Access-ability

Part 3 of the Disability Discrimination Act 1995 (“the DDA”) imposes duties on service providers. It is important for solicitors to be familiar with these provisions, in order to comply with their own duties as service providers and to be able to advise their clients of their legal rights and obligations in this field. The scope of the Part 3 duties was extended in December 2006 by the Disability Discrimination Act 2005.

This article will consider the legal framework, highlighting how it has changed since December 2006. It will conclude with a look at the support available from the Disability Rights Commission for Part 3 legal cases.

Scope of the Act

Only people who are disabled as defined by the DDA (see panel) have rights under the legislation. Anyone who is a service provider, which is widely defined as: “concerned with the provision, in the United Kingdom, of services to the public, or to a section of the public”, has obligations under

Part 3.

Provision of services includes the provision of goods or facilities. Part 3 also covers the provision of insurance and premises and, since December 2006, covers public authority functions and private clubs.

When 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. However, since December 2006 the use of most land-based vehicles is now covered.

What duties are imposed?

It is unlawful for a service provider to discriminate against a disabled person in the following ways:

• refusing to provide, or deliberately not providing the service;
• failing to comply with a duty to make reasonable adjustments, where the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to use the service;
• in the standard of service provided or the manner in which it is provided;
• in the terms on which the service is provided.

Making “reasonable adjustments”

A key concept which lies at the heart of the legislation, is the duty to make reasonable adjustments. The duty is triggered where it is impossible or unreasonably difficult for a disabled person to access services.

The DDA does not define what is meant by “unreasonably difficult”. Guidance on this is provided in the Disability Rights Commission’s statutory Code of Practice (Rights of Access). This says that when considering whether services are unreasonably difficult for disabled people to use, service providers should take account of whether the time, inconvenience, effort, discomfort or loss of dignity entailed in using the service would be considered unreasonable by other people if they had to endure similar difficulties.

It should be noted that the duty to make reasonable adjustments is a duty to disabled people at large, regardless of whether the service provider knows that someone is disabled. It is an anticipatory duty and requires the service provider to plan ahead.

Adjusting in stages

There has been a staged implementation of the reasonable adjustment duty in respect of physical features, as can be seen from the following.

From 1 October 1999 a service provider has had to take reasonable steps to:

• change a policy, practice or procedure which makes it impossible or unreasonably difficult for disabled people to make use of its services;
• provide an auxiliary aid or service if it would enable (or make it easier) for disabled people to use the services;
• provide a reasonable alternative method of making its services available to disabled people where a physical feature makes it impossible or unreasonably difficult for disabled people to use the service.

From 1 October 2004 service providers have also had a duty, where a physical feature makes it impossible or unreasonably difficult for disabled people to use the service, to take reasonable steps to:

•  remove the feature; or
•  alter it so that it no longer has that effect; or
•  provide a reasonable alternative means of avoiding it; or
•  provide a reasonable alternative method of making the services available.

The 4 December 2006 changes

Private clubs. From 4 December 2006, as well as having a duty not to treat disabled people less favourably (which was introduced in 2005), private clubs have also had a duty to make reasonable adjustments. This applies if the private club has 25 or more members and it has a constitution (which does not need to be in writing) about how people become members, and admissions are carried out in such a way that the members do not constitute a section of the public. It does not matter whether the club’s activities are carried out for profit, nor whether the club is corporate or unincorporated.

Functions of public authorities have also been covered since 4 December 2006. The original DDA did not apply to the exercise of certain functions by public authorities (such as arrests by the police), as these did not constitute the provision of a service to the public. The provisions relating to “public authority functions” only apply where other parts of the 1995 Act do not already apply.

The legislation relating to let premises was also expanded from 4 December (see Journal, January 2007, 48). As well as the duty not to treat disabled people less favourably (which was introduced in 1995), there is a duty on “controllers” of premises to make reasonable adjustments to let premises or premises to let. A “controller” of premises is a landlord or someone who manages the premises. Although this reasonable adjustment duty does not require any steps which would involve the removal or alteration of a physical feature, it specifically does include a duty to consider, for example, steps such as the replacement or provision of any signs or notices, of any taps or door handles, or of any doorbell or door entry system.

Some “transport providers” have also now been covered by the legislation. They must not discriminate against a disabled person when providing, or not providing, a disabled person with a vehicle; or when providing, or not providing, a disabled person with services when she/he is travelling in a vehicle provided in the course of a transport service. A transport provider also has a duty to make certain kinds of reasonable adjustments for disabled people in respect of the provision or use of a vehicle. These rules were brought in by the Disability Discrimination (Transport Vehicles) Regulations 2005 and cover the following types of vehicle: buses and coaches (scheduled and leisure), private hire vehicles, taxis, trains, trams, light rail, vehicles used on modes of guided transport, rental vehicles and breakdown recovery services.

What is reasonable?

Unlike Part 2 of the DDA in employment, Part 3 does not provide any guidance as to what should be considered when determining whether an adjustment is reasonable. The code of practice indicates that reasonableness will depend on the type of service being provided; the nature of the service provider and its size and resources; and the effect of the disability on the individual disabled person.

Cost of providing reasonable adjustments

The cost of providing an adjustment will be relevant as to the question of whether the adjustment is reasonable. However, if an adjustment is reasonable, the DDA does not permit the cost of making the adjustment to be passed on to the disabled person concerned. Instead, cost must be absorbed by the service provider’s general overheads. This is consistent with the anticipatory nature of the duty. For example, in the DRC funded case of Ross v Ryanair Ltd and Stansted Airport Ltd (2004) it was held that it was unlawful for Ryanair to pass the cost for providing wheelchair assistance on to a disabled passenger. The wheelchair assistance was an auxiliary service and the disabled passenger could not be charged for it.

Justifying non-compliance

There are limited circumstances in which non-compliance with duties under Part 3 may be justified. The familiar “material and substantial” formulation of justification used in the employment provisions of the DDA does not apply to Part 3. Instead, justification can only be established if one of the conditions listed in s 24(4) of the DDA (for example, that the treatment is necessary in order not to endanger health and safety), applies. The DDA says that treatment will only be justified if, in the opinion of the service provider, one of the conditions applies, and it is reasonable for them to hold that opinion. Thus, if a court has to consider justification in the context of service provision, the test to apply is partly subjective and partly objective.

Enforcement and remedies

Claims under Part 3 are brought in the sheriff court (with the exception of claims relating to the provision of employment services, which should be brought in the employment tribunals).

The questions procedure, under s 56 of the DDA, has been in force since 5 December 2005. It can be used by a pursuer to gather evidence about an alleged incident of discrimination. The questionnaire enables the pursuer to ask for detailed information about a service provider’s actions. Under s 56(3) of the DDA 1995 (as substituted by the DDA 2005), a question in a questionnaire and any reply by a defender is admissible in evidence in court proceedings. The defender has eight weeks within which to respond, and the court is entitled to draw inferences from a failure to answer or an equivocal answer.

If a claim is upheld the court can make a declaration, award compensation for financial loss, award injury to feelings, and grant an interdict to prevent future discriminatory acts.

In the Disability Rights Commission (DRC) funded case of Purves v Joydisc [2003] IRLR 420, an appeal against the level of damages awarded for injury to feelings in a Part 3 case, the sheriff principal said that £750 is the least that can be awarded “for the very slightest injury to feelings”. Awards can be for substantially more. So far in Scotland there have been few reported cases. In one case which settled, wheelchair user Isaac Curran raised a court action against the Redstones Hotel in Bothwell, Lanarkshire, supported by the DRC. Despite the fact that his relative had phoned ahead to confirm the hotel had full wheelchair access, Mr Curran could not get a disabled parking space in the car park, was unable to get in the front door of the hotel and had to be manhandled up five steps into the diningroom and also into the gents’ toilet. The action settled last year with the hotel paying out £3,000 to Mr Curran and £2,000 in legal expenses to the DRC. The hotel has also applied for planning permission to improve the disabled access.

In the RNIB funded case of Hutchins v D’Cruz (2004) in England, part of the remedy was to grant an injunction. This case concerned a person who was refused admission to a restaurant because he had sight impairment and was therefore accompanied by his guide dog. The restaurant owner would not undertake to permit the claimant access to the restaurant with his guide dog in the future, and so the court granted a permanent injunction, thus ensuring the problem with access should not recur. In addition, a declaration was made and damages were awarded.

Irene Henery is legal assistant to the Disability Rights Commission Scotland

DISABILITY: A WIDE DEFINITION

A person has a disability which is covered by the Act if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on her/his ability to carry out normal day-to-day activities.

This definition is set out in s 1 of the Act. All parts of the definition must be met, otherwise the person will not be treated as having a disability for the purposes of the Act and will not be able to claim disability discrimination.

A “substantial effect”  is something which is more than a minor or trivial effect. The effect of an impairment is long term if it has lasted or is likely to last for at least 12 months. There has to be a substantial and long-term adverse effect on normal day-to-day activities as this is defined in sched 1. This means that the impairment must affect one or more of the activities listed, for example: mobility, manual dexterity or perception of the risk of physical danger.

The definition can cover illnesses and conditions which some people may not immediately think of as a disability, such as asthma, depression, cancer or diabetes. These are just some examples, as there is no fixed list of the types of disability which can be included. The question is whether each part of the definition is met.

Further details of how each part of the definition is applied are set out in sched 1 to the Act, and guidance on how these are interpreted is available in the “Guidance on matters to be taken into account in determining questions relating to the definition of disability” (available on the DRC website www.drc-gb.org).

DRC FINANCIAL SUPPORT FOR LEGAL CASES

The DRC can consider applications for financial assistance in respect of legal proceedings brought or proposed by an individual under the DDA. We can fund certain solicitors taking cases, or will provide legal representation ourselves. To make best use of its limited legal resources, the DRC has established categories of cases which should be regarded as priority areas for support. In general terms, priority areas reflect cases which are likely to promote the rights of disabled people generally, by clarifying a point of legal principle or highlighting areas where the DDA has changed or been underused. The DRC’s current legal strategy includes a more comprehensive list of current priority areas for support and is available on our website at: www.drc.org.uk/the_law/drc_legal_strategy.aspx

Due to the lack of court cases raised in Scotland under Part 3 of the Act, all cases under this part are potentially of interest to the DRC Scotland. The DRC Scotland encourages solicitors to contact our legal team, if they are aware of complaints that fall within these priority areas.

• A solicitors’ advice line is available for solicitors in Scotland only, direct to the Disability Rights Commission legal team: tel: 0131 527 4023 or 4040; textphone: 0131 527 4002
• Disability Rights Commission, 1st floor, Riverside House, 502 Gorgie Road, Edinburgh, EH11 3AF
• E-mail: Lynn.Welsh@drc-gb.org or Irene.Henery@drc-gb.org

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DRC website
www.drc-gb.org

The DRC website has copies of the DDA and related statutes, including consolidated versions of the legislation where applicable. Also available are the codes of practice, regulations and guidance and transcripts of key judgments in DDA cases. Solicitors can also access advice about making their own services accessible to disabled people.