Royal Mail Group plc Disability Action Centre Guidance Note: PART III DISABILITY DISCRIMINATION ACT 1995 : SERVICE PROVIDERS AND DISABLED CUSTOMERS (Version: msl/Web/10.11.04) [This guidance note provides an overview of the service provider's duties under Part III of the DDA. It is not intended as, nor should it be relied upon as, legal advice in respect of any particular case]. 1) INTRODUCTION: Part III DDA sets out the obligations on providers of goods, facilities and services ("Service Providers") towards disabled customers. In addition, the Government has published a Code of Practice* for Part III DDA which provides assistance in interpreting the provisions of the Act. (The Code of Practice is not law, but Courts and Tribunals are expected to take account of its provisions when interpreting the law). Where relevant, reference is made below to both to the sections of the DDA and to the appropriate paragraphs of the Code of Practice). *[This guidance note is based upon the provisions of the Disability Discrimination Act 1995 ("DDA"), amended as from 1 October 2004, and the 27 May 2002 revised Code of Practice on Rights of Access - Goods, Facilities, Services and Premises]. 1.1) Is the Customer Disabled? In order to be protected from discrimination, a customer must either currently have a disability or must have previously had a disability which falls within the definition set out in Section 1 (and Schedules 1 and 2) of the DDA. According to Section 1 DDA, a person has a disability if s/he has a physical or mental impairment which has an effect on his or her ability to carry out normal day-to-day activities, and that effect is: * substantial (that is, more than minor or trivial), and * adverse, and * long-term (that is, it must have lasted or be likely to last for at least a year or (if shorter) for the rest of the affected person's life). All of the elements of the statutory definition must be satisfied. Of course practical problems arise in the case of customers who claim to be disabled but who have no obvious disability. However, paragraph 3.13 of the Code advises that it would be prudent for service providers to instruct their staff not to attempt to make a fine judgement as to whether a particular individual falls within the statutory definition, but that instead they should focus on meeting the needs of each customer. 1.2) The Implementation dates for Part III DDA: The various provisions of Part III DDA have been implemented over a period of time: 2 December 1996: protection from being refused goods, facilities or services (Section 19 DDA); 1st October 1999: Service providers must take reasonable steps to: (i) change practices, policies or procedures which make it impossible or unreasonably difficult for disabled people to use a service; (ii) provide auxiliary aids or services which would enable/facilitate disabled people to use a service; and (iii) overcome physical features which make it impossible or unreasonably difficult for disabled people to use a service by providing that service by a reasonable alternative method. (Section 21 DDA). 1st October 2004: Service providers must to take reasonable steps to remove, alter, or provide a reasonable means of avoiding physical features that make it impossible or unreasonably difficult for disabled people to use a service. (Section 21 DDA). 1.3) Who is a "Service Provider"? Subject to certain exceptions, the DDA applies to any person, organisation or entity which is concerned with the provision of goods, facilities or services to the public, or to a section of the public, in the UK, irrespective of whether the service is provided in the public, private or voluntary sectors, or whether it is provided in return for payment or free of charge. Similarly, the Act applies to disabled people who use, or seek to use, the services so provided, whether as customers, buyers, shoppers, consumers, clients, patrons or service users (see paragraphs 1.10 and 2.13 Code). All those involved in providing goods, facilities or services are affected, from the most senior Director or Manager to the most junior employee, whether full or part - time, permanent or temporary. It does not matter whether the goods, facilities or services are being provided by a self-employed service provider or by an employee, volunteer, contractor or agent working for a firm, company or other organisation (paragraph 2.15 Code). 2) THE DUTY NOT TO DISCRIMINATE: 2.1) The Duty : S.19(1)DDA makes it unlawful for a Service Provider to discriminate against a disabled person:- a) by unjustifiably refusing to provide, or deliberately not providing, to the disabled person any services which it provides, or is prepared to provide, to members of the public. (For example, a Post Office clerk could not refuse to serve a disabled person who speaks slowly, even though they were keeping other people waiting); b) by unjustifiably failing to comply with any duty imposed by S.21 (the duty to make reasonable adjustments) where the resulting effect is to make it impossible or unreasonably difficult for the disabled person to make use of any such service. (In reality, the vast majority of claims against Service Providers are likely to arise in respect of alleged failures to make reasonable adjustments); c) by unjustifiably providing the service to a worse standard or in a worse manner, (e.g. by being offhand or rude towards disabled customers); or d) by unjustifiably providing the service on worse terms. (For example, a travel agent could not ask a disabled person to pay a higher deposit than other customers when booking a holiday on the incorrect assumption that he is more likely to cancel the holiday). 2.2) The Meaning of Discrimination : 2.2.1) Section 20 DDA explains that a Service Provider discriminates against a disabled person if either: (a) for a reason which relates to the disabled person's disability, it unjustifiably treats him less favourably than it treats or would treat others to whom that reason (i.e. the reason for the treatment) does not or would not apply (S 20(1) DDA); or (b) the Service Provider unjustifiably fails to comply with a S 21 DDA duty to make reasonable adjustments (see below) (S. 20(2) DDA). Note that less favourable treatment is not necessarily the same as bad treatment, although a court might draw inferences of discrimination from unfair or unreasonable behaviour by the service provider (paragraph 3.5 of the Code). 2.2.2) Justification: whilst a Service Provider should not be looking for reasons or excuses to discriminate against disabled people, the DDA does recognise that less favourable treatment or a failure to make a reasonable adjustment may be justified in limited circumstances (paragraphs 7.1 and 7.2 Code). Paragraph 7.8 of the Code explains that the test of justification is both subjective (what did the service provider believe?) and objective (was that belief reasonably held?) A service provider does not have to be an expert on disability, but will be expected to take account of all the circumstances, including the information available to it, any advice which it would be reasonable to seek, and the opinion of the disabled person concerned. According to S.20(3) DDA, treatment is only justified if the Service Provider believes that one or more of the conditions mentioned in section 20(4) DDA are satisfied and it is reasonable, in all the circumstances of the case, for it to hold that opinion. The S.20(4) conditions are : (a) that the treatment is necessary so as not to endanger the health or safety of any person (including the disabled person) - see paragraphs 7.11 to 7.13 of the Code; (b) that the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and the treatment is reasonable in that case. However, Regulations have been introduced to prevent such justification where another is legally acting on behalf of the disabled person - see paragraphs 7.14 to 7.17 of the Code; (c) that in a case falling within S.19(1)(a) (refusing to provide/not providing services), the treatment is necessary because the provider of services would otherwise be unable to provide the service to other members of the public. (For example, a tour guide refuses to allow a person with a severe mobility impairment on a tour of old city walls because he has well-founded reasons to believe that the extra help that the guide would have to give the person would prevent the party from completing the tour) - see paragraphs 7.18 to 7.20 of the Code. (d) that in a case falling within S.19 (1)(c) or (d) (standard or terms of service), the treatment is necessary in order for the provider of services to be able to provide the service to the disabled person or to other members of the public. (For example, a hotel restricts a wheelchair user's choice of bedrooms to those with level access to the lifts. Those rooms tend to be noisy and have restricted views, but the disabled person will otherwise be unable to use the hotel. The restriction is necessary in order to provide the service to the disabled guest and is likely to be justified). See paragraphs 7.21 to 7.23 of the Code; e) that in a case falling within S.19(d) (terms of service), the difference in terms reflects the greater cost to the provider of services in providing a service which has been individually tailored to the requirements of the disabled customer. If a higher charge reflects the additional cost of meeting the disabled person's specification, that would justify the higher charge. (For example, a furniture shop which charges more for an orthopaedic bed, made for a disabled customer's specification, than it does for a standard bed, would be likely to justify this additional charge). See paragraphs 7.24 to 7.25 of the Code. However, paragraphs 4.30, 4.31 and 7.25 of the Code (and S.20(5) DDA) explain that the DDA does not allow a service provider to pass on the additional costs of complying with the duty to make reasonable adjustments to disabled customers alone. Reasonable adjustments form part of the service provider's general expenses in providing this service and any increased cost in providing services to a disabled person, resulting from compliance with the duty to make reasonable adjustments, cannot be used to justify any difference in the terms upon which the services are provided to the disabled person. 3) THE DUTY TO MAKE ADJUSTMENTS - S.21 DDA 3.1) As mentioned above, section 20(2) DDA explains that discrimination occurs where a Service Provider unjustifiably fails to comply with the S.21 DDA duty to make reasonable adjustments, and section 19(1)(b) DDA explains that it is unlawful for a Service Provider to discriminate by such a failure if the effect is to make it impossible or unreasonably difficult for the disabled person to make use of services which the Service Provider offers to the public. 3.2) The Service Provider's duty to make reasonable adjustments can arise in one of three ways: i) According to S.21(1) DDA, where a Service Provider has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is service provider's duty to make reasonable adjustments in order to change that practice, policy or procedure so that it no longer has that effect. ii) According to S.21(2) DDA, where a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is the Service Provider's duty to make reasonable adjustments in order to: a) remove the feature; b) alter it so that it no longer has that effect; c) provide a reasonable means of avoiding the feature; or d) provide a reasonable alternative method of making the service in question available to disabled persons. iii) According to S.21(4) DDA, where an auxiliary aid or service would: a) enable disabled persons to make use of a service which a Service Provider provides, or is prepared to provide, to members of the public; or b) facilitate the use by disabled persons of such a service; it is the duty of the Service Provider to make reasonable adjustments in order to provide that auxiliary aid or service. 3.3) Some Issues about Physical Adjustments: a) Although the duties with regard to physical features contained in S.21(2)(a),(b) and (c) above did not come into force until 1 October 2004, service providers were encouraged prior to that date to plan ahead by taking any opportunities which arose, or by bringing forward plans, to make alterations to their premises to benefit disabled people before October 2004 (see paragraphs 4.8 and 5.33 to 5.35 of the Code). Paragraph 5.33 Code explains that the Code of Practice was issued in advance of 1 October 2004 so as to give service providers an opportunity to consider the adjustments that they needed to make under these provisions and that the period between the issue of this version of the Code (27 May 2002) and 1 October 2004 was intended to be a "transitional period" during which service providers could prepare for their new obligations. Indeed, paragraph 5.34 Code suggests that, when considering whether or not a service provider has taken reasonable steps to comply with its duties after 1 October 2004, a court might take into account the time that the service provider had prior to that date to make preparations. b) Paragraph 5.42 of the Code explains that Service Providers are more likely to be able to comply with their duty to make physical adjustments if they arrange for an access audit of their premises to be conducted and draw up an access plan or strategy. Paragraph 5.43 of the Code explains that, in carrying out an audit, it is recommended that service providers seek the views of people with different disabilities, or else those representing them, to assist in identifying barriers and developing effective solutions. The Code suggests that service providers can also draw on the extensive experience of local and national disability groups or organisations of disabled people. c) Is there a hierarchy with regard to the four options for dealing with physical barriers? Paragraph 5.38 of the Code explains that although the DDA does not place the different options in any form of hierachy, it is recognised good practice for a Service Provider to consider first whether a physical feature which creates a barrier for disabled people can be removed or altered. Paragraph 5.39 Code explains that this is because removing or altering the barriers created by a physical feature is an "inclusive" approach to adjustments which makes the services available to everyone in the same way. By contrast, an alternative method of service offers disabled people a different form of service than is provided for non-disabled people. Paragraph 5.40 of the Code explains that removing or altering the barriers created by a physical feature will also be preferable to any alternative arrangements from the standpoint of the dignity of disabled people. Paragraph 5.41 of the Code explains, therefore, that it is recommended 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. In addition to the above, the forward to the Code of Practice by Bert Massie, Chairman of the Disability Rights Commission, explains that whilst the DDA does not prescribe what approach the service provider should use, the DRC believes that good practice and the most sensible approach will be to remove or alter the physical barrier to the service wherever this is possible, explaining that this is undoubtedly seen as the most effective long-term solution for both the service provider and disabled people. It should be said that some disability advisers take the view that no such hierarchy should be imposed with regard to addressing physical access barriers. No doubt the Courts will be asked to take a view in due course. 4) GUIDANCE AND GOOD PRACTICE RE REASONABLE ADJUSTMENTS: 4.1) To whom is the S.21 DDA duty owed? The duty is owed to disabled people at large - it is not simply a duty that is weighed up in relation to each individual disabled customer (paragraph 4.13 Code). The duty applies regardless of whether the service provider knows that a particular member of the public is disabled or whether it currently has disabled customers (paragraph 4.15 Code). Employees should therefore be made aware that they may be discriminating unlawfully even if they do not know that a customer is disabled, and they should be reminded that not all impairments are visible (paragraph 4.16 Code). 4.2) At what point does the S.21 DDA duty arise and how long does it continue? Service providers should plan ahead to meet the requirements of their disabled customers. Service Providers should not wait until a disabled customer wants to use a service: they should be thinking now about the accessibility of their services to disabled people. It is an anticipatory duty (see paragraphs 4.14 and 4.16 to 4.18 Code). Discrimination is often unintentional and unwitting and may stem from a lack of awareness about disability or from mistaken assumptions or decisions based upon speculation, generalisation or stereotypes. Where there is any doubt, service providers should ask disabled people, whether disabled customers or employees, or else local or national disability organisations, how best they can be served. (A good starting point is to seek assistance from Royal Mail Group plc's Disability Action Centre). The service provider should keep the duty constantly under review. The duty to make reasonable adjustments is a continuing, evolving duty. For example, technological developments may provide new or better solutions for the problems of inaccessible services (paragraphs 4.19 and 4.20 of the Code). 4.3) When is it "unreasonably difficult" for a disabled customer to use a service? This is not defined in the DDA, but paragraph 4.33 of the Code explains that 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. 4.4) What is meant by "reasonable steps" re adjustments? The DDA does not specify any particular factors which should be taken into account (in contrast to the employment provisions in Part II DDA). However, according to paragraph 4.21 Code, what is reasonable will depend upon all the circumstances of the case, including: * the type of goods, facilities or services; * the nature of the provider and its size and resources; * the effect of the disability on the individual disabled person. According to paragraph 4.22 Code, the following is a non-exhaustive list of some of the factors which might be considered when deciding what is reasonable: * the effectiveness of the proposed steps; * the extent to which it is practicable for the service provider to take the steps; * the financial and other costs of making the adjustment; * the extent of any disruption which taking the steps would cause; * the extent of the service provider's financial and other resources; * the amount of any resources already spent on making adjustments; * the availability of financial or other assistance; N.B.1) Paragraph 4.23 of the Code explains that it is more likely to be reasonable for a Service Provider with substantial financial resources to have to make an adjustment with a significant cost than for a service provider with fewer resources. The resources available to the service provider as a whole are likely to be taken into account as well as other calls on those resources. Where the resources of the service provider are spread across more than one business unit or profit centre, the calls on them all are likely to be taken into account in assessing reasonableness. N.B.2) Paragraph 4.26 of the Code explains that once a service provider has decided to put a reasonable adjustment in place, it is important to draw its existence to the attention of disabled people. The Service Provider should also establish a means for letting disabled people know about the adjustment where the service is otherwise likely to be unreasonably difficult to use. 4.5) Paragraph 4.17 of the Code explains that it might not be possible to anticipate every difficulty a disabled person might have in accessing or using services and that a service provider should be flexible in its approach when considering the provision of a reasonable adjustment. The service provider should try to anticipate the types of problems that could arise and should make every effort to know who its customers are. 4.6) Paragraph 3.15 Code explains that in legal proceedings against a Service Provider which are based upon the actions of an employee (remembering that the employer service provider will be liable for the discriminatory actions of its employees under s.58(1) DDA), it is a defence that the service provider took "such steps as were reasonably practicable" to prevent such actions (see s.58(5) DDA). A policy on disability which is communicated to employees is likely to be central to such a defence. It is not a defence for the service provider simply to show that the employee's actions took place without its knowledge or approval. Paragraph 3.16 Code explains that service providers are more likely to be able to comply with their duties under the DDA and prevent their employees from discriminating against disabled customers if they consider the following steps: a) establish and communicate to all staff a positive policy on the provision of services which ensures the inclusion of disabled people; b) inform all staff dealing with the public that it is unlawful to discriminate against disabled people; c) train staff to understand the service provider's policy towards disabled people, and their legal obligations under the DDA, including the duty of reasonable adjustments; d) monitor the implementation and effectiveness of such a policy; e) provide disability awareness and disability etiquette training for all staff who have contact with the public; f) address acts of discrimination by staff as part of disciplinary rules and procedures; g) have a customer complaints procedure which is easy for disabled people to use; h) consult with disabled customers, disabled staff and disability organisations; i) regularly review whether the provider's goods, facilities and services are accessible to disabled people; k) regularly review the effectiveness of reasonable adjustments made for disabled customers in accordance with the DDA, and act on the findings of such reviews; l) provide regular training to staff which is relevant to the adjustments to be made. (N.B.: the October 1999 version of the Code (but not the latest version) explained that (at paragraph 10.6) in addition to the above matters, service providers are more likely to be able to comply with their duty to make reasonable adjustments under the DDA if they can :- * audit physical and non physical barriers to access for disabled people; * make adjustments and put them in place; * draw the adjustments to the attention of disabled people; * let disabled people know how to request assistance). 4.7) Note that a lack of knowledge of a disabled customer's disability is not necessarily a defence to claim of discrimination: a service provider may have treated the disabled customer less favourably for a disability-related reason without even knowing it. The fact is that some disabilities are not visible, and it may not be practicable for service providers or their employees to assess the disabled status of a customer (see paragraph 3.11 and 3.12 Code). Paragraph 3.13 of the Code advises that it would be prudent for service providers to instruct their staff that their obligations under the DDA extend to everyone who falls within the statutory definition of "disability" and not just to those who appear to be disabled, and not to attempt to make a fine judgement as to whether a particular individual falls within the statutory definition, but that instead they should focus on meeting the needs of each customer. (See also paragraphs 4.15 and 4.16 Code). 4.8) The Impact of Building Regulations on Reasonable Adjustments: Chapter 6 of the Code of Practice addresses the issues of how Building Regulations and Leases affect the duty to make reasonable adjustments to physical features under the DDA. 5) OTHER PROVISIONS UNDER THE DDA: A number of other provisions of the DDA are relevant to understanding the protection afforded to disabled customers. 5.1) Victimisation : S.55 DDA explains how victimisation can arise and that victimisation amounts to discrimination. See paragraphs 10.2 to 10.5 Code. 5.2) Aiding Unlawful Acts: S 57(1) DDA explains that a person who knowingly helps someone else to do an unlawful act under the DDA is also to be treated as having done the same kind of unlawful act. See paragraph 10.6 and 10.7 Code. 5.3) Liability for Employees' and Agents' Acts: S.58(1) DDA explains that employers are responsible for anything done by their employees in the course of their employment. A service provider may be an employer. Also note that the employee who commits the act may be treated as having knowingly aided the employer to do the act. S.58(5) does provide a statutory defence for employers. See paragraphs 10.8 and 10.9 Code. Service providers are also liable for anything done by their agents, if done with their authority - see S.58 (2) and (3) DDA and paragraph 10.10 Code. 6) ENFORCEMENT : S.25(1) DDA explains that claims of discrimination against service providers may be brought as civil proceedings in the County Court. Such claims, which are based on tort, may include compensation for injury to feelings, whether or not they include compensation for damages under any other head of claim (S.25(2) DDA). Such claims must be brought within 6 months beginning when the act complained of was done (Schedule 3, paragraph 6 DDA). See paragraphs 10.13 to 10.16 Code.