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Services to the public: justification defence

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'.
Introduction
Health and safety
Legal incapacity
Necessary in order to provide the service
Greater cost of providing tailor-made service

This page looks at when a provider may have a 'justification' defence to a DDA claim under the rules on services to the public. The defence is much more limited than for employment, and will often not be available in a case involving stammering.

Introduction

In the case of a service provider, less favourable treatment or a failure to make reasonable adjustments is justified only if the provider shows that:

Note that the justification defence is more limited than for employment, in the sense that the service provider has to bring the case within one of these specific heads - eg health or safety, or showing that the treatment is necessary to enable the service to be provided.

The conditions are as follows:

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.

The Revised Code (para 8.17) says that health or safety reasons based on generalisations and stereotyping of disabled people provide no defence. Also a provider should consider whether a reasonable adjustment could be made to allay any health and safety concerns (para 8.18).

'Health' has been said to mean 'a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity' - Manchester City Council v Romano & Samari (link to bailii.org).

References: s.20(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.

It is difficult to see how this would apply in relation to a stammer, unless (very unusually) it is was reasonable for a provider to believe that the stammer indicated a mental impairment which meant the person did not have the necessary legal capacity.

References: s.20(4)(b), and paras 8.19-8.23 of Revised Code.

Necessary in order to provide the service

Example:

"Disabled customers with a speech impairment or a learning disability may have difficulty in explaining to a bank cashier what their service requirements are. If the cashier asks the disabled customers to go to the back of the queue so as not to delay other customers waiting to be served, this is unlikely to be justified."
Para. 10.44
(Revised) Code of Practice: Rights of Access, 2006
Where the provider is refusing to provide goods or services, a condition is that this is necessary because the provider would otherwise be unable to provide the service to members of the public.

Where the standard, manner or terms of service are worse, a condition is that the treatment is necessary in order for the provider to be able to provide the service to the disabled person or to other members of the public.

These conditions are only intended to apply where other people would effectively be prevented from using the service at all. It is not enough that those other people would be inconvenienced or delayed, and treatment cannot be justified simply because of other people's preferences or prejudices (paras 10.44 and 10.47 of Revised Code).

The Revised Code at para. 10.44 specifically gives the example that it is unlikely to be justified for a bank to ask a person with a speech impairment to go to the back of the queue so as not to delay other customers - see box.

Accordingly, it seems that it is not sufficient justification under this head that other customers would be inconvenienced or delayed while a person who stammers gets his words out. (see also Right to be heard)

Furthermore, before relying on these conditions the service provider must consider whether a reasonable adjustment would allow the disabled person to enjoy the service.

References: s.20(4)(c)(d), and paras 10.43-10.48 of Revised Code.

Greater cost of providing tailor-made service

The final condition applies where there is a difference in the terms on which the service is provided, eg. if the charge is higher. The condition is that the difference reflects the greater cost to the provider of services in providing the service to the disabled person.

However, the cost of any steps required by the duty to make reasonable adjustments cannot be passed on (section 20(5)).

For discussion on this, including whether a service provider can charge more for taking longer with someone who stammers, see Services to the public: cost of taking longer.

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

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© Allan Tyrer 1999-2007
Last updated 6th January, 2007