Don’t forget the Disability Discrimination Act 1995

The Disability Discrimination Act 1995 (DDA), as amended, incrementally established principles for enjoining the discrimination of the disabled. As with other discrimination laws, the fundamental aim of the DDA is that (to the extent that it applies) disabled persons should be treated the same as those without a disability. Unlike other types of discrimination, and because of the nature of disability itself, this can involve a positive duty to make reasonable adjustments, unless there is a justification for not doing so.

The DDA defines in detail the nature of the types of disability covered and is divided into sections pertaining to different areas of day-to-day life where discrimination may occur. These include goods, facilities and services – including those of solicitors and other legal representatives (Part III). It is hardly uncommon for older clients to be disabled within the meaning of the DDA, and it is important for those acting for them to be aware of the DDA and its requirements for compliance.

Part I defines the meaning of ‘disability’ and a ‘disabled person’ as someone who has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

The long-term effects must have lasted (or be likely to last) at least 12 months, or the rest of the affected person’s life (Schedule 1, paragraph 2). If the impairment has ceased to have a substantial adverse effect on day-to-day activity, it is still treated as continuing if the adverse effect is likely to recur.

‘Impairment’ involves one or more of the following: mobility; manual dexterity; physical coordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight, memory or ability to concentrate, learn or understand; and, perception of the risk of physical danger.

An ‘inability to understand’ includes information, knowledge, instructions and the subtleties of human social interaction. The Disability Discrimination Act 2005 (DDA 2005) added persons with a progressive illness, such as cancer and HIV infection, provided it has the requisite effect on daily life. Medical treatment that corrects or reduces the impact of a disability on day-to-day activities is discounted and the disabled person is treated as if they did not have the medical treatment. The exception to this provision is in relation to eyeglasses and contact lenses that correct a sight impairment. There is also an exception for “any other impairments, as may be prescribed in such circumstances as may be prescribed”.

Where a physical disability is involved, it will often be clear that the provisions of the DDA apply, but less obvious for impairments relating to cognition or mental health. A significant change introduced by the DDA 2005 is that a mental disability does not have to be “clinically well-recognised” to be covered, as long as it has the requisite adverse effects on day-to-day life. Mental impairment relates to mental functioning, including mental illnesses as well as a broad range of neurological impairments sometimes called “learning disabilities”. Section 68, DDA makes clear that the restrictive meaning in the Mental Health Act 1983 or Mental Health (Scotland) Act 1984 is not adopted.

This amendment to the DDA deals squarely with the fact that, while still having a profound and debilitating effect on day-to-day life, many neurological impairments do not fit the pattern of well-known conditions or have some, but not all (or not enough), traits to meet a diagnosis of a well-known condition. This amendment follows the generally inclusive wording of the DDA providing room to deviate from a particular requirement where appropriate.

A distinction must be made between a disabled person under the DDA and someone who is just sick. This is usually related to the extent to which day-to-day activity is affected and how long the disability is present, or will be in the future. Temporary and non-chronic conditions, such as a simple respiratory illness, even where the physical manifestation is full-blown, are not considered disabilities, although in some situations asthma could be covered (Cruickshank v VAW Motorcast Ltd [2002] IRLR 24, EAT). Certain recurring conditions might fall within the DDA, but symptom-less illnesses or conditions do not (Schedule 1, paragraph 4).

It is clear that if a service provider (SP) is completely unaware of the disability, there will be no liability for any acts that could be considered discriminatory under the DDA (knowledge or at least imputed knowledge is necessary – London Borough of Lewisham v Malcolm [2008] UKHL 43).

Once the SP is aware that a client is disabled, they must endeavour not to render less favourable treatment, refuse to provide services (said refusal connected to the disability), and/or fail to make a reasonable adjustment in circumstances where doing so makes it impossible or unreasonably difficult for the disabled client to access the goods, services or facilities provided to the general public.

Less favourable treatment occurs when the SP treats the disabled person differently because of their disability and without justification (DDA s.20(1); see also Rights of Access Code of Practice 2006 (the Code) paragraphs 4.5-4.9 and 5.4 and 5.13). This entails a comparison of the treatment of the disabled person with non-disabled persons in the provision of the particular service. There must be a causal connection between the less favourable treatment and the disability. In making the comparison, it is necessary to consider the reason why the disabled person has been treated less favourably, for instance, is it related to the disability or something else? If there is a causal connection, a decision has to be made as to whether there is justification for the less favourable treatment.

In London Borough of Lewisham, it was held that the correct comparator for disability-related discrimination is a non-disabled person in the same situation as a disabled person. The claimant was a secure tenant of a property owned by the London Borough of Lewisham (LBL) who had breached his tenancy agreement by sub-letting the property. He sub-let it because he was suffering from schizophrenia. LBL instituted possession proceedings. The House of Lords held that the comparison had to be made with a non-disabled person who had illegally sub-let his property, for instance, the comparator had to be in the same or similar circumstances – in which case possession proceedings would have been appropriate with the result that the claimant was not treated less favourably for a disability-related reason.

It remains to be seen how and to what extent this case affects disability-related discrimination in the area of goods, services and facilities, where the necessity for reasonable adjustment and factual context is totally different. In London Borough of Lewisham, Lord Scott alluded to the hypothetical case of a blind man with a guide dog wishing to be served in a restaurant. He said the restaurant would be entitled to refuse the blind man and his dog because the man’s disability would have played no part in the restaurant’s refusal to admit the dog for purposes of section 24(1)(a). Moreover, or alternatively, even if the refusal of entry to the dog would have related to the disability for purposes of section 24 (1)(a), the “others”, the comparators, would have been persons, blind or sighted, who did not arrive with dogs. But Lord Scott did not deal with the issue of reasonable adjustments.

In a dissenting judgment, Baroness Hale, stated: “But if the object of the disability discrimination legislation is to ‘level the playing field’, to enable disabled persons to do things that they otherwise would not be able to do, then simply ignoring their disability and asking that they be treated in exactly the same way as non-disabled persons will not do. A reasonable adjustment has to be made for the special difficulties which their disabilities present.”

In the context of legal advice, the issue of whether reasonable adjustments need to be made is likely to be paramount and something that advisers must take into account.

So SPs must consider taking steps to amend policies, procedures and practices, altering physical premises and providing auxiliary aids or services so that the provision of services to disabled persons is broadly the same, or not less favourable than those provided to the general public. Failure to do so, without justification, will likely be treated as discrimination against the disabled person (DDA section 20(2)) if it makes it unreasonably difficult or impossible for the disabled person to obtain services provided to the general public.

In respect of adjusting policy, procedure and practice, where these make it “impossible or unreasonably difficult” for disabled persons to make use of goods, services or facilities, the SP must “take such steps as it is reasonable, in all the circumstances of the case” in order to change the policy, practice or procedure so that it no longer has the effect of making it impossible or unreasonably difficult for the disabled person to access the goods, services or facilities (see the Code, paras 7.7-7.9).

As to physical features, if they make it impossible or unreasonably difficult for a disabled person to access services and so on, there is also a duty to “take such steps as it is reasonable, in all the circumstances of the case” in order to remove the “offending” feature, altering it so that access is no longer a problem, providing a reasonable means of avoiding the feature or a reasonable alternative method of making use of the SP’s services (DDA s.21(2)). The 2002 revision of the Code, designed to assist SPs during the earlier transitional period of the DDA, may still be helpful in terms of deciding the reasonable steps to be taken in individual circumstances. The Code mentions planning and implementing modifications to physical features, access audits and strategies, and makes a number of other suggestions of best practice for reasonable adjustments:

Providing staff training relevant to the adjustments to be made;
Making disabled persons aware of the adjustments;
Letting disabled persons know how to request assistance; and,
Regularly reviewing the effectiveness of adjustments.

Reasonable adjustments can also include the provision of auxiliary aids/services, if this would enable or assist disabled individuals to make use of any service, goods or facility offered to the public. They should be tailored to the nature of the services being provided and the requirements of current/potential clients. It is not likely to be reasonable to expect a SP to provide expensive auxiliary services for one-off situations that may relate to rarer disabilities they have not or are not likely to encounter with some frequency. But it would be reasonable to expect a SP to consider in advance what steps can be taken to meet the individual requirements of disabled persons, particularly in the area of will drafting and advice where it is hardly unusual for the prospective testator to have a disability of some kind and degree. Impairments of sight/hearing and learning disabilities are common situations for which the provision of auxiliary aids or services may be expected. At paragraphs 5.23-5.26, the Code suggests a number of possible aids for deaf persons and for those with sight impairments as necessary and depending on the service being provided.

There will be instances where it is not possible to comply and the DDA provides for this (DDA s.20(1) (2); the Code paras 8.6 -8.12).The less favourable treatment or failure to comply with the duty to make reasonable adjustments will be justified if, in the SP’s opinion, one or more statutory conditions are met and that opinion is reasonable in all the circumstances of the case (DDA s.20(3)(b)). It is the SP’s opinion at the time of the discriminatory treatment that matters (not a later rationalisation). Aside from health and safety, and issues such as the incapacity to contract that solicitors are adept at dealing with, the issues that are perhaps most vexing involve standards of service and greater cost.

Where potentially discriminating treatment or failure to make reasonable adjustments arises in relation to the standard of service, or the manner or terms on which the service is provided, that treatment may be justified if it is “necessary” for the SP to provide the service to the disabled person and/or other members of the public (DDA s 20(4) (d); the Code, paras 10.46-10.48). This could involve, for example, arranging an appointment at a particular time when specialist language services can be provided in order to accommodate not just the disabled person but also other members of the public.

In respect of “greater cost”, the DDA does not generally permit surcharges on disabled persons for the extra expenses involved in providing services to them. The DDA specifically provides that any increase in the cost of providing services to a disabled person resulting from making reasonable adjustments is to be disregarded for the purposes of the ‘greater cost’ justification. So, a hotel cannot charge more for a room that has wheelchair access, and a SP should not charge blind customers for the additional cost of providing Braille sales literature. The additional cost should be met, if necessary, by the SP increasing the charge for services to all members of the public, including the disabled.

In relation to services, if fees are based on hourly rates and time spent, it would seem reasonable to charge more if more time is expended. If the SP offers an option of an additional service or difference in the service resulting in the service being more expensive, and it is offered to all members of the public, it would appear to be lawful to charge disabled persons who take advantage as long as the option is not just an adjustment enabling the disabled person to use the service. If the disabled person could not access the services without the option, it is not lawful to charge for it regardless of whether members of the public who are not disabled do, in fact, have to pay for the charge.

Here are some guidelines in respect of scenarios that are likely to arise:

Home/hospital visits – if a solicitor charges a premium to members of the public for such visits, it is also lawful to charge a disabled person unless they could not otherwise have access to the service as a direct consequence of their disability. If they are wheelchair bound, but the solicitor’s office is accessible, it would seem that a charge can be made for a home visit (unless the home visit is necessary because of the disability). If they are bedridden as a result of their disability, or suffering from a sickness related to or exacerbated by the disability, it would seem that it would not be lawful to charge a premium for a home/hospital visit because it is a reasonable adjustment. But, as mentioned above, the increased time spent might be charged depending on the pricing strategy for the service. If a disabled person is suffering from a sickness that would not otherwise fall within the DDA, for example, a hearing or mobility impaired person who has influenza, it would seem lawful to charge if members of the public would also be charged;
Documents in Braille – if the sight-impaired person has some other disability whereby it is necessary for them to be able to read a document themselves in order to understand it (a highly theoretical example), a charge for providing the documents in Braille will seemingly not be justified. Provided the document can be read and fully explained to a sight-impaired person, it would seem that this is a sufficiently reasonable adjustment; so if a Braille document, such as a will, is requested, a charge for it may be justified;
Dealing with an individual with impairment of cognition that falls under the DDA – if greater time is spent, it would seem that it is reasonable to charge for that time as long as the pricing strategy does not lead to the conclusion that an unjustified surcharge is being levied for a reasonable adjustment; and,
Obtaining the services of a specialist signer for a hearing-impaired client – the SP would be entitled to see if the service could be provided in writing – this would appear to be a reasonable adjustment. If the individual is sight and hearing impaired, it is likely that no charge could be made, other than, arguably, the greater time involved in providing the service because the provision of the specialist signer is a reasonable adjustment.

Helene Pines Richman is a barrister at 9 Stone Buildings, Lincoln’s Inn. She can be contact at hprichman@9stonebuildings.com