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Reasonable adjustments by service providers: rules

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This page does not apply outside Great Britain.
Last updated 5th January 2022 (part update 19th August, 2026).

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

For examples of reasonable adjustments for stammering, see Examples of adjustments for stammering and of discrimination: service providers.

Table of page contents

Summary

  • There are two types (below) of reasonable adjustment duty under the Equality Act 2010 (EqA). One type, owed by employers, focuses on the individual disabled person. This page deals with the ‘anticipatory’ duty, which applies even before any disabled person presents themself. Companies and bodies subject to the anticipatory type of reasonable adjustment duty include:
    • service providers, such as shops, banks, hospitals etc,
    • bodies exercising public functions, such as the police arresting someone, and
    • education providers, such as schools and universities (in most cases).
  • This anticipatory type of reasonable adjustment duty requires service providers etc to consider in advance 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 for the provider to do more than would be feasible ad hoc, eg design a voice-activated phone system to be accessible. Below What does it mean that the duty is ‘anticipatory’?
  • Even if the adjustment should not reasonably have been anticipated, the Services Code of Practice 2026 and other guidance indicate that once a service provider etc has become aware of the requirements of a particular disabled person, it may then be reasonable to take a particular step to meet the person’s requirements. There are technical uncertainties here though. See separate page Ad hoc adjustment duty on service providers?
  • Access for people with disabilities 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.
  • In some situations, it is unclear how far the service provider etc needs to know about the disability: separate page Knowledge of disability in anticipatory reasonable adjustment claims.
  • The EqA does not use the word ‘anticipatory’. However that has been held to be the result of the legal test referring 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),
  • 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 some Examples in the next sub-heading, 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 do this. The reasonable adjustment duty is likely to require the bank to allow disabled customers who find phone calls difficult to use an accessible alternative, such as discussing the matter 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 had a hearing impairment, with 40% hearing loss in both ears, found attending a hospital appointment to be a daunting experience. She was alone there, 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 her doctor said. These requests were refused. They would not have cost any money to implement. Without the support requested, she had real difficulty hearing and understanding what the doctor told her, and was extremely upset. The hospital agreed to pay her £2,500.

2015, Archive of www.equalityni.org. Similarly a person who stammers may find the assistance or presence of a friend helpful (or indeed necessary) to communicate.

More generally, there are Examples of cases at the bottom of this page. It is worth remembering that the duty includes public authorities even when performing legal functions, such as the police arresting someone or searching a house, or authorities dealing with claims for social security benefits. Some brief case examples:

  • R (Rowley) v Minister for the Cabinet Office, [2021] EWHC 2108 (Admin), High Court: The UK government had unlawfully failed to provide British Sign Language (BSL) interpreters for two televised Covid-19 data briefings. However using ‘in-screen’ rather than the more inclusive ‘on-platform’ interpreters was lawful, because of difficulties showing detailed data slides with the latter. Another 2021 case concerned BSL interpreters at music concerts.
  • Paulley v FirstGroup, [2017] UKSC 4, Supreme Court: This related to bus drivers being required to do more than just request passengers to vacate wheelchair spaces on buses.
  • MM & DM v Secretary of State for Work and Pensions, Court of Appeal, 2013-2015: 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, [2013] EWCA Civ 1191, Court of Appeal: Reasonable adjustments should be made to enable effective communication with deaf people subjected to a search warrant (and in other situations).
  • ZH v The Commissioner of Police for the Metropolis, [2013] EWCA Civ 69, Court of Appeal: 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, hospitals and others providing services to the public, on bodies exercising public functions even though not services to the public (eg the police arresting someone), and on 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. The duty focuses on whether the particular claimant is put at a disadvantage, and what steps are reasonable specifically to mitigate that person’s disadvantage.

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’ (not specifically the disabled claimant) being put at a disadvantage: EqA Sch 2 para 2(2), modifying s.20. Case law and guidance interpret this as meaning that service providers, public bodies etc need to consider in advance what adjustments people with different kinds of disability might require, and make reasonable adjustments for them, rather than just responding to a particular disabled person who presents themself. The Services Code (below) explains this more fully. Unlike employers, service providers etc:

  • 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, and
  • may be required to make an adjustment without knowing of any particular disabled person.

R (Rowley) v Minister for the Cabinet Office, [2021] EWHC 2108 (Admin), High Court
The court held that the UK government had unlawfully failed to provide British Sign Language (BSL) interpreters for two televised Covid-19 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 reasonable for Deaf BSL users generally.

Example: 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.

An organisation should consider the needs of speech-impaired users when designing such a system. Its duty is not dependent on being told by a person who stammers (for example) that the system is inaccessible for them.

Also a court will presumably consider the reasonableness of an 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.

In a claim, the courts interpret ‘disabled people generally’ as requiring them to focus on people with the particular kind of disability (below) that the claimant has. For more on the legal test in relation to ‘disabled people generally’, see below Two-stage legal test? and Technical note: Legal wording.

Ad hoc adjustments

It would be odd if the reasonable adjustment duty on service providers etc were only anticipatory, with no duty to make adjustments for the needs of a disabled person as and when the needs become apparent. The Services Code of Practice 2026 (and other guidance) says that as well as anticipatory adjustments, there is continuing duty to make adjustments in individual cases. It seems there can be a duty to make a reasonable adjustment even if it would not have been reasonable to anticipate the adjustment. However cases are inconsistent, and there are technical uncertainties. See separate page Ad hoc adjustment duty on service providers?

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

The policy of the EqA 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’.

The purpose of the duty to make reasonable adjustments is to provide disabled people with access in relation to services, public functions and associations, and for their experience to be as close as reasonably possible to the standard offered to non-disabled people.
Services Code of Practice, 2026, para 7.5

Roads v Central Trains, [2004] EWCA Civ 1541, Court of Appeal
A wheelchair user could not use the footbridge to 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 (it was about half a by road). The company said he could travel by train 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 (a taxi) succeeded. The Court of Appeal confirmed that the reasonable adjustment duty is anticipatory, and added ‘…the policy of the DDA is not a minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.’

Therefore it was not necessarily enough that some alternative was available (here travelling by train to a further station, and coming back). If there was a better solution available, it may be reasonable for the service provider to have to provide the better solution.

Royal Bank of Scotland v Allen, [2009] EWCA Civ 1213, Court of Appeal
The Court of Appeal found a bank to be in breach of its reasonable adjustment duty, because its main branch in Sheffield was inaccessible 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. This included physical access to branches.

R (Rowley) v Minister for the Cabinet Office, [2021] EWHC 2108 (Admin), High Court
Part of the dispute was whether the British Sign Language (BSL) interpreter in televised UK government Covid-19 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 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. Accordingly, said the court, the UK government could not show that in-screen BSL interpretation was a 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’, in that this option 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.

Seeking to approximate experience/access to that of non-disabled people is an important factor, but what is ‘reasonable’ will depend on all the circumstances of the case. See Reasonableness on relevant factors.

Para 7.52 of the Services Code 2026 says that 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.

Similarly the Services Code of Practice 2026 says on this:

7.32 The duty to make reasonable adjustments is a continuing duty. Service providers, those exercising public functions and associations should keep the duty and the ways they are meeting the duty under regular review, considering their experience with disabled people wishing to be provided with access. In this respect it is an evolving duty, and not something to be considered once 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
7.33 … [The Code here gives the example of a large sports complex which 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.]

7.34 Equally, a step that might previously have been an unreasonable one for a service provider, person exercising public functions or association to take could subsequently become a reasonable step given the changed circumstances. For example, technological developments may provide new or better solutions to the problems of inaccessible services.

Example.
7.35 … [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 when 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 2026. Similarly para 7.26-7.27 of the Technical guidance on further and higher education.

Also in R (Rowley) v Minister for the Cabinet Office [2021] EWHC 2108 (Admin) at §31, the High Court describes the reasonable adjustment duty as a ‘continuing’ one (citing the Court of Appeal in R (VC) v Secretary of State for the Home Department [2018] EWCA Civ 5 at §157). It sets out some of the provisions of the 2011 Services Code of Practice (similar to the Services Code 2026 above). The High Court adds that where an adjustment is made which is judged objectively to have been necessary to comply with the duty, the question may be whether failing to make it earlier was non-compliance.

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

The duty to make reasonable adjustments has three aspects: (a) changes where a ‘provision, criterion or practice’ (PCP) puts disabled people at a disadvantage (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’ – meaning 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).

The concept of a ‘PCP’ is broad. It is discussed (in the context of employment) at Reasonable adjustment rules: employment>What is a ‘provision, criterion or practice’ (PCP)?

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 a duty to take such steps as it is reasonable to have to take to provide an auxiliary aid or service where ‘disabled persons generally’ – meaning 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 2026, para 7.63).

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] EWCA Civ 1213, and Roads v Central Trains [2004] EWCA Civ 1541.

Reasonableness

Under case law, as well as the Services Code of Practice, an important part of the reasonableness test is that access should be as close as possible to that enjoyed by others (above).

The Services Code of Practice 2026, at para 7.36, says that what is a reasonable step for a particular service provider to take depends on all the circumstances of the case. It will vary according to the type of service being provided, the nature of the service provider and its size and resources, and the effect of the disability on the individual disabled person.

Para 7.37 of the Services Code 2026 sets out some of the factors which might be considered when assessing what is reasonable (emphasis by me):

  • whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in being provided with access
  • the extent to which it is practicable for the service provider etc to take the steps
  • the financial and other costs of making the adjustment
  • the extent of any disruption which taking the steps would cause
  • the extent of the financial and other resources of the service provider etc
  • the amount of any resources already spent on making adjustments
  • the availability of financial or other assistance.

On costs and resources, see below Cost of reasonable adjustments and Disabled person cannot be required to pay cost of adjustment.

The fact that there is some difficulty making an adjustment does not mean it is unreasonable:

Government Legal Service v Brookes, EAT, 2017
It was held reasonable to adjust an assessment in a ‘fiendishly competitive’ recruitment process to allow someone on the autistic spectrum to give narrative answers rather than multiple choice.

Factors on the employer’s side of the balance included that it would not be ideal to have to run two such different methods of assessment alongside each other, and inevitably there would be difficulties in comparing candidates’ answers. However the employment tribunal had balanced this against the factors on the employee’s side of the balance. The EAT held that the tribunal had properly decided that the latter outweighed the points on the employer’s side of the balance.

Note: This is an employment case, but competing factors will equally need to be weighed in services cases.

Para 7.44 of the Services Code 2026 says service providers should understand that there are no hard and fast solutions: ‘Action which may result in reasonable access to services being achieved for some disabled people may not necessarily do so for others.’ Para 7.45 gives the example that at a large public conference, provision of British Sign Language (BSL) interpreters for deaf delegates does not assist delegates with mobility or visual impairments to access the conference. Nor does it assist delegates with hearing impairments who do not use BSL but can lipread. The conference organiser will also need to consider the requirements of these delegates. (Presumably the organiser should also consider delegates with other communication disabilities, including stammering.)

Para 7.50 of the Services Code 2026 says that in some circumstances, compliance with the duty to make reasonable adjustments will involve placing non-disabled people at an inconvenience. It cites First Group v Paulley on a bus driver’s duty to seek to persuade others to vacate a wheelchair space, if the space is required by a wheelchair user. Para 7.51 gives a similar example relating to trains.

It is likely to rare for there to be genuinely no steps it is reasonable to take to make services accessible:

7.52 If, having considered the issue thoroughly, there are genuinely no reasonable steps for a service provider, person exercising public functions or association to take to ensure access for disabled people, it is unlikely to be in breach of the law if it makes no changes. Such a situation is likely to be rare.
Services Code of Practice 2026.

Reasonableness may fall to be considered on a ‘group basis’, at stage one of a Two-stage legal test, below.

Cost of reasonable adjustments

Factors to be taken into account in deciding whether it is reasonable for a service provider etc to make an adjustment include, among other things:

• the financial and other 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
(para 7.36 Services Code of Practice 2026).

Adjustments for stammering will often cost nothing.

Para 7.39 of the Services Code 2026 says it is more likely to be reasonable for a service provider with substantial financial resources to have to make an adjustment with a significant cost, than for a service provider with fewer resources. Para 7.40 contrasts the duty of a large shopping centre to provide a ‘sensory room’ (swlondoner.co.uk) with duties of a small shopping precinct owned by independent traders.

If the court is applying the two-stage test (below), it will presumably look at the cost of providing the relevant adjustment for people with that kind of disability generally so far as they require it (rather than just the individual), since reasonableness is part of stage 1 of the test.

In one case (Ross v Ryanair [2004] EWCA Civ 1751 at para 33) 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.

See also Reasonable adjustment rules: employment>Cost of reasonable adjustments, and on the cost of medical evidence Universities: Knowledge of disability>Cost of medical evidence.

Disabled person cannot be required to pay cost of adjustment

S.20(7) EqA makes clear that the person obliged to make a reasonable adjustment is not entitled to require the disabled person to pay any of the costs of complying with the duty. (There is a limited exception if the law expressly says otherwise.) See Services Code of Practice 2026 para 7.53-7.54, and HL Hansard 13/1/10 (parliament.uk) at col 565.

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 in Project Management Institute v Latif, for employment cases.

Broadly, if the claimant has shown that there is a PCP creating the required substantial disadvantage (the ‘trigger test’), then the burden of proof on whether the adjustment is reasonable shifts to the respondent (service provider or public authority etc), provided that by the time of the court hearing there is some indication from the claimant as to the potential reasonable adjustment(s) the claimant alleges should have been made. It is then for the service provider etc to show that it was not reasonable for it to have to make the adjustment(s) put forward. If the service provider etc fails to show that, the adjustment is treated as reasonable.

For more detail, see Reasonable adjustment rules: employment>Burden of proof, including on the point that no great detail on the proposed adjustment is required from the claimant.

The Court of Appeal said that these employment rules extend to bodies exercising public functions in R (VC) v Secretary of State for the Home Department [2018] EWCA Civ 57, and in Finnigan v Northumbria Police [2013] EWCA Civ 1191. There is little doubt that the same applies to service providers. The High Court applied the same approach to a university in University of Bristol v Abrahart [2024] EWHC 299 (KB).

There is authority that the court is limited to considering adjustments proposed to the court by the claimant, or those fairly ‘on the menu’ (MM & DM case).

This is not saying that the claimant must have proposed the adjustment to the service provider etc at the time the adjustment should have been made, to trigger an obligation to provide it. That would be contrary to the anticipatory nature of the reasonable adjustment duty. Indeed, it does not even apply even for the non-anticipatory duty on employers: see Reasonable adjustment rules: employment>Onus to comply is on the employer.

Knowledge of the disability

The service provider etc need not necessarily know of the disability, or even of the particular claimant, for the reasonable adjustment duty to apply. Whether that is so in the particular case or not, it makes sense to ensure, where practicable, that the service provider etc knows of the disability and of any adjustments you want.

See separate page Knowledge of disability in anticipatory reasonable adjustment claims.

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 that ‘trade’ includes ‘business’).

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

Edwards v Flamingo Land, [2013] EWCA Civ 80, Court of Appeal
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 (PCP) 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 para 2(7).

The Court of Appeal’s decision that there was no policy to adjust was under the Disability Discrimination Act 1995. ‘Provision, criterion or practice’ under the EqA might be argued to be wider. Also, in some cases it may be helpful that the EqA (unlike the DDA) includes an obligation to provide auxiliary aids and services. This obligation applies even without a ‘provision, criterion or practice’ (PCP) giving rise to a disadvantage. 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, if the function is not providing services to the public. However the body cannot be required to take a step that it has no power to take (EqA Sch 2 para 2(8)).

Who is liable?

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

Ross v Ryanair, [2004] EWCA Civ 1751 illustrates 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.
Note: There are sometimes exceptions for air travel and other transport.

R (Rowley) v Minister for the Cabinet Office, [2021] EWHC 2108 (Admin) was a case about BSL interpreters for televised UK government Covid-19 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 that the government was itself responsible for ensuring that reasonable adjustments were made.

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

Examples of cases

McCue v Glasgow City Council, [2023] UKSC 1, Supreme Court,
A man with Down’s Syndrome received social care from his local council, under Scottish legislation. The council had a policy on what disability-related expenditure it would deduct in assessing his ability to pay charges for his care. The claimant thought the council’s approach on this should have been more generous. His claim for reasonable adjustments failed as there was no policy putting the claimant, as a disabled person, at a disadvantage compared with non-disabled people.

R (Efthimiou) v The City of London, [2022] EWHC 1588 (Admin), High Court
Swimming in an open air pond on Hampstead Heath helped the claimant’s disability. A new regime of charges for the pond was introduced. Her claims for reasonable adjustments and indirect disability discrimination as regards these charges failed. The disadvantage she suffered did not have the necessary causal connection with her disability or (for indirect discrimination) with the PCP, but was due to her limited means. 
Note: I find this reasoning problematic: see My comments on the case.

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, [2021] EWHC 2108 (Admin), High Court
The court held that the UK government had failed to make a reasonable adjustment by not providing British Sign Language (BSL) interpreters for two televised Covid-19 data briefings. However for ongoing Covid 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, [2018] EWCA Civ 57, Court of Appeal
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 EqA.

Paulley v FirstGroup, [2017] UKSC 4, Supreme Court
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, [2013] EWCA Civ 1565, Court of Appeal
Mental health patients claiming Employment and Support Allowance (ESA) argued that the government was failing to make reasonable adjustments under the EqA. The Court of Appeal largely upheld an Upper Tribunal judgment which found that mental health patients 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, [2013] EWCA Civ 1191, Court of Appeal
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, [2013] EWCA Civ 80, Court of Appeal
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 EqA.

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 (see Knowledge of disability in anticipatory reasonable adjustment claims).

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, [2013] EWCA Civ 69, Court of Appeal
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, [2009] EWCA Civ 1213, Court of Appeal
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 1995 (DDA) 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, [2004] EWCA Civ 1541, Court of Appeal
A wheelchair user could not get from one platform of a station to the other via the footbridge. He argued a taxi would be a reasonable adjustment (it was half a mile by road). The rail company said he could travel by train to another 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.

Ross v Ryanair, [2004] EWCA Civ 1751, Court of Appeal
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

7.4 The duty to make reasonable adjustments … requires service providers, those exercising public functions and associations to anticipate the needs of disabled people and make reasonable adjustments in advance of providing the service, exercising the public function or the activities of the association.

…

Who the duty to make reasonable adjustments is owed to

7.20 In relation to services and public functions, the duty to make reasonable adjustments is owed to disabled people generally (schedule 2, paragraph 2(2)). It is not simply a duty that is applied in relation to each individual disabled person who wants to access 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

7.22 In relation to all three areas (services, public functions and associations) the duty is anticipatory (schedule 2 and schedule 15). This means that service providers, those exercising public functions and associations must proactively consider the barriers that disabled people could face and take action to address those barriers. This should happen before an individual disabled person seeks to use a service, benefit from or be subject to a function, or participate in the activities of an association.

7.23 Service providers, those exercising public functions and associations should therefore not wait until a disabled person wants to use a service, benefit from or be subject to a function, or participate in the activities of an association before they consider 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.

Example
7.24 An individual with a visual impairment regularly receives printed letters regarding his welfare benefits from a person exercising public functions, 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 individuals’ needs for alternative formats.

The failure to provide Braille letters 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. Even if Braille documents were provided after a request from the individual, this may constitute a failure to anticipate the needs of people with visual impairments by failing to have a mechanism in place to record an individual’s need

How the duty to make reasonable adjustments applies when the service provider, person exercising public functions or association does not know that the person is disabled

7.25 Because the duty is anticipatory, it applies regardless of whether the service provider, person exercising public functions or association knows that a particular person is disabled or whether it currently has, for example, disabled customers or members.

7.26 When a disabled person seeks to use a service, benefit from or be subject to a function, or participate in the activities of an association, the service provider, person exercising public functions or association must already have taken all reasonable steps to provide access.

Anticipating barriers for people with different kinds of disability

7.27 Service providers, those exercising public functions and associations are not expected to anticipate the needs of every individual who may use a service, benefit from or be subject to a function, or participate in the activities of an association. They are required to think about and take reasonable steps to overcome 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.

7.28 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 solely use white canes will not be affected by this policy. The duty will still be owed to members of both groups. As a result, a service provider in this case will need to anticipate how its services might need to be adjusted for both groups.

7.29 Once a service provider, person exercising public functions or association has become aware of the requirements of a particular disabled person, it might then be reasonable to take a particular step to meet those requirements. This is especially so where a disabled person has pointed out the difficulty that they face in access or has suggested a reasonable solution to that difficulty.

Example
7.30 A disabled person attending the annual general meeting of an association experiences a flare-up of their medical condition, which means 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.

7.31 Therefore, there are two components to the duty to make reasonable adjustments: the duty to make anticipatory adjustments for a class of people, as well as the continuing duty to make adjustments in individual cases57.
[Footnote 57 refers to R (VC) v Secretary of State for the Home Department [2024] EWHC 299 (KB).]

Services Code of Practice, 2026

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

Note: This is 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 s.20(3) ‘in relation to’ the individual. In more detail, firstly EqA s.21(1) provides 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) provides that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

So s.21 says there is ‘discrimination’, but how far is this discrimination prohibited by the EqA? –

  • 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 Detriment>Education providers.

Technical note: 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 the statutory wording uses a group test. To a large extent, the anticipatory duty focuses on people with the same kind of disability, rather than just the disabled claimant.

Whilst the courts sometimes apply this anticipatory/group approach, they also sometimes apply an approach more focussed on the individual claimant. The reasonable adjustment duty on service providers etc may include both anticipatory and individual components: see Ad hoc adjustment duty on service providers?

However, at least where the courts are viewing the duty as anticipatory rather than individual, there seems to be a two-stage approach. The group test is stage one. This two-stage approach was outlined, for example, by the Upper Tribunal decisions (in 2015 at para 49-51, and in 2013 at para 96-98) in MM & DM v Secretary of State for Work and Pensions. (For the wording of the EqA itself, see above 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 which take the anticipatory/group approach, this essentially boils down to two issues, both normally decided by reference to this ‘group’ of people with the same kind of disability:
    1. whether there is a more than minor or trivial disadvantage (below Technical note: Comparative disadvantage), and
    2. what steps it is reasonable to have to take to avoid the disadvantage (above Reasonableness). Part of the reasonableness test is the principle that access should be as close as possible to that enjoyed by others (above).
  2. Stage 2: individual test. If there is a duty to make an adjustment under stage 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 both tests will be met, but if not, the exact test to be applied is not clear: below Detriment to the claimant.

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

Paulley v FirstGroup, [2017] UKSC 4, Supreme Court
The court held that 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.

Why was this the PCP? The bus company had modified ‘first come first served’ by saying that 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 to decide 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 to wait for the next bus and 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 the adjustment been made (see Detriment>’Real prospect’ test).

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. That is just one way in which the law in this area is not clear.

Technical note: Detriment to the claimant (stage 2)

Stage 2 of the two-stage legal test above is whether the individual claimant is sufficiently affected to be able to claim for failure to make a reasonable adjustment.

This stage 2 test is not clear, but often should not be an issue in practice. Very often a claimant will be able to show both that there is a ‘real prospect’ that the adjustment would have made a difference in their case, in the sense of alleviating the more than minor or trivial disadvantage, and also a ‘detriment’ in the sense that they would reasonably prefer not to have been treated in that way.

For a rather technical discussion of this Stage 2 test, see Detriment to claimant in anticipatory reasonable adjustment claims.

Technical note: Comparative disadvantage

To claim for failure to make reasonable adjustments, a disabled person must show that a provision, criterion or practice (PCP) of the service provider etc – or the physical feature, or lack of an 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. 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] EWHC 2108 (Admin), 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 above 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 [2013] EWCA Civ 1191). 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 actually made, or auxiliary services actually 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 already made by the provider go far enough.

For example:

Paulley v FirstGroup, [2017] UKSC 4, Supreme Court
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-wheelchair-users 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, [2021] EWHC 2108 (Admin), High Court
For most televised Covid-19 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 2011 (similar to para 5.20 of the Services Code of Practice 2026), which actually deals with indirect discrimination rather than reasonable adjustments. The court said that 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] EWCA Civ 1541, the courts have held that they should focus on whether people with the same kind of disability as the claimant are put at a substantial disadvantage. What exactly this means is unclear but it should not normally matter (below).

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 itself considered the issue:

R (Rowley) v Minister for the Cabinet Office, High Court, 2021
This case concerned British Sign Language (BSL) interpreters for televised UK government Covid-19 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 that the most reliable and authoritative guide was 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 2011, 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 by courts range from the very broad – eg 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 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 (BSL) – would apply to stammering and many other disabilities.

For reasonable adjustments discussed on this page, the concept of same kind of disability is arguably judge-made rather than found expressly in the EqA (although Rowley at para 24 mentions EqA s.6(3)(b)). However there is a similar issue in other parts of the EqA which expressly use the concept of ‘particular disability’ (2011 Guidance on definition of disability>What is a “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.

Precise ‘particular kind of disability’ should not normally matter

Importantly it 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.

‘Particular kind of disability’ and stammering

It is not clear whether a ‘particular kind of disability’ is likely to be just stammering, or wider, or narrower. But the most important point is that it should not matter (above).

For example, ‘particular kind of disability’ might be (among other possibilities):

  • stammering
  • speech disabilities more broadly
  • overt or covert stammering/speech disabilities (although often people will be partly overt and partly covert).

No need for all people who stammer etc to be disadvantaged

However ‘particular kind of disability’ (above) is defined, there is no need for the PCP etc to put everyone with that kind of disability at a disadvantage. The test may be roughly whether people with that kind of disability (say stammering) are more likely to be at a substantial disadvantage, ie a disadvantage which is more than minor or trivial, compared with non-disabled people (below ‘Persons who are not disabled’). Expert evidence (below), may be helpful to show that this group is put at a disadvantage, if it is disputed. For example:

MM & DM v Secretary of State for Work and Pensions, Court of Appeal and Upper Tribunal, 2013 & 2015
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 (2013) 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’. (In the 2013 Upper Tribunal decision: para D of Overview, also para 138 and 166).
Emphasis by me.

R (VC) v Secretary of State for the Home Department, [2018] EWCA Civ 57, Court of Appeal
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, [2021] EWHC 2108 (Admin), High Court
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: see Proving disability: impact statements and expert reports>Expert evidence.

‘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] EWHC 2108 (Admin), 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 that this point 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 (this is not a service to the person arrested), 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 of Practice 2026 para 11.37-11.45 gives examples. As regards paragraph (b), ie functions which may subject someone to a detriment, para 11.43 gives the example of a police force’s policy of not carrying civilian dogs in police cars making 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.

Can include ‘adverse experience’ even where function confers a benefit

The Services Code continues with an example of being refused extra time, including a short break, in an interview for social security benefits. This adjustment might also be sought for stammering.

11.44 Where a benefit is, or could be, conferred by the exercise of a public function, substantial disadvantage can arise both in relation to the conferment or refusal of the benefit (the outcome) and the process of acquiring or seeking to acquire it. This means that if an individual experiences a detriment in the process of acquiring a benefit, this can give rise to legal claim, even if the benefit is conferred74.
[Footnote 74 refers to the MM & DM case below.]

Example
11.45 A man applying for social security benefits has mental health problems which mean he has difficulty concentrating and answering questions during a lengthy interview. He asks for additional time for the interview, including a short break, but that adjustment is not made. As a result, he finds the interview process very stressful. It is likely that the way the interview was conducted, as part of the process of acquiring the benefit, would amount to a substantial disadvantage. The fact that his benefit application is ultimately successful does not affect his claim that he was subjected to a detriment during the application process.

If his application was unsuccessful, he could also bring a claim on the grounds that he was subject to a disadvantage regarding the outcome of his application.

Services Code of Practice 2026

Those paragraphs 11.44-11.45 reflect case law. The Court of Appeal has held that even though ‘adverse experience’ is only mentioned in EqA Sch 2 para 2(5)(b), on functions involving a detriment, an adverse experience can also be a substantial disadvantage ‘if a benefit is or may be conferred in the exercise of the function’, ie 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’. Was undue stress in an interview suffered by non-disabled people a substantial disadvantage within EqA Sch 2 para 2(5)? The court said that it would be bizarre if:

  • the stress were seen as a disadvantage for those at risk of losing ESA, a ‘detriment’ (the stress would be an ‘adverse experience’ within para 2(5)(b)), but
  • the stress were not seen 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), ie where a benefit may be conferred in the exercise of the function. This is despite the fact that only para 2(5)(b) (on functions in the exercise of which the person may be subjected to detriment) 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: Pilots and reasonableness

In some cases it may not be reasonable to make an adjustment without a pilot study. In MM & DM the Court of Appeal held that the tribunal could not order the government to run a pilot study. Nevertheless courts are likely to seek a route forward that avoids substantial injustice. The claim failed on other grounds, so the Upper Tribunal did not need to decide a way forward in this case. See further MM & DM>Pilots and investigations.

25th anniversary of stammeringlaw, 1999-2024