Services to the public

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'.

Who is covered
Limited transport exemption
Duty not to treat less favourably
Duty to make reasonable adjustments
Disputes

This page looks in more detail at the DDA duties of those providing services to the public. Less technical pages on these duties are the Services FAQ and introductory outline.

Who is covered

Anyone concerned with the provision in the UK of goods, services or facilities to the public, or to a section of the public, is covered (section 19(2) #).

To give just a few examples, this includes shops, market stalls, local councils, government departments, public utilities, banks, solicitors, advice agencies, telesales businesses, charities, places of worship, courts (para 3.2-3.3 of Revised Code).

"A television company invites members of the public to participate in a game show by telephoning its national call centre. This is the provision of a service to the public and is subject to the Act."
Para. 10.4
(Revised) Code of Practice: Rights of Access, 2006

The provisions can apply not only if the disabled person is a consumer but also if he is accessing services on behalf of an organisation, eg as an employee (para 10.3 of Revised Code).

On this website I use 'services' as a shorthand for 'goods, services or facilities'.

Different rules may apply as regards:

education and related services,
public authority functions not involving services to the public,
private members' clubs, and
employment services

...see Which rules apply?

Limited transport exemption

Air and water transport (and a few other minor forms or transport) are partially exempt from the rules on services to the public. However, airlines and ferry companies still have duties in respect of matters like timetables, booking facilities, waiting rooms etc. at airports and ferry terminals.

Most land-based transport was brought within the DDA with effect from 4th December 2006.

Duty not to treat less favourably

Under section 20(1) #, a service provider discriminates against a disabled person if:

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

The justification defence is quite limited - see separate page on justification defence.

For discrimination by the service provider to be unlawful, it must be either:

in refusing to provide, or deliberately not providing, to the disabled person any goods, service or facilities which he provides (or is prepared to provide) to members of the public; or
in the standard of service which he provides to the disabled person or the manner in which he provides it; or
in the terms on which he provides any goods or service to the disabled person (section 19(1) #).

Reason for the treatment

Up to June 2008 it was considered in effect that the link between the stammer and the treatment could be fairly indirect (Clark v Novacold). However, in London Borough of Lewisham v Malcolm (2008) the House of Lords held (in the context of another part of the DDA) that if a landlord gave notice to quit because the tenant sublet, and the subletting was caused by his schizophrenia, this was not enough to bring the case within the DDA. The landlord would also have given notice to quit to anyone else who had sublet. Under Clark v Novacold, the DDA could have applied even so (subject to the justification defence); the subletting was related to the disability so the tenant's treatment would have been compared with someone who had not sublet.

If the House of Lords' approach extends to provision of goods and services, there will doubtless still be situations where the 'less favourable treatment' rules are breached, but they will be fewer and it will often be a good idea to frame claims as a breach of the duty to make reasonable adjustments, as well as less favourable treatment.

Even under the previous approach, sometimes the reason for the person's treatment was too distant from the disability. In R v Powys County Council, ex parte Hambidge (2000) receipt of disability living allowance was taken into account in a means test for charging for home care. The Court of Appeal held that the causal link was not close enough on the facts for there to be "a reason which relates to the disability".

Is knowledge of the disability required?

The Revised Code of Practice (para 5.11) indicates that there can be discrimination without the service provider realising that the person was disabled. However, it seems from the House of Lords decision in London Borough of Lewisham v Malcolm (2008) that some knowledge is required, but it is not clear how much, or whether it is sufficient if the service provider had reason to think there might be a disability. (See also Taylor v OCS Group Ltd (2006, Court of Appeal) which related to employment.)

If the service provider's lack of knowledge is a problem in a particular case, it may be possible to frame the claim as a breach of the duty to make reasonable adjustments. This duty is anticipatory and seems to apply irrespective of the knowledge of the service provider.

Examples on stammering

Possible examples of a breach of the duty not to treat less favourably include:

failure to give a person who stammers time to speak, including putting the phone down on them - see Right to be heard;
being offhand or rude; or
subjecting an insurance or benefit claim to particularly rigorous investigation because software has flagged speech hesitations as indicating dishonesty - see Voice analysis on insurance and benefit claims.

However if the House of Lords decision in London Borough of Lewisham v Malcolm (2008) applies, it needs to be reviewed how far these could still all count as less favourable treatment, or could be re-framed as a failure to make reasonable adjustments.

Duty to make reasonable adjustments

The duty to make reasonable adjustments has three aspects: (a) changes to practices, policies and procedures, (b) providing auxiliary aids and services, and (c) physical features. It does not apply if the service provider shows that his failure to make the adjustment was 'justified'.

Practice, policy or procedure

A service provider has a duty to take any reasonable steps to change 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. The court might look at whether there is a significant impact on, say, people who stammer as a class (Roads v Central Trains (2004), link to judgment on bailii.org). An individual disabled person has a claim if the failure to meet this duty makes it impossible or unreasonably difficult for him to make use of the service.

The Revised Code of Practice (para 6.36) 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, anxiety or loss of dignity entailed in using the service would be considered unreasonable by other people if they had to endure similar difficulties.

Possible examples of a breach of this reasonable adjustment duty in relation to stammering include:

failure to provide the option to talk to a real person in the case of Voice-activated phone systems;
failure to extend any time limits on how long a phone call should last, for example - see Allow extra time;
failing to adjust a practice of subjecting insurance or benefit claims to particularly rigorous investigation where software flags speech hesitations as indicating dishonesty - see Voice analysis on insurance and benefit claims.

Reference: section 19(1)(b), 20(2), 21(1) #, and chapters 6 and 7 and para 10.29 of Revised Code).

Auxiliary aid or service

"The operator of a booking office of a small heritage railway decides to communicate with passengers who have speech or hearing impairments by exchanging written notes. This is likely to be a reasonable step for this service provider to have to take.

"However, it is unlikely to be a sufficient reasonable adjustment for the operator of a ticket office at a mainline rail terminus to make for such passengers. Instead, it installs an induction loop system and a textphone. These are likely to be reasonable steps for a large station to have to take."
Para. 7.21
(Revised) Code of Practice: Rights of Access, 2006

A service provider has a duty to take any reasonable steps to provide an auxiliary aid or service which would enable or facilitate disabled persons' use of a service. An individual disabled person has a claim if the failure to meet that duty makes it impossible or unreasonably difficult for him to make use of the service.

Paragraph 7.21 of the Revised Code discusses using auxiliary aids or services to improve communication. See one example from this in the box.

Possible examples of auxiliary aids or services in relation to stammering include:

giving the option of writing notes rather than speaking; and
providing the option to talk to a real person in the case of Voice-activated phone systems.

Reference: section 19(1)(b), 20(2), 21(4), and chapters 6 and 7 and para 10.30 of Revised Code).

Physical features

The provider also has duties relating to physical features which impede access. The duty does not seem to be of much relevance to people who stammer.

Issues in common

The service provider's duties are limited to "such steps as it is reasonable, in all the circumstances of the case, for him to have to take". It has been said that the policy of the Act 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" (quoted with approval in Roads v Central Trains (2004), link to judgment on bailii.org). Paragraphs 6.24-6.32 of the Revised Code discuss what is meant by 'reasonable'. For example they list some of the factors which may be relevant in deciding whether a step is reasonable such as its effectiveness, practicability, cost, any disruption, and the extent of the service provider's financial resources.

Even where the step would be reasonable, the service provider has a defence if he can 'justify' his failure to take the step on one of certain grounds - see separate page on justification defence.

A provider does not have to take steps which would fundamentally alter the nature of the service or of his trade, profession or business (section 21(6) and paras 10.39-10.40 of Revised Code).

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) .

The view that the duty is anticipatory and does not rely on knowledge of an individual person's disability is confirmed by the Court of Appeal judgment in Roads v Central Trains (2004); link to judgment on bailii.org.

Because the duty is owed to disabled persons as a class and not to any particular claimant, it is irrelevant whether a particular claimant might have the financial means to pay for a necessary auxiliary aid (Ross v Ryanair, 2004). That case also illustrates the fact that more than one organisation may be liable - eg both airline and airport authority (though note limited exemptions for transport).

Disputes

See Services: Complaints and going to court.

Top