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Knowledge of disability in anticipatory reasonable adjustment claims

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Last updated 3rd April 2024.

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

    Whatever the legal position, in order to try and have adjustments happen in practice, it makes sense to make sure, where practicable, that the service provider etc knows of the disability and of any adjustments you want. This is also likely to strengthen any legal claim. Cf on universities Universities: Knowledge of disability>In practice, best to make sure university knows.

    This page deals with the reasonable adjustment duty on service providers etc (but not employers). Reasonable adjustments by service providers discusses that duty generally. “Service providers etc” on this page (or just “service providers”) includes anyone to which this anticipatory type of reasonable adjustment duty applies. As well as companies and bodies providing services to the public, this includes authorities excercising public functions, and schools and universities. However, I say more specifically about universities on Universities: Knowledge of disability.

    Unlike for employers (dealt with at Knowledge of disability), the reasonable adjustment duty has no express defence for service providers etc who are unaware of the disability. Some claims have indeed succeeded despite the service provider having no knowledge of the particular disabled person. However cases also indicate that how far the service provider knows of the disability and its effects is sometimes relevant.

    The legal position is uncertain, until confirmed by higher courts. I suggest the following approach, without trying to cover every situation:

    • If it is reasonable for a service provider etc to have to make an adjustment applicable to all service users, 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 needing to have 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.
    • In other cases it will not be reasonable to have to make the adjustment for everyone, so that the service provider etc needs to treat the disabled customer etc differently from others, or it needs to treat differently a group (eg a seminar group) of which the disabled person is part. An example could be replacing an oral assessment with a written one (University of Bristol v Abrahart, below). Here, I suggest the service provider etc should not be liable if – given the provider’s (lack of) knowledge of the disability and its effects, but assuming it knew whatever it would have discovered had it made any enquiries it should reasonably have made – it was not “reasonable” for the provider to have to make the adjustment. Below Adjustments which involve acting differently as regards disabled people.

    Equality Act, cases and Code of Practice

    For reasonable adjustment claims against service providers etc, the EqA has no express defence where the service 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 duty on service providers etc, which is anticipatory, 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 the particular claimant’s disability and likely disadvantage.

    There has been little discussion by the courts of how far knowledge is relevant to the reasonable adjustment duty on service providers etc. Further, such cases as there have been have generally not referred to previous cases. Briefly, court decisions include the following:

    • The High Court in University of Bristol v Abrahart (below), 2024, said that what the university “knew or ought to have known about the student or prospective student will be relevant to the question whether it was reasonable to take a given step or steps”. The case involved adjustments specific to the particular student (assessing her in writing rather than orally), and so treating her differently from others.
    • Rowley (below), 2021, was a case on failure to provide BSL interpretation on TV for two Covid-19 briefings. There was no suggestion that lack of knowledge of the individual’s disability was a defence.
    • In Flamingo Land (below), 2013, the Court of Appeal suggested it was “common sense” that the service provider would need some explanation of the disability. Like Abrahart but unlike Rowley, the adjustment would have involved treating the claimant differently because of her disability, ie the restaurant allowing her family to eat in a different area.
    • In MM & DM (below), 2013-2015, 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.

    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.

    The position has yet to be confirmed by decisions of higher courts. I suggest the following, without trying to cover every situation:

    Adjustments applied to everyone

    Here there seems to be no requirement for the service provider etc to know of a particular person’s disability, if it is reasonable to have to make the adjustment without knowing of any particular person’s disability.

    R (Rowley) v Minister for the Cabinet Office, High Court, 2021
    The court held that the UK government had unlawfully failed to provide British Sign Language (BSL) interpreters for two televised Covid-19 data briefings.

    There was no suggestion that the reasonable adjustment duty was dependent on the government knowing of the particular Deaf claimant. Also it does not look like the government knew of the claimant before these two data briefings (eg §13 of the judgment).

    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, if it was reasonable to have to make the adjustment even without such knowledge. Other examples where the same should (or may well) apply include:

    Adjustments which involve acting differently as regards disabled people

    What if it is not reasonable to have to make the adjustment without knowing of a particular person’s disability? Here adjustments will presumably involve either:

    • dealing differently with people who have the particular disability, or
    • dealing differently with a group of people one of whom has the disability – eg using Padlet at least in lectures attended by a student who requires it, as discussed at Universities: Knowledge of disability>Applying an adjustment to all students, if it is not reasonable to have to do that in every lecture.

    In this type of case, 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. I suggest that here knowledge, including what the service provider could reasonably have found out, will be relevant:

    Treating differently: Anticipatory adjustments

    (This section looks at where the court approaches the reasonable adjustment duty in an anticipatory way. See separate section below on Ad hoc adjustments.)

    Under EqA s.20(3), as modified (Reasonable adjustments by service providers: rules>Provision, criterion or practice (PCP)), the service provider etc is required “to take such steps as it is reasonable to have to take to avoid the disadvantage”, ie the disadvantage at which the provision, criterion or practice (PCP) puts people with the relevant kind of disability.

    Looking at this in an anticipatory way – ie in terms of steps or arrangements to be set up in advance of a particular disabled person presenting themself – I think that part of the court determining what arrangements the service provider etc should “reasonably” have set up to mitigate the disadvantage is the court determining:

    • what arrangements the service provider etc should reasonably have made for finding out who has a disability and what adjustments they need. This seems to be part of any steps taken to mitigate disadvantages on disabled people, so far as the adjustments involve different treatment of disabled people (or groups which include disabled people).
    • perhaps, what knowledge or information thus obtained should reasonably trigger a particular action by the service provider to mitigate the disadvantage, such as – in the following examples – arranging a sign language interpreter, or an advocate.

    Example: A police force’s policy and procedures on when to bring a sign language interpreter if searching someone’s house, for example, would presumably need to include any steps the police force should take to try to be aware of the person’s needs. Eg this might include a system for investigating officers to flag on the police computers if they have reason to think a suspect may have a relevant disability. It would be for the court to decide if the police force had taken such steps as were reasonable.
    This example is based on Finnigan v Northumbria Police, where however the reasonable adjustment claim failed because the particular claimant was not at a detriment.

    Example: Take the example of detainees under the Immigration Act who have mental illnesses. A reasonable adjustment might be the government arranging advocates to assist them.

    A scheme to do this would presumably need to specify not just what threshold has to be met before the government has to arrange assistance for a particular individual, but how the government ascertains which individuals meet the threshold.

    For example, to mitigate the disadvantage on detainees with mental illnesses, is it reasonable for the scheme to be that the government only considers applications notified on the correct form, which it is the responsibility of the mentally ill person to complete? If not, then what further steps should reasonably be taken to try to ensure that people with such disabilities who need an advocate actually get one, without being prevented by failing to make a proper application, or failing to include important information about their needs.

    This example is based on R (VC) v Secretary of State for the Home Department, Court of Appeal, 2021. See below Technical note: Two cases on treating disabled people differently under anticipatory duty.

    Two cases, MM & DM – and to some extent VC on which that second example is based – illustrate considering knowledge requirements as part of deciding what anticipatory adjustments are “reasonable”. I discuss them below: Technical note: Two cases on treating disabled people differently under anticipatory duty.

    I’m not saying a service provider’s reasonable adjustment duty is limited to what can be formulated in advance – see below Ad hoc adjustments. The previous description shows, I think, how that can be rather artificial. However, one can see how the anticipatory approach is useful in considering a scheme such as in VC and MM & DM.

    I suggest it makes sense for the claimant, in formulating adjustments to propose to the court, to consider what these proposed adjustments should say about knowledge of the disability and any need to make enquiries: below Technical note: Including knowledge requirements in proposed adjustments put to court. On another point, see below Technical note: Can court consider what enquiries should reasonably have been made in claimant’s individual case?

    See also Universities: Knowledge of disability>Treating disabled student differently.

    Treating differently: Ad hoc adjustments

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

    In cases where the proposed adjustment involved treating the claimant differently from other people, there are indications that what a service provider knew or ought to have known is relevant in deciding what steps it would be “reasonable” for it to have to take. However, decisions from higher courts are needed to clarify the position.

    University of Bristol v Abrahart, High Court, 2024
    The County Court held the university to be liable under the EqA for failure to make reasonable adjustments. It should have assessed a student in writing rather than orally. The student had a mental health disability, and did not turn up at numerous assessed oral interviews (or said very little when she did attend). She committed suicide on the day she was supposed to participate in a group oral presentation.

    The High Court upheld the County Court’s decision. On knowledge in relation to reasonable adjustments, the High Court said that what the university “knew or ought to have known about the student or prospective student will be relevant to the question whether it was reasonable to take a given step or steps”. However the County Court was entitled to decide the adjustments were reasonable in the present circumstances, despite the university having no request from the student to make adjustments, no diagnosis of her condition, and no recommendation from its Disability Services.
    Also on this case: Universities: Knowledge of disability>Treating disabled student differently.

    In another case, the Court of Appeal, without deciding the issue, considered it “common sense” that the service provider would need some explanation of the disability before making an exception to its normal rules for the family of a disabled child:

    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.”

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

    When viewing the reasonable adjustment duty in an anticipatory way (discussed above Treating differently: Anticipatory adjustments), I suggested that making enquiries about disability should itself be part of the anticipatory adjustment whose reasonableness is assessed by the court. Perhaps it is not so clear whether this works when viewing adjustments in an ad hoc or reactive way, but Abrahart indicates that what the provider knew or ought to have known will be relevant to reasonableness.

    May medical evidence of disability be required?

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

    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.

    Technical note: Two cases on treating disabled people differently under anticipatory duty

    This technical note supplements Treating differently: Anticipatory adjustments, above.

    Two cases, VC, below and MM & DM, below, illustrate considering knowledge requirements as part of deciding what anticipatory adjustments are “reasonable”, as discussed at that link.

    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 that the government had unlawfully failed to make reasonable adjustments. The court acknowledged that some kind of threshold was required before the government had to arrange assistance for any particular individual.

    The court in VC was looking at the reasonable adjustment duty in an anticipatory way: presumably that the government should set up a system to provide 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 EqA, 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.

    Policies and procedures to do with knowledge of the disability – and taking sufficient steps to make enquiries about it – would therefore be part of the steps taken by the government to mitigate the disadvantage of mentally ill detainees. Assessing these steps would be part of the court’s analysis of whether the government had taken such steps as it was reasonable for it to have to take. See further my example based on the VC case, above.

    MM & DM case

    The approach I suggest at Treating differently: Anticipatory adjustments, above 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 EqA. The reasonable adjustments proposed by the claimants were that certain things should trigger a requirement 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 in order 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, were part of the reasonable adjustments proposed by the claimants. The Upper Tribunal (2015) (bailii.org) considered these triggers 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. In assessing whether this was reasonable, 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 that 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 onwards. 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.

    Technical note: 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.

    Technical note: 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 have 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?

    Not necessarily. Abrahart, above, which focused on what was reasonable in the individual case, indicated that what the provider knew or ought to have known will be relevant to reasonableness. Generally, though, the courts have yet to clarify this area of the law (Ad hoc adjustment duty on service providers?). Perhaps individual circumstances can be relevant even where anticipatory arrangements have been made.

    Even if individual circumstances were not technically relevant as such, I suggest that the individual facts of the claimant’s case are likely to inform the court’s consideration of what steps it was reasonable to have to take to find out about the disability. That can be seen in an EqA 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.

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