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2. Discrimination in the provision of services
Introduction
2.1 This chapter provides an overview of the provisions of Part III of the DDA relating to the provision of services. It outlines what is made unlawful by the Act and explains the meaning of key concepts, such as "disability" and "discrimination". It also considers the application of the DDA in the context of the services provided by tribunals.
What does the DDA make unlawful?
2.2 Section 19 of the DDA makes it unlawful for a service provider to discriminate against a disabled person:
- by refusing to provide (or deliberately not providing) any service which it provides (or is prepared to provide) to members of the public; or
- in the standard of service which it provides to the disabled person or the manner in which it provides it; or
- in the terms on which it provides a service to the disabled person.
References to providing a service include providing goods or facilities.
2.3 It is also unlawful for a service provider to discriminate in:
- failing to comply with any duty imposed on it by section 21 (a duty to make reasonable adjustments) in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service.
Reference to making use of a service includes using goods or facilities.
What does the DDA mean by "disability"?
2.4 The DDA gives protection from discrimination to a person who has a "disability" within the meaning of section 1 of the Act. A disabled person is someone who has a physical or mental impairment which has an effect on his or her ability to carry out normal day-to-day activities. That effect must be:
- substantial (that is, more than minor or trivial); and
- adverse; and
- long term (that is, it has lasted or is likely to last for at least a year or for the rest of the life of the person affected).
2.5 Physical or mental impairment includes sensory impairments and communication impairments. Hidden impairments are also covered (for example, mental illness or mental health problems, learning difficulties and conditions such as diabetes or epilepsy).
2.6 People who have had a disability within the terms of the DDA in the past are protected from discrimination even if they no longer have the disability.
2.7 For a fuller understanding of the concept of disability under the DDA, reference should be made to Appendix A to this guidance. A Government publication, Guidance on matters to be taken into account in determining questions relating to the definition of disability, provides additional help in understanding the concept of disability and in identifying disabled persons. In considering their duties as service providers under the DDA, tribunals should not use any definition of disability which is narrower than that in the Act. Best practice requires that tribunal staff should avoid an overly legalistic approach to disability, even if this means applying a relatively generous interpretation of the concept.
What does the DDA mean by "discrimination"?
2.8 Section 20 of the DDA says that discrimination against a disabled person occurs in two possible ways.
2.9 One way in which discrimination occurs is when a service provider:
- treats the disabled person less favourably for a reason relating to the disabled person's disability than it treats (or would treat) others to whom that reason does not (or would not) apply; and
- cannot show that the treatment is justified.
2.10 The other way in which discrimination occurs is when a service provider:
- fails to comply with a duty imposed on it by section 21 of the DDA (a duty to make "reasonable adjustments") in relation to the disabled person; and
- cannot show that the failure is justified.
2.11 Making sure that a tribunal does not treat a disabled person less favourably is considered in more detail in Chapter 3 below, and the duty to make reasonable adjustments is covered in greater detail in Chapters 4 and 5.
What does the DDA mean by "justified"?
2.12 Although tribunals and tribunal staff should strive to promote equality of opportunity and fair and impartial access to the tribunal system, there may be limited circumstances in which this cannot be fully achieved. Section 20 of the DDA permits less favourable treatment of a disabled person, or a failure to make a reasonable adjustment, only if the tribunal believes that one or more of the relevant conditions are satisfied. (Only the first two are relevant in the case of a failure to make a reasonable adjustment.) The conditions relate to:
- health and safety;
- the disabled person being incapable of entering into a contract;
- the service provider being otherwise unable to provide the service to the public;
- enabling the service to be provided to the disabled person or other members of the public; or
- the greater cost of providing a tailor-made service.
2.13 Less favourable treatment of a disabled person by a tribunal, or a failure by a tribunal to make a reasonable adjustment, will be justified if it is the tribunal's reasonably held opinion that one or more of the relevant conditions are satisfied. However, it is clear that situations in which justification will be an issue are unlikely to arise very often in the tribunals context, and that the emphasis should instead be on ensuring equality of access and opportunity.
2.14 More detailed consideration of the grounds on which a service provider may justify less favourable treatment or failure to make reasonable adjustments is contained in Chapter 7 of the DRC Code of Practice.
Tribunals' services covered by Part III of the DDA
2.15 The DDA affects everyone concerned with the provision in the United Kingdom of services to the public, or to a section of the public. It applies to services provided in the private, public or voluntary sectors. It does not matter if services are provided free (such as access to a public park) or in return for payment (for example, a meal in a restaurant). Certain services which are not relevant to tribunals (such as the use of a means of transport) are not covered by the DDA.
2.16 Among the services which are covered are those provided to the public by local councils, Government departments and agencies. Services provided to the public by courts and tribunals are also covered by the Act.
2.17 It is important to note that tribunals will be providing services covered by the DDA in certain situations, but that the Act does not apply to all the functions of a tribunal. The Act does not apply to the performance of a tribunal's judicial functions. If a tribunal discriminates against a disabled person when deciding a question which is before it, then there may be an appeal against that decision. However, the disabled person may not bring an action against the tribunal under the DDA.
2.18 Services which are subject to the Act include the provision of advice and information about rights of appeal or complaint, by telephone, over the counter and in writing; receiving and dealing with claims and appeals within prescribed time limits; setting up a hearing at an appropriate venue; ensuring that cases are heard by suitably qualified and trained tribunals; notifying the applicant or appellant of the tribunal's decision in good time; and advising on any further appeal rights from the decision of the tribunal.
2.19 Thus, for example, tribunals will need to consider whether sufficient steps have been taken to provide forms and literature in alternative formats and in Plain English; for sign language interpreters or communication aids such as lip speakers to be provided at hearings; and for hearing venues to be physically accessible to users with a range of impairments.
2.20 It is also important to consider the question of to whom services are provided by tribunals, as this will determine the persons to whom tribunals owe duties under the DDA. Clearly, tribunals provide services to the parties themselves (the applicant or appellant and any other party, including government department representatives). However, tribunal users also include representatives of the parties generally, any witnesses and, where the hearing is one which is open to the public, members of the general public. Any of these may require a reasonable adjustment in order to be able to use the tribunal's services without unreasonable difficulty.
2.21 The DDA says that "services" include "access to and use of any place which members of the public are permitted to enter". Thus, a person who permits "members of the public" to enter such a place is providing a service to those people consisting of access to and use of that place. Clearly, members of the public are permitted to enter premises in which tribunal hearings take place. Members of the public may also be permitted to enter other buildings occupied by tribunals - perhaps for the purpose of lodging papers or attending a public enquiry counter. In such cases, permitting the public to have access to and use of such buildings will be a service to which the DDA applies. Specific issues concerning physical access to tribunal premises are considered in Chapter 6.
2.22 Complex issues arise in the case of premises with more than one occupier, where there are common areas such as entrance halls, stairways and lifts. The DDA does not expressly state whether or not the landlord (including any operator of the common parts) in such a case is a service provider for the purposes of the Act in respect of those common areas. Therefore, it does not make it explicit whether the landlord is under a duty to make reasonable adjustments to the common parts to make them accessible to disabled people. Whether the landlord is under such an obligation is likely to depend on whether the place is one "which members of the public are permitted to enter". This issue is considered in more detail at paragraphs 2.21 2.30 of the DRC Code of Practice.
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