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Ad hoc adjustment duty on service providers?

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Last updated 27th August 2021 (part update 19th August 2022).

The reasonable adjustment on service providers, public bodies and education providers (not employers) is “anticipatory”. They are required to consider in advance what people with different kinds of disabilities might require, rather than waiting for a particular disabled person to present themself. But is there also a duty on service providers etc to make ad hoc adjustments in response to the particular needs of a disabled individual, where reasonable in the circumstances? Common sense would say yes there is, as does the Code of Practice and guidance.

Summary and conclusion

“Anticipatory” duty

Cases and guidance say the reasonable adjustment duty on service providers etc (but not employers) is “anticipatory”, owed to disabled people generally. Therefore service providers, public bodies, universities, schools etc need to think in advance about what people with different kinds of disabilities might require, and make reasonable adjustments for them. The duty does not arise only when a particular person presents themself. This may make it reasonable to do more than would be feasible on an ad hoc basis when a disabled individual presents themself:

Example: It seems that Equality Act (EqA) obligations of a service provider putting in place a voice recognition telephone system are not limited to making adjustments when someone who stammers presents themself. The service provider should consider accessibility for people with speech impairments when setting up the system, and periodically review whether the system meets their needs.

Possible limitations on an anticipatory duty

Possible limitations of anticipatory adjustments – bearing in mind some cases such as Finnigan (below), and the two-stage legal test– might include:

  1. only having to make an adjustment if it could reasonably have been anticipated in advance – but that contradicts guidance and some cases (below), and generally I think there is little if any support for that notion;
  2. an adjustment having to be framed in such a way as to apply to people with that type of disability generally, rather than just to the individual claimant – but for example the Court of Appeal in R (VC) v Home Secretary below talks of the duty including “anticipatory adjustments for a class of people, as well as the continuing duty to make adjustments in individual cases” (emphasis added), whatever that means
  3. the “reasonableness” of the adjustment having to be decided looking at people with that type of disability generally, and not looking at what is reasonable in the circumstances of the individual claimant
  4. the adjustment having to put people with that type of disability at a more than minor or trivial disdvantage, rather than just the individual claimant.

I would argue – and hope the courts will agree – that the first three of those limitations either do not apply, or so far as they do theoretically apply allow the individual circumstances and needs to be adequately taken into account. See below Arguments for ad hoc duty and the rest of this page.

Group disadvantage

As regards the fourth point above, Roads v Central Trains (below) is indeed authority for saying it is wrong to look only at whether the individual claimant was at a disadvantage. Also this seems to reflect the wording of the Equality Act (below). However it is likely to be rare that the particular claimant is so unusual that people with that kind of disability (as a group) are not at a disadvantage, given that not all (or even most) individuals in the group need to be disadvantaged: Reasonable adjustments by service providers>No need for all people who stammer etc to be disadvantaged.

Arguments for ad hoc duty

Are ad hoc adjustments reasonable in the particular circumstances in response to an individual disabled person’s needs also required by the reasonable adjustment duty on service providers etc? (As outlined above, though, group disadvantage may be required.)

The wording of the Equality Act (below) seems to me consistent with service providers etc having an ad hoc duty, at least if the particular claimant is not so unusual that people with that kind of disability (as a group) are not at a disadvantage (above Group disadvantage).

The issue will hopefully be clarified in future cases.

If no ad hoc duty as such…

If that is wrong and there is no ad hoc duty as such, there would be questions of what are the boundaries of anticipatory adjustments. I suggest that clearly it would be reasonable for service providers etc to anticipate that people who stammer may require adjustments, and that different people who stammer will have different needs. Technically questions would include:

  • whether the reasonableness of the adjustment is to be assessed by reference to people with that disability generally (as suggested, for example, by the Upper Tribunal in MM & DM) or by reference to the individual and the particular circumstances (the approach taken by eg the Court of Appeal in ZH v The Commissioner of Police for the Metropolis), and
  • how far are there implications for what kind of adjustment may be required by the duty? For example the Court of Appeal in R (VC) v Home Secretary below talks of the duty including “anticipatory adjustments for a class of people, as well as the continuing duty to make adjustments in individual cases”, and acknowledges that a threshold may be required for whether an adjustment is required in a particular case. What does this mean in practice?

Also note that the duty is ongoing and evolving. Therefore the appearance of a particular disabled person may well trigger an obligation to make further adjustments even under an anticipatory duty for (generally) that type of disability.

Generally, note that in many cases it may be possible to argue that the particular person’s needs could reasonably have been anticipated and an adjustment put in place.

Statutory wording

There are three flavours of reasonable adjustment duty, but I will take as an example just the one for PCPs – provision, criterion or practice. The Equality Act 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 amendments by EqA Sch 2 para 2(2) shown in square brackets. In relation to public functions, Sch 2 para 2(5) also defines “substantial disadvantage”.

So the Equality Act does not say the reasonable adjustment duty for service providers etc is limited to adjustments arranged in advance (anticipated). It appears to say that adjustments should be arranged in advance where reasonable; as Finnigan (below) says, it is not enough for a provider just to rely on ad hoc adjustments. But it seems to me natural to see this statutory wording as requiring the service provider to make adjustments for particular people as and when adjustments are found to be needed, at least if the particular claimant is not so unusual that people with that kind of disability (as a group) are not at a disadvantage (Reasonable adjustments by service providers>No need for all people who stammer etc to be disadvantaged).

Take the example in para 7.26 of the Services Code below, on finding a better seat for an audience member with severe back pain. Where the PCP – such as the practice of using a particular type of seat for audience members – puts (say) people disabled with back pain generally at a substantial disadvantage, compared with non-disabled people, the service provider is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage. I suggest it is very natural to understand this wording as requiring the service provider to make a particular ad hoc adjustment as suggested by the Services Code, even if that adjustment should not reasonably have been anticipated. The PCP puts those people at a disadvantage, and giving the claimant a more comfortable chair is an obvious step to help avoid the disadvantage to those people.

Artificial limitation

Some may try to argue that because the legislation refers to “disabled people generally” at a disadvantage, the adjustment itself must be aimed at disabled people generally rather than an individual. I suggest this would be an artificial limitation, wholly at odds with the Act’s policy of giving protection to disabled people so far as reasonable. It would also breach the UN Convention (below), and make rights even more uncertain and difficult to enforce, with extra technical legal arguments.

Appeal cases

R (VC) v Home Secretary, 2018

In R (VC) v Secretary of State for the Home Department, the Court of Appeal said (citing Finnigan below):

“It is well established that the duty to make reasonable adjustments includes the duty to make anticipatory adjustments for a class of people, as well as the continuing duty to make adjustments in individual cases…”.

On reasonableness of adjustments, the Secretary of State submitted that “representation [of mentally ill immigration detainees] at the public expense cannot be provided on an anticipatory or continuing basis”. The court rejected this argument saying “Representation or assistance could be available on an anticipatory and a continuing basis, to be actually provided as and when required.” (para 169) As regards thresholds for provision of representation or assistance, the court said at para 170 that while a threshold of some kind is needed, considering in each case whether a “substantial trigger” existed (which the government argued was required) did not take into account the anticipatory nature of the reasonable adjustment duty.

Although there is a focus in this case on providing “anticipatory” or “continuing” adjustments, the Court of Appeal did talk of a “continuing duty to make adjustments in individual cases” and of the need for a threshold to decide whether assistance was required in individual cases.

Paulley v FirstGroup, 2017

In Paulley v FirstGroup, which went right up to the Supreme Court, it seems there was no dispute that the duty was anticipatory. The focus was on what policy (including enforcement of it) it was reasonable for the bus company to have.

MM & DM, 2013-2015 (Court of Appeal in December 2013)

In MM & DM v Secretary of State for Work and Pensions, adjustments were being sought to the system for dealing with mental health patients claiming Employment and Support Allowance. Similarly, the courts looked at whether the current ESA system put this group of disabled people generally at a substantial disadvantage (and held that it did).

The Upper Tribunal (2015 para 49-51, and 2013 para 96-98) set out a two-stage approach under which (1) the existence of a substantial disadvantage and what adjustments are reasonable is decided by reference to people with that kind of disability as a group, and then (2) there is the question of whether there was a failure to make the adjustment for the particular individual and any impact on that individual.

Finnigan v Northumbria Police, October 2013

In Finnigan v Northumbria Police the Court of Appeal dismissed a claim for reasonable adjustments by a deaf man whose house was searched by the police. He argued they 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 he was not at a detriment – it had been possible to establish effective communication with him without a sign language interpreter. As regards looking at deaf people generally, the court said:

“It follows that the Chief Constable was obliged to make reasonable adjustments to her [PCP] of conducting searches in spoken English so that it did not have a detrimental effect on deaf persons. It is clear that this duty could not be discharged by treating everyone as individuals and adopting communication styles to suit the circumstances of the particular case on an ad hoc basis. The anticipatory nature of the duty is inimical to the idea that reasonable adjustments may be made by deciding on an individual basis to conduct a search with or without a BSL interpreter in attendance or on standby according to exigencies of the particular situation.”

And a bit later the court said:

“It is important… to keep in mind the distinction between (anticipatory) changes to a [PCP] which are applicable to a category or sub-category of disabled persons and changes which are applied to individual disabled persons on an ad hoc basis. The duty to adjust a [PCP] is to be judged by reference to the former, and not the latter.”

The first quote might perhaps be read as saying it is not enough to make only ad hoc adjustments, which would be uncontroversial. However in the second quote the court does seem to say that the duty to adjust a PCP is to be judged by reference to changes applicable to a category or sub-category of disabled persons, and not to changes which are applied to individual disabled persons on an ad hoc basis.

Note though that Finnigan was not a case where the court had to decide on the legal rights of a claimant at an individual disadvantage which might be alleviated by an ad hoc adjustment. The court held that the reasonable adjustment claim failed because the individual had not suffered a detriment. Where, as in this case, the individual is not at a disadvantage, no question of an ad hoc adjustment arises.

Edwards v Flamingo Land, July 2013

Edwards v Flamingo Land seems to have been considered by the courts very much on an individual basis – looking at whether it would be a reasonable adjustment for a restaurant to allow a family to sit at picnic tables rather than in the more formal outside area of the restaurant, given the particular disabilities of one of the children. This approach was not queried when the case got to the Court of Appeal. The claim failed for rather odd technical reasons, related to the type of service which the court considered the restaurant was offering.

ZH v The Commissioner of Police for the Metropolis, February 2013

In ZH v The Commissioner of Police for the Metropolis the Court of Appeal seems very much to have taken an approach based on the circumstances of the individual case. It upheld a decision that on the facts the police had failed to make reasonable adjustments with an autistic boy, and rejected an argument that this unreasonably interfered with the operational discretion of the police. The Court of Appeal said: “Each case must be carefully considered on its facts.”

In the County Court the police did not dispute that a duty to make reasonable adjustments to their normal practice, policy or procedure arose (but they denied that any of the adjustments sought were either available or reasonable). So the issue of things being unreasonably difficult or unreasonably adverse for “disabled persons” did not arise.

Royal Bank of Scotland v Allen, 2009

In Royal Bank of Scotland v Allen the Court of Appeal found a bank in breach of the reasonable adjustment duty, because its main branch in Sheffield was not accessible to wheelchair users. As well as compensation, the court awarded an injunction requiring the bank to install a lift to give wheelchair access.

The decision does not really seem relevant to the issues discussed on this page. The adjustment sought was in any event one that would benefit wheelchair users generally.

Roads v Central Trains, 2004

In Roads v Central Trains, the issue was the difficulty for wheelchair users of getting from one station platform to another. The lower court had decided it was unreasonably difficult for the claimant to get from one platform to the other. The Court of Appeal held that was the wrong approach because the test under the DDA 1995 (similar to the Equality Act) was whether it was unreasonably difficult for “disabled persons” to make use of the service. The court said “disabled persons” would usually mean people with the same kind of disability as the claimant, here wheelchair users. There was a double test: first (in paraphrase), does the particular feature impede people with one or more kinds of disability; secondly, if it does, has it impeded the claimant? Nevertheless the Court of Appeal decided that the lower court’s decision should be upheld because the latter’s conclusion that the claimant would find it unreasonably difficult to go by road between the platforms was founded upon reasoning which was equally applicable to wheelchair users as a class.

In considering whether it would be reasonable, by way of adjustment, for the railway company to arrange for an adapted taxi between the platforms, the Court of Appeal seems at least to a large extent to have looked at what would be reasonable for this particular claimant – see particularly the wording of paragraph 35 in the judgment.

Code of Practice and Technical Guidance

Service providers

The Equality and Human Rights Commission’s Services Code of Practice, 2011 (approved by the government) says there is an anticipatory duty, but also that once a service provider has become aware of the requirements of a particular disabled person, it might then be reasonable to take a particular step to meet these requirements. See particularly para 7.26:

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.

Services Code para 7.24-7.26.

Further and higher education

The EHRC’s Technical Guidance on Further and Higher Education, 2014, is similar, but the example in para 7.25 seems even clearer than the Services Code in saying that once an education provider has become aware of the requirements of a particular disabled student, it might be reasonable to take steps even if it would not have been reasonable to put arrangments in place in advance. This seems to be tantamount to saying there is an obligation to make ad hoc adjustments:

7.23 Education providers are not expected to anticipate the needs of every prospective student, but 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 learning difficulties, mental health conditions or mobility impairments may face different types of barriers.

7.24 Disabled people are a diverse group with different requirements – for example, visually impaired people who use guide dogs will be prevented from using education facilities 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.

7.25 Once an education provider has become aware of the requirements of a particular disabled student it might then be reasonable for the education provider to take a particular step to meet these requirements. This is especially so where a disabled student has pointed out the difficulty that they face or has suggested a reasonable solution to that difficulty.

Example: A university anticipates that some Deaf students will require the use of British Sign Language (BSL) interpreters and ensures it has access to BSL interpreters at short notice. However, a student who arrives at the university uses American Sign Language (ASL) and had not previously notified the university of this. As soon as the university is aware of this it should consider making the necessary reasonable adjustment by seeking an ASL interpreter, even though it may not have been reasonable to have arrangements with an ASL interpreter before the student arrives.

Technical guidance on further and higher education, para 7.23-7.25. Note the example is explicit that it may not have been reasonable to have arrangements in advance, but the university should nevertheless consider making the adjustment as soon as it is aware.

Also in deciding what steps are reasonable, the 2014 Technical guidance on further and higher education clearly takes the view that the needs of the individual are important, and what is reasonable adjustment for one individual may not be sufficient for another. For example:

  • Paragraph 7.56 talks about one Deaf student who has a portable loop, whereas another prefers to lip-read so that appropriate adjustments need to facilitate her doing so.
  • Paragraph 7.67 talks about different adjustments required for different students with specific learning difficulty.

Generally examples in the Technical Guidance for FHE seem to focus on what is reasonable in the individual case.

Note that this EHRC Technical Guidance dates from 2014, after many of the Court of Appeal decisions above including Finnigan.

Schools

The EHRC Technical guidance documents for schools, and on reasonable adjustments for disabled pupils, say that a school’s duty to make reasonable adjustments is an anticipatory one owed to disabled pupils generally, and therefore schools need to think in advance about what disabled pupils might require and what adjustments might need to be made for them.

However apart from that, these documents seem (on a quick look) to focus on the individual, both as regards whether the individual is at a substantial disadvantage, and whether it would be reasonable to make an adjustment in the circumstances of that individual.

Human Rights Act and European Convention

The European Court of Human Rights (ECtHR) in Strasbourg interprets Article 14 of the European Convention on Human Rights as including a right to “reasonable accommodation”. In the UK we call this reasonable adjustments. The ECtHR very much bases this right on reasonable accommodation under the CRPD below.

ECtHR decisions on reasonable accommodation have talked of the importance of doing an individualised assessment, or looking at that person’s real needs: see What is ‘discrimination’ under Article 14 European Convention?>Reasonable adjustments. An obligation to consider that individual’s needs when deciding adjustments is not quite the same as an obligation to make adjustments for those needs. However these ECtHR decisions should still be important. That is especially so as ECtHR decisions consider also how far the national courts assessed whether an adjustment should be made, and as “public authorities” UK courts are themselves required by s.6 HRA to comply with the Convention.

When it comes to arguing that reasonable adjustments under the Equality Act should reflect the individual’s needs, in an important way this human rights argument is stronger than the CRPD below. This is because s.3 Human Rights Act (HRA) requires UK courts to interpret UK legislation so as to comply with the European Convention, and often even to depart from the legislation’s wording: Enforcement of European Convention and HRA 1998>Interpreting UK legislation to comply with the Convention. The CRPD has a much weaker influence on UK court decisions.

However a limitation on this human rights argument is that Article 14 applies only within the ambit of another Convention right. But Article 14 should cover education, for example, including universities: Scope of European Convention rights>Education: Article 2 of Protocol 1 (‘A2P1’). Therefore in an education case, for example, one could argue that s.3 HRA applies in requiring the Equality Act to be interpreted in a way that complies with Article 14. That link discusses also other areas within the ambit of Convention rights.

UN Convention on the Rights of Persons with Disabilities

The UN Convention on the Rights of Persons with Disabilities in Article 2 (un.org) says discrimination includes denial of reasonable accommodation, and –

“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;”

This wording talks about what is “needed in a particular case”, which seems to focus on the individual. Also the Committee on the Rights of Persons with Disabilities General comment No. 6 (2018) on equality and non-discrimination (un.org) says reasonable accommodation is “an individualized reactive duty that is applicable from the moment a request for accommodation is received”. It contrasts this with “accessibility” which must be built into systems and processes without regard to the need of a particular person with a disability.

The UN Convention therefore seems to require that the reasonable adjustment duty should not be limited to anticipatory adjustments. The duty should include ad hoc adjustments based on an individual’s needs.

The Convention can be relevant in interpreting the Equality Act where the Act is ambiguous or uncertain: see UN Convention on the Rights of Persons with Disabilities (CRPD)>Interpreting UK law. As discussed above, I suggest the wording of the Equality Act is indeed consistent with an ad hoc duty. (However UK courts tend to take more notice of the European Convention of Human Rights (above), as specifically required by s.3 Human Rights Act which can apply even if the UK legislation is not ambiguous.)

Academic discussion

One paper is Lawson & Orchard, The anticipatory reasonable adjustment duty: removing the blockages, Cambridge Law Journal, 2021, https://doi.org/10.1017/S0008197321000568.

This points out that the reasonable adjustment duty on service providers etc requires action in advance of a request by a particular disabled individual. However it says the fact that enforcement of the duty is so firmly placed in the hands of particular individuals, who must themselves have been disadvantaged by the failure, suggests that the duty might include obligations to take steps to respond to the particular circumstances of the individual in question, even though it may not have been possible for the duty-bearer to anticipate those circumstances.

It says the EqA does not address this issue explicitly, and “it is from this that the uncertainty about the extent to which the anticipatory duty includes obligations to make reactive or responsive adjustments springs”. However it argues that consistency with the UN Convention on the Rights of Disabled People (above) demands that the anticipatory duty includes a “reactive dimension” imposing duties to respond to the specific and unanticipated circumstances of the particular case. It also points out that ERHC Codes of Practice and Technical Guidance (above) interpret the duty in this way, ie so as to include obligations to make reactive or responsive adjustments.

Knowledge of disability

As to how far lack of knowledge of the disability may be a defence as regards ad hoc adjustments, see Knowledge of disability in anticipatory reasonable adjustment claims>Ad hoc adjustments.

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