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July 2013, Court of Appeal: Court of Appeal judgment (on bailii.org)
County Court judgment (District Judge), pdf, April 2012
The Court of Appeal held that a restaurant did not have to make a reasonable adjustment to allow a disabled family to eat in a picnic area immediately next to the outdoor tables. Whether or not that would be reasonable, it would be a different kind of service. The case was under DDA 1995 rather than Equality Act 2010.
The Court of Appeal held the reasonable adjustment duty did not require a restaurant to allow a family who had a disabled child with challenging behaviour to sit in the picnic area immediately outside the restaurant (owned by the same proprietors).
The Court of Appeal's decision is based on a certain definition of what services a restaurant/bar provides - serving meals and drinks at tables prepared with chairs and eating equipment. The court's reasoning seems much more appropriate to a 'posh' restaurant, with little regard to the nature of the restaurant/pub (and picnic area) in this particular case.
The case is also interesting on what knowledge of a disability the service provider must have. The County Court decision gives a much more nuanced account of this than is apparent from the Court of Appeal judgment. How far does a parent of a disabled child in a restaurant/pub really have to explain the child's disability to the service provider, and justify their own risk assessment of the situation?
The daughter claimed that Flamingo Land should have made a reasonable adjustment, that it should have made an exception to its normal policy of not permitting customers of its bar/restaurant to be served or take their food and drink to its picnic area. The mother had offered to take the food out to the picnic area herself. Other members of the family also had disabilities, but that was not directly relevant at this stage of the case. There is a picture of the picnic area and restaurant on the right.
The District Judge in the County Court upheld the claim and awarded damages. Flamingo Land successfully appealed to Judge Peter Hughes QC, also in the County Court. The claimants now appealed to the Court of Appeal.
The claim failed, because the claimant was asking for a different service, a take-away service. Flamigo Land was providing a restaurant service and there was therefore no policy to be subject to adjusment.
The reasonable adjustment duty under the DDA applied where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of the service. The District Judge below had considered that the service provided by Flamingo Land was "providing meals" and that Flamingo Land had a "policy that these should not be consumed in the picnic area". This was wrong, said the Court of Appeal. An owner or operator of a restaurant/bar was not a mere meal provider; it provided a service which can be best described as "serving meals and drinks at tables prepared with chairs and eating equipment such as glasses and cutlery". This was different from a take-away service.
Flamingo Land was providing a restaurant service. Accordingly there was no 'policy' (of not providing food elsewhere) which could be subject to the reasonable adjustment duty.
Even if that were not so, s.21(6) DDA 1995 would give a defence. That provision (now replaced by a similar provision in Equality Act 2010) says that a provider of services does not have to take any steps which would fundamentally alter the nature of the service in question or the nature of his trade, profession or business.
There was dispute as to whether the family had made the restaurant sufficiently aware of the disability issues they were facing. The Court of Appeal did not feel it had to go into this; it was irrelevant given the court's main decision above. However, the Court of Appeal commented:
20. In these circumstances it would be positively unhelpful to embark on an obiter excursus into the law beyond saying that, before a service provider is required to adapt a policy, common sense requires some form of reason or explanation to be given. What is sufficient in any particular case must depend on the particular facts. In the present case, the judge heard the evidence and decided no explanation was given. Mr Wolfe sought to say that in the light of Ms Skelton's evidence such finding was unsustainable but it was the judge who heard all the evidence and this court could not, in any event, go behind that finding.
The Court of Appeal did not consider in any detail the decision on this of the District Judge in the County Court (pdf of County Court decision). The mother had given evidence that as a family they knew how to manage their daughter, and did their own risk assessment. The mother said:" I do not wish to stand at a bar and justify our family." The view of the District Judge was that the parents' explanation of their conclusion should have been sufficient because carers are usually the best people to know how to handle a situation. If the restaurant manager doubted this he should have tactfully formed his own assessment, perhaps by walking over to the picnic table and viewing for himself this family unit. See further below Level of knowledge of the disability.
It is unfortunate this case was decided on such an unrealistically technical point, namely that the nature of a restaurant service is such that there was no 'policy' that could be adjusted. The Court of Appeal's reasoning seems unpersuasive. The court argues that otherwise the legislation would impose unreasonable duties, eg a sophisticated restaurant might be required to provide a take-away service (para 12 and 13 of the judgment). However, even if it would be 'beyond the pale' for a sophisticated restaurant to do this, the Court of Appeal's argument fails to take into account s.21(6) DDA which says that a reasonable adjustment is not required if it would fundamentally alter the nature of the service.
Later on, after ignoring s.21(6) to establish its main technical point in para 12 and 13, the Court of Appeal does say that s.21(6) would apply here in any event: that the nature of the service would be fundamentally different if the family were allowed to sit just outside. However, this is simply stated by the court. The wording of s.21(6) is not discussed, and s.21(6) says 'fundamentally'. Given that the picnic area was the other side of a low screen (see picture above), and on the same premises, and it seems unrealistic here to say the nature of the restaurant's service would have been 'fundamentally' altered by allowing them to eat in the picnic area.
If this decision stands, one wonders whether s.21(6) DDA (now EqA Sch 2 para 2(7)) and its 'fundamentally' test will be relevant any more, as regards adjustments to a 'policy, criterion or practice'. Will the courts simply take a narrow view of what the 'service' is, and say that anything beyond is not subject to reasonable adjustment? I suggest that this would not respect the will of Parliament, which obviously viewed the s.21(6) test as having a role.
The court sees a restaurant/bar service as being: "serving meals and drinks at tables prepared with chairs and eating equipment such as glasses and cutlery". But this does not reflect the reality of a more informal style of restaurant. Often tables are not set at all - for example in a McDonalds restaurant anything required will be brought to a table by the customer. Or in the food court of a shopping centre, typically a food outlet will hand over food, drinks and cutlery to be taken by the customer to any table in a large communal eating area, though the customer could probably choose eat outside that area as well. In a pub, typically cutlery will either be picked up by the customer or brought to the table by staff some time after the customer has ordered, either with the food or beforehand. The restaurant in the present case (the Coach House) has a 'traditional family pub atmosphere' according to the Flamingo Land website, and the menu includes 'light bites' such as baguettes which may not even need cultery. We don't know whether outdoor (or indoor) tables at this restaurant had pre-prepared place settings (the Court of Appeal definition says "prepared with ... eating equipment such as glasses and cutlery"), but quite likely not since the family evidently had to order their food at the bar. In any event, bearing in the circumstances of the case (family pub atmosphere, picnic area separted by low screen, and all part of Flamingo Land) and the range of services offered by the more informal type of restaurant, it is difficult to see that allowing someone to eat in the picnic area would have significantly altered the nature of the service.
It is possible that under Equality Act 2010 the new duty to provide auxiliary aids may help: see Services to the public: Nature of the service.
Also under the Equality Act 2010 the 'unreasonably difficult' requirement no longer applies. Under EqA s.20(3) (with Sch 2) a service provider has a duty to make a reasonable adjustment where a provision, criterion or practice of the service provider puts a disabled person at a substantial disadvantage in relation to the provision of the service in comparison with persons who are not disabled. 'Substantial' means only 'more than minor or trivial'. See Services to the public).
The problem with the Court of Appeal's decision is that what was reasonable for the restaurant to do was essentially held to be irrelevant, because of the technical difference in type of service.
The restaurant had sought to use health and safety to justify the policy of not allowing customers in the picnic area. The health and safety concerns related to movement of staff in areas where children may be running about, and the dangers to families of glasses being taken into the picnic area where they could be broken. The District Judge had considered this was not sufficient justification in the present case. The meal did not include any glasses, and the family only required the meal to be provided and would carry it to the picnic area themselves. Also there was evidence that the restaurant's policy was not strictly enforced.
Another point: if health and safety was the basis on which the restaurant decided not to allow customers in the picnic area, it highlights that they did not see eating in the picnic area as an essentially different service. The restaurant doubtless knew that some customers would prefer to eat restaurant food in the adjacent picnic area, but had chosen not to allow it.
The DDA, and now the Equality Act 2010, does not say a service provider has a defence to the reasonable adjustment duty if it did not know of the disability. On the other hand employers do have an express defence. The different position for service providers providers is reflected in the Services Code at para 7.22 (which the Court of Appeal did not consider). This says that because the duty on service providers is to disabled people at large, the duty applies regardless of whether the service provider knows that a particular person is disabled (see further Services to the public: Reasonable adjustments: Knowledge of the disability).
The knowledge issue was not relevant to the Court of Appeal decision, because of its conclusion on the nature of the service. Therefore the issue was not really considered by the Court of Appeal. It is understandable that in the present situation the Court of Appeal felt that some requirement to know of the disability should be implied.
However, the courts will need to consider how a knowledge requirement (so far as there is one) fits with the anticipatory nature of the reasonable adjustment duty, as confirmed by the Court of Appeal in 2004 in Roads v Central Trains - and also with the fact that Parliament has seen fit to give an express knowledge defence to employers but not to service providers.
An example of an anticipatory adjustment which may not require knowledge that a particular customer has a disability might be putting up a sign to say that restaurant/bar food and drinks are not allowed in the picnic area. In this case there was no sign.
An important issue in the present case seems to have been the difficulty for the family of moving once they had sat down. The mother said of her daughter: "When sat at a table with family on either side of her she is happy and if we have to move her everything falls apart". Would it have been reasonable for the restaurant to anticipate that some disabled people (with physical or mental disabilities) will find it difficult to move once they have settled at a particular table? If so, putting up a warning sign might well have been a reasonable adjustment, even without knowledge of particular disabled customers.
The courts are likely to say there are other kinds of adjustment where the service provider must have some knowledge of the disability before being liable. An example might be, as here, an adjustment of allowing particular disabled customers to eat in the picnic area, something the restaurant does not allow to customers generally.
This raises issues of what level of knowledge is required. The District Judge in the County Court had accepted that "the special needs of the family were not explained to the manager", but it appears there was evidence (which seems consistent with that finding) that the father had told manager that both he and some of the children were classified as disabled. It sounds like the parents had not described the specific disabilities of the children. The mother gave evidence that as a family they knew how to manage their daughter, and did their own risk assessment. The mother said:" I do not wish to stand at a bar and justify our family." (The mother's evidence was that they were not given the opportunity to explain, though the restaurant doubtless disputed that.) The District Judge's view was that the parents' explanation of their conclusion should have been sufficient because carers are usually the best people to know how to handle a situation. If the restaurant manager doubted this he should have tactfully formed his own assessment, perhaps by walking over to the picnic table and viewing for himself this family unit.
I can well understand how parents may be reluctant to give an explanation of a child's behavioural issues - or perhaps other disabilities - in a public place, at a bar in this case. It is likely there were other customers standing around, who may not have a sympathetic attitude. In any event one doesn't necessarily want to discuss such sensitive issues in public. Also there is the question of whether the parents' risk assessent for their own child really needs to be explained and justified to a service provider. There are serious issues here which were really not addressed by the Court of Appeal.
How far knowledge of the disability is relevant will need to be considered in future cases. More on this: Services to the public: Reasonable adjustments: Knowledge of the disability.
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Last updated: 3rd September, 2013