Overview of the Disability Discrimination Act

An Overview of the Disability Discrimination Act 1995 and 2005

The Disability Discrimination Act 1995

The DDA came into force in 1996 providing protection for disabled people in the spheres of employment, goods and services, accommodation, transport etc. This Act was implemented in a ‘phased’ approach; in a gradual, incremental construction of obligations on service providers in relation to preventing discrimination related to disability.

On 1 October 2004 changes came into effect whereby all service providers including shops, restaurants, pubs, theatres and swimming pools now have to consider making changes to physical features that would otherwise present difficulty for disabled people to utilise their services.

Part 3 of the DDA 1995 deals with disabled access. Part 3 has come into force in three stages; a) it has been unlawful to treat a disabled person less favourably since December 1996, b) since October 1999, service providers have had to consider making reasonable adjustments to the way they deliver their services so that disabled people can use them and, finally, c) October 2004 where service providers have to consider making physical adjustments to their premises to facilitate their access.

Disabled – A Definition

A person is disabled if they have a physical or mental impairment, which has a substantial, adverse and long-term effect on their ability to carry out normal day-to-day activities. This disability is expected to be lasting or at least to last longer than a year.

The Disability Discrimination Act 2005

Various provisions of the DDA 2005 came into force on 5 December 2005, providing overnight coverage to an estimated 250,000 people with serious illnesses across the U.K. Section 18 of the Act extends the definition of ‘disability’ to cover sufferers of HIV, certain types of cancer, multiple schlerosis and other serious debilitative illnesses.

The Act also repeals the requirement in relation to mental disabilities that they be ‘clinically well recognised’ when bringing a successful claim. While mental illnesses still legally have to be of ‘substantial and long-term impact’, the new Act removes one of the more noteworthy legal barriers in bringing a claim under the disability legislation.

Sections 2 and 3 of the new Act, which will not come into force until December 2006, will impose positive obligations on public service providers to promote equality of opportunity for disabled people and take steps to eliminate unlawful discrimination and harassment. These provisions will also apply in respect of any private organisations exercising public functions.

What does Discrimination Involve?

Under the Act it is possible to discriminate against a disabled person in two ways;

1. To treat a disabled person less favourably. This would involve the treatment of a disabled person less favourably for reasons relating to their disability than the comparative treatment of an able bodied customer and; the treatment cannot be shown to be justified.

2. A failure to comply with statutory duties imposed in relation to disabled access and the treatment cannot be shown to be justified. This includes duties, for example, under section 21 – the duty to make reasonable adjustments.

As a service provider you can discriminate against disabled people in one of the following ways;

• Refusing to provide goods and services otherwise provided to able bodied customers;
• Providing a lower standard of service; or
• Providing the service on worse terms.

Everyone that provides a service to the public has a legal duty to make reasonable adjustments to the physical features of their service where it makes it impossible or unreasonably difficult for a disabled person to use your service.

Section 21 of the act deals with how service providers can overcome a physical feature. There are four ways in which this can be achieved:

1. Remove the feature; or
2. Alter it so it is no longer a barrier; or
3. Provide a reasonable means of avoiding it; or
4. Provide a reasonable alternative method of making the services available.

The Disability Discrimination Regulations 1999 deal with “physical features” and can include steps, stairs, parking areas, entrances and exits, kerbs, etc. The list is not exhaustive.

Cost

The cost of making any physical adjustments cannot be passed to the disabled customer. These costs are intended to be part of the service provider’s general expenses.

Business Tenancies

In most landlord and tenant situations it is the tenant who is the “service provider” and therefore the duty to make physical changes to the premises will fall to him. However, in certain leases there may be a term to prevent making physical alterations to the property and in this situation the Act will override such a term. The tenant must write to his landlord requesting his consent to make such alterations. The landlord cannot reasonably withhold consent but could possibly attach conditions to his consent.

Section 13 of the 2005 Act introduces new requirements for landlords and management companies to make reasonable adjustments, other than the physical features of the premises. This will include making reasonable changes to operational policies, practices and procedures in the interests of disabled access.

Residential Accommodation

Section 13 of the 2005 Act also makes changes in relation to residential tenancies. Under Section 16, there is now a legal requirement that a landlord does not unreasonably refuse modifications requested by a disabled tenant to facilitate his enjoyment of a let property. Any such refusal must be given in writing. Should proceedings be brought, it will be for the landlord to prove his refusal was reasonable.

Justification

Certain areas within the service industry are subject to exemptions from these provisions, including transport services (although only in respect of vehicle-access) and in relation to insurance, guarantees and deposits. Justification for an element of discrimination can be made on the grounds that:

• In any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person); Disability Discrimination Act 1995, s.20(4)a;
• In any case, the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case: Disability Discrimination Act 1995, s.20(4)b;
• If there has been a failure to provide services to a disabled person, the treatment is necessary because the provider of services would otherwise be unable to provide the service to members of the public: Disability Discrimination Act 1995, s.20(4)c;
• If there has been discrimination in the standard of service or terms of service provided to a disabled person, the treatment is necessary in order for the provider of services to be able to provide the service to the disabled person or to other members of the public: Disability Discrimination Act 1995, s.20(4)d;
• If there has been discrimination in the terms of service provided to a disabled person, the difference in the terms on which the service is provided to the disabled person and those on which it is provided to other members of the public reflects the greater cost to the provider of services in providing the service to the disabled person Disability Discrimination Act 1995, s.20(4)e.

Regulations may further provide for areas that are to be exempt from the requirements.

Recent Developments in Case Law

Roads v Central Trains [2004] EWCA Civ 1541

Keith Roads was a wheelchair bound resident of Norwich. He sued Central Trains as he was unable to cross the footbridge at Thetford railway station to reach the railway platform a half-mile away where he met his train for his return journey. He claimed the service provider should provide a suitably adapted taxi to take him round by road to the railway platform. Central Trains argued that Mr Roads should return via Ely. But this added an extra hour onto his journey.

The Court of Appeal decided that to expect Mr Roads to travel an hour out of his way was not a reasonable means of avoiding the footbridge. The taxi should accordingly be provided.

Ross v Ryanair Limited and Stansted Airport Limited [2004] EWCA Civ

Bob Ross, a regular passenger on RyanAir from Stanstead Airport, suffered from cerebral palsy and arthritis. He could only stand for short periods of time and needed a wheelchair to travel from the check-in desk to the departure gate. Ryanair’s policy was to provide assistance to those with either their own or a hired wheelchair. For this, they charged an additional fee of £18 for their services. Mr Ross sued both Ryanair and Stanstead Airport, alleging a breach of obligations under the disability discrimination legislation. Ryanair responded by arguing that Mr Ross could afford to hire a wheelchair. They further submitted that the cost of supplying staff to assist disabled passengers already exceeded the price of the flight and so would not subsidise those passengers who were not wheelchair bound.

The trial judge held that Ryanair’s policy discriminated against disabled people as a section of society. The provision of free wheelchairs was a reasonable requirement. Whether a particular person could afford to hire a wheelchair was irrelevant. The Court of Appeal further held that the Airport provided the same access as to airside parts as Ryanair. It was equally guilty of discrimination and even its previous good record in providing disabled facilities afforded the Airport no defence.
This case has serious implications, in that two rights of action are now potentially open to a claimant who suffers a breach from service providers. In this case, both RyanAir and the airport were held jointly responsible for their failure to provide access.

Jackson v Debenhams

Debenhams recently became the first retailer to be sued for being in breach of their requirements under the disability discrimination legislation. Greg Jackson, a 43 year-old wheelchair user, sued the retailer for its inability to provide access to the menswear section of its Derby store, despite repeated requests spanning almost 18 months. Part of the motivation Mr. Jackson issuing proceedings was because of the simplicity and minimal costs the changes would have required. Without having made this relatively simple alterations, Debenhams now find themselves facing the risk of heavy unnecessary costs in litigation.

New Developments

Section 21 does not make reference to specific requirements in specific circumstances. The emphasis is always on measures being “reasonable”. Whether or not it would be reasonable for a particular service provider to make changes will depend on the nature and type of service provided, the size of the business and the resources available. These requirements apply across all sectors with very few exceptions (the most notable exemptions being transport, although this is confined exclusively to vehicle-access under Sections 5, and section 6 in relation to rail vehicles, of the new Act).

Recently, guidance has been published on promoting better access to business websites (which has been a legal requirement since 1999) after an investigation by the DRC (Disabled Rights Commission) revealed that nearly 81% failed to meet the accessibility requirements for disabled people.

There are over 8.6 million disabled people in Britain with a spending power of £50 billion annually. In the past, the failure to take adequate steps in relation to this large potential customer base would cost service providers much in the way of lost business. With the new case law and requirements, failure to give reasonable consideration can potentially cost much more than simply lost business.

The judges have made it clear since the implementation of access provisions in October 2004 that the aim of the DDA 1995 is not a minimalist policy of simply ensuring that some access is available to disabled persons. The Act’s requirements go further. The attitude the courts have taken is that access should be made “so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public”. While the requirements will always be assessed in accordance with what is ‘reasonable’, service providers are taking severe financial risk should they fail to give reasonable consideration to the needs of people with a disability.

Chris Lingard