The Disability Discrimination Act 1995 & service providers
Under the Disability Discrimination Act 1995 (DDA), service providers have three main duties:
- not to treat disabled people less favourably for a reason related to their disability;
- to make reasonable adjustments to enable disabled people to use those services more easily; and
- to make other reasonable adjustments in relation to the physical features of the premises to enable disabled people to use those premises.
These duties apply to all service providers, however small, whether the service is charged for or provided free.
The access to premises duty
Where a physical feature makes it impossible or unreasonably difficult for a disabled person to make use of any goods or facilities provided by a service provider, then the service provider is required to take such steps as are reasonable in order to:
- remove the feature; or
- alter it so that it no longer has that effect; or
- provide a reasonable means of avoiding the feature; or
- provide a reasonable alternative method of making the service in question available to the disabled person.
This duty is anticipatory and continuing. In other words, service providers need to think ahead of how the physical features of their premises can reasonably be improved to ensure that people are not prevented from using their services because they have a disability.
'Disability' is defined as a "physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day to day activities". It includes sensory disabilities such as impaired sight or hearing, mobility impairment, mental health, learning difficulties and disfigurement, as long as the disability is long term.
What is 'reasonable'?
When deciding whether an adjustment is reasonable, service providers can consider issues such as the cost of the adjustment, the practicality of making it, health and safety factors, the size of the organisation, and whether it will achieve the desired effect.
The 2006 statutory Code of Practice on rights of access recommends that service providers should first consider whether any physical features which create a barrier for disabled people can be removed or altered. If that is not reasonable, a service provider should then consider providing a reasonable means of avoiding the physical feature. If that is also not reasonable, the service provider should then consider providing a reasonable alternative method of making the service available to disabled people.
The case before the Court of Appeal
The Royal Bank of Scotland Group PLC v Allen concerned wheelchair access to a particular branch of the bank. Mr Allen, a wheelchair user, was awarded £6,500 damages after being unable to access the bank's main Sheffield branch - significant as the highest sum ever awarded for a non-employment disability discrimination case. The Court of Appeal also upheld the injunction granted requiring the bank to install a platform lift. This adjustment, estimated to cost around £200,000, was deemed to be a 'reasonable adjustment' under the DDA. Even more significant as this was the first time a court had granted an injunction under the DDA requiring building works.
How did the court approach the identification of the service being provided?
Royal Bank of Scotland (RBS) claimed that it was not in breach of its duty as it provided a reasonable alternative method of making its services available to Mr Allen via internet banking, telephone banking, ATM machines and use of other branches which had wheelchair access.
In particular, RBS argued the County Court judge had wrongly equated access to premises with access to the services. The banking services offered via its Sheffield Branch could be classified into six separate elements:
- Paying money into the account. Mr Allen's regular income comprised payments of disability living allowance which were made directly into his account every four weeks. For any other payments that Mr Allen wished to make, a Quick Deposit service was available at other branches in Sheffield which had disability access.
- Withdrawal of cash. The evidence was that Mr Allen could withdraw cash from ATMs in other banks which had disability access or in some shops which also had that facility.
- Obtaining information about bank balances. Mr Allen could obtain this information by using an ATM, by telephone or by the internet.
- Making money transfers. This could be done by telephone.
- Opening accounts. An account could be opened by telephone or via the internet.
- Obtaining advice. It was possible for arrangements to be made for a customer to be seen at home.
The Court of Appeal rejected the bank's arguments on the grounds:
- The relevant service in this case was the provision of banking facilities at the main Sheffield branch.
- The provision of banking facilities by internet or telephone is the provision of different banking facilities from the provision of traditional face to face banking facilities.
- Section 19(3) of the DDA provides as an example of "services" to which the DDA applies "access to and use of any place which members of the public are permitted to enter".
- The public at large have physical access to banks in order to make use of traditional counter banking services and the bank's non-disabled customers have physical access to all of its branches, including the main branch. The judge was entitled to conclude that the provision of the alternative methods of making those banking services available was not a reasonable alternative, unless there was no reasonable way of affording Mr Allen physical access to the main branch.
How did the court approach the question of what was a reasonable adjustment?
The reasonable adjustment in question was the installation of a platform lift in the bank's main Sheffield branch which was a 19th century listed building. Other options such as ramps were not possible due to the positioning of the building.
The bank objected to the installation of a platform lift as to do so, one of eight heavily used interview rooms would be lost. However, the County Court found that the reason for the objection did not justify not carrying out the works as the bank failed to show it considered re-housing the interview room nor did it establish detrimental business implications as a result of the loss of the room.
The Court of Appeal noted that the bank's objection to its installation was not on the basis of disproportionate cost of carrying out the work, but simply loss of one of eight interview rooms. The failure to install the platform lift undoubtedly made it unreasonably difficult for Mr Allen to use the services provided by the bank, and the judge was entitled to find that the failure on the bank's part to take the necessary steps was unjustified.
Lesson 1: identify the "service" being provided
It is important to identify precisely what the service being provided is. In this case, internet and telephone options were not held to be equivalent to face to face over the counter service. As referred to in the Court of Appeal's judgment, the 2006 Code of Practice provides:
"The policy of the [DDA] is not a minimalist policy of simply ensuring that some access is available to disabled people; it is so far as it is reasonably practicable, to approximate the access enjoyed by the rest of the public. Accordingly, the purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large."
Service providers should not assume making other forms of service provision available is sufficient to meet their obligations.
Lesson 2: disabled access at some but not all branches may not be sufficient
A service can be "access to and use of any place which members of the public are permitted to enter". Both the County Court and Court of Appeal accepted that the bank had made good efforts at a high percentage of its 2,300 branches to remedy deficiencies in access for disabled persons, but that did not discharge its duty for the branch in question.
Lesson 3: remember the duty is anticipatory and continuing
Since the imposition of the legal obligation to make reasonable adjustments to access of premises was introduced, it has not been entirely clear how much "adjustment" service providers need to anticipate. The Code of Practice recommends that service providers carry out access audits in order to assess what kind of modifications are necessary to make their premises compliant. The audit should consider the needs of a number of people with varying disabilities to identify where the obstacles lie. If service providers do not ensure equal access to their services for all their clients, the onus will be on them to prove why.
Lesson 4: penalties
In addition to damages being awarded to individual disabled persons unable to access the service, an injunction may be granted to ensure that service providers comply.