DDA: service providers' duty to make reasonable adjustments

This article was written by Jenny White, Legal adviser to the Electricity Association and a member of the National Disability Council.

The goods and services provisions under Part III of the Disability Discrimination Act 1995 (DDA) have attracted little attention so far. That is now set to change. Service providers have new duties to make reasonable adjustments for disabled people in the way they provide their services. Virtually every organisation that has dealings with the public is affected. Compliance will hinge on the ability of staff to fulfil their responsibilities and employers have a crucial role to play in ensuring that they are properly equipped to cope. Jenny White1explains the legal requirements and the practical implications for employers.

Part III of the DDA is being implemented in three stages. Since 2 December 1996 it has been unlawful for service providers to treat disabled people less favourably for a disability-related reason. The first phase of the duty to make reasonable adjustments was brought into effect on 1 October 1999 and the duty will be fully in force from 2004. (Part III also outlaws discrimination against disabled people by landlords and property managers in relation to the sale, letting or management of premises, but there is no equivalent duty of adjustment in respect of premises.)

New Regulations2 and a revised Code of Practice3 explain the new requirements (a similar but separate Code applies to Northern Ireland). The Code gives practical guidance on how to prevent discrimination. It does not impose legal obligations nor is it an authoritative statement of the law. But it can be used in proceedings under the DDA and any provision which appears to the court to be relevant must be taken into account.

1 Legal adviser to the Electricity Association and a member of the National Disability Council.

2 The Disability Discrimination (Services and Premises) Regulations 1999 (SI 1999 No.1191)

3 "Code of Practice: Rights of access - goods, facilities, services and premises", available from the Stationery Office, price £12.95. Also available in alternative formats or via the internet (http://www.disability.gov.uk ).

Who is a service provider?

A service provider is anyone who provides services in the UK to the public or a section of the public, whether in the private, public or voluntary sector. Services include goods and facilities. It makes no difference if there is a charge or the services are free. The form of the service provider is not important. It could be an organisation or an individual. Everyone involved in providing the services is affected, at whatever level and in whatever capacity - contractors and agents, for example, as well as employees.

Who the service provider is will not always be clear-cut where premises or facilities are shared. For example, if a bank provides a cash machine facility inside a supermarket, the bank is the service provider in respect of the cash machine. The supermarket, however, is responsible for ensuring that the machine is physically accessible to disabled customers on its premises.

What services are covered?

Services cover virtually every aspect of society including, for example, communication, information services, financial and insurance services, recreational facilities, the services of any trade, profession or public authority, and use of public places (s.19(3)). The only named exclusions are education, and certain closely related services (but ancillary services, such as college welfare services, are covered) and the use of transport (but the transport infrastructure is covered, for example the buffet service at a railway station). Private clubs are also outside the ambit of Part III unless they make their services available to the public, for instance hiring out their premises for receptions. Manufacturers and designers are similarly excluded unless their services are provided direct to the public, such as a manufacturer's mail order service. Additionally, services provided under statutory authority, such as local authority planning decisions, are not services for the purposes of the Act.

Who has rights?

The protection afforded by Part III extends to anyone who is a disabled person as defined under Part I of the DDA (ie a person with "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities"). It is not certain, in the light of O'Neill v Symm & Co Ltd [1998] IRLR 233, how far knowledge of the disability is required in respect of the duties relating to services which are very different from the employment duties. There are training implications for employers on this issue (discussed later).

What is unlawful?

Section 19(1) makes it unlawful for a service provider to discriminate against a disabled person:

  • by refusing to provide, or deliberately not providing, any service which it offers to members of the public; or

  • in the standard or manner of service which it provides; or

  • in the terms on which it provides a service (s.19(1)(a)(c) and (d)).

    It is also unlawful for a service provider to discriminate in:

  • failing to comply with a duty to make reasonable adjustments under s.21 if that failure has the effect of making it impossible or unreasonably difficult for the disabled person to make use of any such service (s.19(1)(b)).

    What is discrimination?

    There are two ways in which a service provider discriminates against a disabled person:

  • it treats the disabled person less favourably, for a disability-related reason, than it treats, or would treat, others to whom that reason does not or would not apply, and it cannot show that the treatment is justified (s.20(1)); or

  • it fails to comply with a s.21 duty imposed on it in relation to the disabled person, and it cannot show that the failure is justified (s.20(2)).

    The duty on service providers not to treat a disabled person less favourably for a disability-related reason is comparable to the duty on employers. Case-law on the meaning of discrimination for the purposes of Part II (for example Clark v Novacold [1999] IRLR 318, discussed in EOR 85) is also instructive in the interpretation of s.20(1). The service provider's duty to make reasonable adjustments, however, is significantly different from the corresponding duty on employers. There is no equivalent to s.19(1)(b) in the employment provisions. Its relationship with ss.20(2) and 21 gives rise to certain complexities.

    Duty to make reasonable adjustments

    The duty to make reasonable adjustments is a fundamental part of the Act. It requires service providers to take positive steps to make their services accessible to disabled people. It goes some way to taking the place of an explicit prohibition of indirect discrimination.

    There are three separate strands to the duty. A service provider has to take reasonable steps to:

  • change a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled people to make use of services;

  • provide a reasonable alternative method of making services available to disabled people where a physical feature makes it impossible or unreasonably difficult for disabled people to make use of them;

  • provide an auxiliary aid or service if it would enable (or make it easier for) disabled people to make use of services.

    The requirement to provide a reasonable alternative method is only one part of the duty relating to physical features. The other parts, requiring a service provider to remove, alter or avoid the physical feature, will come into force in 2004.

    Concepts of the duty

    Four key principles underlie the duty to make adjustments. Firstly, it is a duty to disabled people at large. It is not simply a requirement that the service provider weighs up in relation to each disabled person who wants to access its services (see para. 4.7 of the Code). The service provider has to consider the accessibility of its services for disabled people generally. This is in stark contrast to the corresponding duty on employers, which is owed to individual disabled persons. Secondly, the duty has an anticipatory element. The Government's intention was to encourage service providers to take action which would promote wider, systemic change. The duty requires service providers to plan ahead to meet the needs of disabled people, whether or not they already have disabled customers. (It may, for example, be appropriate to ask customers to identify their requirements: see para. 4.8 of the Code). Thirdly, it is a continuing and evolving duty which service providers need to keep constantly under review in the light of their experience and changing circumstances, for example technological developments offering new solutions (see para. 4.9 of the Code). Finally, although it is a duty at large, it is designed to give rights of recourse to individuals.

    What triggers the duty?

    The duties set out in s.21 are triggered at different levels.

    The duties relating to practices, policies and procedures and physical features are both concerned with removing existing barriers to access. They arise where the practice, policy or procedure, or the physical feature, makes it impossible or unreasonably difficult for disabled people to make use of the services (compare "substantial disadvantage" to trigger the employer's duty of adjustment). The duty to provide auxiliary aids and services relates to additional things that could be done to help access. The duty arises where the aid or service would enable … or … facilitate disabled people to make use of the services. It is framed in more positive terms which could be loosely translated as "if you could, you should".

    Practices, policies and procedures

    How a service provider goes about its business may, even unwittingly, make it impossible or unreasonably difficult for disabled people to access its services. This may be evidenced in its policies (what it intends to do), its procedures (how it plans to go about it), or its practices (what it actually does), which may be formal, informal or established by custom. In such a case, the service provider must take reasonable steps to change the relevant practice, policy or procedure so that it no longer has the restrictive effect (s.21(1)). This may mean instructing staff to waive the policy in certain cases, amending the policy, or abandoning it altogether.

    For example, a restaurant insisting on a collar and tie for male diners effectively excludes customers with skin complaints who are unable to wear a tie; a video shop requiring a driving licence as proof of identify for membership bars some disabled people who are unable to obtain a driving licence; a superstore banning dogs from its premises thereby excludes disabled people accompanied by a guide dog. It would be reasonable for the restaurant to waive its policy for customers with such a complaint; for the video shop to change its practice by accepting other forms of identification; and for the superstore to allow exceptions for disabled customers with a guide dog.

    What might initially be a reasonable adjustment might not be sufficient later in the light of the service provider's experience. The Code gives the following example (at para. 5.7):

    "A shopping centre amends its car-parking policy by designating spaces only for "orange badge" holders - a reasonable step at this stage. However, the centre subsequently learns that non-disabled customers frequently use the spaces. Having designated the spaces is no longer a reasonable adjustment because it is not effective. The centre arranges for use of the car-park to be monitored to ensure that the designated spaces are used only by disabled customers. That is a reasonable (further) step in the circumstances then known to the centre."

    In considering the effect of its practices, the service provider should have in mind any facilities which are ancillary to its services. The Code includes an example (at para. 5.8) of a town hall which modifies its procedures for the evacuation of the building. The emergency procedures are part of the way the town hall provides services to its visitors.

    Physical features - alternative method of service

    Where a "physical feature" makes it impossible or unreasonably difficult for disabled people to access services, the service provider must take reasonable steps to provide a reasonable alternative method of making the services available: (s.21(2)(d)). Physical features are defined by the Regulations in broad terms which closely follow the definition in Part II (see box 2). This allows the duty to be triggered in a wide range of circumstances.

    As mentioned earlier, this is the only part of the duty relating to physical features to have come into effect. When the remaining parts of the duty are implemented in 2004, a service provider will have to consider other ways of overcoming a physical feature: removing it, altering it or providing a reasonable means of avoiding it. It may be sensible to make such changes earlier if the opportunity arises.

    "A government department runs a public inquiry point from the third floor of a building which is reached by a flight of stairs. The stairs are a physical feature which makes it impossible or unreasonably difficult for some disabled people to access the service. A reasonable alternative method of providing the service might be the provision of an auxiliary service such as a telephone inquiry line. When the remaining duties are introduced in 2004, it might be reasonable to install a lift or move the inquiry point to the ground floor. The department is not required to consider such changes now but it may be more cost-effective to do so as part of a refurbishment programme."

    Auxiliary aids and services

    If an auxiliary aid or service would enable disabled people to access services or make it easier for them to do so, the service provider must take reasonable steps to provide it (s.21(4)). The Act gives two examples: information on audio tape and sign language interpreters, but an auxiliary aid or service is not limited to communication. It could be a special piece of equipment or extra help for disabled people, for example a temporary ramp to the raised entrance of a building; assistance in a supermarket to locate items for a visually impaired customer; or a plain language version of a guide for people with learning disabilities. The range is endless: as one commentator has observed, the possibilities are limited only by the limit of one's imagination.

    What is appropriate depends on the circumstances. For example, it might be reasonable for a small doctors' practice to use a pad and pencil to communicate with patients with hearing impairments but a large hospital might be expected to go further and use a sign language interpreter in certain situations. Until 2004 service providers do not have to do anything that would permanently alter the physical features or fabric of its premises but it may be more effective and economical to do so.

    The Code contains particular advice on the provision of auxiliary aids and services for people with sensory impairments or speech impairments or learning disabilities. More than one auxiliary aid or service may be necessary to meet different communication requirements. For instance, the booking office of a large railway station might reasonably install a temporary induction loop and a textphone; a local council might make its tax rates available in large print or alternative media or offer verbal explanations. There are significant training issues associated with auxiliary aids and services (discussed later).

    What is "unreasonably difficult"?

    The DDA does not define what is meant by "unreasonably difficult". The Code suggests that service providers should take account of "whether the time, inconvenience, effort or discomfort entailed in using the service would be considered unreasonable by other people if they had to endure similar difficulties" (see para. 4.17).

    "Customers in a busy post office are served by staff at a counter after queuing in line. A disabled customer with severe arthritis wishes to purchase a TV licence. He experiences great pain if he has to stand for more than a couple of minutes. Other customers would not expect to have to undergo similar discomfort in order to buy a TV licence. Thus, the post office's queuing policy makes it unreasonably difficult for the disabled person to use the service."

    Reasonableness

    Adjustments are not required if they are not reasonable. The Government has power to cap service providers' expenditure on adjustments (s.21(7)) but does not propose to use it on the basis that the requirement of reasonableness is an adequate constraint.

    The service provider's duty under s.21 is to take "such steps as it is reasonable, in all the circumstances of the case, for him to have to take" to make the appropriate adjustment. The section does not spell out examples of "steps" as the employment provisions do. The classification of the section into three separate duties and the further division of s.21(2) into four parts effectively achieve the same purpose.

    Relevant factors

    Section 21 does not specify that any particular factors should be taken into account when considering what is reasonable. What is a reasonable step for a particular service provider will depend on all the circumstances of the case including the type of services provided, the nature and size of the service provider and the effect of a particular disability. However, the Code lists some of the factors which might be taken into account (para. 4.11), while stressing that they are not exhaustive:

  • the effectiveness of any particular steps in overcoming the difficulty;

  • the extent to which it is practicable for the service provider to take the steps;

  • the financial and other costs of making the adjustment;

  • the extent of any disruption caused by taking the steps;

  • the extent of the service provider's financial and other resources;

  • the amount of any resources already spent on making adjustments;

  • the availability of financial or other assistance.

    The factors closely resemble those that are set out in the employment provisions. The Disability Rights Task Force (DRTF) is likely to recommend that the factors in the Code should be specified in the DDA to accord them more weight in the eyes of the courts. The Code provides a number of examples of what would or would not be considered reasonable. Thus, in the post office example it might be reasonable to ask the customer to take a seat and then serve him as if he had queued, or provide a separate service desk with seating for disabled customers. It would probably be unreasonable, however, to expect the post office to send a member of staff to the disabled customer's home to sell him the TV licence. The size of the service provider, the practicability of the adjustments and staff time and cost all come into the reckoning.

    A service provider with substantial financial resources would generally be expected to be able to do more than a service provider with fewer means at its disposal. Where the service provider's resources are spread across more than one business unit or profit centre, the calls on all of them are likely to be taken into account in assessing reasonableness (see para. 4.12 of the Code). This is consistent with the advice given in the Employment Code of Practice (EOR 69). But, as the post office example shows, the other resources of the service provider are also relevant. Thus, what might be reasonable for a large service provider might not be reasonable for a small service provider - or not reasonable for it to do routinely (it might be reasonable in a limited range of circumstances).

    Fundamental nature of the service

    A service provider is not required to do anything which would fundamentally alter the nature of its service or business (s.21(6)). Thus, a nightclub with low-level lighting is not required to adjust the lighting to accommodate customers who are partially sighted if this would fundamentally change the atmosphere or ambience of the club.

    Justification

    It is clearly in the service provider's interests - on economic grounds alone - to ensure that its services are fully accessible to everyone who wants to use them. However, in limited circumstances, less favourable treatment or a failure to make reasonable adjustments can be justified. The relevant provisions (s.20(3), (4) and (9)) are totally different from the justification provisions relating to employers.

    Instead of the generic formula in Part II (a material and substantial reason) there are five potential but tightly drawn grounds of justification, depending on the nature of the discrimination (see box 3). The treatment or failure is justified only if in the service provider's opinion it falls within one of those grounds and it is reasonable in all the circumstances of the case for the service provider to hold that opinion. This is less rigorous than the objective test in Part II. The Government defended the difference on the basis that "service providers often have to take very quick and perhaps less informed decisions when serving someone" and pointed out that "the proper degree of objectivity is imposed because the opinion must be shown to be reasonably held" (Hansard, vol. 566, col. 119, Lord Henley).

    The test is therefore both subjective and objective: what did the service provider believe, and was that belief reasonably held? What matters is not whether the service provider was right (it may be mistaken) but whether it was reasonable to hold the view that it took at the time of the alleged discrimination.

    A service provider is not expected to be an expert on disability but it should take account of all the circumstances, including the information available to it, the possibility of taking advice, and whether the disabled person was asked for his/her opinion (see para. 6.7 of the Code).

    The effect of the justification provisions (in the context of the letting of premises) was recently considered on appeal in a Scottish case, Rose v Bouchet (EOR 87). The Sheriff Principal upheld a finding that a landlord was justified in refusing to let his premises to a blind person with a guide dog on the basis that, in the landlord's opinion, the refusal was necessary in order not to endanger the disabled person's safety (there was no handrail on the steps to the premises) and that was a reasonable opinion for the landlord to reach.

    While confirming the subjective nature of the first part of the test, the Sheriff Principal added that it is not enough for a defender merely to say that in his opinion it was necessary to act as he did. His evidence must stand up in court and not be a fabrication concocted after the event. The second part of the test requires "an objective assessment of all the relevant circumstances". One of the issues was the extent to which the landlord was obliged to make inquiries (the Code of Practice then in force was not as explicit on the point as the new Code). The Sheriff Principal held that the need for further enquiry depends on the circumstances of a particular case, and on the facts before him the landlord could not be criticised for not obtaining more information. The implications of Rose v Bouchet are discussed in EOR 87.

    There is no express equivalent, in s.20, to the requirement on employers to consider whether a reasonable adjustment can be made before seeking to justify less favourable treatment but the Code specifically suggests a similar approach. Before justifying either less favourable treatment or a failure to make adjustments, a service provider should consider whether a reasonable adjustment could be made

    The introduction of the duty of adjustment will therefore make it more difficult for service providers to be able to justify less favourable treatment in future. The Code has an example (at para. 6.14) of a building society that refuses an application for a mortgage from a person with senile dementia because he does not understand the nature of the legal obligations involved. On the face of it, this would be justifiable under s.20(4)(b) (incapacity to contract). However, para. 6.16 of the Code suggests that in such a case it may not be justified if a plain English contract would resolve the disabled person's difficulty.

    It is not entirely clear how justification will operate in the context of a failure to make reasonable adjustments. Justification by reference to health or safety or incapacity to contract is much more difficult to envisage in relation to the duty of adjustment. It is worth noting that the DRTF is likely to recommend that justification for failure to make reasonable adjustments should be removed.

    Additional costs

    The circumstances in which a service provider may charge a disabled person more for the provision of a service is an area of potential difficulty. A service provider is allowed to pass on to a disabled person the additional costs that arise out of providing him or her with a tailor-made service. That is regarded as justifying provision of a service on less favourable terms: s.20(4)(e). The Code gives the example (at para. 6.23) of a furniture shop charging more for an orthopaedic bed, made to the disabled customer's specification, than it does for a standard bed.

    What is not permitted is to pass on to a disabled person (or disabled people) the extra costs that arise from the service provider's compliance with its statutory duty to make adjustments: s.20(5). The Code gives the example (at para. 6.24) of a guest-house which installs an audio-visual fire alarm in one of its rooms for visitors with a sensory impairment. The guest-house cannot legitimately charge more for this room (if it is otherwise identical to the other rooms) since it installed the fire alarm under its duty of adjustment. The costs of a reasonable adjustment may, of course, be passed on to the service provider's customers in general as part of its overheads.

    Effects of other legislation

    A service provider is not required to do anything under the DDA which would be unlawful under other legislation (s.59). However, it must still consider whether there are alternative steps it could take which would not breach any legislation. Case law under a comparable provision in the Race Relations Act 1976 suggests that s.59 would only apply to actions taken in "the necessary performance of an express obligation" in an Act and not, for example, under a discretionary power: Hampson v Department of Education and Science [1990] IRLR 302.

    Effect of failure to make adjustments

    Although the duty to make reasonable adjustments is a duty to disabled people at large, the intention is that it should be enforceable by individuals. On the face of it, this presents a paradox. The Code summarises (at para. 4.18) what happens if the duty to make reasonable adjustments is not complied with:

    "A disabled person is able to make a claim against a service provider if:

  • the service provider fails to do what is required; and

  • that failure makes it impossible or unreasonably difficult for that disabled person to access any services provided by the service provider to the public; and

  • the service provider cannot show that such a failure is justified."

    An analysis of what lies behind this statement reveals the intricacies of the legislation.

    To found a claim for unlawful discrimination, a disabled person first has to show that the service provider is in breach of one of the duties set out in s.21. The disabled person must demonstrate that the relevant duty arose in the first place. He or she has to show either that it was impossible or unreasonably difficult for disabled people generally (and not just the individual) to access the services in question or that use of the services could have been made easier for disabled people. Breach of the duty, therefore, is judged by reference to what it was reasonable for the service provider to do for its disabled users as a whole.

    The absence of any adjustment for the individual does not necessarily mean that the service provider has failed in its duty. It is conceivable that the particular requirements of the individual were not within the range of adjustments that the service provider could reasonably have made at the relevant time (although, as it is a continuing duty, what was then not reasonable might subsequently become reasonable).

    If the disabled person can establish that the service provider has failed in its duty at large, s.19(1)(b) then requires the disabled person to show that the effect of that failure is to make it impossible or unreasonably difficult for him (or her) to access the services in question - the same phrase that occurs in two of the duties under s.21. For the purposes of s.19(1)(b), however, the test is by reference to the individual rather than disabled people at large. Effectively, the disabled claimant has to be able to show that because the service provider was in breach of its broad-based duty, the claimant was unable to access the services. The burden then shifts to the service provider to justify the failure in relation to the individual. If it is unable to do that, the individual's claim will succeed. 

    While these complexities will be of little practical concern to service providers who stay on the right side of the law, they do underline the singular nature of the duty in comparison with the corresponding duty on employers. The DRTF is likely to propose that future civil rights legislation should express the duty in clearer terms.

    Enforcement

    The last thing that service providers will want is to be faced with a claim of unlawful discrimination. A claim would involve civil proceedings in the county court or the sheriff court in Scotland (s.25 and Sch. 3 Part II) and the imposition of legal sanctions if the disabled person is successful. The accompanying publicity would be very bad news for the service provider.

    The usual remedy is compensation for financial loss but the court can also award damages for injury to feelings. While most cases are likely to fall into the small claims jurisdiction, limited to £5,000, there is presently no limit for damages for injury to feelings. (The Government has not exercised its power to prescribe a maximum.) This could be costly for the service provider, which may also have to pay the claimant's legal costs. The court can additionally grant an injunction (in Scotland, an interdict) requiring the service provider either to do something or stop repeating the discrimination, or it can make a declaration confirming the parties' rights.

    The Code therefore encourages parties to resolve a complaint even if a formal claim has been made (see para. 9.14). The Disability Rights Advice Service (DARAS) provides free advice to agencies advising disabled people or businesses. It also has access to an independent conciliation service. (The six-month period for bringing proceedings is extended to eight months if DARAS is involved.) When the Disability Rights Commission is up and running it will assume responsibility for these arrangements among its other functions.

    Implications for employers

    The new duties have significant legal and training implications for employers. Nearly all service providers will be employers. As such, they are responsible for the acts of their employees in the course of their employment, whether or not done with their knowledge or approval. If an employee of a service provider unlawfully discriminates against a disabled person the service provider will be liable unless it can show that it took reasonably practicable steps to prevent the discrimination (s.58). A service provider is responsible for the acts of its agents if done with the service provider's express or implied authority. The employee or agent in question will also be legally liable because it is treated as having knowingly aided the service provider to commit the unlawful act (s.57).

    Employers will also have a crucial role to play in establishing, disseminating and monitoring disability policies, in training their employees (and agents) on the requirements of the DDA and in advising on good practice. HR personnel (and employment lawyers) will inevitably be involved in such matters. In any event they are likely to be called on for advice on Part III in default of a natural "home" for the services provisions.

    Good practice

    The Code specifically seeks to encourage good practice and devotes a chapter to general guidance which is of particular relevance to employers. Sectoral guidance drawn up for banks4 and local authorities5 contain a wealth of practical information, some of which is reflected in the following paragraphs.

    4 "Implementing Part III of the DDA: BBA guidance on banks' responsibilities to their disabled customers from October 1999", published by the British Bankers Association.

    5 "Open to the public? Reasonable adjustment to local government services", published by the Employers Organisation and the Improvement and Development Agency.

    Essentially, the duty of adjustment requires a service provider to adopt a proactive approach. The Code recognises that it will not be possible to anticipate every difficulty that might be encountered or every measure that could be put in place but if the service provider adopts good practice it is unlikely to be in breach of its duty. The Code suggests a number of steps service providers should consider taking to comply with their duties generally:

  • establishing a positive policy to ensure inclusion of disabled people in the provision of services;

  • communicating and explaining the policy to staff and monitoring its effectiveness;

  • training staff to understand their legal obligations and the duty of adjustment;

  • training staff in disability awareness and disability etiquette;

  • dealing with discriminatory acts under disciplinary rules;

  • consulting with disabled customers and staff and disability organisations;

  • having an accessible customer complaints procedure;

  • regularly reviewing the accessibility of their services to disabled people.

    If these steps are followed it will be helpful in demonstrating that the service provider has taken reasonably practicable steps to prevent unlawful discrimination should a claim be brought on the basis of an employee's discriminatory act.

    Policy review

    Service providers need to review their existing policies to identify barriers to access. They should not assume that there are no problems simply because they are unaware of any. The review should extend to third-party contracts to ensure that contractors also comply with DDA requirements.

    The service provider should adopt a clear non-discriminatory policy, endorsed from the top and communicated to all staff. Some organisations may prefer one policy covering both employment and the provision of services. The policy should be incorporated or referred to in third-party contracts.

    Approach to the duty

    The need for consultation permeates the Code. Service providers are encouraged to talk to disabled customers and disabled staff, and to draw on the expertise of disability organisations to identify barriers to access and possible solutions. The message "If in doubt ask; don't make assumptions" should form a central part of staff training. Something relatively simple may be suggested which is just as effective as a more sophisticated measure, for example, allowing more time to deal with a disabled user, rearranging the furniture in a public area or providing clearer signs. Consultation should be as broad as possible to widen the impact of any changes made.

    A complaints procedure identifying areas of discrimination may help to resolve a problem before a claim is made. It is important to ensure that disabled people can access the procedure For example, requiring complaints to be in writing may prevent some disabled people from using it. Mystery shopping - where a team of people with a range of impairments test the service provider's services - is another way of monitoring their accessibility.

    When implementing good practice, the adoption of a strategic approach is essential to ensure consistency across the service provider's organisation. For example, if several departments are involved in the provision of information, a uniform policy should be applied to the availability of alternative formats and the timetable for meeting requests.

    Guidance on adjustments

    The Code suggests a number of steps specifically geared to the duty of adjustments:

  • auditing physical and non-physical barriers to access for disabled people;

  • making adjustments and putting them in place;

  • giving staff relevant training on adjustments;

  • drawing adjustments to the attention of disabled people;

  • letting disabled people know how to request assistance;

  • regularly reviewing the effectiveness of adjustments.

    Clear guidance will be needed on a number of issues relevant to reasonable adjustments, such as: who has responsibility for responding to requests; who has authority to refuse a request; what budgetary provision exists; whom staff can contact for advice on adjustments; who is responsible for arranging auxiliary services such as interpreters; who has responsibility for keeping data on equipment and best practice; who has responsibility for recording adjustments made; whether there is a central system for monitoring adjustments.

    Drawing adjustments to the attention of disabled people has a particular significance in relation to auxiliary aids and services. There are various possibilities, for example: notices at the entrance to the premises or at the reception desk; internationally recognised disability signage; references in publicity material; and public address announcements.

    Staff training

    The service provider will stand or fall by the conduct of its employees. Staff on the front line - those with direct contact with the public - will be in a vulnerable position. They may have to make quick judgments in difficult situations where communication is itself a problem. Staff training is a key priority, backed by clear policies and detailed procedures.

    In many cases it will not be clear to staff whether a person is disabled, for example where the customer has a hidden impairment such as a mental health condition or a learning disability. The better approach for staff is not to be too concerned whether someone comes within the DDA definition of a disabled person but to focus on the requirements to make services accessible to everyone who wants to use them. Similarly, staff will not necessarily know whether the service provider's duties extend to a particular disabled person. Again, the safest course is to assume that the customer is entitled to protection. For example, if a bank provides statements in Braille for its personal customers who are visually impaired, it would be good practice to offer them also to a visually impaired person representing a corporate client.

    Staff training needs to cover a number of matters, including:

  • disability awareness and disability etiquette;

  • legal responsibilities of the service provider and employees;

  • understanding the duty of adjustment;

  • understanding the service provider's policy;

  • communicating with people with hearing or speech impairments

  • recognising who needs assistance;

  • understanding how to respond to requests;

  • knowing how to provide auxiliary aids and services;

  • knowing how to use auxiliary aids and services;

  • maintaining and servicing auxiliary aids;

  • alternative ways of providing the service.

    Disability awareness and etiquette training is more effective if provided by disabled trainers in conjunction with the service provider's training department. Front-line staff are the first priority but appropriate training should be developed for different levels of the organisation.

    Conclusion

    The new duties will have far-reaching effects on the way that organisations deliver their services to disabled people, particularly in the area of auxiliary aids and services to improve communication. While it is difficult to predict how likely it is that actions will be pursued through the courts, no sensible service provider will willingly risk attracting a claim and will want to comply not only with the letter, but the spirit, of the law.

    With an estimated 8.6 million disabled people in Great Britain, a huge pool of untapped custom is there for the asking and that is not counting other people who would benefit from adjustments. Having accessible services also enhances the public image of a business. The real challenge is still to come in 2004. It makes sound economic sense to anticipate the final duties by building in adjustments in a rolling programme of improvements when refurbishment or building works allow.

    1999 represents an important staging post in the gradual implementation of Part III. Educating staff to understand their legal requirements and the role of good practice is a priority which employers ignore at their peril.

    Box 2: What is a "physical feature"?

    Physical features are defined in the Regulations. They include anything on the premises occupied by the service provider arising from a building's design or construction; the approach to, exit from, or access to such a building; fixtures, fittings, furnishings, furniture, equipment or materials (whether on those premises or on any other premises used for the provision of the services); and any other physical element or quality of land in the premises. All these are covered, whether temporary or permanent.

    Box 3: Grounds of justification

    Health or safety

    The treatment or failure was necessary in order not to endanger health or safety, including that of the disabled person.

    Incapacity to contract

    The treatment or failure was reasonable because the disabled person was incapable of entering into an enforceable agreement or giving informed consent. (This cannot be relied on where another person is legally acting on behalf of the disabled person.)

    Otherwise unable to provide the service to the public

    The treatment was necessary because the service provider would otherwise be unable to provide the service to the public (applies only to refusal or non-provision of service).

    To enable service to be provided to disabled person or others

    The treatment was necessary to enable the service provider to provide the service to the disabled person or other members of the public (applies only to less favourable standard, manner or terms of service).

    Additional costs

    The difference in the terms on which the service was provided reflects the additional cost of meeting the disabled person's specification (applies only to less favourable terms of service).