The Court of Appeal considered the reasonable adjustment duty for service providers. The court said that the policy of the legislation is not a minimalist policy of simply ensuring that some access is available to the disabled. It is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.
Court of Appeal, 2004. Full judgment: bailii.org.
Summary
A person in a wheelchair could not get from one platform of Thetford railway station to another. He could not use the footbridge, and a half-mile road route was too difficult for him. He claimed that it would be a reasonable adjustment for the railway company to provide a taxi with facilities to take an electric wheelchair, to take him between the platforms.
The County Court rejected the claim, but the Court Appeal overturned the decision and said the reasonable adjustment was required. The Court of Appeal’s decision on the reasonableness of the adjustment was based on an unusual concession made by the railway company, namely that the cost of the taxi was not an issue. Had this concession not been made, the decision might have been different. In any event, the Court of Appeal made some important comments on the reasonable adjustment duty for service providers, as discussed below.
DDA does not take a minimalist approach
The railway company argued that it provided a reasonable alternative method of accessing the service. The claimant could go on west to Ely station and cross the tracks there. This would have added about an hour to the journey time. The Court of Appeal said this possible alternative route was not an end to the matter. The court should still consider whether it was reasonable for the company to provide a better solution, such as a taxi:
“…the policy of the DDA is not a minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.”
Paragraph 30
Where there was only one practicable solution, said the court, it may have to be treated as reasonable even if using it is demeaning or onerous for disabled people. However, since the aim is to provide access as close as reasonably possible to the standard normally offered to the public at large, if there is a better solution available it may be reasonable for the service provider to provide the better solution. (Paragraph 13).
Duty is anticipatory, and directed at the particular kind of disability
The main relevant provision of the DDA 1995 was s.21(2) which said “Where a physical feature … makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to [remove the feature, or provide a reasonable means of avoiding it etc].”
Because of the way this provision was worded, the court had to consider whether the half-mile road route was impossible or unreasonably difficult for “disabled persons”, not just for the claimant.
The Court of Appeal said service providers cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability – impaired vision, impaired mobility and so on. Accordingly the question was usually whether it was unreasonably difficult for people with the same kind of disability as the claimant – here wheelchair users – to use the service, in this case to get to the other platform. (The railway company had argued that, for example, the footbridge would not present an insuperable problem to blind people.) In more detail:
11. …Manifestly no single feature of premises will obstruct access for all disabled persons or – in most cases – for disabled persons generally. In the present case, for instance, the footbridge is not likely to present an insuperable problem for blind people. The phrase ‘disabled persons’ in section 21(2) must therefore be directing attention to features which impede persons with one or more kinds of disability: here, those whose disability makes them dependent on a wheelchair. The reason why it is expressed in this way and not by reference to the individual claimant is that section 21 [of the DDA 1995] sets out a duty resting on service providers. They cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability – impaired vision, impaired mobility and so on. Thus the practical way of applying section 21 in discrimination proceedings will usually be to focus the question and the answer on people with the same kind of disability as the claimant.
12. The personal right created by section 19 of the DDA operates by fastening a cause of action on to the section 21 duty if the effect of a breach of the duty is “to make it impossible or unreasonably difficult for the disabled person to make use” of the service in question. Thus there is a double test, albeit both limbs use the same phraseology: first (in paraphrase), does the particular feature impede people with one or more kinds of disability; secondly, if it does, has it impeded the claimant?
In the present case, it was found that the half-mile road route was unreasonably difficult for wheelchair users, despite evidence that some wheelchair users had done it.
The court said later (para 30 & 34), that the fact some wheelchair users could do the road route was not a relevant argument to reduce the standard of reasonable adjustments that should be made, once it had been decided that the road route was unreasonably difficult for wheelchair users.
The lower court in this case had decided it was unreasonably difficult for the claimant to get from one platform to the other. The Court of Appeal said the lower court should have addressed the question of impeded access in relation to wheelchair users as a class before asking and answering it in relation to the claimant. Nevertheless the lower court’s decision should be upheld because its conclusion that the claimant would find it unreasonably difficult to go by road between the platforms was founded upon reasoning which was equally applicable to wheelchair users as a class.
Reasonableness of train company arranging a taxi
The lower court had held this would not be a reasonable adjustment. Among other things, a taxi adapted to take an electric wheelchair would have to come out from Norwich to Thetford.
The Court of Appeal overturned this decision because of an unusual concession made by the railway company, namely that the cost of the taxi was not an issue. The lower court had been critically influenced by the cost of fetching a taxi from Norwich, which was wrong because that concession.
The Court of Appeal commented that the claimant’s case was predicated on the claimant giving the railway company sufficient notice of his coming journey to enable them to book the taxi to help him reach the platform. Thus this case did not decide what it would be reasonable for the company to do if a wheelchair user arrived at Thetford without any or adequate prior notice and asked for a taxi to be summoned from Norwich. In such a situation, with or without regard to cost, the comparative time element may be such that it is reasonable to expect the passenger to go via Ely.
My comments
This is probably the first case which set out that the reasonable adjustment duty on service providers is anticipatory, and directed at the particular kind of disability. This case concerned adjustments to physical features, but the same principles apply to adjustments to what is – since the Equality Act 2020 – called a provision, criterion or practice (PCP). Under s.21(1) DDA 1995 the test again referred to “disabled persons” rather than to an individual disabled person, namely whether “a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service…”. The Equality Act now refers to “disabled persons generally”. See Reasonable adjustments by service providers.
