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Services: Reasonable adjustments

This page deals with the reasonable adjustment duty for service providers and public authorities under Equality Act 2010. The duty is rather counter-intuitive in that you don't necessarily focus on the needs of the particular disabled person. A less technical page on service providers is the introductory outline.

Summary

'Anticipatory' duty

There are two types of reasonable adjustment duty:

This page deals with the duty on service providers, which is the 'anticipatory duty'. This type of duty also applies to public authorities performing functions, such as the police arresting someone, and to some other organisations: see below Which type of duty applies?.

For the anticipatory duty, the court decides whether the service provider etc is obliged to make adjustments by considering people generally who have that particular kind of disability, eg wheelchair users. Is that group of people put at a substantial disadvantage (ie a disadvantage that is more than minor or trivial), and is it reasonable to take steps to avoid the disadvantage to that group? Legally, the question is not whether it is reasonable to make a particular adjustment for that individual, as would be the case in deciding whether an employer should make an adjustment. However at least in a claim against somone providing goods and services (as opposed to public functions), to have a claim the person must also themself have been subject to a detriment. See below Applying the group test.

It may be a provision criterion or practice (PCP) which puts the group at disadvantage, or that group may be at a disadvantage unless an auxiliary aid or service is provided. Or - not so relevant for stammering - the barriers requiring adjustment may be physical, such as steps up to the entrance of a building. See below Three aspects to the duty: PCPs, auxiliary services, and physical barriers.

Particular points

Advantages and disadvantages of being 'anticipatory'

Because the reasonable adjustment duty is 'anticipatory', organisations should consider possible adjustments for different kinds of disability in advance of a particular disabled person presenting themself. This can mean the duty is wider than if it only required ad hoc adjustments.

On the other hand, it is not clear whether there is less of any obligation on service providers (compared with employers) to adapt adjustments to the needs of a particular individual on an ad hoc basis.

See below Pluses and minuses? - implications of being 'anticipatory'.

Not a minimalist approach

The policy of the legislation is not to say that 'just about accessible' is OK, but rather to provide access as close as possible to that enjoyed by non-disabled people. See Access to service should be as close as possible to that enjoyed by others.

Examples

Possible examples of a breach of this reasonable adjustment duty in relation to stammering include:

A bank's practice is that certain issues should be resolved over the telephone. Some disabled customers, including some people who stammer, will find it difficult to sort out an issue in this way. The reasonable adjustment duty may require the bank to allow disabled customers who find phone calls difficult to use an accessible alternative, such as discussing the issue face-to-face or in writing, perhaps through a secure online chat facility.
See a similar example (link to consumeractiongroup.co.uk).

An example of a settlement on deafness:

A patient who has a hearing impairment with a loss of 40% hearing in both ears, found attending a hospital appointment to be a daunting experience at which she was alone and had difficulty understanding what she was being told. She had requested that a friend be allowed to attend her hospital appointment with her on two occasions, to ensure she could understand everything that her doctor said. These requests which would not have cost any money to implement, were refused. Without the support requested, she had real difficultly hearing and understanding what the doctor told her and was extremely upset. hospical agreed to pay her £2500. (29/7/15)
www.equalityni.org/Footer-Links/News/Individuals/Two-claimants-with-hearing-loss-settle-cases-again
Note: Similarly a person who stammers may find the presence of a friend helpful (or indeed necessary) to communicate.

As regards different areas where the duty can apply, there are Examples of cases at the bottom of this page. It is worth remembering that the reasonable adjustment duty also extends to public authorities, even when performing legal functions, eg the police arresting someone or searching a house, or the system for claiming social security benefits. Some brief case examples:

  • ZH v The Commissioner of Police for the Metropolis, Court of Appeal, February 2013 - the police had failed to make reasonable adjustments where an autistic boy, when approached by them, had jumped into a swimming pool. The police had restrained him and put him in the cage at the back of a police van.
  • Finnigan v Northumbria Police, October 2013, Court of Appeal - reasonable adjustments should be made to enable effective communication with deaf people who are subjected to a search warrant (or in other situations).
  • MM & DM v Secretary of State for Work and Pensions, December 2013, Court of Appeal - mental health patients claiming Employment and Support Allowance (ESA) argued that the government is failing to make reasonable adjustments by not asking for further medical evidence.

Access to service should be as close as possible to that enjoyed by others

The policy of the legislation is not to say that 'just about accessible' is OK. The idea is provide access as close as reasonably possible to that enjoyed by non-disabled people.

Services Code, paragraph 7.4
The policy of the Act is not a minimalist policy of simply ensuring that some access is available to disabled people; it is, so far as is reasonably practicable, to approximate the access enjoyed by disabled people to that enjoyed by the rest of the public. The purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large (and their equivalents in relation to associations or the exercise of public functions).
This statement in the Code comes from the Court of Appeal decision in Roads v Central Trains:

Roads v Central Trains, 2004, Court of Appeal.
A wheelchair user could not get from one platform of a station to the other. He argued a taxi would be a reasonable adjustment. The rail company said he could travel to another station, cross the tracks there and come back, adding about an hour to the journey time. His claim for the reasonable adjustment succeeded. The Court of Appeal confirmed that the reasonable adjustment duty is anticipatory, and said the policy is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public. It was not necessarily enough that some alternative was available. If there was a better solution available, it may be reasonable for the service provider to provide the better solution.

Royal Bank of Scotland v Allen, 2009, Court of Appeal
The Court of Appeal found a bank to be in breach of the reasonable adjustment duty, because its main branch in Sheffield was not accessible to wheelchair users. Even if banking services could be accessed in alternative ways, such as over the internet, the policy of the DDA was to provide a service as close as reasonably possible to that available to people generally, which included physical access to branches.

Para 7.3 of the Services Code says it is likely to be rare for there to be genuinely no steps that it would be reasonable for a service provider to take to make its services accessible.

'Anticipatory' duty versus individual duty

There are two types of reasonable adjustment duty:

This page deals with the duty on service providers, which is the 'anticipatory duty'. Here, whether there is a duty to make adjustments is decided by looking at people generally who have a particular kind of disability. Is that group of people put at a substantial disadvantage, and is it reasonable to take steps to avoid a disadvantage to that group? See below Applying the group test.

Contrast this with the reasonable adjustment duty on employers as regards job applicants and employees. There the focus is on whether an individual disabled person is at a disadvantage, and whether it is reasonable to take steps to avoid that.

Which type of duty applies?

The 'anticipatory' type of reasonable adjustment duty is not limited to service providers. It also applies to public authorities performing functions which are not services to the public, eg being arrested by the police. It does not normally matter whether the 'service provider' or 'public authority function' rules apply, but examples of the latter are given under Public authority functions: Where do the rules apply.

This page focuses on service providers and public authorities since most of the cases relate to them. However:

Three aspects to the duty: PCPs, auxiliary services, and physical barriers

The duty to make reasonable adjustments has three aspects: (a) changes to practices, policies and procedures, (b) providing auxiliary aids and services, and (c) physical features (EqA s.29(7), s.20, and Schedule 2).

Practice, policy or procedure (PCP)

Where any provision, criterion or practice of a service provider or authority puts persons generally with a particular kind of disability at a substantial disadvantage, in comparison with non-disabled people, the service provider is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage (EqA s.20(3) and Sch 2 para 2(2)). A 'substantial' disadvantage is just one that is 'more than minor or trivial' ((s.212(1) EqA).

See below Applying the group test for more detail on how this reasonable adjustment test applies. It focuses on disabled people as a group rather than the individual.

PCP is taken before any adjustments

The service provider may already be treating disabled people differently, in other words it may already have made an adjustment. If so, one looks at the PCP without the adjustment already made (Finnigan v Northumbria Police) For example:

Paulley v First Group, January 2017, Supreme Court
Where a wheelchair user needed the wheelchair space on a bus, the company's policy was that the driver would request (but not require) anyone in the space to vacate it. Thus the bus company had already made some adjustment to its normal 'first come first served' policy - if someone else such as a parent with a buggy wanted the wheelchair space such a request would not be made. The court said that the PCP was the 'first come first served' policy (without the adjustment that non-wheelusers be requested to vacate the space), and held that this PCP did put wheelchair users at a substantial disadvantage compared with non-disabled people.

Public functions

Where there is not a service to the public, ie for public functions, there are special rules defining what 'substantial disadvantage means: see Public functions: special rules on 'substantial disadvantage'.

Stammering examples

Possible examples of a breach of this reasonable adjustment duty in relation to stammering include:

Auxiliary aid or service

A service provider has an obligation to take such steps as it is reasonable to have to take to provide an auxiliary aid or service where persons generally with a particular kind of disability would, but for the provision of an auxiliary aid or service, be put at a substantial disadvantage in comparison with persons who are not disabled (EqA s.20(5) and Sch 2 para 2(2)).

As well as various types of equipment, auxiliary aids/services can include extra staff assistance to disabled people (Services Code, para 7.47).

Possible example of auxiliary aids or services in relation to stammering include:

Physical features

The provider also has duties relating to physical features which impede access. This duty should not normally be relevant to people who stammer.

Applying the 'group' test

The reasonable adjustment duty on employers is based on the individual disabled person. It looks at whether the particular disabled person suffers a disadvantage compared with non-disabled people, and obliges the employer to take reasonable steps to avoid the disadvantage.

The reasonable adjustment duty considered on this page, namely that for service providers and functions of public authorities, is different in that it uses a group test (eg MM & DM v Secretary of State for Work and Pensions).There is a two stage approach, the first is the group test and the second relates to the individual claimant:

  1. If a provision criterion or practice (PCP), physical feature, or failure to provide an auxiliary aid puts people with that kind of disability at a substantial disadvantage in comparison with non-disabled people, there is an obligation to take reasonable steps to avoid the disadvantage in the case of a PCP, or to provide the auxiliary aid, for example. Whether there is a duty to make a particular adjustment is decided on this group basis.
  2. If there is a duty to make an adjustment under 1. above, an individual has a claim if the service provider or public authority fails to comply with that duty in relation to the individual. In the case of a service provider, the individual must suffer a 'detriment' under s.29(2)(c) EqA (or otherwise fall within s.29(1) or (2)) - though in the Paulley case below the Supreme Court seems to have expressed the test as being whether there was at least a 'real prospect' that the adjustment would have made a difference in the claimant's case (below Puzzling Paulley decision on step 2 of test for service providers). In the case of public authority functions, s.29(6) does not require a 'detriment' (below Step 2 of test for public functions).

To take the Paulley case again:

Paulley v First Group, January 2017, Supreme Court
The court held a bus company was in breach of the reasonable adjustment duty. Where a wheelchair user needed the wheelchair space, it was not enough for the bus company just to have a policy that the driver 'request' others to vacate the space.

As regards step 1 above, the Court of Appeal (this was not disputed before the Supreme Court) held that the 'first come first served policy' - ie whoever happens to be in the wheelchair space has priority - put wheelchair users at a substantial disadvantage compared with non-disabled people wishing to travel on the bus. (The bus company had modified 'first come first served by saying the driver should request a non-wheelchair user to vacate the space, but that modification was ignored at this stage of the reasoning: see above PCP is taken before any adjustments). A wheelchair user might have to wait for the next bus or take a different form of transport, so there was a substantial disadvantage. Still under step 1 (the group test), the bus company was therefore obliged to take reasonable steps to avoid the disadvantage. Was it sufficient to have a policy that the driver request non-wheelchair users to vacate the space, but do no more if they refused? The Supreme Court said no, it would be reasonable for the bus company to have a policy that in appropriate circumstances the driver do more to pressurise a non-wheelchair user to vacate the space.

As regards step 2, the individual test of whether Mr Paulley could bring a claim for breach of that reasonable adjustment duty, the County Court had decided this was met because the service provider failed to comply with the duty in relation to Mr Paulley, and he was subject to a 'detriment' under s.29(2)(c) EqA in the form of the delay he suffered - he had had to wait for the next bus and missed the train he wanted to catch. However the Supreme Court seems to have expressed the test as being whether there was at least a real prospect that the adjustment would have made a difference in the claimant's case, had it been made (see discussion under the next heading). The Supreme Court had found in favour of a lesser adjustment than the County Court, so there was no finding of fact by the County Court whether the lesser adjustment would have made a difference in Mr Paulley's case. The Supreme Court therefore said the award of damages could not stand.

Puzzling Paulley decision on step 2 of test for service providers

As regards step 2 of the test above (does that individual have a claim?) where there is a service to the public, the Supreme Court in Paulley seems to have expressed the test as being whether there was at least a real prospect that the adjustment would have made a difference in the claimant's case, had the adjustment been made. This is puzzling. The Supreme Court at para 60 cites Employment Appeal Tribunal decisions to this effect: Employment: Reasonable adjustment rules>Substantial disadvantage. However the EAT there was considering the reasonable adjustment test for employment, which is an individual test rather than a group one. In considering whether it would have been reasonable for an employer to make an adjustment to alleviate the disadvantage of a particular individual employee, it makes sense to consider what prospect there is that the adjustment would make a difference. However for service providers reasonableness is considered at step 1 (above); the court considers whether an adjustment would be reasonable to avoid a disadvantage for people with that kind of disability (basically wheelchair users in this case), ie a group test.

It is submitted that the court in Paulley should have considered whether the claimant was subject to a 'detriment' within EqA s.29(2)(c), as I outline in the step 2 test above, and as the County Court did.

If the 'detriment' test is the right one, would it put a more onerous burden on the claimant than the 'real prospect' test? On the facts of Paulley, would the claimant have to show that - more likely than not - the wheelchair space would have been vacated had the bus company acted properly? This is not clear. Maybe the detriment could also be the claimant's sense of injustice at the driver having done so little to try and have the non-wheelchair user move from the space. The lax attitude of the bus company might also deter the individual from trying bus journeys in future, limiting their life. The courts might well view such things as detriments. However, future cases will be needed to clarify the position.

Step 2 of test for public functions

As regards step 2 of the test (does that individual have a claim?) in the case of a public authority function which is not a service to the public, it seems there is no requirement for the individual to suffer a detriment, because s.29(6) EqA does not require a 'detriment'. The individual seems to have a claim provided the public authority fails to comply with the duty "in relation to" that individual. (As well as the statutory wording, MM & DM v Secretary of State for Work and Pensions is authority for this. Finnigan v Northumbria Police suggests otherwise, but the point was accepted by counsel, wrongly I suggest, so the court did not consider the point.) Example:

MM & DM v Secretary of State for Work and Pensions, December 2013, Court of Appeal
Mental health patients (MHPs) claiming Employment and Support Allowance (ESA) argued that the government was failing to make reasonable adjustments under the Equality Act 2010. The court seems to have considered that if it would be a reasonable adjustment for the authorities to request further medical evidence where mental health patients applied for ESA, then an individual mental health patient would have a claim if the authorities failed to requrest further medical evidence in his case. The claimant did not have to show the failure affected whether or not he got the ESA benefit, but that could be relevant in assessing compensation.

Pluses and minuses? - implications of being 'anticipatory'

The group nature of the reasonable adjustment duty for services and public functions has an advantage, though possibly also creates a limitation:

Services Code, paragraph 7.21
Service providers should therefore not wait until a disabled person wants to use a service that they provide before they give consideration to their duty to make reasonable adjustments. They should anticipate the requirements of disabled people and the adjustments that may have to be made for them. Failure to anticipate the need for an adjustment may create additional expense, or render it too late to comply with the duty to make the adjustment. Furthermore, it may not in itself provide a defence to a claim of a failure to make a reasonable adjustment...

The duty has also been said to be an ongoing and evolving one:

MM & DM v Secretary of State for Work and Pensions, December 2013, Court of Appeall
It was common ground between the parties in the Upper Tribunal, and the tribunal agreed, that the duty to make reasonable adjustments is owed to disabled people generally, that it is an anticipatory duty, and that it is a continuing duty and so it has to be kept under regular review in the light of experience - so in this respect the duty was an evolving duty.

Limitation on ad hoc adjustments?

A possible limitation created by the duty being anticipatory is that it may perhaps be inconsistent with ad hoc adjustments to meet a particular individual's needs:

Finnigan v Northumbria Police, October 2013, Court of Appeal
The Court of Appeal dismissed a claim for reasonable adjustments by a deaf person whose house was searched by the police. He argued they should have brought a sign language interpreter. The Court of Appeal upheld the decision that in this particular case it had been possible to establish effective communication, so there was no claim. However, as regards what adjustments were required, the Court of Appeal critisised the lower court for looking at the individual claimant rather than adjustments for deaf people generally. The reasonable adjustment duty (as regards service providers and public functions) was concerned with changes to a practice, policy or procedure (PPP) applicable to a category of disabled persons, rather than changes applied to an individual on an ad hoc basis.

The court said: 'It follows that the Chief Constable was obliged to make reasonable adjustments to her PPP of conducting searches in spoken English so that it did not have a detrimental effect on deaf persons. It is clear that this duty could not be discharged by treating everyone as individuals and adopting communication styles to suit the circumstances of the particular case on an ad hoc basis. The anticipatory nature of the duty is inimical to the idea that reasonable adjustments may be made by deciding on an individual basis to conduct a search with or without a BSL interpreter in attendance or on standby according to exigencies of the particular situation.'

Many disabled people would say it's a good thing to treat people as individuals, and adopt solutions to meet a person's particular needs. The Finnigan case seems to imply that adjustments should by way of a general adjustment for a category of people with a particular disability, rather than just looking at the individual. However, a generally applicable adjustment to a policy made might, one hopes, be phrased so as to allow for consideration of the needs and wishes of the particular disabled customer. Also, in the Court of Appeal's decision in Edwards v Flamingo Land, no objection was raised on this ground to the ad hoc adjustment of allowing a family to sit outside the normal seating area of a restaurant. Furthermore, para 7.26 of the Services Code quoted below suggests that a need which becomes apparent through a particular individual might make it reasonable to take a particular step. The area will hopefully be clarified by future cases.

Must service providers anticipate every barrier?

7.24 Service providers are not expected to anticipate the needs of every individual who may use their service, but what they are required to think about and take reasonable steps to overcome are barriers that may impede people with different kinds of disability. For example, people with dementia, mental health conditions or mobility impairments may face different types of barriers.

7.25 Disabled people are a diverse group with different requirements – for example, visually impaired people who use guide dogs will be prevented from using services with a 'no dogs' policy, whereas visually impaired people who use white canes will not be affected by this policy. The duty will still be owed to members of both groups.

7.26 Once a service provider has become aware of the requirements of a particular disabled person who uses or seeks to use its services, it might then be reasonable for the service provider to take a particular step to meet these requirements. This is especially so where a disabled person has pointed out the difficulty that they face in accessing services, or has suggested a reasonable solution to that difficulty...

Services Code para 7.22-7.26.

Particular kind of disability

There is no need for disabled people as a whole to be put at a substantial disadvantage. It is sufficient that people with one or more kinds of disability are put at a substantial disadvantage. The Court of Appeal held this in Roads v Central Trains under the previous DDA 1995, and the courts have taken the same view under the Equality Act, for example in Paulley v First Group, MM & DM v Secretary of State for Work and Pensions, and Finnigan v Northumbria Police.

So the court might look at whether there is a substantial disadvantage for, say, people who stammer as a class, or people with speech impairment. How one defines the particular speech/communication disability is not clear, but will probably not make much difference normally. In practice, in the present context, so far the courts do not seem to have had a great problem defining the relevant kind of disability.

The same issue arises with other parts of the Equality Act which expressly use the concept of a 'particular disability' (for reasonable adjustments, the concept is judge-made rather than found expressly in the Act). The courts are likely to see the express 'particular disability' concept as meaning the same as under the reasonable adjustment rules, but in both cases the concept is unclear.

Public functions: special rules on 'substantial disadvantage'

For public functions - ie in the case of a public authority where it is not a service to the public - Sch 2 para 2(5) gives a special meaning to being "placed at a substantial disadvantage" (note that 'substantial' means only 'more than minor or trivial'). The meaning is:

MM & DM v Secretary of State for Work and Pensions, May 2013, Upper Tribunal.
Claimants for Employment and Support Allowance (ESA) argued that the government was failing to make reasonable adjustments for those with mental health problems. Among other things, the tribunal considered the special wording of the reasonable adjustment duty as regards public functions, and how it applies to benefit claims. In particular, the court held that an adverse experience can be a 'disadvantage' within (a) above, even though 'adverse experience is only mentioned in (b).

Knowledge of the disability

Is the service provider or public authority liable even if it does not know that the particular person is disabled?

This is a difficult issue. A Court of Appeal decision rather conflicts with the legislation and Code of Practice.

Code of Practice

The Services Code says there can be a breach of the duty to make reasonable adjustments even without the service provider realising that the person is disabled (Services Code para 7.22).

Does the duty to make reasonable adjustments apply even if the service provider does not know that the person is disabled?

7.22 Because this is a duty to disabled people at large, it applies regardless of whether the service provider knows that a particular person is disabled or whether it currently has disabled customers, members etc.

7.23 When disabled customers request services, the service provider must already have taken all reasonable steps to ensure that they can be served.

Must service providers anticipate every barrier?

7.24 Service providers are not expected to anticipate the needs of every individual who may use their service, but what they are required to think about and take reasonable steps to overcome are barriers that may impede people with different kinds of disability. For example, people with dementia, mental health conditions or mobility impairments may face different types of barriers.

7.25 Disabled people are a diverse group with different requirements – for example, visually impaired people who use guide dogs will be prevented from using services with a 'no dogs' policy, whereas visually impaired people who use white canes will not be affected by this policy. The duty will still be owed to members of both groups.

7.26 Once a service provider has become aware of the requirements of a particular disabled person who uses or seeks to use its services, it might then be reasonable for the service provider to take a particular step to meet these requirements. This is especially so where a disabled person has pointed out the difficulty that they face in accessing services, or has suggested a reasonable solution to that difficulty...

Services Code para 7.22-7.26.

Court of Appeal case

On the other hand, without deciding the issue, in one case the Court of Appeal thought it 'common sense' that the service provider would need some explanation of the disability:

Edwards v Flamingo Land, 2013, Court of Appeal
A restaurant argued that they had not been made sufficiently aware of a disability to make an adjustment of allowing a family to eat at a picnic table just outside, rather than in the restaurant area. The case was decided on other grounds so the Court of Appeal did not have to reach a decision on the 'knowledge' issue. It said: "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.

My suggestion on knowledge of disability

Perhaps the answer is as follows:

However, it remains to be seen what approach the courts take.

Nature of the service

A service provider does not have to take steps which would fundamentally alter the nature of the service, or of his trade, business or profession (Sch 2 para 2(7), s.212 says 'trade' includes 'business').

There is a rather odd Court of Appeal decision, however. If the decision is upheld in future, it perhaps threatens to make that provision redundant, and also to substantially cut down the reasonable adjustment duty:

Edwards v Flamingo Land, 2013, Court of Appeal
The Court of Appeal held that the reasonable adjustment duty on service providers in DDA 1995 did not require a restaurant to allow a disabled family to eat in a picnic area which was just next to the outdoor tables of the restaurant, and which was was also part of Flamingo Land. That would be a takeaway service, which was different. Therefore the restaurant did not have a policy of not allowing families to have restaurant food in the picnic area. There was no policy which could be subject to the reasonable adjustment duty. (Even if that were not the case, the court said the rule in (what is now) EqA Sch2 para 2(7) would apply.)
Follow the link for my comments on the decision.

The Court of Appeal's decision was mainly based on grounds other than EqA Sch 2 para 2(7), namely that there was no policy to adjust. Para 2(7), including the fact that the nature of the service etc must be 'fundamentally' altered, was barely considered by the court. This may weaken any impact of the decision on para 2(7).

As regards the court's decision that there was no policy to adjust, that was under the Disability Discrimination Act 1995. It may be helpful in some cases that Equality Act 2010 (unlike the DDA) also includes an obligation to provide auxiliary aids and services. For that, there is no need for a 'policy, criterion or provision' giving rise to a disadvantage. How widely can 'auxiliary aid or service' be interpreted. In the Flamingo Land case, would it include providing food to eat just outside the restaurant - is that 'auxiliary'? Sch 2 para 2(7) still applies, so a provider does not have to provide auxilary aids or services if doing so would fundamentally alter the nature of the service, or of its trade, business or profession.

This provision about there being no requirement to fundamentally alter the nature of the trade etc does not apply to public authorities as regards public functions (ie where they are not providing services to the public). However there is a rule that they cannot be required to take a step they have no power to take (EqA Sch 2 para 2(8)).

Cost of adjustments

Firstly, under s.20(7) EqA a service provider (or anyone else) who is under a duty to make a reasonable adjustment is not entitled to require the disabled person to pay any of the costs of making the adjustment. (There is a limited exception if the legislation expressly says otherwise.) Services Code, para 7.40.

Secondly, factors to be taken into account in deciding whether it is reasonable to have to make an adustment include amongst other things: the costs of making the adjustment; the extent of the service provider's financial and other resources; the amount of any resources already spent on making adjustments; and the availability of financial or other assistance (Services Code para 7.30).

Thirdly, because the duty is owed to disabled persons as a class and not to any particular claimant, it has been said to be irrelevant whether a particular claimant might have the financial means to pay for a necessary auxiliary aid (Ross v Ryanair, 2004).

Other points

Ross v Ryanair, 2004, illustrates the fact that more than one organisation may be liable - eg both airline and airport authority (though note limited exemptions for transport).

Examples of cases

Blamires v Local Government Ombudsman, June 2017, County Court
The claimant had ME/CFS, and also dystonia which affected her speech. She referred a complaint against a county council to the Local Government Ombudsman and requested support because of her and her husband's disabilities, including one or more face-to-face meetings rather than just using email. The Ombudsman lost the request, and turned down subsequent requests for a face-to-face meeting. As a result she was unable to put her case properly. The County Court awarded damages for failure to make reasonable adjustments, and also other breaches of the Equality Act 2010.

Paulley v First Group, January 2017, Supreme Court
A bus company had a policy that if a wheelchair user needed the wheelchair space, the driver would request other passengers to vacate it, but would not require them to. The Supreme Court held that the driver need not actually require the non-disabled passenger to move, but if after making a request the driver considered a refusal unreasonable, the driver should consider some further step to pressurise the non-wheelchair user to vacate the space.

MM & DM v Secretary of State for Work and Pensions, December 2013, Court of Appeal
Mental health patients (MHPs) claiming Employment and Support Allowance (ESA) argued that the government is failing to make reasonable adjustments under Equality Act 2010. The Court of Appeal largely upheld an Upper Tribunal judgment which found that MHPs are being put at a substantial disadvantage. The tribunal had felt unable to decide on current evidence what adjustment would be reasonable.

Finnigan v Northumbria Police, October 2013, Court of Appeal
The Court of Appeal dismissed a claim for reasonable adjustments by a deaf person whose house was searched by the police. He argued they should have brought a sign language interpreter. The Court of Appeal upheld the decision that in this particular case it had been possible to establish effective communication, so there was no claim. However, as regards what adjustments were required, the Court of Appeal critisised the lower court for looking at the individual claimant rather than adjustments for deaf people generally. The reasonable adjustment duty (as regards service providers and public functions) was concerned with changes to a practice, policy or procedure (PPP) applicable to a category of disabled persons, rather than changes applied to an individual on an ad hoc basis

Edwards v Flamingo Land, July 2013, Court of Appeal
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 (below Nature of the service). The case was under DDA 1995 rather than Equality Act 2010. The court also commented that before a service provider is required to adapt a policy, common sense requires some form of reason or explanation to be given (below Knowledge of the disability).

Scottish pupil wins landmark disability discrimination tribunal (link to EHRC website), June 2013
A ten year old disabled pupil was held to be entitled to the support he needed to take part in an after school guitar club.
This case was presumably decided on the basis that the reasonable adjustment duty on schools is anticipatory, but that the summary does not make that clear.

Black v Arriva North East Ltd, County Court [2013] EqLR 558, May 2013
The County Court held that allowing the wheelchair space on a bus to be used also by pushchairs on a 'first come first served' basis was not a breach of the reasonable adjustment duty. One reason was that it was not a 'substantial disadvantage for the wheelchair user to have to wait for another bus.
My comment: See also the Paulley case above. The court in Black v Arriva seems to have gone wrong in not recognising the duty as anticipatory.

ZH v The Commissioner of Police for the Metropolis, Court of Appeal, February 2013
An autistic boy had become 'stuck' at the side of a swimming pool, and jumped into the water when approached by police. He ended up being restrained by the police, and put in the cage at the back of a police van. The Court of Appeal upheld a decision that the police had failed to make reasonable adjustments,in breach of disability discrimination legislation. The police should have consulted the boy's carers from the school (at least one carer was present the whole time), to inform themselves properly before taking any action which led to the application of force. Their treatment of him was also in breach of human rights law.

Royal Bank of Scotland v Allen, 2009, Court of Appeal
The Court of Appeal found a bank to be in breach of the reasonable adjustment duty, because its main branch in Sheffield was not accessible to wheelchair users. Even if banking services could be accessed in alternative ways, such as over the internet, the policy of the Disability Discrimination Act was to provide a service as close as reasonably possible to that available to people generally, which included physical access to branches. The court awarded an injunction requiring the bank to install a lift to give wheelchair access, and awarded compensation.

Roads v Central Trains, 2004, Court of Appeal.
A wheelchair user could not get from one platform of a statio to the other. He argued a taxi would be a reasonable adjustment. The rail company said he could travel to another station, cross the tracks there and come back, adding about an hour to the journey time. His claim for the reasonable adjustment succeeded. The Court of Appeal confirmed that the reasonable adjustment duty is anticipatory, and said the policy is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.

Ross v Ryanair, 2004, Court of Appeal
Ryanair and Stanstead Airport were both held liable for failing to provide a wheelchair to get from the check-in point at the airport to the plane.

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Last updated 8th February, 2015 (part update for Paulley case January 2017, and Blamires case July 2017)