Information and Advisory Note Number 117 Back to menu
1.1 The Disability Discrimination Act 1995 came into
effect on 2nd December 1996 to prevent discrimination against disabled people.
This note is not a comprehensive review of every aspect of the Act. Rather it
examines the main aspects of the Code of Practice (the Code) associated with
Part III of the Act. The Code aims to help disabled people understand the law
and assist service providers to avoid complaints and litigation by adopting good
practice.
1.2 This note is a guide about the Disability Discrimination Act 1995 (DDA) and
its associated Code of Practice from the point of view of countryside recreation
service providers. It is not a substitute for obtaining legal advice and no-one
should rely on the information contained in this guide. The author and
publishers accept no liability in relation thereto.
2.1 Alongside provisions on employment, education and
public transport an important part of the DDA for countryside service providers
is Part III. This 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 to members of the public; or
• providing service of a lower standard or in a worse manner; or
• providing service on worse terms,
whether or not there is a charge for the
service.
2.2 It is also unlawful to fail to comply with any duty imposed by Section 21 of
the Act (a duty to make reasonable adjustments) in circumstances in which the
effect of that failure is to make it impossible or unreasonably difficult for a
disabled person to make use of any such service
2.3 The DDA says that discrimination occurs in two ways when a service provider:
• treats a disabled person less favourably (for a reason relating to the
disabled person's disability) 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.
3.1 Adults and children have protection under 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; and
• adverse; and
• long term (at least a year).
4.1 Under the Act the provision of services includes the
provision of goods or facilities. It does not matter whether services are
provided free or in return for payment. It is the provision of the service which
is important not the nature of that service or the type of situation in which it
is provided. All countryside services are therefore covered by the act: walks
programmes, events, information, interpretation, paths and trails, visitor
centres, etc.
4.2 Everyone involved in providing services is affected. A ranger providing a
service to the pubic must not discriminate against disabled people. The most
senior manager of a countryside service who rarely meets the public may also be
affected if the service for which he or she is responsible treats disabled
people less favourably. Volunteers and self employed people are also covered by
the Act.
4.3 Services provided by private clubs are not covered by Part III of the Act. A
Rambling Club refusing membership to a disabled person would not be liable under
the Act. However, if that club provides services to the public, for instance by
organising guided walks for non-members the refusal to allow a disabled person
to participate would be covered.
5.1 Refusal or non-provision of service
5.1.1 For discrimination to have taken place under the act a disabled person
must have been treated less favourably (a) in comparison with how other people
are treated; and (b) for a reason relating to the disabled person's disability.
A country park runs a birdwatching programme. A blind person is told the course
is full when there are in fact places available. Unless the management can
justify its actions this would be unlawful refusal of service under the Act. If
there are really no places available on the programme the likelihood is that
there would have been no discrimination under the Act as any other member of the
public would have been refused the service.
A disabled person seeking entry to a wildlife park has not brought sufficient
money to cover the entrance charge. She is refused entry. This refusal is not
for a reason associated with disability and is not likely be unlawful.
A group of people, some with learning disabilities and some non-disabled people,
are refused entry to a visitor centre. The fact that all members of this group
are treated the same, including the non-disabled people, would not exempt the
service provider from liability under the Act as other members of the public are
not treated in this way.
A guided walk leader refuses to allow two deaf people using British Sign
Language to join a walk because a sign language interpreter will be available on
the following weeks walk. This refusal of service is likely to be unlawful.
5.2 Standard or manner of service
5.2.1 A service provider must not offer a disabled person a lower standard of
service than it offers to other people or serve a disabled person in a worse
manner, without justification.
A ranger asks a person with a speech impediment to wait to the end of an
activity before asking questions so as not to hold up other visitors' queries.
This is likely to be unlawful.
5.2.2 A service provider does not have to stock special products for disabled
people to avoid providing a worse standard of service (although as a matter of
good practice it might consider doing so). However, where general services are
available to the other customers a refusal to cater for a disabled person would
be unlawful.
A sailing facility does not have an adapted dinghy available for hire to a
disabled person. This may not be against the law. However, a disabled sailor
asks to launch his own adapted boat. If the facility allows other members of the
public to launch their own boats it would be likely to be unlawful to refuse to
allow the disabled person this service.
5.3 Terms of service
5.3.1 A service provider should not provide a service to a disabled person on
terms which are worse than the terms offered to other people, without
justification. Worse terms include charging more for a service or imposing extra
conditions for using a service.
A guided walks programme requires disabled people to book in advance in order
that their needs can be met. Other members of the public can just turn up and
take part. This extra condition is likely to be unlawful. A person with a
learning disability is asked not to handle stuffed animals and birds in a
visitor centre. The staff believe, without good reason, that the disabled person
will damage them. If other people are allowed to handle the exhibits this action
is likely to be unlawful.
5.3.2 The act does not prohibit positive action in favour of disabled people.
The provision of a better seat in a visitor centre AV suite for a sight impaired
person would not be in breach of the DDA. Similarly, a visitor attraction could
allow a disabled person's companion free entry without breaching the law. This
would allow the disabled person to enjoy the facility without having to pay two
entrance fees.
6.1 From 1st October 1999, where a service provider offers
service 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 following situations:
• change a practice, policy or procedure which makes it impossible or
unreasonably difficult for disabled people to make use of services;
• provide a reasonable alternative method of making services available to
disabled people where a physical feature makes it impossible or unreasonably
difficult for disabled people to make use of them;
• provide an auxiliary aid or service if it would enable (or make it easier for)
disabled people to make use of services.
6.2 This duty is owed to disabled people at large and is not simply relevant to
each individual disabled person who wants to access a service provider's
services. This duty is:
• an anticipatory duty - service providers must think ahead as to what
adjustments may be needed to accommodate disabled people;
• a continuing duty - service providers must review their duty in the light of
experience;
• an evolving duty - service providers need to keep up with developments, for
instance in technology.
6.3 Some of the factors which might be considered in determining what is
reasonable adjustment include:
• whether taking any particular steps would be effective;
• the extent to which it is practicable;
• the financial and other costs;
• the extent of any disruption;
• the extent of the service provider's financial and other resources he amount
of any resources already spent on making adjustments;
• the availability of financial and other assistance.
A disabled person with arthritis complains that standing in a queue for an
audio-visual show in a visitor centre causes them pain. The centre's queuing
policy makes it unreasonably difficult for this person to use the service as no
other people would be expected to suffer similar discomfort to access it. The
provision of seating in the queuing area would probably be a reasonable
adjustment. Allowing the disabled person to the head of the queue might or might
not be a reasonable adjustment depending upon the effect on other visitors.
6.4 A service provider must comply with the duty to make reasonable adjustments
in order to avoid committing an act of unlawful discrimination. A disabled
person is able to make a claim against a service provider if:
• the service provider fails to do what is required; and
• that failure makes it impossible or unreasonably difficult for that disabled
person to access any services provided by that service provider to the public;
and
• the service provider cannot show that such failure is justified.
7.1 A service provider must take such steps as it is
reasonable for it to have to take, in all the circumstances, to change a
practice that makes it impossible or unreasonably difficult for a disabled
person to access the service it provides. The Act does not define "unreasonably
difficult" but service providers should consider the time, effort, inconvenience
and effort needed for a disabled person to use the service and how other people
would view the position if they had to endure similar difficulties.
7.2 The terms referred to here cover:
• what a service provider actually does (its practice);
• what a service provider intends to do (its policy);
• how a service provider plans to go about it (its procedure).
7.3 The Act does not define what are "reasonable steps" for a service provider
to take in order to changes its practices. For factors that may be relevant see
para 6.3
7.4 The purpose of making reasonable adjustments is to ensure that the practice
no longer has the effect of making it impossible or access a service. It
is not sufficient for a service provider to make an adjustment which does not
achieve this.
On a countryside path there is a locked gate with an adjacent stile. It would be
a reasonable adjustment for the gate to be unlocked for people who cannot use
the stile. The erection of a sign indicating that disabled people may obtain a
key from the visitor centre, (several hundred yards from the gate) is unlikely
to be a sufficient adjustment unless there is justification for the gate to
remain locked.
7.5 What might be a reasonable adjustment for a service provider to have to take
initially might be insufficient later in the light of its
experience.
A country park amends its car-parking policy by marking designated car-parking
spaces close to the visitor centre for disabled people. This is likely to be a
reasonable step for the service provider to take at this point. However,
non-disabled visitors frequently use these spaces. In the light of this, simply
making designated spaces available is no longer a reasonable adjustment because
in practice it does not make the visitor centre accessible to disabled people.
The country park manager instructs the rangers to monitor the use of the car
park and discourage inappropriate use of the designated parking spaces. This is
likely to be a reasonable step for the country park to take in the circumstances
then known to it.
7.6 A practice may have the effect of excluding or screening out disabled people
from enjoying access to services. Or the practice may create a barrier or hurdle
which makes it unreasonably difficult for disabled people to access the
services. In such cases, unless the practice can be justified, a reasonable step
for the service provider to take might be to abandon it entirely or to amend or
modify it so that it no longer has that effect.
A residential field studies centre refurbishes a number of rooms in its main
block so that they are accessible to disabled people. However, the booking
policy is such that rooms are allocated on a first come first served basis with
rooms in the main block being allocated first. The effect is that sometimes only
non-accessible rooms are left for disabled people seeking accommodation. The
centre decides to changes its booking policy so that the accessible rooms are
either reserved for disabled people in advance or are allocated last of all.
This is likely to be a reasonable step for the centre to have to take.
8.1 The Government intends that other elements of the duty
to make reasonable adjustments will come into force in 2004. These will require
a service provider to remove or alter a physical feature of its premises or to
provide a reasonable means of avoiding the physical feature. However, the duty
to provide an alternative method of making services available to disabled people
is in force from 1st October 1999.
A visitor centre provides audio-visual presentations in first floor facilities.
This makes it impossible or unreasonably difficult for some people to access
this service. The service provider would not be expected at present to make
alterations to its premises. When the remaining duties relating to physical
features are introduced it might be reasonable to install a lift or move the
audio-visual presentations to an accessible ground floor room. To satisfy the
duty which came into force from 1st October 1999, an alternative means of
providing the service, such as providing a video of the presentations in an
accessible position, might be a reasonable adjustment to make.
The route from a car park to a popular viewpoint climbs a steep track. The
service provider would not be expected to modify the gradient and surface of the
track at present. It might be a reasonable step to allow disabled people to
drive to the top of the gradient in order to reach the viewpoint.
8.2 The Disability Discrimination (Services and Premises) Regulations 1999 make
provision for various things to be treated as physical features, including:
• any feature arising from the design or construction of a building on the
premises occupied by the service provider;
• any feature on those premises or any approach to, exit from or access to such
building;
• any fixtures, fittings, furnishings, furniture, equipment or materials in or
on such premises;
• any fixtures, fittings, furnishings, furniture, equipment or materials brought
onto premises (other than those occupied by or on behalf of the service
provider) in the course of (and for the purpose of) providing services to the
public; • any physical element or quality of land comprised in the premises
occupied by the service provider.
All these features are covered whether temporary or permanent. A building means
an erection or structure of any kind.
9.1 A service provider 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 service which it offers to the public. An auxiliary
aid or service might be the provision of a piece of equipment
or simply extra assistance to disabled people from (perhaps specially trained)
staff. The act give two examples of auxiliary aids and
services: the provision of information on audio tape and the provision of a sign
language interpreter.
A nature reserve provides binoculars and telescopes for visitors to view birds.
Some of these are on adjustable mountings that can be used by disabled people
unable to hold heavy objects. A country park has several steep paths. Disabled
people may borrow powered scooters to get round the facilities. These are
examples of auxiliary aids.
Disabled visitors with a visual impairment or learning disability may need
assistance to locate various events and activities at a large agricultural show.
The organisers have volunteers available to help such people find their way
around the show ground. The organisers are providing an auxiliary service which
makes its show accessible.
9.2 The reasonableness of the service provider's response to disabled people's
requirements will inevitably vary with the circumstances. The factors that may
be relevant are described in para 5.3.
10.1 A service provider should not be looking for reasons
or excuses to discriminate against disabled people. In limited circumstances the
Act does permit a service provider to justify the less favourable treatment of
disabled people or a failure to make reasonable adjustment. This
cannot be used as a reason for a general exclusion of disabled people from
access to services.
10.2 The test of justification is both subjective (what did the service provider
believe?) and objective (was that belief reasonably held?). A service provider
does not have to be an expert on disability, but it is expected to take account
of all the circumstances, including the information available to it, whether it
was possible to seek advice, and whether the service provider asked or took
account of the opinion of the disabled person concerned. The lawfulness of what
a service provider does or fails to do will be judged by what it knew (or could
have reasonably known) what it did and why it did it at the time of the
alleged discriminatory act.
10.3 If a disabled person can show that he or she has been treated less
favourably than others for a reason related to his or her disability, it is for
the service provider to show that the action taken was justified.
10.4 Health and Safety: The Act does not require a service provider to do
anything which would endanger the health or safety of any person.
A country park refuses to loan a disabled person a powered scooter because they
believe that person to be unable to operate the braking system effectively. The
refusal is based on genuine concerns for the safety of the disabled person and
others and is likely to be justified. However, this justification cannot be used
to bar all disabled people from using this service. Those who can demonstrate
the ability to operate the scooter safely may need to be considered differently.
The requirement to make reasonable adjustments will still apply and if the
braking system of the scooters can be modified or alternative access routes
opened up these may be reasonable steps for the service provider to have to
take.
10.5 Incapacity to contract: The Act does not require a service provider to
contract with a disabled person who is incapable of entering into a legally
enforceable agreement or of giving an informed consent. If a disabled person is
unable to understand a particular transaction, a service provider may refuse to
enter into a contract. This might justify discriminatory standards or manner or
terms of service, as well as a failure to make a reasonable adjustment.
10.5.1 Any such refusal must be reasonable. A person may be able to understand
less complicated transactions but have difficulty with more complex ones. Unless
there is clear evidence to the contrary, a service provider should assume a
disabled person is able to enter into a contract.
A country craft shop refuses to sell a person with learning disabilities an Hem,
It claims that she does not understand the nature of the transaction. This is
even though her order is clear and she is able to pay for the item. This is
unlikely to be justified.
10.5.2 The Disability Discrimination {Services and Premises) Regulations 1996
prevent service providers from justifying less favourable treatment of a
disabled person on the grounds of incapacity to contract or inability to give an
informed consent where another person is legally acting on behalf of the
disabled person.
10.6 Otherwise unable to provide the service to the public: A service
provider can justify refusing to provide (or deliberately not
providing) a service to a disabled person if this is necessary because the
service provider would otherwise be unable to provide the
service to other members of the public.
A guided walk leader refuses to allow a person with a mobility impairment on a
moorland walk because he has well-founded reasons to believe the extra help the
leader would have to give would prevent the rest of the party from completing
the walk. This is likely to be justified.
10.6.1 Refusing service in this manner is only justifiable if other people would
be effectively prevented from using the service at all. It is not enough that
those other people would be inconvenienced or delayed. Before a service provider
seeks to rely on this justification it should first consider whether there are
any reasonable adjustments that could be made to allow the disabled person to
enjoy the service.
In the example in paragraph 10.6 the leader might consider using an easier
alternative route for the walk or providing an auxiliary service in the form of
an additional helper.
10.7 To enable provision of the service: 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 fishing facility restricts a wheelchair user to those fishing stations
accessible from a surfaced track. These are by the poorer fishing areas. The
disabled person would otherwise not be able to fish the lake. The restriction is
necessary in order to provide the service to the disabled angler. This is likely
to be justified.
10.7.1 This only applies if the disabled person or other people would
effectively be prevented from using the service at all. A service provider
cannot justify such treatment simply because of other people's preferences or
prejudices.
A bird watcher with an impairment causing erratic and irregular hand movements
is restricted to a bird hide some distance from the main features of interest
because of other birdwatchers' groundless fears that the birds might be
disturbed. Despite the reassurances of the disabled person the hide manager has
bowed to the pressure from other customers. This is unlikely to be justified.
10.8 Greater expense: A service provider can justify charging a disabled
person more for services where the service is individually tailored to the
requirements of the disabled person and the charge reflects the additional cost
of meeting the disabled person's specification.
A canoe builder charges more for a paddle with a special moulded grip for a
disabled person than for standard paddles This is likely to be justified.
10.9 Additional cost of providing services: The Act does not allow a
service provider to pass on additional costs of complying with the duty
to make reasonable adjustments to disabled people alone. Reasonable adjustments
form part of the general expenses of providing the
service and cannot be used to justify different terms for disabled people.
A visitor centre modifies its AV presentations so that subtitles can be
displayed on request. People requesting this service are charged an additional
fee even though the presentations are the same in every other way. This is
unlikely to be justified.
10.10 Protecting the nature of the business: The Act does not require a service
provider to take steps which would fundamentally alter the
nature of its service.
A guided walk leader refuses to change a walk onto an accessible route thus
preventing a disabled person from enjoying it. The leader's reason is that only
by following the planned route will a particular butterfly be seen. This is the
main purpose of the guided walk. This is likely to be justified.
A nature reserve warden refuses to give a talk at a disabled person's day centre
on the grounds that this would be the provision of a different kind of service
than that usually provided at the nature reserve visitor centre. This is
unlikely to be against the law. However, if the warden gives talks at other
places such as schools it is likely to be discriminatory to refuse to serve the
disabled person in this way.
Department of Education & Employment
Help Line Telephone: 0345 622633
Help Line Faxback Service: 0345 622611
Help Line Textphone: 0345 622644 dfee.gov.uk
(Publishes: Disability Discrimination Act 1995 -
Codes of Practice)
Fieldfare Trust
7 Volunteer House
69 Crossgate
CUPAR
Fife
KY15 5AS
Tel: 01334 657708
e-mail: scotland@fieldfare.f9.co.uk
fieldfare.org.uk(Publishes: BT Countryside for All Good Practice Guide)
Fieldfare Trust
67a The Wicker
SHEFFIELD
S3 8HT
Tel: 0114 2701668
e-mail: fieldfare.org.uk
Disability Scotland
Princes House
Shandwick Place
EDINBURGH
EH2 4RG
Tel: 0131-229 8632
e-mail: disabilityscotland.org.uk
Bridget Dales
Recreation and Access Group
Scottish Natural Heritage
Battleby
Redgorton
PERTH
PH1 3EW
Tel: 01738 444177
e-mail: bridget.dales@snh.gov.uk
Ian Newman
Fieldfare Trust
7 Volunteer House
69 Crossgate
CUPAR
Fife
KY15 5AS
Tel: 01334 657708
e-mail: scotland@fieldfare.f9.co.uk
National Disability Council
Level 4, Caxton House
Tothill Street
LONDON
SW1H9NA
Tel: 0207 2735636
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