Disabled Discrimination Act

What is the Disability Discrimination the Act?

The Disability Discrimination Act 1995 introduced new laws aimed at ending the discrimination that many disabled people face. The Act gave disabled people new rights of access to goods, facilities and services, as well as in employment and buying or renting property.

Since December 1996 it has been unlawful for service providers to treat disabled people less favourably than other people for a reason related to their disability.

From 1 October 1999 service providers have to make reasonable adjustments for disabled people, such as providing extra help or making changes to the way they provide their services.
From 2004 service providers will also have to consider making reasonable adjustments to the physical features of their premises to overcome physical barriers to access.
It is the later provision which we will mainly be detailing in this section. Further information of other provisions can be found at www.open.gov.uk.

Who has rights under the act?

The Act protects the rights of a wide range of people with sensory, mental or physical disabilities. This includes people who use wheelchairs, blind and partially sighted people, deaf people, people with arthritis, people with long-term illnesses and people with learning disabilities. The Act also covers people with severe disfigurements and, in certain circumstances, people who have had a disability in the past – for example, someone who had severe depression, but has since recovered.

Does the Act exempt any service providers from its provisions?

Part III of the Act does exclude education and the use of any means of transport from its provisions. It also excludes services not available to the public, such as those provided by private clubs to their members. Manufacturers and designers of goods are also excluded, unless they provide a service direct to the public.

So what kinds of businesses is this section written to help?

Some typical examples would be shops, restaurants, cafes, hairdressers, dry cleaners, opticians, high street solicitors, independent cinemas and garages – though, of course, this is by no means a complete list. You should also bear in mind that, as well as your main business, the Act covers any subsidiary services you may provide, such as toilets, car parking and information.

When does discrimination occur?

As a service provider, you might discriminate against a disabled person in two ways:

by treating him or her less favourably than other customers because of their disability; or
by not making reasonable adjustments to the way you deliver your services, so that disabled people can use them.
" Less favourable treatment" means

by refusing to serve him or her;
by providing him or her with a lower standard of service;
by providing him or her with a service on worse terms.
What are reasonable adjustments?

You - as an employer - must take any steps which it is reasonable for you to have to take to reduce or remove any substantial disadvantage which a physical feature of your premises or your employment arrangements causes a disabled employee or job applicant compared to a non-disabled person. This is known as a 'reasonable adjustment'. Failing to make a reasonable adjustment without justification is also discrimination.

Among other things, fixtures, fittings, furnishings, furniture and any feature on the premises arising from a building's design or construction, or of an approach to, exit from or access to a building on the premises, count as a physical feature of those premises. Employment arrangements include only arrangements for determining to whom employment should be offered, and any term, condition or arrangement on which employment, promotion, transfer, training or any other benefit is offered or provided.

Reasonable adjustments are a way of 'levelling the playing field' for disabled people. A reasonable adjustment might be, for example, putting Braille information in lifts or providing an adapted telephone for someone with a hearing impairment.

How should I find out what reasonable adjustments I will need to make so that my service is accessible?

Consider whether your services are accessible to disabled people. You should anticipate their needs and the adjustments that may have to be made for them, rather than wait until a disabled person wants to use a service you provide. You could also ask your customers whether they have any special requirements and what adjustments may need to be made. Once you have put a reasonable adjustment in place, make sure, when appropriate, that you draw the attention of disabled people to its existence.

Is the duty to make reasonable adjustments a one-off or an ongoing requirement?

It is a continuing duty, not something that can be considered once only and then forgotten about. You should keep the duty to make reasonable adjustments under review. It might be appropriate for you to do this whenever you review the efficiency and cost efficiency of your business and your working practices.

What happens if I fail to make reasonable adjustments?

You might be breaking the law. A disabled person can make a claim against a provider whose services are impossible or unreasonably difficult for him or her to access.

What about building regulations?

If your building was constructed in accordance with Part M of the building regulations in England or Wales (or Part T of the Technical Standards in Scotland), which are concerned with access and facilities for disabled people, there are some alterations you may not have to make. This is only the case for characteristics of the building which still comply with the regulations, or Standards, that were in force when they were constructed.

However, Parts M and T do not cover all characteristics of a building. For example, whilst you may not have to change the dimensions of doors because they still comply with regulations, you may need to alter the accessibility of handles on the doors (if this would be a reasonable adjustment to make) as this is not covered by the regulations or Standards.

What about the need to get statutory consent?

The Act does not override any need to obtain statutory consents, for example, listed building consent or fire regulations approval, before you make reasonable adjustments. But, while you're waiting for the permission to come through, there may be some temporary adjustment it is reasonable for you to have to make.

What if I sell, let or manage land or property?

The Act now makes it against the law to discriminate against a disabled person, because of their disability, in connection with the selling, letting or management of land or property. This includes; estate agents, accommodation agents, councils, Houses associations, hostel owners, private landloards, property developers, property management agencies, property investment companies and institutions, banks and building societies. Owner occupiers are also included but only if they use an estate agent to advertise their property.

What type of property are included?

Most types of property are included, land, houses, flats, hostels and business premises.

Is all property included?

No. For example, rooms let out to six of fewer people in someone’s own home are not included. Nor are rooms booked in a hotel or guest house. But people who own or work in hostels and guest houses provide a service to the public so they need to know how the law affects them as service providers.

So what am I actually required to do?

If it is impossible or unreasonably difficult for disabled people to use your services you may be required to:

take reasonable steps to change your practices, policies or procedures; or
provide a reasonable alternative method of making your services available to disabled people.
You may also have to take reasonable steps to provide an auxiliary aid or service to assist or enable disabled people to use your service.

You must consider taking reasonable steps to change your practices (what you do), policies (what you intend to do) or procedures (how you plan to go about it), if they make it impossible or unreasonably difficult for disabled people to use your services.

You must take reasonable steps to provide a reasonable alternative method for making your services available to disabled people, where a physical feature makes it impossible or unreasonably difficult for them to use these services.

You must take reasonable steps to provide an auxiliary aid or service if that would enable or make it easier for disabled people to use your services.

Do I have to make physical changes to my premises?

At present, you do not have to remove or change physical features on your premises, or provide a reasonable means of avoiding the feature. These duties will be introduced in 2004. However, there is nothing in the Act to stop you making physical changes to your premises before then. For example, if you are planning building work or refurbishment you could include these physical changes at that time. From 1 October 1999, however, if a physical feature of your premises prevents a disabled person from using your services, then you must consider whether you can take steps to provide an alternative way of making the service available to disabled people.

Is making physical changes to our premises the only way to make my business’s services more accessible to disabled people?

No, you should not assume this. Simple measures, such as allowing more time to deal with a disabled customer, can help disabled people use a service. Often action such as disability awareness training for your staff is all that is needed. But this does not mean that in every case minor action will make the service accessible.

Will small service providers be expected to do as much as large ones?

What is a reasonable step for you is likely to depend on the type of services you are providing, your size and resources, and also what effect the disability has on the individual disabled person. The following factors might be taken into account in deciding whether the steps you had taken were reasonable:

Would they overcome the difficulty that disabled people face in accessing your services?
How practicable is it for you to take these steps?
How much would it cost you?
How much disruption would it cause you?
What are your financial and other resources?
How much have you already spent on making adjustments?
What financial and other assistance is available to you?
I am expected to make adjustments, which will probably cost me money. What is in it for me?

There are over 8.5 million disabled people in the United Kingdom and they have considerable collective spending power. Any adjustments you make for disabled people may also benefit other customers and your staff. You will also retain the goodwill of disabled people and their families and friends – one in four customers is disabled or close to someone who is. And you will avoid the risk of legal action against you.

Surely then I can charge disabled customers extra to recover the costs of any adjustments I have had to make to my business?

No. Reasonable adjustments are part of your general expenses of providing the service, and this cost cannot be passed on to disabled customers alone. Nor can you charge them more than others for the same thing, as a way of deterring disabled people from using your service. You are, of course, not required to do anything that would involve unreasonable expenditure. Only if your service is tailored to the individual disabled customer and meeting their requirement involves an additional cost for you, may you be able to justify charging them more than others.

Greater cost

You can only justify charging a disabled person more for a service that is individually tailored to the requirements of a disabled customer, if a higher charge reflects the additional cost of meeting the disabled person’s specification.

What happens if there is a dispute under the Disability Discrimination Act?

A person who believes that a service provider has discriminated against him or her may bring civil proceedings. Court action must be brought within six months of the alleged discrimination. If successful, a disabled person could be awarded compensation for any financial loss, including injury to feelings.

Could I be liable for the actions of my employees?

Yes. The Act says that employers are responsible for anything done by their employees in the course of their employment, even if the act took place without their knowledge or approval, unless the employer can prove that they took reasonable steps to prevent the employee from doing the act in question.

Is there an alternative to legal proceedings?

The disabled person might decide first to raise a complaint with the service provider to see whether the issue can be resolved by negotiation to the satisfaction of both parties.

Checklist of Good Practice

Listed below are some steps you can take, to ensure that you comply with the spirit of the Disability Discrimination Act, as well as meet your legal obligations.

Think and plan ahead to meet the requirements of your disabled customers.
Don’t make assumptions about disabled people based on speculation or stereotypes. Think about the wide range of disabilities that there are when planning adjustments.
If in doubt, ask disabled people themselves how they can best be served. Listen carefully and respond to what they really want. You could also consult with disabled staff and disability organisations.
Think about the way you treat disabled customers. Let them know how to request assistance, and have a customer complaints procedure that is easy for them to use.
Ensure that you respect the dignity of a disabled person when providing them with your services.
Establish a positive policy on providing services to ensure it includes disabled people. Communicate this policy to your staff and monitor its effectiveness.
Consider putting in place positive practices which will encourage disabled people and others to use your services.
Make sure your staff training includes your policy towards disabled people and their legal rights, and disability awareness and disability etiquette training.
Regularly review whether your services are accessible to disabled people.
Don’t wait until 2004 to remove any physical features of your buildings that create a barrier to access for disabled people. Consider doing this at the same time as any building or refurbishment work you are planning, which could help reduce costs and disruption.
Some smaller businesses may find some of these steps more important than others in making their smaller-scale services accessible to disabled people. However, adopting best practice can only help to ensure that you comply with the Act.

What happens if there is a dispute under the Disability Discrimination Act?

A person who believes that a service provider has discriminated against him or her may bring civil proceedings. Court action must be brought within six months of the alleged discrimination. If successful, a disabled person could be awarded compensation for any financial loss, including injury to feelings.

Could I be liable for the actions of my employees?

Yes. The Act says that employers are responsible for anything done by their employees in the course of their employment, even if the act took place without their knowledge or approval, unless the employer can prove that they took reasonable steps to prevent the employee from doing the act in question.

Is there an alternative to legal proceedings?

The disabled person might decide first to raise a complaint with the service provider to see whether the issue can be resolved by negotiation to the satisfaction of both parties.