Disability Discrimination Act

Introduction

The Disability Discrimination Act 1995 came into effect on 2nd December 1996 to prevent discrimination against disabled people.

This Appendix is intended to provide a brief overview of the Act, not a comprehensive or detailed account of its statutory provisions.

These notes are not a substitute for obtaining legal advice and no one should rely upon the information that they contain. The author and publishers accept no liability in relation thereto.

Overview

The first two stages of the Act came into force on 2 December 1996 and 1 October 1999 and focus primarily on the availability and quality of the service provided to disabled people. In 2004, additional duties will be placed on service providers regarding physical features that discriminate against disabled people. A supporting Code came into effect in May 2002.

In practice, the provisions of the Act are consistent with Scottish Natural Heritage's policy of promoting 'access for all', under which access to the countryside should be barrier free and, where a structure is necessary, the least restrictive option should be adopted.

Persons Covered by the Act

Under the Act, a disabled person is an adult or child who has, or has had in the past, a physical or mental impairment which has a substantial and long term (i.e at least 12 months) adverse effect on their ability to carry out normal day to day activities. This includes people with physical and sensory disabilities, learning difficulties and mental illness.

Responsibilities of Service Providers

The Act makes it unlawful for service providers to treat disabled people less favourably than they would treat other people, for a reason related to their disability, when offering or providing goods, services and facilities.

It states that discrimination occurs when a service provider:

  • treats a disabled person less favourably than it treats other people and cannot show that the treatment is justified;
  • fails to comply with the duty to make reasonable adjustments in relation to the disabled person and cannot show that the failure is justified.

Less Favourable Treatment of Disabled People

A service provider should not be looking for reasons or excuses to discriminate against disabled people. However, there are limited circumstances under the Act which permit a service provider to justify the less favourable treatment of disabled people:

  • a service provider can justify refusing to provide, or deliberately not providing, a service to a disabled person if this would mean that the service could no longer be provided to other members of the public;
  • a service provider can justify an inferior service if this is necessary to be able to provide the service to the disabled person or other members of the public;
  • a service provider is not required to do anything that would endanger either the disabled person or other people;
  • a service provider can charge a disabled person more for a service where the service is individually tailored to the requirements of the disabled person and the charge reflects the additional costs of meeting the disabled persons specification;
  • a service provider is not required to contract with a disabled person who is incapable of entering into a legally enforceable agreement or of giving informed consent when a disabled person is unable to understand a contract;
  • a service provider is not required to take steps that would fundamentally alter the nature of its service.

In all cases, the service provider's action must be justified. If a disabled person can show that he or she has been treated less favourably than others for a reason related to their disability, it is for the service provider to show that the action taken was justified.

Implementation of The Act

The provisions of the Act are being introduced in stages.

From 2 December 1996 , service providers cannot:

  • refuse service to disabled people;
  • offer a disabled person a worse service;
  • offer service on worse terms for a reason related to a person's disability.
  • From 1 October 1999 , service providers have a duty to:
  • make reasonable adjustments to policies, procedures or practices which exclude disabled people;
  • provide auxiliary aids and services to enable or make it easier for disabled people to use a service;
  • where a physical feature is a barrier to a service, find a reasonable alternative method of delivering the service.

From 2004, where a physical feature makes it impossible or unreasonably difficult for a disabled person to make use of a service, service providers have to take reasonable steps to remove, alter or avoid it if the service cannot be provided by a reasonable alternative method.

Implications of the Act for Access in the Countryside

Under the Act the provision of public services includes all goods or facilities. All countryside services are therefore covered, including walks programmes, events, information, interpretation, and paths and trails.With regard to the accessibility of paths in the countryside to disabled people, the provisions of the Act have the following implications:

  • as from 1 October 1999, but prior to 2004, where a structure on a path is a barrier to access by disabled people, service providers have a duty to find a reasonable alternative method of providing access;
  • as from 2004, where a structure on a path makes it impossible or unreasonably difficult for a disabled person to gain access, service providers have a duty to take reasonable steps to remove, alter or avoid it, if access cannot be provided by a reasonable alternative method.

The government has indicated that the staged introduction of these sections of the Act should not deter service providers from taking the requirements of the 2004 provisions into account at an earlier stage. It is suggested that such an approach may actually be more effective and economical.