

Chris Phillips, Partner, Maclay Murray and Spens