Services to the public: cost of taking longer

The 'Revised Code'
means the 2006 (Revised) Code of Practice - Rights of Access: services to the public, public authority functions, private clubs and premises (pdf file on EHRC website). The 2002 Code of Practice which applied before 4th December 2006 is available on the archived DRC website.

Section references
are to DDA 1995 as amended, available on the DRC website - 'DDA and related statutes'.

In broad terms, the cost of making reasonable adjustments cannot be passed on to a disabled person, but apart from that the cost of providing a bespoke service can be. This page looks at issues of whether a person who stammers can be charged more if a service to them takes longer - eg professional fees, or perhaps phone charges.

Summary

Examples of charging more for a longer time include professional charges based on hourly rates such as legal fees, and charges for phone calls (where the caller is longer on the phone because he is stammering). The DDA position is not clear.

The argument for a DDA right to discounts on call costs for taking longer would be difficult - though one might perhaps argue that text messaging charges should be no less benefical than voice call charges. (Telephone...)

A person who stammers may indeed have a right not to be charged extra for extra time spent by professionals because of the stammer, though this is likely to depend on the facts. The argument is strongest where a reasonable adjustment is involved, but is not limited to that. (Professionals...)

Outline of law

Discrimination

It is unlawful for a service provider to discriminate against a disabled person "in the terms on which he provides a service to the disabled person" (s.19(1)(d)). The terms of the service can include the price charged.

Discrimination includes treating a person less favourably for a reason which relates to their disability.

Justification

The service provider has a justification defence if he shows that in his opinion the difference reflects the greater cost to him in providing the service to the disabled person, and that it is reasonable in the circumstances for him to hold that opinion. (More on Justification defence)

The cost of any reasonable adjustments the provider is required to make is not taken into account for the purpose of the justification defence (section 20(5)). So the cost of any reasonable adjustments cannot be passed on.

References: s.20(4)(e), and paras 8.13-8.15 and 10.49-10.50 of Revised Code.

Reasonable adjustment duty

Aside from the duty not to treat less favourably, there is an issue as to whether the duty to make reasonable adjustments could include reasonable adjustments to pricing structures.

Guidance and examples

The Revised Code (para 10.49) says that the justification defence in respect of greater costs is intended to apply where the service is individually tailored to the requirements of the disabled customer. It gives an example of a disabled customer ordering a bed specially made to accommodate her disability. The store could charge more than for a standard bed because it cost more to make.

When the DDA was originally being passed, it was said in Parliament that this ground of justification is not intended to give businesses the opportunity to load opportunity costs on to a disabled person or allow providers to charge more to a disabled person where they have to make their services more accessible to suit his or her disability. It would cover for example a shoemaker making special shoes for disabled people, where he might need to provide a more specialised service so that it is reasonable he charges more.

What about where a service takes longer because of a disability? The Disability Rights Commission has said (in Disability Equality: Making it happen - First review of the Disability Discrimination Act 1995 (link to DRC website), 2003, page 54 of pdf).

"This justification becomes particularly problematic ... when considering the issue of extra time taken to provide a service to a disabled person; where, for example, a solicitor charges by the hour, and takes longer to communicate via an interpreter, such extra time could amount to a reasonable adjustment, which cannot be charged for. Alternatively, it could be argued that it amounts to a bespoke service and thus attracts the justification of 'extra cost'....

"This is an area which would benefit from greater clarity in the code and research into its operation in practice."

Application to stammering - introduction

So, broadly, the cost of making reasonable adjustments cannot be passed on to a disabled person, but apart from that the cost of providing a bespoke service can be passed on.

Providing a service to someone who stammers may take longer. Only in some cases - eg a professional charging for their time, or a phone company charging for phone calls (where the caller is longer on the phone because he is stammering) - will the provider commonly charge extra for this.

A service provider may choose not to charge extra. But is he allowed to charge extra if he wishes? I shall first look at telephone companies and then at professional charges.

Telephone

Might phone companies give discounts for people who stammer?
Some international links:
www.stuttering.ws/links/discrim_phone.htm
www.mnsu.edu/comdis/kuster/phonecompanies.html

Is a phone company required under the DDA to charge people who stammer less because they take longer for calls? I think it would not be easy to argue that.

To claim less favourable treatment for being charged extra, it seems that there must be less favourable treatment in the terms on which the service is provided to the disabled person (s.19(1)(d)).

A phone company would presumably argue that the terms are no less favourable - everyone who chooses a particular call plan is governed by the same terms of the plan. (Apart from the legal argument, there would also be significant practical difficulties in working out what level of discount a particular person was entitled to.)

Text messaging

There is an intriguing case which the DRC supported but few facts are given: 'Mobile phone company treat deaf customer less favourably with regard to the provision of charges for text messaging in a mobile phone contract - DRC01030' (on DRC website). A deaf customer understood that she would get 200 minutes per month of 'free time', and that the free time would include text messaging, which in fact it didn't. The case was settled out of court, including financial compensation.

Text messaging is often important for people who stammer who do not like speaking on the phone, or cannot speak on it. There may perhaps be a DDA argument, either on the basis of less favourable treatment or the reasonable adjustment duty, for saying that price concessions for voice calls should also be available for text messaging, where a disabled person's ability to use voice calls is limited.

Professional charges

Similar considerations could apply to advice services, even if not professional.

Less favourable terms

The first question seems to be whether there is less favourable treatment of the person who stammers in the terms on which the service is provided to him (s.19(1)(d)). Are the terms less favouable if both the person who stammers and anyone else are charged the same amount for the same time?

A professional charging by time may try to argue that the terms are no less favouable, but is likely to have a weaker argument than a phone company. The work of professionals is more task-orientated, rather than simply allowing use of facilities for a certain period of time, and indeed in some cases a professional may have estimated a total fee for a particular piece of work. Also professionals often have a discretion around how much they charge,

Accordingly, professionals may well have obligations not to charge extra for a reason related to stammering, such as taking longer, unless they can rely on the 'justification' defence. However, the legal position is not clear, and it may depend on the individual facts whether the increased professional charge amounts to less favourable terms. The following, which looks at how far the professional can rely on the 'justification' defence, assumes that in the particular situation the terms are less favouable.

(As well as the duty not to treat less favourably, it may also be worth considering whether the duty to make reasonable adjustments could perhaps include reasonable adjustments to pricing structures - but I don't look at that here.)

Where there is a reasonable adjustment...

Where a provider takes steps which he is required to take as a reasonable adjustment, there is no 'justification' defence if the extra cost which the adjustment entails is passed on to the disabled person. Accordingly there is a breach of the DDA assuming the extra charge amounts to less favourable terms. Is this relevant where a person who stammers needs longer?

It is not clear that just allowing a person who stammers extra time is necessarily a reasonable adjustment. However, there is a strong argument for it being a reasonable adjustment where, say, the service provider has a practice of setting a limit for time spent with a particular customer but extends it because of the stammer - eg some computer helplines. In the case of a helpline service though, the charge (even for a premium rate call) is normally by the phone company rather than the person operating the helpline, which makes the DDA argument more difficult. However, there may be cases where the charge is actually made by the service provider who is making the reasonable adjustment, and who in that event is not allowed to charge extra for it.

Another example is a solicitor who would normally have a meeting or phone call with a client but agrees to deal with the matter by email instead because the client says he would find it too difficult to talk. If email takes the solicitor more time, it may not be lawful to charge extra for that.

Where no reasonable adjustment, is there a greater cost to provider?

Where a reasonable adjustment is not involved, the service provider may have a 'justification' defence.

How would this apply to a solicitor's charges, for example, assuming there are less favouable terms? The onus is on the provider to show that in his opinion the higher charges to the disabled person reflect a greater cost to him, and that it is reasonable in the circumstances for the provider to hold that opinion.

This leads to questions of how to work out the 'cost' to the provider, both generally, and also bearing in mind the Revised Code of Practice and perhaps the Parliamentary debates (Guidance and examples above).

Conclusion

Examples of charging more for a longer time include professional charges, and charges for phone calls. The legal position is not clear.

The argument for a DDA right to discounts on call costs would be difficult - though one might perhaps argue that text messaging charges should be no less benefical than voice call charges.

In the case of higher professional charges based on time, an issue is whether there is less favourable treatment of the person who stammers in the terms on which the service is provided to him. He may well be able to argue that successfully, though it could depend on the individual facts.

Where there are less favourable terms, the disabled person should not be charged more for steps required by the duty to make reasonable adjustments.

Where a reasonable adjustment is not involved and there are less favourable terms, the onus is on the service provider to show that in his opinion the higher charges to the disabled person reflect a greater cost to him, and that it is reasonable in the circumstances for the provider to hold that opinion. There is a limited amount of guidance on what costs can be taken into account.

Even if there are not 'less favourable terms' on which a service is provided, it may perhaps be worth considering whether the duty to make reasonable adjustments could include reasonable adjustments to pricing structures.

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