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5. Reasonable adjustments - in practice

Introduction

5.1  Chapter 4 outlines the concept of the duty to make reasonable adjustments and provides an overview of the legal principles which underpin it. This chapter explains and illustrates how the duty works in practice in the tribunals context.

5.2  Chapter 6 focuses on physical access to tribunal premises. This chapter concentrates on issues concerning practices, policies and procedures, and on auxiliary aids and services.

Practices, policies and procedures

What is the duty to change a practice, policy or procedure?

5.3  The practices, policies and procedures of a tribunal are likely to comprise a combination of formal written policies and procedures together with other practices, policies and procedures which may have become established informally or by custom. It is possible that the unintentional effect of any of these matters may be to make it impossible or unreasonably difficult for disabled people to make use of the services provided by the tribunal.

5.4  In such a case, the tribunal must take such steps as it is reasonable for it to have to take, in all the circumstances, to change the practice, policy or procedure so that it no longer has that effect. This may simply mean instructing staff to waive a practice or amending a policy or procedure to allow exceptions or abandoning it altogether. For example, although a tribunal would not normally refund parking charges to people attending a hearing, it should consider making an exception to this policy in appropriate cases if there is a lack of available parking spaces at the tribunal office.

What are "reasonable steps" in relation to practices, policies and procedures?

5.5  The DDA does not define what are "reasonable steps" for a service provider to take in order to change its practices, policies or procedures. The kinds of factors which may be relevant are described in paragraphs 4.16 and 4.17 above.

5.6  The purpose of taking the steps is to ensure that the practice, policy or procedure no longer has the effect of making it impossible or unreasonably difficult for disabled people to use a service. Where there is an adjustment that the tribunal could reasonably put in place and which would make the service accessible, it is not sufficient for the tribunal to take some lesser step which would not result in the service being accessible.

Tribunals do not normally allow dogs to be taken into tribunal premises. However, a disabled person who uses a trained assistance dog as an aid to his mobility would find it unreasonably difficult to attend a hearing if he was not permitted to take the dog with him. It is likely to be a reasonable step for a tribunal to amend its "no dogs" policy in order to permit trained assistance dogs to be taken into tribunal premises, including the hearing room itself.

5.7  A practice, policy or procedure may have the effect of excluding or screening out disabled people from enjoying access to services. Or it may create a barrier or hurdle which makes it unreasonably difficult for disabled people to access the services. In such cases, unless the practice, policy or procedure can be justified, a reasonable step for a tribunal to take might be to abandon it entirely or to amend or modify it so that it no longer has that effect. For example a tribunal should consider whether it should adjust its listing practices if one of the participants in a case has an illness such as M.E. or M.S. which may cause fatigue and concentration difficulties. When listing a case for several days, consideration should be given to ensuring that there will be sufficient breaks in the proceedings (including, perhaps, listing hearings on alternate days).

Auxiliary aids and services

What is the duty to provide auxiliary aids or services?

5.8  A tribunal must take reasonable steps to provide auxiliary aids or services if this would enable (or make it easier for) disabled people to make use of any services which it offers to the public.

5.9  The DDA gives two examples of auxiliary aids or services: the provision of information on audio tape and the provision of a sign language interpreter.

5.10  But these are only illustrations of the kinds of auxiliary aids or services which a tribunal might need to consider. An auxiliary aid or service might be the provision of a special piece of equipment or simply extra assistance to disabled people from (perhaps specially trained) staff. In some cases a technological solution might be available.

The Appeals Service has installed induction loop systems in all its permanent hearing venues and advertises the availability of these facilities in its information guides. This is an auxiliary service as it will enable users of the tribunal who have suitable hearing aids to participate at the hearing more effectively than otherwise would have been the case.

Where tribunals install induction loop systems in hearing rooms, they will wish to seek advice as to the type of system which it is most appropriate to use, and as to the manner in which the system should be employed. For example, it may be necessary for the facility to be switched off when a tribunal is sitting in camera in order to avoid sound "leaking" outside the hearing room.

5.11  From 1 October 2004 auxiliary aids and services could be any kind of aid or service (whether temporary or permanent). Until 1 October 2004 the Disability Discrimination (Services and Premises) Regulations 1999 temporarily restrict their meaning so as not to require the provision of auxiliary aids or services which involve a permanent alteration to the physical fabric of premises (or fixtures, fittings, furnishings, furniture, equipment or materials). There is nothing in the DDA, however, to prevent such provision in anticipation of 1 October 2004.

5.12  In any event, tribunals should ensure that any auxiliary aids they provide are carefully chosen and properly maintained. Failure to do so may mean that the tribunal has not complied with its duty to provide an auxiliary aid. For example, if a person with a hearing impairment is representing an appellant or applicant, relying on the fact that he has been told that an induction loop has been installed in the hearing room, the tribunal could not claim to have provided this as an auxiliary aid if the induction loop does not work properly on the day due to inadequate maintenance.

What are "reasonable steps" in relation to auxiliary aids or services?

5.13  The duty to provide auxiliary aids or services requires tribunals to take such steps as it is reasonable for them to have to take in all the circumstances of the case to make their services accessible to disabled people. What might be reasonable for a large tribunal service might not be reasonable for a smaller tribunal service. The resources available to the tribunal and the cost of the auxiliary service are also relevant factors. For example, some steps which it might be reasonable to expect a tribunal system such as the Appeals Service (AS) to take in respect of the provision of auxiliary aids and services might not be reasonable for a small tribunal such as the Special Educational Needs and Disability Tribunal (SENDIST) to take because of the significant resource implications. However, it might be reasonable for the SENDIST to arrange to use the AS's hearing rooms on occasion, thereby enabling users to benefit from adaptations the AS has made. This could apply to any tribunal system which does not have its own dedicated hearing accommodation, but which relies on securing accommodation on an ad-hoc basis.

Using auxiliary aids or services to improve communication

5.14  In many cases, a tribunal will need to consider providing auxiliary aids or services to improve communication with people with a sensory impairment (such as those affecting hearing or sight) or a speech impairment or learning difficulties. The type of auxiliary aid or service will vary according to the importance, length, complexity or frequency of the communication involved. The circumstances in which this may be appropriate clearly include the hearing before the tribunal itself, but also extend to communications with tribunal staff in relation to the conduct of the case or general enquiries. In some cases, more than one type of auxiliary aid or service might be appropriate, as different people have different communication requirements. Account should also be taken of people with multiple communication disabilities, such as deaf-blindness or combined speech and hearing disabilities.

Provision for deaf people

5.15  For deaf people, the range of auxiliary aids or services which it might be reasonable to provide to ensure that services are accessible might include one or more of the following:

• written information (such as a leaflet or guide);
• a facility for taking and exchanging written notes;
• a verbatim speech-to-text transcription service;
• induction loop systems;
• videos with BSL interpretation;
• information displayed on a computer screen;
• accessible Websites;
• audio-visual telephones;
• textphones;
• audio-visual fire alarms;
• qualified BSL interpreters or lipspeakers.

A deaf respondent uses BSL as his main form of communication. The employment tribunal arranges for a qualified BSL interpreter to interpret and voice over his evidence at the hearing.

5.16  Where sign language interpretation is used as an auxiliary service the interpreter should be capable of communicating accurately and efficiently with both the disabled person and the other parties involved. In order to do so it may be necessary for the interpreter to have access to relevant background information about the case and the tribunal procedure particularly if the interpretation will require familiarity with technical terms or legal concepts. Other communication support services such as lip speakers and Makaton communicators should similarly be capable of communicating accurately and effectively. Tribunals will need to be ready to make changes to the lay out of a hearing room in order to accommodate communication support workers. In addition, listing estimates are likely to be longer where communication support is needed, ue to the need for more frequent breaks.

5.17  Tribunals should bear in mind that hearing impairments take many forms and are of varying degrees. What might be a reasonable auxiliary aid or service for a person with tinnitus or reduced hearing might not be a reasonable adjustment for someone who is profoundly deaf. Tribunal staff should ask a deaf person about his or her preferred method of communication before making any arrangements. However, it should be remembered that appropriate communication support will probably need to be arranged well in advance of a hearing date.

Provision for people with a visual impairment

5.18  For people with visual impairments, the range of auxiliary aids or services which it might be reasonable to provide to ensure that services are accessible might include one or more of the following:

• readers;
• documents in large or clear print, Moon or braille;
• information on computer disk or e-mail;
• information on audiotape;
• telephone services to supplement other information;
• spoken announcements or verbal commuication;
• accessible websites;
• assistance with guiding;
• large print or tactile maps/plans and three-dimensional models;
• describing the hearing room, introducing everyone present at the hearing and explaining where they are positioned in the room.

The Special Educational Needs and Disability Tribunal (SENDIST) tapes the papers for a hearing for members of the tribunal who have a visual impairment. Likewise, SENDIST will, on request, provide tapes of hearing papers to a party who has a visual impairment in order to ensure that he or she is able to participate fully in the hearing. The SENDIST will also make any of its publications available on request in Braille.

5.19  As with other forms of sensory impairments, visual disabilities are of varying kinds and degrees. Tribunals need to consider what is the most appropriate auxiliary aid or service to provide. More than one auxiliary aid or service may be necessary according to the circumstances.

Provision for people with other or multiple disabilities

5.20  There are many examples of how auxiliary aids or services can be used to improve communication with people who are deaf or who have visual impairments. Tribunals should also consider how communication barriers can be overcome for people with other disabilities. For example, a person with a learning disability may be able to access a service by the provision of documents in large, clear print and plain language or by the use of colour coding and illustrations.

5.21  Tribunals should not assume that their services are made accessible to customers with multiple disabilities simply by providing auxiliary aids or services which are suitable for people with individual disabilities.