Disability Discrimination: a reminder of service providers’ duties

The DDA has been in force now for some years and property owners and occupiers have by and large become used to the workings of the Act. However, it is important that service providers constantly bear in mind their statutory duty and regularly revisit the action which they have taken.

A recent case (in which an injunction was granted to force an organisation to make physical changes to its property so that disabled people can gain access) provides a useful reminder of the sanctions which can be imposed for non-compliance.

The case involved a 17 year old wheelchair user, David Allen, who was unable to access the local branch of his bank due to his disability. The court decided the bank had discriminated against Mr Allen and ordered it to install a platform lift in its branch at a cost of approximately £200,000. The bank also had to pay Mr Allen compensation of £6500 for any embarrassment caused by his treatment which is the highest ever compensation award for this type of case.

Service providers cannot treat disabled persons less favourably than others. They are required to make reasonable adjustments to their premises and to their services so that access to them is as close as reasonably possible to the standard normally offered to the public at large. Although in this case the bank suggested various alternative methods of service provision to Mr Allen, including internet banking, using a different branch or discussing his finances outside the branch, the court decided that the bank had not offered a reasonable alternative method of service. The bank had therefore not taken the reasonable steps required of it under the law to allow Mr Allen reasonable access to its services. The only way the service could be adequately provided was to allow Mr Allen safe access into the branch using a lift.

It is not obligatory to make physical alterations to properties to allow disabled access. However, a service provider must actively consider whether alterations are required and how its services can be provided without making such alterations. In this case, the court placed great weight on the fact that although the bank considered the installation of a lift in the lobby, it decided not to proceed with the project as it would mean the loss of an existing interview room and would cause a great deal of disruption. It is interesting that the bank did not seek to justify its decision by reference to the high cost of the proposed alterations. In different circumstances the bank’s actions might have been sufficient to comply with its duties provided that the proposed alternative treatment was reasonable. However, the audit trail relating to the bank’s decision making process was not sufficient to be used as evidence in the case and on this basis the judge decided that the bank had discriminated against Mr Allen.

Service providers need to be mindful of their obligations not to discriminate. If any access issues arise, clear and comprehensive records must be kept showing that full consideration has been given to the matter and, if no physical alterations are to be made, why this decision has been reached. In the absence of this, the court may more readily conclude that discrimination has occurred and in light of this case may be more inclined to grant injunctions ordering service providers to make physical alterations to properties as well as order payment of compensation.