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Reasonable adjustments by service providers

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Last updated 6th October 2021.

The reasonable adjustment duty on service providers and public authorities (unlike that on employers) is “anticipatory”. Service providers etc need to think in advance what people with different kinds of disabilities might require.

Table of page contents

Summary

  • There are two types (below) of reasonable adjustment duty:
    • the “anticipatory” duty towards disabled people generally, applying even before an individual disabled person presents themself, on:
      • service providers such as shops, banks etc,
      • bodies exercising public functions such as the police arresting someone, and
      • education providers such as schools and universities (in most cases); and
    • the reasonable adjustment duty on employers which is focused on disadvantage to an individual disabled person.
  • This page deals with the “anticipatory” duty. Service providers etc need to think in advance about what adjustments people with different kinds of disabilities may require, rather than just responding to a particular disabled person who presents themself. So it may be reasonable to do more than would be feasible ad hoc. Below What does it mean that the duty is “anticipatory”?
  • If the adjustment should not have been anticipated, does this mean there is less of an obligation to adjust for the needs of a particular individual, on an ad hoc basis? Common sense and guidance suggest not, though cases are inconsistent. There are technical uncertainties: separate page Ad hoc adjustment duty on service providers?
  • The policy is not to say that “just about accessible” is OK. Access should be as close as possible to that enjoyed by non-disabled people. See below Access to service should be as close as possible to that enjoyed by others.
  • The duty is “anticipatory” because the legal test refers to “disabled people generally” rather than a particular individual with a disability: below Two-stage legal test?
  • What puts disabled people at a disadvantage may be:
    • a provision, criterion or practice (PCP),
  • In some situations it is unclear how far the service provider etc needs to know about the disability: below Knowledge of the disability.
  • A service provider need not take steps which would fundamentally alter the nature of the service or business: below Need not “fundamentally alter” nature of service.
  • There are Examples in the next section, including on stammering, and more Examples of cases at the bottom of this page.

Examples

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

A bank’s practice is that certain issues should be resolved over the telephone. Some disabled customers, including some who stammer, will find it difficult to sort out an issue in this way. The reasonable adjustment duty may require the bank to allow disabled customers who find phone calls difficult to use an accessible alternative, such as discussing the issue face-to-face or in writing, perhaps through a secure online chat facility.
See a similar example (consumeractiongroup.co.uk), 2010.

An example of a settlement on deafness:

A patient who has a hearing impairment with a loss of 40% hearing in both ears, found attending a hospital appointment to be a daunting experience at which she was alone and had difficulty understanding what she was being told. She had requested that a friend be allowed to attend her hospital appointment with her on two occasions, to ensure she could understand everything that her doctor said. These requests which would not have cost any money to implement, were refused. Without the support requested, she had real difficultly hearing and understanding what the doctor told her and was extremely upset. The hospital agreed to pay her £2500.
July 2015, www.equalityni.org/Footer-Links/News/Individuals/Two-claimants-with-hearing-loss-settle-cases-again. Similarly a person who stammers may find the assistance or presence of a friend helpful (or indeed necessary) to communicate.

As to different areas where the duty can apply, there are Examples of cases at the bottom of this page. It is worth remembering that the reasonable adjustment duty includes public authorities even when performing legal functions, such as the police arresting someone or searching a house, or the system for claiming social security benefits. Some brief case examples:

  • R (Rowley) v Minister for the Cabinet Office, High Court, 2021 – the UK government had unlawfully failed to provide British Sign Language (BSL) interpreters for two televised Coronavirus data briefings. However using “in-screen” rather than the more inclusive “on-platform” interpreters was lawful given difficulties of showing detailed data slides with the latter. Another 2021 case concerned BSL interpreters at music concerts.
  • Paulley v FirstGroup, Supreme Court, 2017 – about bus drivers putting pressure on passengers to vacate wheelchair spaces on buses.
  • MM & DM v Secretary of State for Work and Pensions, Court of Appeal, 2013 – people with mental health conditions claiming Employment and Support Allowance argued that the government was failing to make reasonable adjustments by not asking for further medical evidence.
  • Finnigan v Northumbria Police, Court of Appeal, 2013 – reasonable adjustments should be made to enable effective communication with deaf people subjected to a search warrant (or in other situations).
  • ZH v The Commissioner of Police for the Metropolis, Court of Appeal, 2013 – the police had failed to make reasonable adjustments where an autistic boy they approached jumped into a swimming pool. The police restrained him and put him in the cage at the back of a police van.

“Anticipatory” duty

“Anticipatory” versus individual duty

There are two types of reasonable adjustment duty:

  • The “anticipatory” reasonable adjustment duty on service providers including shops, banks and others providing services to the public, bodies exercising public functions even though not services to the public (eg the police arresting someone), and education bodies such as universities and schools. Here there is a duty to disabled people generally even before an individual disabled person presents themself.
  • The reasonable adjustment duty on employers, and a few other types of people, which is based on disadvantage to an individual disabled person.

This page deals with the “anticipatory “duty on service providers etc. As to which type of duty applies in different situations, see Duty to make reasonable adjustments>Individual versus anticipatory duty: Which type applies?

What does it mean that the duty is “anticipatory”?

The legal wording of this type of reasonable adjustment duty refers to disabled people generally – rather than just an individual – being put at a disadvantage. This is understood to mean that service providers, public bodies etc need to think in advance about what adjustments people with different kinds of disabilities might require, and made reasonable adjustments for them, rather than just responding to a particular disabled person who presents themself. The Services Code (below) explains this more fully. For example, unlike the duty on employers, service providers etc:

  • may be required to make an adjustment without knowing of any particular disabled person, and
  • may be required to take steps which it would not be reasonable to take on an ad hoc basis as and when a disabled person presented themself.

R (Rowley) v Minister for the Cabinet Office, High Court, 2021
The court held that the UK government had unlawfully failed to provide British Sign Language (BSL) interpreters for two televised Coronavirus data briefings. There was no suggestion that the reasonable adjustment duty was dependent on the UK government knowing of the particular Deaf claimant. Also the court considered what BSL interpretation the government should have provided by reference to what would be reasonsble for Deaf BSL users generally.

Failure to provide the option to talk to a real person in a voice-activated telephone system may be a breach of the reasonable adjustment duty.

It seems that an organisation should consider the needs of speech-impaired users when designing such a system. The organisation’s duty is not dependent on it being told by a person who stammers (for example) that the system is inaccessible for them.

Also it seems that a court would consider the reasonableness of the adjustment by reference to what the organisation should reasonably have anticipated and done when setting up the system, not just what it is reasonable to do in response to an individual complaint.

The legislation achieves this by a legal test referring to “disabled people generally” rather than just a particular individual with a disability: below Two-stage legal test? and Technical note: Legal wording. The courts interpret “disabled people generally” as requiring them to focus on people with a particular kind of disability (below).

Ad hoc adjustments

Does the anticipatory nature of the duty mean there is less of an obligation on service providers etc (compared with employers) to make a reasonable adjustment for the needs of a particular individual on an ad hoc basis – if it was not reasonable to anticipate the adjustment?

Common sense, would suggest not. Also the Services Code and EHRC guidance say a service provider etc may be required to make a reasonable adjustment to meet the (unanticipated) needs of a particular disabled person when it becomes aware of their needs. Cases are inconsistent though. There are technical uncertainties. See separate page Ad hoc adjustment duty on service providers?

Access to service should be as close as possible to that enjoyed by others

The policy of the Equality Act is not to say that “just about accessible” is OK. The idea is to provide access as close as reasonably possible to that enjoyed by non-disabled people. This is an important factor taken into account by the courts in deciding what adjustment is “reasonable”.

Services Code of Practice, paragraph 7.4
The policy of the Act is not a minimalist policy of simply ensuring that some access is available to disabled people; it is, so far as is reasonably practicable, to approximate the access enjoyed by disabled people to that enjoyed by the rest of the public. 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 (and their equivalents in relation to associations or the exercise of public functions).
This statement in the Code comes from the Court of Appeal decision in Roads v Central Trains:

Roads v Central Trains, Court of Appeal, 2004
A wheelchair user could not get from one platform of a station to the other. He argued that it would be a reasonable adjustment for the rail company to provide a taxi. The company said he could travel to a further station, cross the tracks there and come back, adding about an hour to his journey time.

His claim for the reasonable adjustment succeeded. The Court of Appeal confirmed that the reasonable adjustment duty is anticipatory, and said the policy is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public. It was not necessarily enough that some alternative was available (such as travelling to a further station and coming back). If there was a better solution available, it may be reasonable for the service provider to provide the better solution.

Royal Bank of Scotland v Allen, Court of Appeal, 2009
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 by telephone or internet, the court said the policy of the DDA was to provide a service as close as reasonably possible to that available to people generally, which included physical access to branches.

R (Rowley) v Minister for the Cabinet Office, High Court, 2021
Part of the dispute was whether the British Sign Language (BSL) interpreter in UK government Coronavirus briefings should have been “on-platform”, ie actually in the room, rather than “in-screen”, ie superimposed on the screen using a live feed from a studio.

In considering what it was reasonable for the UK government to have to provide, an important part of why the court preferred “on-platform” if practicable was the legislative policy of approximating access as close as reasonably possible to that enjoyed by the rest of the public. The court said this meant the UK government could not show that in-screen BSL interpretation was sufficient reasonable adjustment unless it could point to some disadvantage of the on-platform option. Here the government could point to a sufficient disadvantage of “on-platform”, namely that it would make the detailed data slides less clearly visible. Taking everything into account, the court held that “in-screen” interpretation was reasonable in the circumstances.

That is an important factor, but what is “reasonable” will depend on all the circumstances of the case. The Services Code of Practice from para 7.29 discusses some of the factors to be taken into account in deciding what is reasonable.

Para 7.39 of the Services Code says it is likely to be rare for there to be genuinely no steps that it would be reasonable for a service provider to take to make its services accessible.

Ongoing and evolving duty

The duty is ongoing and evolving. Service providers and public authorities should keep the duty and the ways in which they are meeting it under regular review in light of their experience with disabled people wishing to access their services. What was originally a reasonable step to take might no longer be sufficient.

MM & DM v Secretary of State for Work and Pensions, Court of Appeal, 2013
It was common ground between the parties in the Upper Tribunal – and the Upper Tribunal agreed – that the duty to make reasonable adjustments is owed to disabled people generally, that it is an anticipatory duty, and that it is a continuing duty and so has to be kept under regular review in the light of experience. In this respect the duty was an evolving duty.

The Services Code of Practice says on this:

7.27 The duty to make reasonable adjustments is a continuing duty. Service providers should keep the duty and the ways they are meeting the duty under regular review in light of their experience with disabled people wishing to access their services. In this respect it is an evolving duty, and not something that needs simply to be considered once only, and then forgotten. What was originally a reasonable step to take might no longer be sufficient, and the provision of further or different adjustments might then have to be considered.

Example:
[The Code here gives the example of a large sports complex which amended its “no dogs” policy to allow entry to assistance dogs, and offered assistance dog users a tour of the complex to acquaint them with routes. However if building work then encroaches on the routes, an initial tour is no longer an effective adjustment. The sports complex decides to offer assistance dog users appropriate additional assistance from staff during building work.]

7.28 Equally, a step that might previously have been an unreasonable one for a service provider to have to take could subsequently become a reasonable step in light of changed circumstances. For example, technological developments may provide new or better solutions to the problems of inaccessible services.

Example:
[The Code here gives the example of computers in a library for use by the public. When the library initially installed computers it decided not to incorporate text-to-speech software for people with a visual impairment, as the software was very expensive and not particularly effective. However the library proposes to replace the computers. It makes enquiries and establishes that text-to-speech software is now efficient and within the library’s budget. It decides to install the software on a number of the replacement computers and to give priority access to those computers.]

Services Code of Practice, para 7.27-7.28. Similarly para 7.26-7.27 of the Technical guidance on further and higher education.

Three aspects of the duty: PCPs, auxiliary services, and physical barriers

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 (EqA s.29(7), s.20 with Sch 2 para 2).

Provision, criterion or practice (PCP)

Where any provision, criterion or practice of a service provider or person exercising public functions puts disabled persons generally – effectively persons with a particular kind of disability (below) – at a substantial disadvantage, in comparison with non-disabled people, the service provider etc is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage (EqA s.20(3) with Sch 2 para 2(2)). A “substantial” disadvantage is just one that is “more than minor or trivial” (s.212(1) EqA).

See below Two-stage legal test? for more detail on how this reasonable adjustment test applies.

PCP is taken before any adjustments

The service provider may already be treating disabled people differently. In other words it may already have made an adjustment. If so, then in deciding whether the PCP puts disabled people at a more than minor or trivial disadvantage, the court looks at the PCP without the adjustment already made. See below Whether there is a disadvantage is decided ignoring any adjustments actually made.

Stammering examples on PCPs

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

Auxiliary aid or service

A service provider or person exercising public functions has an obligation to take such steps as it is reasonable to have to take to provide an auxiliary aid or service where disabled persons generally – effectively persons with a particular kind of disability (below) – would, but for the provision of an auxiliary aid or service, be put at a substantial disadvantage in comparison with persons who are not disabled (EqA s.20(5) with Sch 2 para 2(2)).

As well as various types of equipment, auxiliary aids or services can include extra staff assistance to disabled people (Services Code, para 7.47).

A possible example of an auxiliary aid or service in relation to stammering includes:

Physical features

The service provider or person exercising public functions also has duties relating to physical features which impede access. This aspect of the reasonable adjustment duty should not normally be relevant for people who stammer. Examples of cases include Royal Bank of Scotland v Allen, 2009, and Roads v Central Trains, 2004.

Two-stage legal test?

The anticipatory reasonable adjustment duty on service providers and those exercising public functions (above “Anticipatory” duty) differs from the duty on employers in that it uses a group test. To a large extent the anticipatory duty focuses on people with the same kind of disability generally, rather than just the particular disabled claimant.

Whether, or how far, the reasonable adjustment duty on service providers etc always uses a group test is not clear: see Ad hoc adjustment duty on service providers? Some Court of Appeal cases on service providers and public functions have not used a group test. However at least where the courts are looking at the duty as an anticipatory one, there does seem to be a two-stage approach, with the group test as stage one. The two-stage approach was outlined for example by the Upper Tribunal at paragraphs 96-98 of its decision in MM & DM v Secretary of State for Work and Pensions. (For the wording of the Equality Act itself, see below Technical note: Legal wording.)

The first stage is the group test and the second stage relates to whether the individual claimant is sufficiently affected to be able to claim:

  1. Stage 1: group test. If a provision, criterion or practice (PCP) of a service provider etc, a physical feature, or a failure to provide an auxiliary aid or service puts disabled people generally – ie people with that kind of disability – at a more than minor or trivial disadvantage in comparison with non-disabled people, there is an obligation to take reasonable steps to avoid the disadvantage in the case of a PCP, or to provide the auxiliary aid or service, for example. In cases taking the anticipatory/group approach – not all cases do, see above – whether there is a more than minor or trivial disadvantage (below Technical note: Comparative disadvantage), and what steps it is reasonable to have to take to avoid it, are both normally decided by reference to this “group” of people with the same kind of disability.
  2. Stage 2: individual test. If there is a duty to make an adjustment under 1. above, a disabled individual has a claim if the service provider etc fails to comply with that duty in relation to the individual (s.21(2) EqA), and perhaps the individual suffered a “detriment” due to the failure or there is a “real prospect” that the adjustment would have alleviated the disadvantage. Often it will be evident that the claimant has suffered a detriment, but if not then the exact test to be applied is not clear: below Technical note: Detriment to the claimant.

Taking the Paulley case to illustrate the two-step approach:

Paulley v FirstGroup, Supreme Court, 2017
The court held a bus company was in breach of the reasonable adjustment duty. Where a wheelchair user needed the wheelchair space, it was not enough for the bus company to have a policy that the driver just “request” others to vacate the space.

As regards step 1 above, the Court of Appeal (this was not disputed before the Supreme Court) held that the “first come first served policy” – ie whoever happens to be in the wheelchair space has priority – was a PCP which put wheelchair users at a substantial disadvantage compared with non-disabled people wishing to travel on the bus. (The bus company had modified “first come first served” by saying the driver should request a non-wheelchair user to vacate the space. However the court ignored the modification at this stage of the reasoning: see below Whether there is a disadvantage is decided ignoring any adjustments actually made. A wheelchair user might have to wait for the next bus or take a different form of transport, so there was a substantial disadvantage. Still under step 1 (the group test), the bus company was therefore obliged to take reasonable steps to avoid the disadvantage. Was it reasonable to have a policy that the driver request non-wheelchair users to vacate the space, but do no more if they refused? The Supreme Court said no, it would be reasonable for the bus company to have a policy that in appropriate circumstances the driver do more to pressurise a non-wheelchair user to vacate the space.

As regards step 2, the individual test of whether Mr Paulley could bring a claim for breach of that reasonable adjustment duty, the County Court had decided this was met because the service provider failed to comply with the duty in relation to Mr Paulley, and he was subject to a “detriment” under s.29(2)(c) EqA in the form of the delay he suffered. He had had to wait for the next bus and had missed the train he wanted to catch. However the Supreme Court expressed the test as being whether there was at least a “real prospect” that the adjustment would have made a difference in the claimant’s case, allowing him to board the bus, had it been made (see below Puzzling Paulley decision on “real prospect”).

Note: As discussed at that link, this “real prospect” test – which the Supreme Court applied to the individual claimant – actually relates to the reasonableness of the adjustment which the two-stage model suggests should be a “group” issue at step 1. Perhaps the Supreme Court decided reasonableness at least partly by reference to the individual? That is just one way in which the law in this area is not clear.

Burden of proof

The Court of Appeal has said that the rules on when the burden of proof shifts under s.136 EqA are as set out by the EAT for employment cases in Project Management Institute v Latif. Basically, assuming there is a PCP creating a substantial disadvantage, by the time of the court hearing there must be some indication as to what adjustments the claimant alleges should have been made. It is then for the service provider or public authority etc to show that the adjustment is not reasonable. See further Reasonable adjustment rules: employment>Burden of proof.

The Court of Appeal said these employment rules extend to bodies exercising public functions in R (VC) v Secretary of State for the Home Department, 2018, and in Finnigan v Northumbria Police, 2013. There is little doubt that the same also applies to service providers.

Knowledge of the disability

Knowledge: Summary and conclusions

There is no “lack of knowledge” defence in the Equality Act for this type of claim. In one case on failure to provide BSL interpretation for a Coronavirus briefing (Rowley, 2021) there was no suggestion that lack of knowledge was a defence. The Services Code of Practice says that generally lack of knowledge is not a defence, but indicates knowledge may sometimes be relevant. In another case (Flamingo Land, 2013) where – unlike Rowley – the adjustment would have involved treating the claimant differently because of her disability, the Court of Appeal suggested it was “common sense” that the service provider would need some explanation of the disability.

It remains to be seen what approach the courts take. I suggest a possible approach is as follows, without trying to cover every situation:

  • If an adjustment should reasonably be applied to all service users etc even without knowing of a particular disabled person, the service provider can be liable even without being aware of the individual’s disability, or even of the individual. Examples include a BSL interpreter for a televised government briefing (Rowley), at least some music concerts (Little Mix case), and a “no dogs” sign including an exception for guide dogs. I suggest another example is Voice recognition telephone systems.
  • On the other hand, it seems to make sense that the service provider etc is not liable if it did not know of the disability and could not reasonably be expected to know of it, so far as the adjustment requires the disabled customer etc to be treated differently from others.

Knowledge: Discussion

There is no exception in the Equality Act if the service provider or public authority does not know of the disability. But is the provider or authority really liable if it fails to make an adjustment where it has no way of knowing about the disability?

R (Rowley) v Minister for the Cabinet Office, High Court, 2021
The court held that the UK government had unlawfully failed to provide British Sign Language (BSL) interpreters for two televised Coronavirus data briefings. There was no suggestion that the reasonable adjustment duty was dependent on the government knowing of the particular Deaf claimant. Also from the judgment (eg para 13) I can’t see that the government knew of the claimant before the two data briefings.

That was a case of the government failing to provide an auxiliary service (BSL interpretation) on a TV broadcast, so as to make it accessible to Deaf BSL users generally. Everyone, Deaf or not, would be able to see the BSL interpreter on TV. There was no question of doing things differently when dealing with a particular Deaf BSL user. Given the anticipatory nature (above) of the reasonable adjustment duty on services providers, it makes sense that not knowing about the particular Deaf claimant was not a defence in this case.

In many other cases though, adjustments will involve dealing differently with people who have the particular disability. Here, the service provider etc will not be able to fully implement the adjustment without knowledge that the particular customer has a disability. This is so even if it has anticipated and prepared for the adjustment in advance. For example:

R (VC) v Secretary of State for the Home Department, Court of Appeal, 2021
This appeal concerned reasonable adjustments for those with mental illnesses detained under the Immigration Act, such as arranging advocates to assist them. The court held that the government had unlawfully failed to make reasonable adjustments. The court acknowledged that some kind of threshold was required before the government had to arrange assistance for any particular individual.

The court in VC was looking at the reasonable adjustment duty in an anticipatory way – presumably that the government should set up a system to provide the help for mentally ill immigration detainees who required it. So far as I know the court did not discuss knowledge of the disability. However I suggest that to be “reasonable” within the Equality Act, the system set up would need procedures (properly implemented) which involved the authorities taking reasonable steps to find out which detainees were mentally ill and required assistance. I suggest that knowledge of the disability – and taking sufficient steps to try and find out about it – could come into play in that way. It would be part of the court’s analysis of what steps it was reasonable for the service provider or (here) body exercising a public function to have to take. If the provider or body could not reasonably have found out about the disability, treating that individual differently to reflect their disability would not be a step it should reasonably have taken.

Another type of case is where the court takes an ad hoc approach to whether a reasonable adjustment should have been made, based on the individual facts of the case. Ad hoc adjustments are a tricky area as discussed at that link. In one such case, Edwards v Flamingo Land (below) the court said it was “common sense” that the service provider would need some explanation of the disability. Like VC above, this was a case where the adjustment would involve treating the claimant differently from other people, so one can understand why the court might say that. Perhaps the courts will decide that in this type of case (treating disabled people differently) whether the service provider etc could reasonably have known of the individual’s disability is part of the general question of what steps it was reasonable for them to have to take. However ad hoc adjustments generally, as well as issues of knowledge, particularly need clarification by the courts.

Knowledge: Flamingo Land case

In one case the Court of Appeal, without deciding the issue, considered it “common sense” that the service provider would need some explanation of the disability:

Edwards v Flamingo Land, Court of Appeal, 2013
A restaurant argued that it had not been made sufficiently aware of a disability to make an adjustment of allowing a family to eat at a picnic table just outside, rather than at the restaurant’s own outdoor tables. The case was decided on other grounds so the Court of Appeal did not have to reach a decision on the “knowledge” issue. The court said: “In these circumstances it would be positively unhelpful to embark on an obiter excursus into the law beyond saying that, before a service provider is required to adapt a policy, common sense requires some form of reason or explanation to be given. What is sufficient in any particular case must depend on the particular facts. In the present case, the judge heard the evidence and decided no explanation was given. [The claimant’s lawyer] sought to say that in the light of Ms Skelton’s evidence such finding was unsustainable but it was the judge who heard all the evidence and this court could not, in any event, go behind that finding.”
For comment, see Discussion above.

Knowledge: Services Code of Practice

The Services Code of Practice (quoted below) – which is not legally binding – seems to say that lack of knowledge is not a defence, but may sometimes be relevant.

The Services Code says from para 7.22 that because the reasonable adjustment duty is a duty to disabled people at large, it applies regardless of whether the service provider knows that a particular person is disabled or whether the provider currently has disabled customers etc. When disabled customers request services, the service provider must already have taken all reasonable steps to ensure that they can be served. However service providers are not expected to anticipate the needs of every individual who may use their service, but are required to think of different kinds of disabilities. Also once a service provider becomes aware of the requirements of a particular disabled individual seeking to use its services, it might then be reasonable for the service provider to take a particular step to meet those requirements. Below is the full quote from the Code.

Need not “fundamentally alter” nature of the service

The reasonable adjustment duty does not require a service provider to take steps that would fundamentally alter the nature of the service, or of its trade, business or profession (EqA Sch 2 para 2(7); s.212(1) says “trade” includes “business”).

There is a rather odd Court of Appeal decision relevant to this. If the decision is upheld in future, it perhaps threatens to make that provision redundant, and also to substantially cut down the reasonable adjustment duty:

Edwards v Flamingo Land, Court of Appeal, 2013
The Court of Appeal held that the reasonable adjustment duty on service providers in DDA 1995 did not require a restaurant to allow a disabled family to eat in an adjacent picnic area. The picnic area was just next to the outdoor tables of the restaurant, and was part of Flamingo Land. The court said that would be a takeaway service, which was different. Therefore the restaurant did not have a policy of not allowing families to have restaurant food in the picnic area. There was no policy which could be subject to the reasonable adjustment duty.

Even if that were not the case, said the court, the rule in (what is now) EqA Sch 2 para 2(7) would provide a defence.

Follow the link to the case for my comments on the decision.

The Court of Appeal’s decision was mainly based on grounds other than EqA Sch 2 para 2(7), namely that there was no policy to adjust. Sch 2 para 2(7), including the fact that the nature of the service etc must be “fundamentally” altered, was barely considered by the court. This may weaken any authority the decision has in relation to Sch 2 para 2(7).

As regards the Court of Appeal’s decision that there was no policy to adjust, that was under the Disability Discrimination Act 1995. In some cases it may be helpful that Equality Act 2010 (unlike the DDA) also includes an obligation to provide auxiliary aids and services. The obligation to provide auxiliary aids and services applies even without a “policy, criterion or provision” giving rise to a disadvantage. How widely can “auxiliary aid or service” be interpreted? In the Flamingo Land case, would it include providing food to eat just outside the restaurant? Is that “auxiliary”? EqA Sch 2 para 2(7) still applies, so a service provider does not have to provide auxiliary aids or services if doing so would fundamentally alter the nature of the service, or of its trade, business or profession.

The defence of there being no requirement to fundamentally alter the nature of the service or trade etc does not apply to bodies exercising public functions, so long as the function is not providing services to the public. However there is a rule that the body cannot be required to take a step it has no power to take (EqA Sch 2 para 2(8)).

Cost of adjustments

Firstly, under s.20(7) EqA a service provider (or anyone else) who is under a duty to make a reasonable adjustment is not entitled to require the disabled person to pay any of the costs of making the adjustment. (There is a limited exception if the legislation expressly says otherwise.) Services Code, para 7.40.

Secondly, factors to be taken into account in deciding whether it is reasonable to have to make an adjustment do include amongst other things: the costs of making the adjustment; the extent of the service provider’s financial and other resources; the amount of any resources already spent on making adjustments; and the availability of financial or other assistance (Services Code para 7.30).

Thirdly, in one case the court said that because the duty is owed to disabled persons as a class rather than to a particular claimant, it was irrelevant whether a particular claimant might have the financial means to pay for a necessary auxiliary aid (Ross v Ryanair at para 33, 2004).

Who is liable?

In some cases it may not be straightforward to decide which company or body is liable under the Equality Act, as the company or body providing the services, or the body exercising the public function. Often this will be obvious though.

Ross v Ryanair, 2004, illustrates the fact that more than one organisation may be liable – eg both airline and airport authority as regards provision of a wheelchair to get from the check-in point to the plane. (though note limited exemptions for transport).

R (Rowley) v Minister for the Cabinet Office, 2021, was a case about BSL interpreters for UK government Coronavirus briefings. The government failed in an argument that it was entitled to rely on the BBC to make suitable provision for interpreters – and that it was the BBC, unknown to the government, who decided BSL interpretation was not needed for two data briefings led by scientists rather than ministers. The High Court held the government was itself responsible for ensuring that reasonable adjustments were made.

The general EqA rules also apply on who can be liable apart from the service provider etc: Who is liable under the Equality Act.

Examples of cases

Little Mix concert: case on BSL interpreters, County Court, 2021
The County Court held that organisers of a music concert had breached the reasonable adjustment duty by not arranging BSL interpreters for deaf audience members.

R (Rowley) v Minister for the Cabinet Office, High Court, 2021
The High Court held that the UK government had failed to make a reasonable adjustment by not providing British Sign Language (BSL) interpreters for two televised Coronavirus data briefings. However for ongoing Coronavirus briefings the court held that “in-screen” BSL interpretation was enough to satisfy the reasonable adjustment duty, given the use of detailed data slides in the briefings. In the circumstances the government was not required to provide an “on-platform” interpreter.

R (VC) v Secretary of State for the Home Department, Court of Appeal, 2018
This appeal concerned reasonable adjustments for those with mental illnesses detained under the Immigration Act. The Court of Appeal held that the Secretary of State had failed to make reasonable adjustments, such as arranging advocates to assist mentally ill detainees in making representations about decisions to detain them. The court said that as in employment cases, once the claimant has given some indication as to what adjustment the claimant alleges should have been made, it is for the public authority etc to show that the adjustment is not reasonable.

Blamires v Local Government Ombudsman, County Court, 2017
The claimant had ME/CFS, and also dystonia which affected her speech. She referred a complaint against a county council to the Local Government Ombudsman and requested support because of her and her husband’s disabilities, including one or more face-to-face meetings rather than just using email. The Ombudsman lost the request, and turned down subsequent requests for a face-to-face meeting. As a result she was unable to put her case properly. The County Court awarded damages for failure to make reasonable adjustments, and also for other breaches of the Equality Act 2010.

Paulley v FirstGroup, Supreme Court, 2017
A bus company had a policy that if a wheelchair user needed the wheelchair space, the driver would request other passengers to vacate it, but would not require them to. The Supreme Court held that the driver need not actually require the non-disabled passenger to move, but if after making a request the driver considered a refusal unreasonable, the driver should consider some further step to pressurise the non-wheelchair user to vacate the space.

MM & DM v Secretary of State for Work and Pensions, Court of Appeal, 2013
Mental health patients (MHPs) claiming Employment and Support Allowance (ESA) argued that the government was failing to make reasonable adjustments under the Equality Act 2010. The Court of Appeal largely upheld an Upper Tribunal judgment which found that MHPs were being put at a substantial disadvantage. The tribunal had felt unable to decide on current evidence what adjustment would be reasonable.

Finnigan v Northumbria Police, Court of Appeal, 2013
The Court of Appeal dismissed a claim for reasonable adjustments by a deaf person whose house was searched by the police. He argued the police should have brought a sign language interpreter. As regards what adjustments the police should reasonably have made, the Court of Appeal criticised the lower court for looking at the individual claimant rather than adjustments for deaf people generally. However the Court of Appeal upheld the lower court’s decision that in any event this individual did not have a claim because it had been possible to establish effective communication with him, so he was not at a detriment.

Edwards v Flamingo Land, Court of Appeal, 2013
The Court of Appeal held that a restaurant did not have to make a reasonable adjustment to allow a disabled family to eat in a picnic area immediately next to the outdoor tables. Whether or not that would be reasonable, it would be a different kind of service (above Need not “fundamentally alter” nature of the service). The case was under DDA 1995 rather than Equality Act 2010. The court also commented that before a service provider is required to adapt a policy, common sense requires some form of reason or explanation to be given (below Knowledge of the disability).

Scottish pupil wins landmark disability discrimination tribunal (archive of EHRC website), Additional Support Needs Tribunal, 2013
A ten year old disabled pupil was held to be entitled to the support he needed to take part in an after school guitar club.

ZH v The Commissioner of Police for the Metropolis, Court of Appeal, 2013
An autistic boy had become “stuck” at the side of a swimming pool, and jumped into the water when approached by police. He ended up being restrained by the police, and put in the cage at the back of a police van. The Court of Appeal upheld a County Court decision that the police had failed to make reasonable adjustments, in breach of disability discrimination legislation. The police should have consulted the boy’s carers from the school (at least one carer was present the whole time), to inform themselves properly before taking any action which led to the application of force. Their treatment of him was also in breach of human rights law.

Royal Bank of Scotland v Allen, Court of Appeal, 2009
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.

Roads v Central Trains, Court of Appeal, 2004
A wheelchair user could not get from one platform of a station to the other. He argued a taxi would be a reasonable adjustment. The rail company said he could travel to another station, cross the tracks there and come back, adding about an hour to the journey time. His claim for the reasonable adjustment succeeded. The Court of Appeal confirmed that the reasonable adjustment duty is anticipatory, and said the policy is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.

Ross v Ryanair, Court of Appeal, 2004
Ryanair and Stanstead Airport were both held liable for failing to provide a wheelchair to get from the check-in point at the airport to the plane.

Services Code on the “anticipatory” reasonable adjustment duty

To whom is the duty to make reasonable adjustments owed?

7.19 In relation to services and public functions, the duty to make reasonable adjustments is owed to disabled people generally. It is not simply a duty that is weighed in relation to each individual disabled person who wants to access a service provider’s services or who is affected by the exercise of a public function. …

An anticipatory duty: the point at which the duty to make reasonable adjustments arises

7.20 In relation to all three areas of activity (services, public functions and associations) the duty is anticipatory in the sense that it requires consideration of, and action in relation to, barriers that impede people with one or more kinds of disability prior to an individual disabled person seeking to use the service, avail themselves of a function or participate in the activities of an association.

7.21 Service providers should therefore not wait until a disabled person wants to use a service that they provide before they give consideration to their duty to make reasonable adjustments. They should anticipate the requirements of disabled people and the adjustments that may have to be made for them. Failure to anticipate the need for an adjustment may create additional expense, or 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 of a failure to make a reasonable adjustment.

Example:
A person with a visual impairment regularly receives printed letters regarding his social security benefits, despite the fact that on previous occasions he has indicated his need for Braille and this has been provided. He finds this repeated need to telephone to ask for Braille frustrating and inconvenient, but is told that the software, which generates communications, does not enable a record to be kept of customers’ needs for alternative formats. This may constitute a failure to make reasonable adjustments if it is judged to have left the disabled person at a substantial disadvantage and there was a reasonable adjustment that could have been made.

Does the duty to make reasonable adjustments apply even if the service provider does not know that the person is disabled?

7.22 Because this is a duty to disabled people at large, it applies regardless of whether the service provider knows that a particular person is disabled or whether it currently has disabled customers, members etc.

7.23 When disabled customers request services, the service provider must already have taken all reasonable steps to ensure that they can be served.

Must service providers anticipate every barrier?

7.24 Service providers are not expected to anticipate the needs of every individual who may use their service, but what they are required to think about and take reasonable steps to overcome are barriers that may impede people with different kinds of disability. For example, people with dementia, mental health conditions or mobility impairments may face different types of barriers.

7.25 Disabled people are a diverse group with different requirements – for example, visually impaired people who use guide dogs will be prevented from using services with a ‘no dogs’ policy, whereas visually impaired people who use white canes will not be affected by this policy. The duty will still be owed to members of both groups.

7.26 Once a service provider has become aware of the requirements of a particular disabled person who uses or seeks to use its services, it might then be reasonable for the service provider to take a particular step to meet these requirements. This is especially so where a disabled person has pointed out the difficulty that they face in accessing services, or has suggested a reasonable solution to that difficulty.

Example:
A disabled person attending the annual general meeting of an association experiences a flare-up of their medical condition, as a result of which they would have experienced severe back pain when sitting on the hard chairs provided for the meeting. Despite the lack of notice, those organising the meeting were able to find a more suitable chair and make this available to the association member.

There are three flavours of reasonable adjustment duty, but I will take the one for PCPs (provision, criterion or practice) as an example. Equality Act 2010 s.20(3) says:

The first requirement is a requirement, where a provision, criterion or practice of A’s puts [disabled persons generally] at a substantial disadvantage in relation to [the provision of the service, or the exercise of the function, by A] in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
EqA s.20(3), with adaptions by EqA Sch 2 para 2 shown in square brackets. “Substantial” just means “more than minor or trivial” (s.212(1) EqA). Sch 2 para 2(5) further defines “substantial disadvantage” in relation to public functions (below).

EqA s.21 says in effect that there is discrimination against a disabled individual if a service provider etc fails to comply with that requirement “in relation to” the individual. Firstly EqA s.21(1) says that a failure to comply with the first, second or third requirement in s.20 is a failure to comply with a duty to make reasonable adjustments. Secondly EqA s.21(2) says that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

As to how far that discrimination is unlawful:

  • for service providers EqA s.29(2) says that a service provider must not discriminate in various ways including by subjecting the person to “any other detriment”
  • for public functions, EqA s.29(6) just says that the person exercising the public function must not “do anything that constitutes discrimination…”
  • for education providers, see below Education providers.

Technical note: Comparative disadvantage

To claim for failure to make reasonable adjustments, a disabled person needs to show that a provision, criterion or practice (PCP) of the service provider etc – or the physical feature or lack of the auxiliary aid or service – puts disabled persons generally (effectively persons with a particular kind of disability, below) at a more than minor or trivial disadvantage in relation to the provision of the service or exercise of the public function in comparison with people who are not disabled. (The legislation says “substantial” disadvantage, but under s.212(1) EqA “substantial” means only “more than minor or trivial”.)

This test of being at a comparative substantial disadvantage was described by the High Court as the “trigger test” in R (Rowley) v Minister for the Cabinet Office: BSL interpreters, 2021, at para 18. If the claimant shows that this trigger test is met, and indicates by the time of the court hearing what adjustment the claimant alleges should have been made, the burden of proof shifts to the service provider etc to show that the adjustment is not reasonable: see below Burden of proof. (Under stage 2 of the Two-stage test the claimant also needs to show that the claimant themself was sufficiently affected by the failure to make the adjustment.)

Whether there is a disadvantage is decided ignoring any adjustments actually made

The service provider etc may already have made an adjustment. It may already have adjusted its provision, criterion or practice (PCP) for disabled people, or provided some sort of auxiliary aid or service.

If so, then in deciding whether the PCP puts disabled people at a more than minor or trivial disadvantage the court looks at the PCP without the adjustment already made (Finnigan v Northumbria Police). Similarly – according to the High Court in Rowley below – in deciding whether disabled people would be at a more than minor or trivial disadvantage without an auxiliary aid or service, the court ignores any auxiliary aid or service for disabled people which was actually provided.

Any adjustments and auxiliary services actually made or provided are not relevant until the court considers what adjustments it would be reasonable for the service provider etc to have to make, and so whether the adjustments made by the provider go far enough.

For example:

Paulley v FirstGroup, Supreme Court, 2017
Where a wheelchair user needed the wheelchair space on a bus, the company’s policy was that the driver would request (but not require) anyone in the space to vacate it. Thus the bus company had already made an adjustment to its “first come first served” policy. The court held that the relevant PCP was the “first come first served” policy, without the adjustment that non-wheelusers be requested to vacate the space. It held that this PCP did put wheelchair users at a substantial disadvantage compared with non-disabled people.

R (Rowley) v Minister for the Cabinet Office, High Court, 2021
For most Coronavirus briefings a British Sign Language (BSL) interpreter was shown “in-screen”, ie superimposed on the screen using a live feed from a studio. The claimant argued that the BSL interpreter should have been “on-platform”, ie actually visible in the room where the briefing was held. The court held that whether Deaf BSL users were at a more than minor or trivial disadvantage should be judged assuming there was no BSL interpretation at all. Whether the BSL interpreter should have been on-platform rather than in-screen arose at the later stage of deciding what adjustment was “reasonable”.

What is a “disadvantage”

Usually it will be obvious that there is a disadvantage.

When deciding whether there was a disadvantage, in Rowley the High Court had regard to para 5.10 of the Services Code of Practice, which actually deals with indirect discrimination rather than reasonable adjustments. The court said this paragraph suggests, as relevant to disadvantage, the concept of “something that a reasonable person would complain about”. So “an unjustified sense of grievance would not qualify”. However the disadvantage “does not have to be quantifiable and the service user does not have to experience actual loss (economic or otherwise)”. It is “enough that the person can reasonably say that they would have preferred to be treated differently”. See R (Rowley) v Minister for the Cabinet Office>Disadvantage, which also describes how the court applied the test to the facts of that case.

Particular kind of disability

Under EqA s.20(3)-(5) as modified by Sch 2 para (2), what matters is whether “disabled people generally” are put at a more than minor or trivial disadvantage. However starting with Roads v Central Trains, 2004, the courts have said they should focus on whether people with the same kind of disability as the claimant are put at a substantial disadvantage. There are various examples of cases below.

For example the court might look at whether there is a more than minor or trivial disadvantage for people with a speech impairment, or people with a stammer, or a sub-group such as people with a covert stammer. As outlined below, it is not clear which group one takes. But importantly this should not normally matter, because there is no need for everyone in the group to be disadvantaged: below No need for all people who stammer etc to be disadvantaged. In the Rowley case, for example, the High Court said it could not see that the answers in the case turned on whether the relevant class was “hearing-impaired” people or the much narrower group of “Deaf BSL users”: see R (Rowley) v Minister for the Cabinet Office>Comments: Relevant class of disabled people, and being put at a disadvantage.

The following are examples of what the courts have taken to be the same kind of disability, although in many of these cases the court did not have to decide because it was agreed between the parties:

A rare case where the court really considered the issue:

R (Rowley) v Minister for the Cabinet Office, High Court, 2021
This case concerned British Sign Language (BSL) interpreters for government Coronavirus briefings.

The court preferred to see the relevant class of disabled people as “Deaf BSL users”, rather than the government’s suggestion of “people who are hearing-impaired”. The court considered the most reliable and authoritative guide to be the idea of “people disabled in the same way”, derived by the Court of Appeal in VC at para 153 from the Supreme Court in Paulley. The Supreme Court had seen the relevant group in Paulley as “wheelchair users”, not “people who are mobility-impaired”. The court said that like “visually impaired people who use guide dogs” or “visually impaired people who use white canes” mentioned in the Services Code of Practice, this showed that the relevant group may be a sub-group.

However the court could not see that the answers in this case turned on whether the relevant class was “hearing-impaired” people or “Deaf BSL users”.

See further R (Rowley) v Minister for the Cabinet Office>Relevant class of disabled people.

It can be seen that so far the relevant groups of disabled people taken range from the very broad – such as people with mental illness which covers a wide range of different types of impairment – to sub-groups of people with a particular impairment such as sight or hearing loss (eg those who use guide dogs, or who use BSL). The position is therefore unclear.

The High Court in Rowley saw it as significant that various cases took the relevant class as “wheelchair users” rather than “mobility-impaired”. However it is difficult to see how a similar concept – based on use of a particular aid or language – would apply to stammering and many other disabilities. Also in Roads the Court of Appeal actually talked about “those whose disability makes them dependent on a wheelchair”, arguably focusing on the degree of impairment.

For reasonable adjustments discussed on this page, the concept of same kind of disability is arguably judge-made rather than found expressly in the Equality Act (though Rowley at para 24 mentions EqA s.6(3)(b)). However there is a similar issue in other parts of the Equality Act which expressly use the concept of “particular disability”, where EqA s.6(3) does apply. The courts are likely to see the express “particular disability” concept as meaning the same as under the reasonable adjustment rules, but in both cases the concept is unclear.

No need for all people who stammer etc to be disadvantaged

However the relevant group of disabled people (above) is defined, there is no need for all individuals in the group to be disadvantaged. The test may be roughly whether people with that particular kind of disability (say stammering) are more likely to be at a disadvantage which is more than minor or trivial. For example:

MM & DM v Secretary of State for Work and Pensions, Court of Appeal and Upper Tribunal, 2013
Claimants for Employment and Support Allowance (ESA) argued that the government was failing to make reasonable adjustments for those with mental health problems. The relevant class of people was “mental health patients” (MHPs), defined as people with impaired mental, cognitive, or intellectual difficulties (sic). The Upper Tribunal held that the relevant practice of the Dept for Work and Pensions had the result that “in a significant number of claims by claimants with MHPs, those claimants, and thus that class of claimants, are placed at a substantial disadvantage (and so, as defined, one that is more than minor or trivial) and/or suffer an unreasonably adverse experience” (para D of Overview, also para 138 and 166).

R (VC) v Secretary of State for the Home Department, Court of Appeal, 2018
The relevant group of disabled people was those suffering from a mental illness (para 153). The Court of Appeal upheld the lower court’s decision that this group was put at a substantial disadvantage, given the lack of a system of representation and assistance for mentally ill immigration detainees (from para 152, with para 140). The lower court had said it could “readily envisage circumstances which would make it important that help is available to make representations on behalf of a detainee otherwise unrepresented, if he is mentally unwell enough to do so himself”.
Comment: There seems to have been no suggestion that all or even most mentally ill detainees would need the assistance. Indeed the court acknowledged (para 170) that there would need to be a threshold as to who should get assistance.

R (Rowley) v Minister for the Cabinet Office, High Court, 2021
The case concerned provision of a British Sign Language (BSL) interpreter. The High Court said it could not see that the answers in this case turned on whether the relevant class was “hearing-impaired” people or the much narrower group of “Deaf BSL users”: see R (Rowley) v Minister for the Cabinet Office>Comments: Relevant class of disabled people, and being put at a disadvantage.
Comment: As discussed at that link, only a fairly small proportion of those with even quite severe hearing impairment use BSL and would be disdvantaged by failure to provide a BSL interpreter.

See too indirect discrimination: Indirect discrimination>Are people who stammer more likely to be disadvantaged?, where the question is similar – whether the provision, criterion or practice (PCP) puts people with a particular disability at a particular disadvantage in comparison with people who do not have that disability. Also, as discussed at that link, expert evidence may be helpful to show the group disadvantage, if it is disputed.

“Persons who are not disabled”

The reasonable adjustment duty is triggered where [the relevant class of] disabled persons generally is put at a substantial disadvantage in comparison with “persons who are not disabled”.

In Rowley, 2021, the High Court pointed out that the Court of the Appeal in MM & DM (at para 59) spoke of comparing mental health patients with “those not so disabled”, ie people not disabled “in the same way”. However the High Court in Rowley preferred to compare the relevant class of disabled people with people who are not disabled at all. For more on this: R (Rowley) v Minister for the Cabinet Office>Comparative disadvantage: “Persons who are not disabled”.

I suggest this issue is unlikely to make a difference in practice, for similar reasons to why defining the particular kind of disability in different ways should not normally affect the outcome.

Public functions: special rules on “substantial disadvantage”

For public functions which are not a service to the public, such as the police arresting someone, EqA Sch 2 para 2(5) gives a special meaning to being “placed at a substantial disadvantage” (remember that “substantial” means only “more than minor or trivial”). The special meaning is:

  • (a) if a benefit is or may be conferred in the exercise of the function, being placed at a substantial disadvantage in relation to the conferment of the benefit; or
  • (b) if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment.

The Services Code para 11.29-11.30 gives as examples:

  • As regards paragraph (a), ie functions which may confer a benefit: An ombudsman’s policy that all complaints must be made in writing puts eg those with learning disabilities or visual impairments at a substantial disadvantage in making a complaint. The ombudsman amends the policy to allow complaints over the telephone.
  • As regards paragraph (b), ie functions which may subject someone to a detriment: A police force’s policy of not carrying civilian dogs in police cars makes the experience of being arrested worse for disabled people who require guide or assistance dogs. The police force amends its policy to allow these dogs to be carried in the car with the disabled person.

However Sch 2 para 2(5) should not be read too strictly. An “adverse experience” is only mentioned in para 2(5)(b) on functions involving a detriment, but the Court of Appeal has held an adverse experience can also be a substantial disadvantage even “if a benefit is or may be conferred in the exercise of the function”, ie even if para 2(5)(a) applies:

MM & DM v Secretary of State for Work and Pensions, Court of Appeal, 2013
Claimants for Employment and Support Allowance (ESA) argued that the government was failing to make reasonable adjustments for those with mental health problems. The Court of Appeal said that for those already receiving ESA, potentially losing the ESA would be a “detriment”, whereas those claiming ESA for the first time would be seeking a “benefit”. Would undue stress in an interview not suffered by non-disabled people be a substantial disadvantage? The court said that in deciding this, it would be bizzare if the stress were seen as a disadvantage for those at risk of losing ESA, a “detriment” (the stress being an “adverse experience” within para 2(5)(b)), but not as a disadvantage for first-time claimants seeking a “benefit” (since para 2(5)(a) does not mention “adverse experience”). The Court of Appeal held that an adverse experience can also be a “disadvantage” within para 2(5)(a), “if a benefit is or may be conferred in the exercise of the function”, even though only para 2(5)(b) mentions adverse experience as a disadvantage.
See further MM & DM v Secretary of State for Work and Pensions>Substantial disadvantage and public functions.

Technical note: Detriment to the claimant

Detriment: Summary and conclusion

Say there is a failure to make a reasonable adjustment duty under stage 1 of the two-stage test (above). What is the test at stage 2 for whether a particular disabled individual can claim in respect of the failure?

The legal test is unclear, as discussed below. However if the individual suffers from the disadvantage which the adjustment aims to address, and – more likely than not – the adjustment would have alleviated the disadvantage for that individual, the stage 2 test should be met in any event. There is a “detriment” from the failure to make the adjustment, and also the test of there being a “real prospect” of the adjustment making a difference for the individual is more than satisfied. But as discussed below, the legal test the individual needs to satisfy may well be much wider than that.

As regards what the legal test is, it is clear that the service provider etc must have failed to make the reasonable adjustment in the case of the particular claimant (EqA s.21(2)).

Beyond that, in the case of a service provider providing services to the public:

  • I suggest that in the short term at least the lower courts may follow Paulley v FirstGroup, 2017, because it is a Supreme Court decision. The Supreme Court expressed the test as being whether there is a “real prospect” that the adjustment would have made a difference in the claimant’s case, had the adjustment been made. This seems to mean whether – in the claimant’s case – the adjustment would have alleviated the disadvantage which it aims to address. However, as discussed below, it is far from clear whether this test has a technical basis in the Equality Act: below Puzzling Paulley decision on “real prospect”.
  • There again, that was not the main stage 2 test applied by the High Court in R (Rowley) v Minister for the Cabinet Office, 2021, decided some years after Paulley. Although the High Court mentioned the “real prospect” test from Paulley, it mainly considered whether the claimant suffered a “detriment”. Looking at paragraph 5.10 of the Services Code of Practice, the High Court saw a “detriment” as being something that a reasonable person would complain about, not merely an unjustified sense of grievance. See further R (Rowley) v Minister for the Cabinet Office: BSL interpreters>Detriment to the claimant. (The court in this judicial review claim left open whether, even without a detriment, it could have given a remedy other than compensation, such as a declaration.)

In the case of an organisation exercising a public function which is not a service to the public:

  • The Court of Appeal indicated in a 2018 case, VC, that the position was likely to be the same as for service providers. So the courts may apply the same “real prospect” (or perhaps “detriment”) test as above.
  • However it seems to me open to a claimant to argue in a public functions case that no “real prospect” or “detriment” is required. This was the approach taken in the 2013 case of MM & DM. Any lack of detriment etc would however be relevant in determining compensation. See below Different test for public functions at Step 2?

For education providers (below) such as schools and universities, it can be argued that the position should normally be similar to that for public functions.

Detriment: What the Equality Act says

Although courts may follow the Supreme Court’s “real prospect” test from Paulley (and/or the “detriment” test?) as regards both service providers and perhaps public functions, the wording of the Equality Act itself (above) seems to say something different:

Detriment: Puzzling Paulley decision on “real prospect”

The Supreme Court in Paulley, 2017 expressed the test as being whether there is at least a “real prospect” that the adjustment would have made a difference in the claimant’s case, had the adjustment been made. That was a case on service providers. However the Court of Appeal has also referred to this test in a case on public functions, R (VC) v Secretary of State for the Home Department, 2018,

I find this test puzzling. The Supreme Court in Paulley at para 60 cites Employment Appeal Tribunal decisions which apply the test: see Employment: Reasonable adjustment rules>Would the proposed adjustment reduce the substantial disadvantage. However those EAT decisions were considering – in the context of the individual-based reasonable adjustment duty on employers – whether it would have been reasonable for an employer to make the relevant adjustment to alleviate the disadvantage for a particular employee. The EAT decisions were saying – sensibly – that it would not be reasonable for an employer to have to make an adjustment which has no real prospect of helping the individual.

However the Supreme Court in Paulley generally seems to have applied the two-stage test (above), and to have considered “reasonableness” at step 1 in terms of what adjustment would be reasonable for wheelchair users as a group. But it used the “real prospect” test (which the EAT cases cited base on “reasonableness”) at step 2 to consider whether the individual had a claim.

It is of course very possible that future decisions of the lower courts will follow the Supreme Court’s “real prospect” test – because it is the Supreme Court.

However I suggest it would have been more consistent with the Equality Act for the Supreme Court to have considered whether the claimant was subject to a “detriment” within EqA s.29(2)(c), as the County Court did. It would be for the Supreme Court to decide what “detriment” means – and indeed it might decide that a real prospect that the adjustment would have alleviated the disadvantage was detriment enough. In Paulley itself, there was the question of whether in the claimant’s particular case the reasonable adjustment of the bus driver putting greater pressure on the non-disabled passenger to vacate the wheelchair space would have been successful, so that the claimant (a wheelchair user) could have boarded the bus. I suggest that under existing case law, the wheelchair user could have been subject to a “detriment” here even if (more likely than not) he could not have boarded the bus. ln R (Rowley) v Minister for the Cabinet Office, 2021, the High Court (looking at paragraph 5.10 of the Services Code of Practice) saw a detriment as being something that a reasonable person would complain about, not merely an unjustified sense of grievance. Also there is authority in the context of direct discrimination that it suffices if the claimant can reasonably say they would have preferred not to be treated in that way (Direct discrimination>What is less favourable?). The wheelchair user may reasonably feel better about the situation if the driver has at least tried to pressurise the non-disabled passenger to vacate the space. Putting the point a bit differently, the detriment could be the claimant’s sense of injustice at the driver having done so little to encourage the non-wheelchair user to move. The lax attitude of the bus company might also deter the individual from undertaking bus journeys in future, limiting their life. The courts might well view such things as “detriments”. See further para 11.22 of the Services Code of Practice, pointing to paras 9.7-9.9.

Paulley was a case on service providers. However the Equality Act wording is different for public functions:

Detriment: Different test for public functions at Step 2?

In the case of a public authority function which is not a service to the public, the Equality Act wording seems to have no requirement for the individual claimant to suffer a detriment. This is because s.29(6) EqA does not require a “detriment”. On the wording of the EqA, the disabled individual appears to have a claim provided the public authority fails to comply with the duty “in relation to” that individual, under s.21(2) EqA. This was the view adopted by the courts in MM & DM:

MM & DM v Secretary of State for Work and Pensions, Court of Appeal, 2013
Mental health patients claiming Employment and Support Allowance (ESA) argued that the government was failing to make reasonable adjustments such as requesting further medical evidence. The court seems to have considered that if it would be a reasonable adjustment for the authorities to request further medical evidence where mental health patients applied for ESA, then an individual mental health patient would be able to claim if the authorities failed to request further medical evidence in that claimant’s case. The claimant did not have to show the failure affected whether or not the claimant got the ESA benefit, though that could be relevant in assessing compensation.

However in another public functions case in the same year, Finnigan v Northumbria Police, the claimant accepted (the court did not actually decide) that a detriment to the claimant was necessary:

Finnigan v Northumbria Police, Court of Appeal, 2013
The police had searched the home of the claimant, a deaf person. The claimant’s lawyers accepted that it was not enough that the police had failed to make the reasonable adjustment of having a British Sign Language (BSL) interpreter available or on standby when searching a deaf person’s home. Therefore the claim failed because the court held it had been possible to establish effective communication with the claimant, so he was not at a detriment.

Then in 2017 the Supreme Court in Paulley, a case on service providers rather than public functions, came up with the “real prospect” test (above). In 2018 the Court of Appeal in VC seems to have thought (though it was not necessary to decide) that this less stringent “real prospect” test would also apply to a body exercising a public function:

R (VC) v Secretary of State for the Home Department, Court of Appeal, 2018
This appeal concerned reasonable adjustments for those with mental illnesses detained under the Immigration Act (public functions).

The Court of Appeal said both parties in Finnigan (above) seem to have accepted that a person cannot claim unless the person has suffered a “detriment” from the failure to make reasonable adjustments. The claimant in the present case did not submit the test was different. However the court accepted there was a detriment to the claimant which would satisfy the Finnigan test. He therefore had a claim.

The court commented that neither party had relied on the Supreme Court decision in Paulley v FirstGroup. Although Paulley was a case on service providers, the Court of Appeal saw no reason why the requirement as to detriment should be different in a case on public functions. The “real prospect” test in Paulley was, it said, a slightly less stringent formulation than that in the Finnigan case.

It is quite possible that courts in future will apply the “real prospect” test in Paulley in cases on public functions, as suggested by the Court of Appeal in VC. However in both Finnigan and VC the point was not actually argued by the parties. It seems to me open for a claimant in a public functions case to argue – on the basis of the wording of the Equality Act and the decision in MM & DM above – that neither a “detriment” nor a “real prospect” is required. There again, the lack of detriment will be relevant as regards what compensation is awarded.

Detriment: Education providers

The anticipatory reasonable adjustment duty discussed on this page also applies to education providers within EqA Part 6, such as schools and universities. As to whether the EqA says a detriment to the individual is required, the position seems to be closer to public functions than to service providers.

S.85(1)(2) (schools) and s.91(1)(2) (universities, FE colleges etc) do have “detriment” as a residual category – but there are many other ways a claimant can fall within these sections. For example, in the case of universities etc, s.91 does not specify a need for a detriment if there is discrimination in the arrangements for deciding who to admit as a student, or in the way the university etc provides education for the student, or in the way it affords the student access to a benefit, facility or service. Normally one of these other ways of falling within s.85 or s.91 will apply. If so, it can be argued that the discussion in Different test for public functions at Step 2? above applies

Detriment: History as regards detriment to the claimant

History: DDA 1995

Firstly what did the Disability Discrimination Act 1995 (DDA) say?

  • As regards service providers, s.19(1) DDA said it was unlawful to discriminate in various ways, including (under para (b)) by failing to comply with the reasonable adjustment duty where the effect was to make it impossible or unreasonably difficult for the disabled person to make use of the service. On what “discrimination” means in relation to service providers, s.20(2) DDA, said discrimination included failing to comply with the reasonable adjustment duty “in relation to the disabled person”.
  • As regards public functions, s.21B(1) DDA said it was unlawful for a public authority to discriminate against a disabled person in carrying out its functions. On what “discrimination” means in relation to public functions, s.21D(2) DDA said a public authority discriminates against a disabled person if it fails to comply with the reasonable adjustment duty where the effect is to make it impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred by the carrying-out of the public function, or 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 the public function (unless the failure to comply was “justified”).

It can be seen that the DDA had specific provisions requiring the claimant to be prejudiced by failure to make a reasonable adjustment, either making it unreasonably difficult for the claimant to use the service, or – in the case of a public function – making it unreasonably difficult to receive a benefit or making the experience of a detriment (eg being arrested) unreasonably adverse.

History: Equality Act 2010

The Equality Act 2010 (EqA) replaced the DDA 1995, and has rather different wording. This seems to require a detriment explicitly only in the case of a claim against a service provider, not for the exercise of public functions. See above Detriment: What the Equality Act says.

History: Cases

The High Court in R (Lunt) v Liverpool City Council (bailii.org), 2006 was considering the DDA 1995. Unsurprisingly the court said at para 53 – as step five of six steps the court had to address in a case on public functions – that the effect of the failure to make an adjustment must be such as to make it unreasonably difficult for the claimant to access the benefit. This was no doubt under s.21D(2) DDA, above.

In Finnigan v Northumbria Police in October 2013, a case on public functions, the alleged breaches of the reasonable adjustment duty were partly within the DDA 1995 and partly within the EqA 2010. The Court of Appeal said it was common ground between the parties that the differences between the provisions of the two statutes were not material to the issues in the appeal (para 9). The court would concentrate on the provisions of the DDA. The court also said (para 43) it was common ground that the six-step approach adopted by the court in Lunt above also applied to the EqA, mutatis mutandis, including the fifth step of whether the failure made it unreasonably difficult for the disabled person to access the benefit. The court rejected the reasonable adjustment claim because the claimant in this case had not suffered a detriment. (The Court of Appeal did not refer to the Upper Tribunal decision in MM & DM below, which was in May 2013). On Finnigan and other cases on public functions, see further above Different test for public functions at Step 2?

However in the same year the courts seem to have taken a different approach in MM & DM v Secretary of State for Work and Pensions, another case on public functions. The Upper Tribunal (May 2013) seems to have gone on the basis that the individual had a claim provided the public authority failed to comply with the reasonable adjustment duty “in relation to” that individual. It would be enough that the authorities had not made the reasonable adjustment of asking an individual with a mental illness for further medical evidence when that person claimed Employment and Support Allowance, even if this did not make a difference to whether the individual’s social security benefit claim was successful. The Court of Appeal (December 2013) seems to have proceeded on the same basis, not mentioning its decision in Finnigan.

In Paulley v FirstGroup, 2017, a case on service providers rather than public functions, the Supreme Court said that for the claimant to succeed in his reasonable adjustment claim he must not only establish that FirstGroup should have made an adjustment to its provision, criterion or practice, but also “that, had that adjustment been made, there is at least a real prospect that it would have made a difference…” in his particular case. See above Puzzling Paulley decision on “real prospect”.

In R (VC) v Secretary of State for the Home Department, 2018, on public functions, the government argued the court “must be satisfied that the failure [to make a reasonable adjustment] caused detriment to the disabled person”. The claimant in VC evidently accepted that the Lunt test survived under the EqA as stated in Finnigan, but argued – and the Court of Appeal accepted – that the claimant had indeed suffered a detriment. However the Court of Appeal seems to have thought (though it was not necessary to decide) that the less stringent “real prospect” test in Paulley – a case on service providers – would also apply to a body exercising a public function.

In R (Rowley) v Minister for the Cabinet Office, 2021, on service providers rather than public functions, the High Court – citing Finnigan and VC – said the claimant could only claim if she had suffered a “detriment”. The court decided that she had suffered one. It said it approached “detriment” having in mind the way in which it is described in the Services Code of Practice (para 5.10): something that a reasonable person would complain about; not merely an unjustified sense of grievance. The court said a detriment could arise even if “for … a limited period” (citing VC at para 175). It also said there was “at least a real prospect” that the reasonable adjustment “would have made a difference” (citing VC at para 177) in the present case. (Note: Paragraph 5.10 of the Services Code of Practice concerns “disadvantage” in the context of indirect discrimination.)

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