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Knowledge of disability in anticipatory reasonable adjustment claims

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Last updated 27th December 2021.

What knowledge of a disability and the individual’s need for an adjustment do service providers, public authorities and education providers need, for there to be a reasonable adjustment claim?

Summary and conclusion

For anticipatory reasonable adjustment claims there is no express defence for service providers etc who are unaware of the disability. Indeed some claims have succeeded despite the provider etc having no knowledge of the particular disabled person. However cases also indicate that whether the service provider etc knows of the disability is sometimes relevant. See below Equality Act, Code of Practice and cases.

The position is uncertain and it remains to be seen what approach the courts take. I suggest the following approach, without trying to cover every situation:

  • If an adjustment should reasonably be applied to all service users etc even without knowing of a particular disabled person, the service provider can be liable even though it is not aware of the individual’s disability, or even of the individual. Examples include a BSL interpreter for a televised government briefing (Rowley, below), at least some music concerts (Little Mix case), and a “no dogs” sign having to include an exception for guide dogs. I suggest another example is making Voice recognition telephone systems accessible for people who stammer. Below Adjustments applied to everyone.
  • On the other hand, if the adjustment requires the service provider etc to treat the disabled customer etc differently from others, the courts are unlikely to hold the provider must do that even if it could not reasonably have known of the disability. In the case of anticipatory adjustments, I suggest that requirements as regards knowledge of the disability and (if appropriate) making enquiries should be part of the anticipatory adjustment whose reasonableness is assessed by the court. Below Adjustments which involve acting differently as regards disabled people.
  • Also for ad hoc adjustments (below), a case has indicated that a service provider’s knowledge is likely to be relevant.

Equality Act, Code of Practice and cases

For reasonable adjustment claim against service providers etc, the Equality Act has no express defence where the provider etc does not know of the disability. This contrasts with the reasonable adjustment duty on employers for which there is an express “lack of knowledge” defence. Unlike the anticipatory duty on service providers etc, the reasonable adjustment duty on employers is triggered by a disadvantage to an individual worker or job applicant, and the statutory defence applies if the employer did not know and could not reasonably have been expected to know of that individual’s disability and being put at a disadvantage.

The Services Code of Practice (para 7.22-7.26) seems to say that lack of knowledge is not a defence, but that finding out about a particular disabled person may trigger a duty to make adjustments. See below Services Code of Practice.

In a recent case on failure to provide BSL interpretation for a Coronavirus briefing – Rowley (below) 2021 – there was no suggestion that lack of knowledge of the individual’s disability was a defence.

However in another case – Flamingo Land (below), 2013 – unlike Rowley the adjustment would have involved treating the claimant differently because of her disability. Here the Court of Appeal suggested it was “common sense” that the service provider would need some explanation of the disability.

In MM & DM (below) the Upper Tribunal considered what information about the disability the authorities assessing a benefit claim would need before they had to take certain steps. The tribunal considered this as part of considering whether the proposed adjustments were reasonable.

However there has been little discussion by the courts of knowledge in this context. It remains to be seen what approach the courts take. I suggest the following, without trying to cover every situation:

Adjustments applied to everyone

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

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

Adjustments which involve acting differently as regards disabled people

In many other cases, adjustments involve dealing differently with people who have the particular disability. Or they might involve dealing differently with a group of people (such as a seminar group) one of whom has the disability, if it is not reasonable to have to deal with all groups in that way. Here, the service provider etc will not be able to fully implement the adjustment without knowledge that the particular customer has a disability. This is so even if it has anticipated and prepared for the adjustment in advance.
(Note: This section is looking at where the court is approaching the reasonable adjustment duty in an anticipatory way, ie in terms of what arrangements/adjustments should reasonably be set up in advance. See separate section below on Ad hoc adjustments.)

I suggest that here the court can consider what knowledge or information should reasonably trigger the duty on the service provider etc to take certain steps, and what arrangements the service provider etc should reasonably have to make to identify who has a relevant disability and how far they need particular adjustments. I suggest this is part of the court deciding whether the service provider etc has taken all the steps it should “reasonably” have taken. See also Universities: Knowledge of disability>Treating disabled student differently.

It is not a matter of applying a different legal test where adjustments involve treating disabled people differently. It is just that looking in advance at what adjustments it is reasonable to have to set up, sometimes it will be reasonable to just apply them to everyone (as in the Coronavirus briefings), but where that is not the case the adjustments/arrangements will need to specify in what circumstances particular steps should be taken.

Two cases illustrate considering knowledge requirements as part of deciding what adjustments are reasonable:

VC case

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

The court in VC was looking at the reasonable adjustment duty in an anticipatory way: presumably that the government should set up a system to provide help for mentally ill immigration detainees who needed it. So far as I know, the court did not discuss knowledge of the disability. However I suggest that in order to be “reasonable” within the Equality Act, the system set up by the government would require procedures – properly implemented – under which the authorities take reasonable steps to find out which detainees are mentally ill and require assistance.

I suggest that this is how knowledge of the disability – and taking sufficient steps to make enquiries about it – would come into play. It would be part of the court’s analysis of what steps it is reasonable for the government to have to take by way of adjustments.

MM & DM case

The approach I suggest seems to be in line with the Upper Tribunal (2015) decision in MM & DM:

MM & DM v Secretary of State for Work and Pensions, Court of Appeal & Upper Tribunal, 2013-2015
Mental health patients (MHPs) claiming Employment and Support Allowance (ESA) argued that the benefit authorities were failing to make reasonable adjustments under the Equality Act. The reasonable adjustments proposed by the claimants were that certain things should trigger a requirment that benefit officials actively consider obtaining further medical evidence, and if they did not obtain it they should justify why not. These proposed triggers were effectively having certain information about the disability. The Upper Tribunal (2015) considered these triggers as part of considering how far the adjustments proposed by the claimants were reasonable. See further MM & DM>Comment: Knowledge of disability, and below.

Note: As regards knowledge of the disability, this case is a bit confusing in that the actual adjustment sought was the obtaining of further medical evidence – in order that the benefit authorities would have more knowledge of the disability to help them decide whether the disability entitled the person to ESA. However as regards what knowledge is needed to be liable for a breach of the reasonable adjustment duty, one has to go back a step from that, and ask what knowledge is required to trigger the obligation to obtain further medical evidence.

So in MM & DM the proposed triggers, ie what information about the disability should trigger the requirement to actively consider further medical evidence, was part of the reasonable adjustments proposed by the claimants. The Upper Tribunal (2015) (bailii.org) considered them as part of whether the adjustments were reasonable. This seems sensible. For example:

  • In the proposed reasonable adjustment A1, a trigger for benefit officials to consider further medical evidence (FME) before issue of an application form (ESA50) was if information already provided to the authorities (such as the fit note) indicated a previous suicide attempt, suicidal ideation or self-harm, or if the applicant had an appointee. Points considered by the Upper Tribunal (2015) at para 98-124 included the sparse nature of the information the authorities will have at this stage (eg fit notes probably do not mention “suicidal ideation” to preserve confidentiality vis-à-vis the employer), officials having to review entries for thousands of claimants with a mental health flag before sending out an ESA50 application form, and the limited benefit of the adjustment. The Upper Tribunal decided proposal A1 was not reasonable, even without the government conducting a pilot.
  • Proposal A2 was that after receipt of the ESA50 application form, but before a decision was taken to conduct a face-to-face assessment, FME must be actively considered if the information provided in the ESA50 read with the fit note indicated, for example, that there was a real risk the applicant was unable to engage effectively with the process. The Upper Tribunal (2015) considered this from para 127. One question (at para 133-135) was whether the introduction of such a test would lead to unacceptable inconsistency in decision making. Wording and content of guidance for officials relating to the relevant trigger tests, including examples of what would be ineffective engagement, were obvious subjects for a pilot.

Including knowledge requirements in proposed adjustments put to court

Adjustments considered by a court of tribunal are mainly those proposed to it by the claimant. The burden of proof is likely to be on the other party (eg the service provider) to show that these proposed adjustments are not reasonable.

I suggest it makes sense for the claimant, in formulating adjustments to put to the court, to consider what these proposed adjustments should say about knowledge of the disability and any need to make enquiries. The claimants did this in MM & DM above. Just as constructive knowledge of a disability is imputed to an employer which does not make reasonable enquiries, it may be reasonable for a service provider or public body etc to have to make (reasonable) enquiries, at its cost, if it does not already know of the individual’s disability and their need for an adjustment.

A court may be reluctant to hold that knowledge/enquiry requirements are laxer than what is proposed by the claimant. In MM & DM above the Upper Tribunal (2015) largely restricted itself to considering the triggers (knowledge requirements) proposed by the claimants. Also there is authority from the same case that a court is limited to considering adjustments actually proposed to the court by the claimant, or those fairly “on the menu”: Reasonable adjustments by service providers>Court limited to considering adjustments proposed by claimant.

May medical evidence of disability be required?

In the context of reasonable adjustments by universities, see Universities: Knowledge of disability>Is medical evidence required?

Can court consider what enquiries should reasonably have been made in claimant’s individual case?

I suggest above (Adjustments which involve acting differently as regards disabled people) that a court considering the reasonable adjustment duty from an anticipatory point of view can consider what arrangements it would have been reasonable for the service provider etc to set up in order to find out whether people had a particular disability and needed adjustments. Does this mean the court can only consider what arrangements or “system” would been reasonable (and presumably whether the service provider etc implemented it), rather than looking at what would have been reasonable in the claimant’s individual case?

Perhaps, but this is not clear. I suggest that in any event, the individual facts of the claimant’s case are likely to inform the court’s consideration of what steps it was reasonable to take to find out about the disability. That can seen in an Equality Act case (not on reasonable adjustments but on justification) where the EAT said that tribunals were right to assess the lawfulness of applying a policy to people generally, but could reach different conclusions on whether the policy was justified depending on the evidence before them:

Pitcher v University of Oxford (bailii.org), Employment Appeal Tribunal (EAT), 2021
These were claims by two university professors arguing that a compulsory retirement age under the same Oxford University policy was unlawful direct age discrimination, because it was not justified (EqA s.13(2)). One claimant was a professor of English Literature, and the other of Atomic and Laser Physics. The first lost his employment tribunal claim, but the second won it.

The EAT said the two employment tribunals had rightly viewed the issue of detriment in general terms – justification relating to the compulsory retirement policy, not to individual examples of its application (para 186, though I suggest the law is more nuanced than that). Despite this, said the EAT, both employment tribunal decisions could stand. The evidence before each tribunal on whether the policy was justified had been different, and the tribunals had not erred in law in reaching the conclusions they did. For example the Physics professor had given evidence of why options to mitigate the forced retirement, such as contributing in an unpaid Emeritus position, were not viable alternatives for someone like him who required access to laboratory facilities and a research team to continue experimental research.

Ad hoc adjustments

Rather than taking an anticipatory approach (discussed above), another type of case is where the court takes an ad hoc approach to whether a reasonable adjustment should have been made, based on the individual facts of the case. Ad hoc adjustments are a tricky area as discussed at that link.

In one such case, Edwards v Flamingo Land (below), the Court of Appeal said it was “common sense” that the service provider would need some explanation of the disability. Like VC and MM & DM above, this was a case where the proposed adjustment involved treating the claimant differently from other people, so one can understand why the court would take that view. Compare above Adjustments which involve acting differently as regards disabled people.

Perhaps the courts will decide that where an adjustment involves treating a disabled person differently, whether the service provider etc could reasonably have known of the individual’s disability is part of the general question of what steps it was reasonable for it to have to take. However ad hoc adjustments generally, as well as issues of knowledge, particularly need clarification by the courts.

Also the Services Code (below) seems to say that finding out about a particular disabled person may trigger a duty to make adjustments.

Flamingo Land case

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

Edwards v Flamingo Land, Court of Appeal, 2013
A restaurant argued that it had not been made sufficiently aware of a disability to make an adjustment of allowing a family not to eat at the restaurant’s own outdoor tables. The family wanted to eat at a picnic table very nearby.

The Court of Appeal decided the case on other grounds, so it did not have to decide the “knowledge” issue. The court said: “In these circumstances it would be positively unhelpful to embark on an obiter excursus into the law beyond saying that, before a service provider is required to adapt a policy, common sense requires some form of reason or explanation to be given. What is sufficient in any particular case must depend on the particular facts. In the present case, the judge heard the evidence and decided no explanation was given. [The claimant’s lawyer] sought to say that in the light of Ms Skelton’s evidence such finding was unsustainable but it was the judge who heard all the evidence and this court could not, in any event, go behind that finding.”

The court here seems to have viewed the adjustment as an ad hoc one rather than anticipatory, and it involved treating the disabled person differently. As I discuss above, I suggest it makes sense that a service provider etc cannot be expected to treat someone differently if it has no reason to think they have a disability, at least if it has made any reasonable enquiries.

Services Code of Practice

The Services Code of Practice – which is not legally binding – seems to say that lack of knowledge is not a defence, but that finding out about a particular disabled person may trigger a duty to make adjustments.

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

For the full quote from the Services Code of Practice, see Reasonable adjustments by service providers>Services Code on the “anticipatory” reasonable adjustment duty.

There is similar wording in the Further and higher education technical guidance para 7.21 to 7.25.

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