Search:

Home >> Publications >> Guidance >> Making Tribunals Accessible to Disabled People >> 4. Reasonable adjustments - an overview

• Annual and special reports
• Guidance
• Other documents

4. Reasonable adjustments - an overview

Introduction

4.1  This chapter is concerned with the duty to make reasonable adjustments for disabled people. That duty is a cornerstone of the DDA and requires service providers to take positive steps to make their services accessible to disabled people. It therefore applies to the services provided to the public by tribunals. The duty goes beyond simply avoiding treating disabled people less favourably for a disability-related reason.

The statutory duty to make reasonable adjustments

4.2  The effect of section 21 of the DDA is that, where a service provider offers services to the public, it has a legal duty to take such steps as it is reasonable for the service provider to have to take in all the circumstances of the case in the situations described below. This duty is referred to in this guidance as the duty to make reasonable adjustments.

4.3  The duty to make reasonable adjustments comprises a series of duties falling into three main areas:

• changing practices, policies and procedures;
• providing auxiliary aids and services;
• overcoming a physical feature by
  • removing the feature; or
  • altering it; or
  • avoiding it; or
  • providing services by alternative methods.

The duties are being introduced in two stages.

4.4  From 1 October 1999, a service provider has had to take reasonable steps to:

• change a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled people to make use of its services;
• provide a auxiliary aid or service if it would enable (or make it easier for) disabled people to make use of its services;
• provide a reasonable alternative method of making its services available to disabled people where a physical feature makes it impossible or unreasonably difficult for disabled people to make use of the services.

4.5  From 1 October 2004, where a physical feature makes it impossible or unreasonably difficult for disabled people to make use of services, a service provider will have to take reasonable steps to:

• remove the feature; or
• alter it so that it no longer has that effect; or
• provide a reasonable means of avoiding it; or
• provide a reasonable alternative method of making the services available.

The need to overcome barriers caused by physical features is not exclusively a matter to do with physical access to premises, but it most often arises in that context, and is therefore considered in more detail in Chapter 6.

4.6  Although adjustments in the form of physical alterations may be the only answer if other measures are not sufficient to overcome barriers to access, it is important to remember that a reasonable adjustment need not involve making a physical alteration or incurring significant expenditure. Often, minor measures such as allowing more time to deal with an enquiry by a disabled person will help disabled people to use a tribunal service. Disability awareness training for staff is also likely to be appropriate. This is important, not just to heighten awareness of the barriers faced by disabled people, but also to increase sensitivity to the additional stresses which disabled users may experience. For example, having someone on hand who is properly trained to provide support to tribunal users when they arrive can be of great assistance perhaps to help those who would otherwise have difficulty accessing the building or hearing room; to respond to any immediate concerns or queries; and, more generally, to set people at their ease and to ensure they know where they are going and what is going to happen.

4.7  Obtaining the views of disabled people will also assist in determining what alterations to make. Disabled people know best what hurdles they face in trying to use the services provided. They can identify difficulties in accessing services and might also suggest solutions involving the provision of reasonable adjustments. This can be done both by approaching local community groups for input, and by obtaining feedback from disabled users of the tribunal of their experiences of the tribunal process.

4.8  This guidance gives some examples of ways in which tribunals might meet their obligations to make reasonable adjustments. However, this is not intended to indicate that the approach considered in the example is the only way in which the tribunal can meet its duty under the DDA. In any particular case, the tribunal's duty to make reasonable adjustments might be discharged by taking a different step or steps.

The circumstances in which the duty arises

To whom is the duty to make reasonable adjustments owed?

4.9  The duty to make reasonable adjustments is owed to disabled people at large and applies regardless of whether the tribunal knows that a particular member of the public is disabled. It is not simply a duty that is weighed up in relation to each individual disabled person who wants to access a tribunal's services. Disabled people are a diverse group with different requirements which tribunals need to consider. Consequently, tribunals can expect to come into contact with a diverse range of disabled people who will require a range of adjustments in order to access the tribunal system.

At what point does the duty to make reasonable adjustments arise?

4.10  In order to comply with the DDA tribunals should anticipate the requirements of disabled people and the adjustments that may have to be made for them. In many cases, it is appropriate to ask disabled users of the tribunal system to identify whether they have any particular requirements and, if so, what adjustments may need to be made. Failure to anticipate the need for an adjustment may render it too late to comply with the duty to make the adjustment. Furthermore, it may not of itself provide a defence to a claim that it was reasonable to have provided one.

The notice of a tribunal hearing invites the parties to an appeal to notify the clerk of any special requirements an individual may have, including any special requirements associated with a disability. This ensures that the tribunal is able to take account of the participants' needs ahead of the hearing date, which reduces the likelihood of unforeseen problems on the day.

Does the duty of reasonable adjustment apply even if a tribunal does not know that the person is disabled?

4.11  The fact that the duty of reasonable adjustment applies regardless of whether the tribunal knows that a particular person is disabled means that tribunal staff should be made aware that they may be discriminating unlawfully even if they do not know that a person is disabled. They should also be reminded that not all impairments are visible. As explained in this chapter and in Chapter 5, the duty of reasonable adjustment is best met by trying to anticipate the types of problems which could arise, and by training staff to enquire rather than act on assumptions. The aim should be that, when disabled people come into contact with a tribunal (whether as a party to proceedings, as a witness, or otherwise), the tribunal has already taken all reasonable steps to ensure that they can participate fully in the proceedings, and have full access to the tribunal system.

How long does the duty continue?

4.12  The duty to make reasonable adjustments is a continuing duty. Tribunals should keep the duty under regular review in the light of their experience with disabled people using the tribunal system in question. In this respect it is an evolving duty, and not something that needs simply to be considered once and once only, and then forgotten. What was originally a reasonable step to take might no longer be sufficient and the provision of further or different adjustments might then have to be considered. This is another reason why it is important to have mechanisms in place to obtain regular feedback from tribunal users.

4.13  Equally, a step which might previously have been an unreasonable one for a tribunal to take could subsequently become a reasonable step in the light of changed circumstances. Technological developments may provide new or better solutions to the problems of inaccessible services. With the growth of the Internet tribunals may wish to consider, for example, whether web cams could be used to enable disabled people who have severe mobility problems to participate effectively at a hearing without having to travel.

Cost of providing reasonable adjustments

4.14  The DDA does not permit the additional costs of making reasonable adjustments to be passed on to disabled users of the tribunal alone. Such costs are part of the tribunal's general expenses.

4.15  Although a service provider can justify charging a disabled person more for some services than it charges other people (where the service is individually tailored to the requirements of the disabled customer), tribunals do not have powers to charge additional fees to users with particular needs. Tribunals must consider whether an adjustment is "reasonable" and, if so, the adjustment should be made at no additional cost to the disabled user of the tribunal.

What is meant by "reasonable steps"?

4.16  Section 21 refers to a service provider being under a duty to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to make reasonable adjustments. The Act does not specify that any particular factors should be taken into account. What is a reasonable step for a particular service provider to take depends on all the circumstances of the case. As a working assumption, a step which it is reasonable for a particular tribunal service to take might be an appropriate model for other tribunal services. However, there may be exceptions to this principle which will recognise differences in the nature (and volume) of cases heard by different tribunals.

4.17  Clearly, the steps it would be reasonable for a tribunal to have to take depend partly on the effect of the disability on the individual disabled person. In addition, without intending to be exhaustive, the following are some of the factors which might be taken into account when considering what is reasonable:

• whether taking any particular steps would be effective in overcoming the difficulty that disabled people face in accessing the services in question;
• the extent to which it is practicable for the tribunal to take the steps;
• the financial and other costs of making the adjustment;
• the extent of any disruption which taking the steps would cause;
• the extent of the tribunal's financial and other resources;
• the amount of any resources already spent on making adjustments.

A disabled appellant has arrived early for his tribunal hearing and is in a great deal of pain as a consequence of his arthritis, which is causing him particularly severe back pain that day. The tribunal is running approximately 30 minutes late and there is another case to be heard before his. The tribunal's policy is to hear cases in the order in which they have been listed for the day. Subject to tribunal staff consulting the other appellant, it might be reasonable for the disabled appellant's case to be heard out of turn, in order to avoid the need for him to sit around for too long. An alternative might be to postpone the hearing and to re-schedule it for another day when the appellant might be in less pain.

An appellant who has learning difficulties would find it particularly disconcerting if she had to wait for a long period for a tribunal hearing to begin. The only way in which the appellant's case could be timed with any degree of certainty would be for it to be allocated as the first case in the morning or the first case in the afternoon. In such circumstances it might be reasonable for the tribunal listing officer to agree to a request for the case to be first on the tribunal's list on the day set for the hearing.

What is "unreasonably difficult"?

4.18  It is unlawful for a tribunal to discriminate against a disabled person in failing to comply with a duty to make reasonable adjustments when the effect of that failure is to make it impossible or "unreasonably difficult" for the disabled person to make use of services provided to the public. The DDA does not define what is meant by "unreasonably difficult".

4.19  However, when considering if services are unreasonably difficult for disabled people to use, tribunals should take account of whether the time, inconvenience, effort, discomfort or loss of dignity entailed in using the service would be considered unreasonable by other people if they had to endure similar difficulties. In the context of tribunals, the following examples illustrate the kinds of situations in which disabled people may find it unreasonably difficult to use services unless reasonable adjustments are made. In each case, appropriate reasonable adjustments are suggested in brackets:

• Deaf people may find it unreasonably difficult to participate in an oral hearing (so the tribunal should provide an appropriate signer or interpreter);
• Wheelchair users (or other people with mobility problems) may find it unreasonably difficult to attend a hearing on an upper floor of a building which has no lift (so the tribunal should arrange for the hearing to take place at an accessible venue);
• It may be unreasonably difficult for some people with learning difficulties to understand, or deal with, correspondence from the tribunal (so, if it is requested to do so, the tribunal should ensure that all correspondence is copied to the appellant's named representative. Tribunals should also correspond in plain English, and should avoid using unnecessary jargon);
• People with agoraphobia may have unreasonable difficulty attending a tribunal hearing centre; or people with claustrophobia may have difficulty in attending if the hearing room is small or cramped (so the tribunal should arrange to hold the hearing at a venue which meets the appellant's or applicant's needs. It might also consider the use of video-links or domiciliary hearings in appropriate cases).