Public authority functions

This page looks at the DDA duties in respect of 'public authority functions' which are not services to the public. The rules came into effect on 4th December 2006. To have the rights, your stammer needs to be a 'disability' within the DDA.

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'.

Summary
Where do the rules apply?
'Public authorities' and 'functions'
Duty not to treat less favourably
Duty to make reasonable adjustments
Justification defence
Exemption if authority has no power to take the steps
Disputes

Summary

The rules broadly apply to functions of public authorities which are not services to the public, for example police arrest and interviews. The rules can also extend to public functions undertaken by the private and voluntary sector.

Public authorities have duties not to treat a person less favourably for a reason related to his disability, and also to make reasonable adjustments.

In some cases authorities have a 'justification' defence against DDA claims. The defence is relatively limited, though perhaps wider than that applying for services to the public. Broadly, the defence may apply:

where necessary in order not to endanger health and safety;
where the disabled person is incapable of entering into an enforceable agreement or giving informed consent;
where, in the case of less favourable treatment, treating the disabled person equally favourably would involve substantial extra costs which are too great;
where necessary for the protection of rights and freedoms of other persons; or
if the authority's acts are a "proportionate means of achieving a legitimate aim".

Also the DDA rules do not require a public authority to take any steps which it has no power to take.

The rules on public authority functions do not necessarily apply to Northern Ireland.

Where do the rules apply?

The rules on public authority functions are 'residual' in the sense that they do not apply so far as another part of the DDA applies (or would apply but for an exception). Some functions are covered by the education rules. Many public authority functions, such as libraries, leisure services and provision of information, will fall within the normal Part 3 rules on services to the public. In that case it is the rules on services to the public which apply.

However some public functions are probably not services to the public, eg arrest by a police officer. It was to cover this kind of case that the rules on public authority functions were introduced. Some examples of where the rules are likely to apply:

law enforcement functions, such as arresting a suspect, or interviewing a potential witness to a crime - but eg the police providing information to the community on crime prevention is likely to be a service to the public (para 11.20-11.21 of Revised Code);
a local authority decision as to whether a couple should be allowed to adopt a child;
claiming a social security benefit (though some aspects such as advice on benefits may well be a service to the public);
tax assessment and investigation (but again some HMRC functions may be services to the public);
immigration officer functions;
other activities which can only be carried out by public authorities and which are not similar in kind to the services that can be performed by private persons - often, an authority will be acting under a statutory power or duty when performing such a function (para 11.21 of Revised Code);
certain appointments to an office or post, and the person's ongoing functions, where DDA Part 2 (employment) does not apply, eg school governors (para 11.16-11.19 of Revised Code).

The duties imposed on public authorities when providing a service to the public and those imposed when performing a function are similar in many respects, so it will not necessarily make much difference which set of rules applies.

'Public authorities' and 'functions'

The rules apply in relation to 'functions' of a 'public authority' - unless covered by other parts of the DDA as discussed above.

'Public authority'

In general any public authority falls within the rules, subject to a few exceptions such as Parliament and the Security Service. Local and central government are covered as well as many other bodies such as the police. (Para 11.5-11.7 of Revised Code)

'Functions'

Generally all activities of a public authority are 'functions'.

There are just a few specific exceptions, such as 'judicial acts' (eg a judge's ruling) or a decision not to institute criminal proceedings. See Appearing in court: DDA for more on the main exceptions. (Para 11.8-11.10 of Revised Code)

Private and voluntary sector may be included

Private companies and voluntary sector organisations are also subject to the rules where they perform a public function. For example, a private company which has contracted with the Home Office to run a prison will be subject to the rules (so far as another part of the DDA does not apply), but not in relation to private activities it also undertakes such as providing security for banks. (Para 11.5 of Revised Code)

Duty not to treat less favourably

NOTE: The text below needs to be updated. The House of Lords decision in London Borough of Lewisham v Malcolm (June 2008) is likely to make it harder to argue discrimination for a reason related to the disability. Claimants may more often seek to argue their case as a breach of the duty to make reasonable adjustments. More on the House of Lords decision...

Under sections 21B(1) and 21D(1), an authority unlawfully discriminates against a disabled person if in carrying out its functions:

for a reason which relates to the disability, it treats the person less favourably than it treats or would treat others to whom that reason does not or would not apply (Chapter 5 of Revised Code); and
it cannot show that the treatment is justified - see justification defence below.

See Services to the public: Duty not to treat less favourably for some comments on this duty and examples of its application to people who stammer.

Duty to make reasonable adjustments

Reasonable adjustment duty for public authority functions:

Practices, policies and procedures
Where a public authority has a practice, policy or procedure which makes it

(a) impossible or unreasonably difficult for disabled persons to receive any benefit that is or may be conferred, or

(b) unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by the authority

then it is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to change that practice, policy or procedure so that it no longer has that effect. (s 21E(1)(2))

Auxiliary aid or service
Where an auxiliary aid or service would

(a) enable disabled persons to receive, or facilitate the receiving by disabled persons of, any benefit that is or may be conferred, or

(b) reduce the extent to which it is adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by a public authority.

than it is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to provide that auxiliary aid or service. (s 21E(6)(7))

There is also a duty relating to physical features.

When does an individual have a claim for breach of this reasonable adjustment duty?
The individual has a claim if the authority fails to comply with the duty in circumstances in which the effect of that failure is to make it

(i) impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred, or

(ii) unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by the authority

and the authority cannot show that the justification defence applies. (s 21D(2))

The duty to make reasonable adjustments is set out in rather tortuous language (see box). The main thing is that it includes a duty to take reasonable steps to (a) change practices, policies and procedures of the authority, and (b) provide auxiliary aids and services.

There is also a duty related to physical features, which is unlikely to be relevant to people who stammer.

What are 'reasonable' steps?

The duty is to take "such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take". Paragraphs 6.24-6.32 of the Revised Code discuss what is meant by 'reasonable'. They list some of the factors which may be relevant in deciding whether a step is reasonable, for example effectiveness, practicability, cost, any disruption, and the extent of the authority's financial resources.

Even where the step would be reasonable, the authority has a defence if it can 'justify' its failure to take the step on one of certain grounds - see justification defence.

What level of disadvantage triggers the duty?

In broad terms, the reasonable adjustment duty arises if the disabled person is put at an 'unreasonable' disadvantage. More precisely:

Benefits: Some local authority functions confer benefits, for example social security benefits, tax allowances, or permission to adopt a child. In these cases the reasonable adjustment duty applies when the failure to make an adjustment makes it 'impossible or unreasonably difficult' for a disabled person to receive the benefit. The Revised Code says that the aim here is to provide access to the benefit as close as it is reasonably possible to get to the way in which access to it is normally offered to the public at large (para 11.37 of Revised Code).

Adverse effects: The exercise of other functions may subject a person to an adverse effect (the DDA calls it a 'detriment') - for example, being arrested, or being subjected to immigration control. In these cases the reasonable adjustment duty applies when the failure to make an adjustment makes it 'unreasonably adverse' for the disabled person to experience being subjected to the detriment. The Revised Code says that the aim of the reasonable adjustment duty here is to ensure that disabled people do not have a worse experience in relation to the exercise of these functions than other people (para 11.38 of Revised Code).

For both benefits and adverse effects, the Revised Code (para 11.40) says that authorities should take account of whether the time, inconvenience, effort, discomfort, anxiety or loss of dignity entailed would be considered unreasonable by other people if they had to endure similar difficulties.

Other points

Because the duty refers to 'disabled persons', para 6.14-6.18 of the Code says the duty is 'anticipatory'. In other words, service providers owe the duties to disabled people as a whole, and should therefore consider and take steps to ensure the accessibility of their services in advance of disabled customers notifying them of problems. "Failure to anticipate the need for an adjustment may render it too late to comply with the duty to make the adjustment. Furthermore, it may not in itself provide a defence to a claim that it was reasonable to have provided one."

It seems that there can be a breach of the duty to make reasonable adjustments even without the service provider realising that the person is disabled (para 6.17-6.18 of Revised Code) .

Examples on stammering

For possible examples relating to stammering, see Services to the public: Duty to make reasonable adjustments.

Justification defence

Less favourable treatment or a failure to make reasonable adjustments is justified if the authority shows that:

in the opinion of the authority, one of the four conditions below is satisfied and
it is reasonable in the circumstances for the authority to hold that opinion (para 8.13-8.15 of Code).

An authority also has a futher possible justification defence - if it can show that its acts are a proportionate means of achieving a legitimate aim.

Firstly, however, the four conditions which give a defence if the authority shows that it reasonably believes one of them is satisfied:

Health and safety

The first condition is that the treatment is necessary in order not to endanger the health and safety of anyone. This can include the health and safety of the disabled person.

For more on this, see Services to the public: justification - the same rules apply on this condition.

References: s.21D(4)(a), and paras 8.16-8.18 of Revised Code.

Legal incapacity

The second condition is that the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in the particular case.

For more on this, see Services to the public: justification - the same rules apply on this condition.

References: s.21D(4)(b), and paras 8.19-8.23 of Revised Code.

Substantial extra costs

The third condition is that, in the case of less favourable treatment, treating the disabled person equally favourably would in the particular case involve substantial extra costs and, having regard to resources, the extra costs in that particular case would be too great.

This applies only to less favourable treatment, not to the reasonable adjustment duty because cost is taken into account in considering whether the measure is reasonable.

The Revised Code says that the justification is not intended for every case where some extra cost is involved. The extra costs must be substantial, and this must be judged taking into account the authority's resources and the particular circumstances. So authorities with greater resources are likely to have more difficulty relying on this ground, and the effect of the less favourable treatment on the disabled person in the particular case will need to be considered.

References: s.21D(4)(c), and paras 11.50-11.52 of Revised Code.

Protecting rights and freedoms of others

The fourth condition is that the treatment, or non-compliance with the reasonable adjustment duty, is necessary for the protection of rights and freedoms of other persons.

This is designed to apply where avoiding less favourable treatment or making a reasonable adjustment would have significant detrimental consequences for the rights and freedoms of others, if these would outweigh the effect on the disabled person of the less favourable treatment or failure to make the adjustment. An example given in the Revised Code is that it is legitimate to treat the welfare of the child as paramount in the adoption process.

References: s.21D(4)(d), and paras 11.53 of Revised Code.

Proportionate means - objective test

Furthermore, less favourable treatment or a failure to make a reasonable adjustment is justified if the acts of the public authority which give rise to the treatment or failure are a "proportionate means of achieving a legitimate aim".

The Revised Code says that a public authority is only able to rely on this justification in relation to those matters of public interest (for example, the detection of crime) which, on an objective assessment of proportionality, can be said to be sufficiently important to override the right not to be discriminated against. To demonstrate that an act is a proportionate means of achieving a legitimate aim, the public authority must show that:

there is a pressing policy need that supports the aim which the treatment is designed to achieve, and it is therefore a 'legitimate' aim; and
the authority's action is causally related to achieving that aim; and
there was no other way to achieve the aim that had a less detrimental impact on the rights of disabled people.

References: s.21D(5), and paras 11.54-11.56 of Revised Code.

Exemption if authority has no power to take the steps

These DDA rules do not require a public authority to take any steps which it has no power to take.

The Revised Code gives as an example that an adjustment could not involve a disabled person having someone with them in the jury room, because criminal law does not permit there to be an 'extra' person in the jury room for any reason.

References: s.21E(9), and para 11.57 of Revised Code.

Disputes

See Services: Complaints and going to court.

Top