The Court of Appeal found a bank to be in breach of the reasonable adjustment duty, because its main branch in Sheffield was not accessible to wheelchair users. Even if banking services could be accessed in alternative ways, such as over the internet, the policy of the Disability Discrimination Act was to provide a service as close as reasonably possible to that available to people generally, which included physical access to branches. The court awarded an injunction requiring the bank to install a lift to give wheelchair access, and awarded compensation.
Court of Appeal, 2009. Full judgment: bailii.org.
The claimant was a wheelchair user. He had an account at RBS’s main branch in Sheffield. This branch was in a 19th century listed building accessed by stone steps, meauing he could not get in. He argued it would be a reasonable adjustment for the bank to install a lift to give wheelchair access.
The County Court held there was a breach of the reasonable adjustment duty. It awarded damages of £6,500 for injury to feelings, and granted an injunction requiring the bank to install a lift for wheelchair users.
The bank appealed to the Court of Appeal on the issue of whether there was a breach of the duty to make a reasonable adjustment. The County Court’s decision was upheld.
Reasonable adjustment duty
The case concerned the reasonable adjustment duty in s.21(2) Disability Discrimination Act 1995 (DDA), which applies if a physical feature, in this case the stone steps, makes it impossible or unreasonably difficult for disabled persons to make use of a service. The service provider can be required to take various kinds of reasonable action. The relevant kinds or action here were: providing a reasonable means of avoiding the feature, such as a lift for wheelchairs, or providing a reasonable alternative method of making the service available, such as by telephone or internet.
The bank argued that the County Court had failed to distinguish between a service (for example, a financial service) and the means by which a service is delivered (for example, by telephone or internet banking, or face to face confidential discussion). The bank identified six services it provided, for example taking money out of an account which could be done at various ATMs around the town, and money transfers which could be done over the telephone. The bank argued that the County Court wrongly equated access to the premises with access to the services.
The Court of Appeal rejected the bank’s argument. The relevant service in this case was the provision of banking facilities at the main branch (para 23 of the judgment). However, the County Court had to examine the six services identified by bank to see whether the bank had provided a reasonable alternative method of making them available to the claimant.
The County Court had concluded that for at least some of the six services a reasonable alternative method was not provided. However there was a more fundamental point. The face to face facilities which a bank provided to the public through physical access to a bank branch were important to many customers. The policy of the DDA was to provide access for disabled people as close as reasonably possible to that provided for anyone else. If, as the County Court found, it was reasonable for bank to install a lift so as to give wheelchair users physical access, the County Court was entitled to decide that alternative methods of making banking services available were not reasonable alternatives. To quote the Court of Appeal:
28. In my view, the judge was entitled to conclude that the fact that face to face facilities are available at the main branch was of itself an important element of the service provided by the Bank at that branch. Many customers prefer distance banking. But there are many who prefer the traditional way of doing things. The Bank clearly recognises this, since otherwise it would not maintain some 2300 branches throughout the country to which its customers have physical access. Although the judge did not refer to it in his judgment, Ms Casserley drew his attention in her closing submissions on behalf of Mr Allen to the 2006 Code of Practice, para 6.4 of which provides:
“The policy of the [DDA] is not a minimalist policy of simply ensuring that some access is available to disabled people; it is so far as it is reasonably practicable, to approximate the access enjoyed by the rest of the public. Accordingly, the purpose of the duty to make reasonable adjustments 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.”
29. The theme of para 6.4 was replicated by Sedley LJ in Roads v Central Trains Ltd [2004] EWCA Civ 1541 at [13]:
“The policy of the Act, as I would accept, is what it was held to be by Mynors Ch (albeit by way of restricting the duty) in In re Holy Cross, Pershore [2002] Fam 1, para 105: “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”.”
30.The public at large have physical access to banks in order to make use of traditional counter banking services and the Bank’s non-disabled customers have physical access to all of its branches, including the main branch. The judge was entitled to conclude that the provision of the alternative methods of making those banking services available that were relied on by the Bank was not a reasonable alternative, unless there was no reasonable way of affording Mr Allen physical access to the main branch. …
The Court of Appeal also said (at para 25) that the distinction made by the bank between the service and the means by which it is delivered may be helpful in some contexts. However, it was not helpful here. Banking facilities provided by internet or telephone were a different banking service from traditional face to face banking facilities.
Injunction
The case is of particular interest because the court granted an injunction, requiring the bank to install a lift for wheelchair users.
Compensation
The County Court also awarded damages of £6,500 for injury to feelings. The facts of the case included a number of failed attempts at access to the bank. Because of the long period of discrimination, and the embarassment caused by the bank, the County Court judge was satisfied that the case fell into the middle band under the Vento principles.
(The final two sentences of the previous paragraph are taken from Hosegood v Khalid, where the judge outlined the County Court’s reasoning in Allen v Royal Bank of Scotland.)
