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Disability Discrimination in the Provision of Goods, Facilities and Services
The DDA prohibits discrimination against a disabled person in the provision of goods, services or facilities. This part was amended by the 2005 Act to expand its scope. The provisions covered in this part include services provided by public authorities as well as those provided by private agencies or individuals, irrespective of whether or not there is a charge for the services concerned.
Examples of the types of activities covered by the provisions include: communications, information services, hotels and boarding houses, financial and insurance services, entertainment facilities, training, employment agencies and the use of any public place. Following the 2005 Act, in specified circumstances, private clubs are also included, as well as actions by the police.
Discrimination
Discrimination in respect of goods and services occurs when a service provider treats you less favourably for a reason which relates to your disability, and the treatment cannot be justified under the provisions of the DDA. The service provider also discriminates if he or she fails to provide you with a reasonable adjustment when required to do so under the DDA and that failure cannot be justified. As such the DDA imposes a proactive and not a reactive duty.
Under the DDA the following discrimination is unlawful to:
Duty to make reasonable adjustments
The duty on the service provider to make reasonable adjustments is quite different from the duty that applies to an employer or prospective employer. Service providers are required to take such steps as are reasonable in the circumstances to amend policies, procedures and practices and to remove or alter physical features, or provide a reasonable means of avoiding them, or provide a reasonable alternative means of delivering the service where a disabled person would otherwise find it impossible or unreasonably difficult to use the service. The service provider is also under a duty to provide auxiliary aids or services wherever these would facilitate the use by disabled persons of such a service.
Importantly, the service provider’s duty to make reasonable adjustments is a duty owed to disabled people at large. This means the duty is owed to any service user that the provider can reasonably anticipate and is not dependent on there having been service users who required the particular adjustments.
Where there are physical barriers to access, the service provider can respond in four specified ways:
There are no provisions in this part of the DDA that set out the factors to be taken into account when determining the reasonableness of making adjustments. However, the Disability Rights Commission (DRC) has produced an updated code of practice, which came into force on 4th December 2006, which service providers will need to be aware of and implement. In relation to the reasonableness of making adjustments the code of practice suggests that the following factors may be relevant:
It is worth noting that nothing in the provisions of the DDA requires a service provider to take any steps that would fundamentally alter the nature of the service, facility or business provided or conducted.
Justification
Justifications for otherwise discriminatory treatment are included in the DDA and they are capable of excusing both a failure to provide a reasonable adjustment and a failure to provide equal treatment. They are as follows:
Private clubs
The ‘private club’ provisions of the DDA apply to any association of persons, whether or not incorporated, if:
The DDA protects disabled applicants or potential applicants for membership, disabled members of the club, disabled associates of the club and disabled guests or potential guests. It is unlawful for a club to discriminate against a potential or existing disabled member, associate, or guest, in certain circumstances.
Discrimination includes failing to provide you with access to a service or facility, treating you less favourably in respect of your membership or admittance or subjecting you to any other detriment. Private clubs are also under a duty to make reasonable adjustments.
Examples of the types of activities covered by the provisions include: communications, information services, hotels and boarding houses, financial and insurance services, entertainment facilities, training, employment agencies and the use of any public place. Following the 2005 Act, in specified circumstances, private clubs are also included, as well as actions by the police.
Discrimination
Discrimination in respect of goods and services occurs when a service provider treats you less favourably for a reason which relates to your disability, and the treatment cannot be justified under the provisions of the DDA. The service provider also discriminates if he or she fails to provide you with a reasonable adjustment when required to do so under the DDA and that failure cannot be justified. As such the DDA imposes a proactive and not a reactive duty.
Under the DDA the following discrimination is unlawful to:
Refuse to provide a service which is provided to, or which the organisation is prepared to provide to, members of the public.
Treat you less favourably in the standard of service or in the manner in which the service is provided.
Provide the service on less favourable terms.However, discrimination will not be unlawful if the employer can show that it is justified (see justification).
Duty to make reasonable adjustments
The duty on the service provider to make reasonable adjustments is quite different from the duty that applies to an employer or prospective employer. Service providers are required to take such steps as are reasonable in the circumstances to amend policies, procedures and practices and to remove or alter physical features, or provide a reasonable means of avoiding them, or provide a reasonable alternative means of delivering the service where a disabled person would otherwise find it impossible or unreasonably difficult to use the service. The service provider is also under a duty to provide auxiliary aids or services wherever these would facilitate the use by disabled persons of such a service.
Importantly, the service provider’s duty to make reasonable adjustments is a duty owed to disabled people at large. This means the duty is owed to any service user that the provider can reasonably anticipate and is not dependent on there having been service users who required the particular adjustments.
Where there are physical barriers to access, the service provider can respond in four specified ways:
• By removing the physical feature concerned.
• By altering the physical feature concerned
• By providing a reasonable means of avoiding the physical barrier.
• By providing a reasonable alternative means of delivering a service.
There are no provisions in this part of the DDA that set out the factors to be taken into account when determining the reasonableness of making adjustments. However, the Disability Rights Commission (DRC) has produced an updated code of practice, which came into force on 4th December 2006, which service providers will need to be aware of and implement. In relation to the reasonableness of making adjustments the code of practice suggests that the following factors may be relevant:
• Whether taking particular steps would be effective in overcoming the difficulty that you face in getting access.
• The extent to which it is practicable for the service provider to take the steps.
• Financial and other costs of making the adjustment.
• The amount of disruption caused by taking the steps.
• Money already spent on making adjustments.
• The availability of financial or other assistance.
It is worth noting that nothing in the provisions of the DDA requires a service provider to take any steps that would fundamentally alter the nature of the service, facility or business provided or conducted.
Justification
Justifications for otherwise discriminatory treatment are included in the DDA and they are capable of excusing both a failure to provide a reasonable adjustment and a failure to provide equal treatment. They are as follows:
• If the less favourable treatment is necessary in order not to endanger the health and safety of any person, including you.
• If you are incapable of giving informed consent or of entering into an enforceable agreement and for that reason the treatment is reasonable in that case.
• Where you have been refused service, this must be necessary because the provider of services would otherwise be unable to provide the service to members of the public.
• Where the less favourable treatment relates to the standard, manner or terms of which a service is provided, this must be necessary in order to provide the service either to you or to other members of the public.
• Where there is a difference in the terms on which the service is provided to you this must reflect the greater cost to the provider of providing the service to you.In order to be able to rely on the defence of justification, the service provider must be able to show that, in his or her opinion, one or more of the above conditions are satisfied and that, in all the circumstances of the case, it is reasonable for him or her to hold that opinion.
Private clubs
The ‘private club’ provisions of the DDA apply to any association of persons, whether or not incorporated, if:
it has 25 or more members;
admission to membership is regulated by its constitution;
the process of membership is conducted in such a way that its members do not constitute a section of the general public; and
it is not a trade organisation.I t does not matter whether the club’s activities are carried out for profit or not.
The DDA protects disabled applicants or potential applicants for membership, disabled members of the club, disabled associates of the club and disabled guests or potential guests. It is unlawful for a club to discriminate against a potential or existing disabled member, associate, or guest, in certain circumstances.
Discrimination includes failing to provide you with access to a service or facility, treating you less favourably in respect of your membership or admittance or subjecting you to any other detriment. Private clubs are also under a duty to make reasonable adjustments.
