Disability Discrimination Act 1995

Code
of Practice
Rights of Access
Goods, Facilities,
Services
and Premises
Disability Discrimination Act 1995

Code of Practice
Rights of Access

Goods, Facilities,
Services
and Premises

London: The Stationery Office

 © Disability Rights Commission 2002
All rights reserved. No part of this publication
may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means,
electronic, mechanical, photocopying, recording
or otherwise without the permission of the
publisher.
Applications for reproduction should be made
in writing to the Disability Rights Commission,
2nd Floor, Arndale House, Arndale Centre,
Manchester, M4 3AQ.
The information contained in this publication is
believed to be correct at the time of manufacture.
Whilst care has been taken to ensure that the
information is accurate, the publisher can accept
no responsibility for any errors or omissions or
for changes to the details given.
A CIP catalogue record for this book is available
from the British Library.
A Library of Congress CIP catalogue record has
been applied for.
First published 2002

ISBN 0 11 702860 6

The Commencement date is May 27, 2002

ii
This revised Code of Practice deals with the duties
placed by Part III of the Disability Discrimination Act
1995 on those providing goods, facilities or services to
the public and those selling, letting or managing
premises. The Act makes it unlawful for service
providers, landlords and other persons to discriminate
against disabled people in certain circumstances.
The duties on service providers are being introduced in
three stages:

■ since 2 December 1996 it has been unlawful for

service providers to treat disabled people less
favourably for a reason related to their disability;

■ since 1 October 1999 service providers have had

to make ‘reasonable adjustments’ for disabled
people, such as providing extra help or making
changes to the way they provide their services;
and

■ from 1 October 2004 service providers may have

to make other ‘reasonable adjustments’ in
relation to the physical features of their
premises to overcome physical barriers to
access.
The duties on landlords and other persons in
connection with the selling, letting and managing of
premises were introduced on 2 December 1996. Since
that date, it has been unlawful for them to treat
disabled people less favourably for a reason related to
their disability. There is no equivalent duty to make
‘reasonable adjustments’ in relation to those premises.
The original Code, which was issued in 1996, was
iii
 revised in 1999 in the light of experience gained since
the first duties were implemented in December 1996
and to take account of the duties imposed on service
providers from 1 October 1999. This Code replaces the
revised Code. It takes account of the further duties on
service providers to make adjustments when the
physical features of their premises make it impossible
or unreasonably difficult for disabled people to use
their services. Although these remaining duties do not
come into force until 1 October 2004, this Code is being
issued now in order to encourage service providers to
be proactive and to assist them to prepare for their
extended obligations.

iv
 Foreword

The Disability Rights Commission (DRC) has written

and produced this Code of Practice on Part III of the
Disability Discrimination Act (DDA). The Code is a
revision of the consultative draft published by the DRC
in May 2000 to take account of further duties under the
DDA coming into force in 2004.
The DRC undertook a wide-ranging consultation
on the Code involving both disabled people and
service providers. The new duties upon service
providers, which come into force in October 2004,
were the main focus of the consultation. In response,
extensive changes have been made throughout the
Code. The most notable of these is the inclusion of a
new chapter on the linkage between the DDA and the
Building Regulations and the impact of leases. This
chapter meets many of the concerns of respondents
to the consultation for more detailed information in
these areas.
The Code sets out our understanding of the law but
there is undoubtedly some ambiguity and there are
areas that will require testing in the courts. An example
of this is the question of the measures service providers
should take from 2004 to ensure that a physical feature
is not making their service impossible or unreasonably
difficult for disabled people to use. The Act sets out
four possible options for service providers: removing,
altering or avoiding a physical feature or providing the
service by alternative means. The DDA does not
prescribe what approach the service provider should
use. However, the DRC believes that good practice and
the most sensible approach will be to remove or alter

v
 the physical barrier to the service wherever this is
possible. This is undoubtedly the most effective long
term solution for both the service provider and
disabled people.
The DRC has produced a range of information to help
service providers in relation to their duties in 2004. This
includes a Practical Guide for Small Business and Other
Service Providers and some case studies. We would
welcome any suggestions for further information
which would be helpful.
This Code is a major tool in helping achieve the DRC’s
aim of ‘A society where all disabled people can
participate fully as equal citizens’. Making services
accessible for disabled people is also good for
business. I am sure that this Code will be a valuable
resource in this important undertaking.

Bert Massie
Chairman, Disability Rights Commission
Contents

vi
 Contents
1

2
Introduction 1
1 Purpose of Part III of the Act 1 3
Purpose of the Code 1
Status of the Code 2
How to use the Code 2
4
Examples in the Code 3
References in the Code 4 5
Changes to the legislation 4
Further information 5 6
What does the Act say about providing services? 7
2 Introduction 7 7
What does the Act make unlawful? 7
What does the Act mean by ‘discrimination’? 8 8
Who has rights under the Act? 9
What services are affected by Part III of the Act? 11
What services are not affected? 18
9
Education 18
Education after 1 September 2002 20 10
The use of any means of transport 21
Services not available to the public 22
Private clubs 22
Manufacturers and designers of products 23

vii
 The service provider’s duty not to treat a disabled person
3 less favourably 25
Introduction 25
What is unlawful? 25
Less favourable treatment 26
Must a service provider know that a person is disabled? 30
A service provider’s legal liability for its employees 31
What steps should a service provider consider? 31
Refusal or non-provision of service 33
Standard or manner of service 34
Terms of service 35
Can service providers treat a disabled person more
favourably? 36

Making changes for disabled people: the service provider’s

4 duty to make reasonable adjustments 37
Introduction 37
What does the Act say? 37
What is the duty to make reasonable adjustments? 38
General approach to making reasonable adjustments 40
Use of reasonable adjustment examples 41
To whom is the duty to make reasonable adjustments owed? 42
At what point does the duty to make reasonable
adjustments arise? 42
Does the duty of reasonable adjustment apply even if the
service provider does not know that the person is disabled? 43
Must service providers anticipate every barrier? 44
How long does the duty continue? 44
What is meant by ‘reasonable steps’? 46
Protecting the fundamental nature of a business or service 51

viii
 Cost of providing reasonable adjustments 52
4 What is ‘unreasonably difficult’? 53
What happens if the duty to make reasonable adjustments 1
is not complied with? 54

Reasonable adjustments in practice 55

2
5 Introduction 55
Practices, policies and procedures 56 3
What is the duty to change a practice, policy or procedure? 56
What are practices, policies and procedures? 58
4
What are ‘reasonable steps’ in relation to practices,
policies and procedures? 59
Auxiliary aids and services 61 5
What is the duty to provide auxiliary aids or services? 61
What is an auxiliary aid or service? 61
6
What are ‘reasonable steps’ in relation to auxiliary aids
or services? 65
Using auxiliary aids or services to improve communication 67 7
Provision for people with a hearing disability 68
Provision for people with a visual impairment 71
8
Provision for people with other disabilities or multiple
disabilities 73
Overcoming barriers created by physical features 75 9
What is the duty to make reasonable adjustments
in relation to physical features? 75
What are a service provider’s obligations in respect
10
of physical features? 79
Adopting an ‘inclusive’ approach 81
How can service providers identify possible adjustments? 82
What is a ‘physical feature’? 82
Removing the physical feature 84
Altering the physical feature 85

ix
 Providing a reasonable means of avoiding
5 the physical feature 85
Providing a reasonable alternative method of making
services available 86

How do building regulations and leases affect reasonable

6 adjustments? 89
Introduction 89
Building regulations 89
Summary 89
Requirements 90
Where the exemption applies in England and Wales 94
Where the exemption applies in Scotland 97
Application of the exemption throughout Great Britain 98
Leases, binding obligations and reasonable adjustments 102
What about the need to obtain statutory consent for some
building changes? 102
What if a binding obligation other than a lease prevents
a building being altered? 103
What happens if a lease says that certain changes to
premises cannot be made? 104
What happens if the lessor has a ‘superior’ lessor? 105
How will arrangements for gaining consent work? 106
When is it unreasonable for a lessor to withhold consent? 108
What conditions would it be reasonable for a lessor
to make when giving consent? 110
What happens if the lessor refuses consent or attaches
conditions to consent? 111
Reference to court 111
Joining lessors in proceedings 111

x
 Can a service provider justify less favourable treatment
7 or failure to make reasonable adjustments? 113
Introduction 113
1
Less favourable treatment 113
Failure to make reasonable adjustments 114
The general approach to justification 115 2
Health or safety 116
Incapacity to contract 119 3
Service provider otherwise unable to provide the service
to the public 121
To enable the service provider to provide the service
4
to the disabled person or other members of the public 122
Greater cost of providing a tailor-made service 123
5
Special rules affecting insurance, guarantees and deposits 125
8 Introduction 125
6
Insurance 125
When is disability relevant to the provision of insurance 7
services? 125
What is information relevant to the assessment of
an insurance risk? 127 8
What is the practical effect of the special rules on
insurance? 128
9
Existing insurance policies, cover documents and
master policies 129
Guarantees 129 10
What is a guarantee? 129
Guarantees and less favourable treatment of disabled
persons 131
Deposits 132

xi
 Selling, letting or managing premises 135
9 Introduction 135
What does the Act make unlawful? 135
What does the Act mean by ‘discrimination’? 136
Is there a duty to make adjustments in relation to selling,
letting or managing premises? 138
What is a ‘disposal’ under the Act? 138
What is meant by ‘premises’ and ‘tenancy’? 139
Does the Act apply to all disposals of premises? 139
Disposal of premises 140
Terms of disposal 140
Refusal of disposal 141
Treatment in relation to housing lists 141
Exemption for small dwellings 142
When are premises ‘small premises’? 143
When does the small dwellings exemption apply? 144
Management of premises 145
Who is a ‘person managing any premises’? 145
Use of benefits or facilities 145
Eviction 146
Other detriment 147
Small dwellings exemption 148
Licence or consent 148
Small dwellings exemption 148
Justifying less favourable treatment in relation to premises 149
Health or safety 150
Incapacity to contract 151
Treatment necessary in order for the disabled person
or other occupiers to use a benefit or facility 152
Deposits 153

xii
 Other provisions under the Act 157
10 Introduction 157
Victimisation 157 1
Aiding unlawful acts 159
Liability for employees’ and agents’ acts 160
2
Terms of agreements 161
Statutory authority and national security 162
What happens if there is a dispute under the Act? 162 3
What happens if a dispute can not be resolved? 163
Disability Rights Commission 164 4
Appendix: The meaning of disability 165
When is a person disabled? 165
5
What about people who have recovered from a disability? 165
What does ‘impairment’ cover? 165 6
Are all mental impairments covered? 165
What is a ‘substantial’ adverse effect? 166
7
What is a ‘long-term’ effect? 166
What if the effects come and go over a period of time? 166
What are ‘normal day-to-day activities’? 167 8
What about treatment? 168
Does this include people who wear spectacles? 168 9
Are people who have disfigurements covered? 168
What about people who know their condition is going
to get worse over time? 168 10
What about people who are registered disabled? 169
Are people with genetic conditions covered? 169
Are any conditions specifically excluded from the
coverage of the Act? 169

Index 171

xiii
 1 Introduction

Purpose of Part III of the Act

1.1 On 2 December 1996, the Disability
Discrimination Act 1995 (the Act) brought in
measures to prevent discrimination against
disabled people. Part III of the Act is based on
the principle that disabled people should not be
discriminated against by service providers or
those involved in the disposal or management
of premises. Subject to limited exceptions,
anyone who comes within either of these
categories must comply with the duties set out
in Part III. It should be noted that those selling,
letting or managing premises could also have
duties as service providers.

Purpose of the Code

1.2 This Code of Practice (the Code) gives practical
guidance on how to prevent discrimination
against disabled people in accessing services or
premises. It describes the duties on those
providing services to the public and those
selling, letting or managing premises under Part
III of the Act. The Code helps disabled people to
understand the law and assists service
providers, landlords and other persons to avoid
complaints and litigation by adopting good
practice. It also aims to advance the elimination
of discrimination against disabled people and to
encourage good practice.

1
 ss 51-54 1.3 The Disability Rights Commission (DRC) has
prepared and issued this Code under the Act on
the basis of a request by the Secretary of State. It
applies to England, Wales and Scotland. A similar
but separate Code applies to Northern Ireland.

Status of the Code

s 51(3)-(5) 1.4 The Code does not impose legal obligations.
Nor is it an authoritative statement of the
law – that is a matter for the courts. However,
the Code can be used in evidence in legal
proceedings under the Act. Courts (and, in
respect of insurance services provided to
employees, employment tribunals) must take
into account any part of the Code that appears
to them relevant to any question arising in
those proceedings. If service providers and
those involved in selling, letting or managing
premises follow the guidance in the Code,
it may help to avoid an adverse judgement
by a court in any proceedings.

How to use the Code

1.5 This chapter gives a general introduction to the
Code and to Part III of the Act. Chapters 2–8 deal
with the duties on service providers, including a
description of the duty to make reasonable
adjustments for disabled people. Chapter 9
deals with the duties on those selling, letting or
managing premises. Chapter 10 describes other
actions made unlawful by the Act and explains
what happens if discrimination is alleged.

1.6 The Appendix gives more information on what

is meant by disability and who are disabled
persons. Separate statutory guidance relating to
the definition of disability has been issued under
the Act (see paragraph 2.12 below).

2
1.7 Each chapter of the Code should be viewed as
part of an overall explanation of Part III of the
Act and the regulations made under it. In order
to understand the law properly it is necessary to
read the Code as a whole. The Code should not
be read too narrowly or literally. It is intended to
explain the principles of the law, to illustrate
how the Act might operate in certain situations
and to provide general guidance on good
practice. There are some questions which the
Code cannot resolve and which must await the
authoritative interpretation of the courts. The
Code is not intended to be a substitute for taking
appropriate advice on the legal consequences of
particular situations.

Examples in the Code

1.8 Examples of good practice and how the Act is
likely to work are given in boxes. They are
intended simply to illustrate the principles and
concepts used in the legislation and should be
read in that light. The examples should not be
treated as complete or authoritative statements
of the law.

1.9 While the examples refer to particular situations,

they should be understood more widely as
demonstrating how the law is likely to be
applied generally. They can often be used to test
how the law might apply in analogous situations
involving different disabilities, services or
service providers. They attempt to use as many
different varieties of disabilities and services as
possible to demonstrate the width and scope of
the Act. References to male or female disabled
people are given for realism and could, of
course, apply to either sex.

3
 References in the Code
1.10 Throughout the Code, references are made to
‘service providers’ for convenience. Subject to
certain exceptions, Part III of the Act applies to
any person or any organisation or entity which
is concerned with the provision in the United
Kingdom of services (including goods and
facilities) to the public or a section of the public.
Similarly, the Act applies to disabled people who
use, or seek to use, the services so provided,
whether as customers, buyers, shoppers,
consumers, clients, patrons or service users.

1.11 References to the Act are shown in the margins.

For example, s 1(1) means section 1(1) of the Act
and Sch 1 means Schedule 1 to the Act. Where
reference is made to regulations made under the
Act, the Statutory Instrument number is shown
in the margin (for example, SI 1996/1836).

For the most part, references to ‘the Act‘ apply

to Part III of the Disability Discrimination Act.

Changes to the legislation

1.12 This Code refers to the Disability Discrimination
Act as of November 2001. There may be
changes to the Act or to other legislation, for
example, on transport, which may have an effect
on the duties explained in this Code, and you
will need to ensure that you keep up to date with
any developments which may affect the Act’s
provisions. You can get information about this
from the Disability Rights Commission (see
paragraph 1.14 below for contact details).

4
 Further information
1.13 Copies of the Act and regulations made under
it (and further copies of this Code) can be
purchased from the Stationery Office bookshops
(see back cover). A separate Code covering the
employment provisions of the Act and guidance
relating to the definition of disability are also
available from the same source, as is a Code
dealing with the duties of trade organisations
to their disabled members and applicants.

1.14 Free information about the Act can be obtained

by contacting the DRC Helpline:
Telephone: 08457 622 633
Faxback service: 08457 622 611
Textphone: 08457 622 644

The Code and information about the Act are

also available in alternative formats or via the
Internet [http://www.drc-gb.org].

5
 2 What does the Act say about
providing services?

Introduction
2.1 This chapter provides an overview of the
provisions of Part III relating to the provision
of services. It outlines what is made unlawful
by the Act and explains what is meant by
’discrimination‘. It describes the scope of
services affected by the Act (and those which
are excluded) and those people who have rights
under the Act.

What does the Act make unlawful?

2.2 The Act makes it unlawful for a service provider
to discriminate against a disabled person:
■ by refusing to provide (or deliberately not s 19(1)(a)
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 s 19(1)(c)
to the disabled person or the manner in
which it provides it; or
■ in the terms on which it provides a service s 19(1)(d)
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 s 19(1)(b

discriminate in:
■ failing to comply with any duty imposed on
it by section 21 (a duty to make reasonable
7
 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.

The reference to making use of a service

includes using goods or facilities.

What does the Act mean by

‘discrimination’?
2.4 The Act says that discrimination against a
disabled person occurs in two possible ways.

s 20(1) 2.5 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.

2.6 Making sure that a service provider does not

treat a disabled person less favourably is
considered in more detail in Chapter 3 below.
Whether and when a service provider might be
able to justify the less favourable treatment of a
disabled person is considered in Chapter 7
below.

s 20(2) 2.7 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 Act (a duty to make
‘reasonable adjustments’) in relation to the
disabled person; and
■ cannot show that the failure is justified.

8
 2.8 The duty to make reasonable adjustments is
covered in greater detail in Chapters 4, 5 and 6
below. Whether and when a service provider
might be able to justify a failure to make a
reasonable adjustment is considered in Chapter
7 below.

Who has rights under the Act?

2.9 An adult or child has protection from ss 1-2
discrimination under the Act if he or she is a Schs 1–2
disabled person. 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).

2.10 Physical or mental impairment includes sensory

impairments. Hidden impairments are also
covered (for example, mental illness or mental
health problems, learning disabilities and
conditions such as diabetes or epilepsy).

In considering its duties under the Act, a

service provider should not use any definition
of ‘disabled person’ which is narrower than
that in the Act.

A large supermarket has its own car park with

spaces close to the entrance for use by
disabled customers which are reserved for
those with an orange badge car parking

9
 concession. After the introduction of the duty
to make reasonable adjustments, the
supermarket recognises that it must also
provide appropriate assistance to all disabled
people who find it unreasonably difficult to
access its services and not just to those with an
orange/blue badge car parking permit. For
example, the supermarket also offers a carry-
to-car service for disabled people who are
unable to carry their shopping themselves, but
who might not be orange/blue badge holders.

2.11 People who have had a disability within the

terms of the Act in the past are protected from
discrimination even if they no longer have the
disability.

A person with a past history of mental illness,

who met the definition of ‘disabled person’ in
the Act, is turned down for travel insurance
because of a blanket exclusion policy, even
though she has not had any recurrence of her
mental illness for many years. The provider of
insurance services would be acting unlawfully
under the Act unless it is able to justify the
exclusion in accordance with the special rules
on insurance services set out in Regulations
(see Chapter 8).

2.12 For a fuller understanding of the concept

of disability under the Act, reference should
be made to the Appendix to this Code. 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
10
 persons (see paragraph 1.13 above). Where
relevant, the Guidance must be taken into
account in any legal proceedings.

What services are affected by Part III

of the Act?
2.13 Under the Act, the provision of services s 19(2)
includes the provision of goods or facilities
(and in this Code ‘services’ is used in this sense).
Subject to the exclusions set out in paragraphs
2.32 to 2.37 below, the Act affects everyone
concerned with the provision in the United
Kingdom of services to the public, or to a
section of the public, whether 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).

2.14 Among the services which are covered are s 19(3)

those provided to the public by local councils,
Government departments and agencies, the
emergency services, charities, voluntary
organisations, hotels, restaurants, pubs, post
offices, banks, building societies, solicitors,
accountants, telecommunications and broadcasting
organisations, public utilities (such as gas,
electricity and water suppliers), national parks,
sports stadia, leisure centres, advice agencies,
theatres, cinemas, hairdressers, shops, market
stalls, petrol stations, telesales businesses,
places of worship, courts, hospitals and clinics.
This list is for illustration only and does not
cover all the services falling under the Act.

Some public bodies will be providing a service

which may be covered by the Act in certain
situations but not in others. For example, the
police will be providing a service under the Act

11
 when giving advice and information about crime
prevention, but are unlikely to be providing a
service when arresting someone. A highway
authority may be providing a service when
assuring passage along the highway. Whether
or not a function performed by a public body is
a service for the purposes of the Act will depend
on all the circumstances of the case.

2.15 All those involved in providing services are

affected – from the most senior director or
manager to the most junior employee, whether
full or part-time, permanent or temporary. It
does not matter whether the services in
question are being provided by a sole trader,
firm, company or other organisation, or whether
the person involved in providing the services is
self-employed or an employee, volunteer,
contractor or agent.

2.16 In most cases a service provider will be

providing services to a disabled person in that
person’s individual or personal capacity.
However, sometimes a disabled person will be
accessing services on behalf of an organisation
(perhaps as an employee or representative of
that organisation). For instance, as part of a
business relationship between that organisation
and the service provider, a disabled employee or
representative of the organisation might have to
visit parts of the service provider’s premises to
which a section of the public is normally
admitted. The service provider is likely to owe
the disabled person duties under the Act during
such visits.

2.17 It is important to remember that it is the

provision of the service which is affected by Part
III of the Act and not the nature of the service or
business or the type of establishment from

12
which it is provided. In many cases a service
provider is providing a service by a number of
different means. In some cases, however, each
of those means of service might be regarded as
a service in itself and subject to the Act.

If a bank provides its services from temporary

or mobile premises during a two week tennis
tournament, those services are still covered by
the Act.

A bank branch provides a cash withdrawal

service over the counter from Monday to
Friday during opening hours. It also provides a
24-hour cash withdrawal facility all through the
week from cash machines (ATMs). To the
extent that the ATM service is available when
the counter service is not, the bank is likely to
be providing an additional service which is
subject to the duties in the Act.

A local leisure centre is subject to the Act

because it provides a service to the public and
not, for example, because its services are
provided from a public building.

An airline company provides a flight

reservation and booking service to the public
on its website. This is a provision of a service
and is subject to the Act.

13
 A television company invites members of the
public to participate in a game show by
telephoning its national call centre. This is the
provision of a service and is subject to the Act.

s 19(3) 2.18 A wide range of services are covered by the Act

so as to include access to and use of any place
which members of the public are permitted to
enter. For example, toilet facilities and in–store
restaurants open to the public are covered and
a service provider might have to make changes
to entrances, fire exits and emergency escape
procedures which make it impossible or
unreasonably difficult for disabled people
to use its service (see Chapter 5).

A service provider converts a large building for

use as retail premises. It recognises that it
must take reasonable steps to provide a means
of escape in an emergency, accessible for
disabled people, which might include
adjustments to the premises.

s 19(3) 2.19 The Act 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.

2.20 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 Act does not expressly state
whether or not the landlord (including any
operator of the common parts) in such a case is
14
 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.

2.21 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’. If members of the public are
permitted to enter the premises, the landlord is
likely to be a service provider in respect of
access to the premises. If members of the
public are not permitted to enter the premises,
the landlord is unlikely to be a service provider
under the Act.

2.22 However, the Act does not define who are

‘members of the public’, except to the extent
that the definition of service provider refers to
the provision of services to ‘the public or to a
section of the public’.

2.23 Members of the public are clearly permitted

to enter some places. A shopping mall is an
example. If the owner of a shopping mall leases
shop units to individual retailers, the owner will
be responsible for the common areas, such as
access roads, pavements, car parks, toilets, lifts
and stairs. By allowing members of the public to
use these common parts, the owner is providing
services to the public and is subject to the Act.

2.24 The situation of an office building with more

than one occupier is not so clear. Whether the
landlord is himself a service provider in respect
of the common parts is likely to depend upon
whether members of the public are permitted to
enter the premises.

15
 2.25 There appears to be no single test that
determines whether a place is one which
members of the public are permitted to enter.
Whether or not a person entering the premises
is a member of the public is likely to depend on
all the circumstances of the case. A number of
factors may be relevant, including:
■ whether tenants who are service providers
are actually providing services in the
building rather than from the building;
■ whether those admitted to the building are
there for the purposes of the occupier (such
as employees or maintenance and service
personnel) or whether they are there for
purposes of their own (such as existing or
potential clients or customers); and
■ the nature and extent of the security and
screening arrangements in place.

2.26 Thus, a building which is normally used only by

employees of the tenants is unlikely to be
regarded as a place which members of the
public are permitted to enter. Conversely, a
building which is normally used by customers or
clients of tenants may well be a place which
members of the public are permitted to enter.

2.27 Because the issue is complex, landlords of

premises with more than one occupier should
not assume that they are not service providers
for the purposes of the Act. They should
anticipate that they may have responsibilities to
make the common parts accessible to disabled
people. They are advised to keep up to date with
how the law in this respect is being interpreted.

2.28 If tenants are providing services to the public in

their own right from the premises, they will have
a duty under the Act to take reasonable steps to
16
 make their services accessible to disabled
people (see Chapters 4 to 6). Where the
common parts make it impossible or
unreasonably difficult for disabled people to use
their services, asking the landlord to make such
alterations as are required in order to make the
premises accessible is likely to be a reasonable
step for the tenant to have to take.

2.29 If access through the common parts remains

impossible or unreasonably difficult for disabled
people, tenants should recognise that they may
have duties themselves to provide a reasonable
means of avoiding the physical feature
concerned, or a reasonable alternative method
of making their services available to disabled
people. In any event, it makes commercial sense
for service providers to anticipate the needs of
their disabled customers or potential customers
when determining the location of their premises,
or negotiating a lease, by ensuring that the
common parts of the premises they lease are
accessible.

2.30 A service might appear to be provided by

more than one service provider. In such a
case it may be important to identify who is
actually responsible for the provision of the
service which has given rise to the alleged
discrimination. In some cases, liability under
the Act may be shared among a number of
service providers.

A bank provides a cash machine facility inside

a supermarket. Although the facility is located
on the supermarket’s premises, the service is
being provided by the bank. The bank is likely
to be responsible for any duties that may arise
under the Act in respect of the cash machine.

17
 However, the supermarket is likely to be
responsible for ensuring that the cash machine
is physically accessible to disabled customers
using its premises.

An airport grants a franchise to a crèche to

provide its services in a part of the airport.
Although the crèche is located on the airport’s
premises, the service is being provided by the
franchisee. The franchisee is likely to be
responsible for any duties that may arise under
the Act in respect of the crèche. However,
access through the airport to the crèche is the
responsibility of the airport.

A training company provides a non-residential

conference at a hotel. The training company is
responsible for any duties that may arise under
the Act in respect of the conduct of the conference
and the choice of an accessible venue. However,
the hotel may provide some services which are
part of the conference facilities, such as toilets,
for which it is responsible under the Act. In
addition, services provided by the hotel which
are ancillary to the conference (for example,
accommodation the night before the
conference) are also those for which the hotel
is likely to be liable under the Act.

What services are not affected?

2.31 At present Part II of the Act exempts some
employers according to the number of people
they employ. There are no exemptions of this

18
 kind (whether relating to size, turnover or any
other factor) for service providers under Part III.

2.32 Some services are currently excluded under Part s 19(5)

III of the Act. These are education and certain
services closely related to it (see paragraphs
2.33 to 2.35 below) and the use of any means of
transport (see paragraphs 2.36 and 2.37 below).

Education
2.33 At present Part III of the Act specifically excludes s 19(5)(a)
education from the provisions relating to goods,
facilities and services. Generally, primary and SI 1996/1836
secondary schools, youth services and further reg 9
and higher educational establishments are
excluded from Part III.

Part IV of the Act currently requires schools,

local education authorities, colleges and
universities to provide information on access to
education for disabled pupils and students.

2.34 Although education as outlined above is

not covered by Part III of the Act, any other
educational or training services provided to
the public are likely to be subject to Part III. For
example, privately-run establishments providing
further education or training to the public are
likely to be covered by Part III. Non-educational
services which are provided by any school,
college or university, whether wholly or partly
to the public, are also likely to be subject to this
part of the Act.

A privately-run college which provides typing

courses is providing a service which is likely to
be subject to Part III of the Act.

19
 A parent-teacher association holds a fund-
raising event in a school hall. This is a
provision of a service which is likely to be
subject to Part III of the Act.

A university puts on a conference which is not

aimed wholly or mainly at students. Even if the
majority of people who take up the places are
students, the conference is still likely to be
subject to Part III of the Act.

Education after 1 September 2002

2.35 The SEN and Disability Act 2001 has amended
Part IV of the DDA and expanded the duties
relating to disabled pupils and students. It has
also removed the exemption of education from
Part III of the Act, although where a Part IV duty
applies, Part III cannot apply.

These new obligations will come into force in

stages, beginning on 1 September 2002.

Following this implementation date, some

services which had previously been excluded
from Part III, and which do not fall within Part IV,
are likely to be covered by Part III of the Act. This
includes non-statutory youth services, such as
clubs and activities run by voluntary
organisations, the Scouts or church youth clubs.
For further details, please see the SEN and
Disability Act Code of Practice: Schools and the
SEN and Disability Act Code of Practice: Post 16
Education (both available from the DRC Helpline).

Those educational or training services which

currently fall within Part III of the Act (see

20
 paragraph 2.34 above) will continue to do so
after 1 September 2002.

The use of any means of transport

2.36 Part III of the Act does not apply to any service s 19(5)(b)
so far as it consists of the use of any means of
transport (for example, taxis, hire cars, buses,
coaches, trains, aircraft and ships). However,
this does not mean that transport providers are
wholly exempt from Part III. They still have a
duty to avoid discrimination against disabled
people and to make reasonable adjustments for
them in respect of matters like timetables,
booking facilities, waiting rooms etc. at airports,
ferry terminals and bus, coach and rail stations.

A wheelchair user has no protection under Part

III of the Act if a ferry on which he wishes to
travel is not accessible. However, if he is
refused service in the buffet bar of the ferry
terminal because of his disability, this is likely
to be unlawful.

2.37 Part V of the Act allows the Government to set SI 1998/1970,

access standards for buses, coaches, trains, SI 2000/3318
trams and taxis. The Government has produced
regulations on access standards for rail vehicles SI 1998/2456,
and these apply to vehicles entering service SI 2000/3215
from 1 January 1999. Regulations on access
standards for certain buses and coaches, which SI 2000/2990
are used on local or scheduled services, have
applied to new vehicles from the end of 2000.

Since April 2001 it has been unlawful for

licensed taxis in England and Wales to refuse to
carry, or to make any extra charge for, disabled
passengers who are accompanied by a guide or
assistance dog. It has also been unlawful not to
21
 allow the dog to remain with the passenger. A
driver who fails to comply with this duty may be
guilty of a criminal offence and subject to a fine.
Similar regulations in Scotland are likely to be in
place during 2002.

Services not available to the public

Private clubs
2.38 Services not available to the public, such as
s 19(2)(b)
those provided by private clubs, are not covered
by Part III of the Act. However, where a club
does provide services to the public then the Act
applies to those services.

A private golf club refuses to admit a disabled

golfer to membership. This is not covered by the
Act. However, if the golf club hires out its
facilities for a wedding reception, the Act applies
to this service. If the club allows non-members
to use the course, a refusal to allow a disabled
golfer to play is likely to be subject to the Act.

2.39 Private clubs are generally those where

membership is a condition of participation and
members have to comply with a genuine
process of selection, usually by a club
committee operating the club rules. Private
clubs may include special interest clubs, such as
a film club or cricket club, or clubs for particular
groups of people, such as military or political
clubs. However, simply calling a service a ‘club’
does not necessarily mean that the courts will
consider it to be a private club. For example,
commercially run businesses which may require
membership – such as a health club or a video

22
 rental shop – would normally still be providing
services to the public and, therefore, would be
covered by the Act.

A health club in a hotel is open to the public.

Club members pay an annual subscription and
are provided with a membership card. Before
using the club’s fitness equipment, a member
must undergo a fitness test. Although members
have to satisfy certain requirements in order to
use some of its facilities, compliance with a
genuine selection procedure for membership is
not a condition of using the club. The club is
providing services to the public and is unlikely
to be excluded from Part III of the Act.

Manufacturers and designers of products

2.40 The manufacture and design of products are
not in themselves covered by Part III of the Act
because they do not involve the provision of
services direct to the public. Nothing in the Act
requires manufacturers or designers to make
changes to their products, packaging or
instructions. However, it makes good business
sense for manufacturers and designers to
make their goods (and user information) more
accessible to disabled customers and they
should consider doing so as a matter of good
practice.

A manufacturer of garden tools distributes its

products only through high street shops. The
Act does not require the manufacturer to
design or market the goods so as to be easily
useable by disabled purchasers.

23
 A food processing company produces tinned
food which it supplies to a supermarket chain.
Whether the tins are branded with the
supermarket’s own label or with that of the
producer, the food processing company is not
supplying goods to the public and so does not
have duties under the Act. The supermarket is
likely to have duties under the Act because it is
supplying goods to the public, but these duties
do not extend to the labelling or packaging of
the tinned food.

2.41 However, if a manufacturer does provide

services direct to the public, then it may have
duties under the Act as a service provider.

A manufacturer of electrical goods provides a

free guarantee. A purchaser of the goods is
then entitled to have the goods replaced by the
manufacturer if they are faulty within 6 months
of purchase. For a fixed sum the manufacturer
also provides an optional extended guarantee
covering the goods against defects for up to 2
years after purchase. In both cases, the
manufacturer is providing a service to the
public (the guarantee) and is subject to the Act
in relation to the provision of that service (but
not in relation to the goods themselves).

A manufacturer of self-assembly furniture sells

its products direct to the public by mail and
telephone order and through a factory shop on
its premises. It has duties under the Act because it
is providing a service to the public. For example,
it may have to make reasonable adjustments to
the way in which it provides its service.

24
 The service provider’s duty
3 not to treat a disabled person
less favourably

Introduction
3.1 This chapter addresses the duty of service
providers to ensure that disabled people are not
treated less favourably than other people when
using their services. It explains what is made
unlawful by the Act and what is meant by ‘less
favourable treatment’.

What is unlawful?
3.2 The Act says that it is unlawful for a service s 19(1)
provider to discriminate against a disabled
person by:
■ refusing to provide (or deliberately not s 19(1)(a)
providing) any service which it offers or
provides to members of the public; or
■ providing service of a lower standard or in a s 19(1)(c)
worse manner; or
■ providing service on worse terms; or s 19(1)(d)
■ failing to comply with a duty to make s 19(1)(b)
reasonable adjustments (under section 21 of
the Act) if that failure has the effect of
making it impossible or unreasonably
difficult for the disabled person to make use
of any such service.

The consequences of a failure to comply with a

duty to make reasonable adjustments are
considered in Chapters 4, 5 and 7.

25
 Less favourable treatment
s 20(1) 3.3 A service provider discriminates against a
disabled person if, for a reason which relates
to the disabled person’s disability, it treats the
disabled person less favourably than it treats
(or would treat) others to whom that reason
does not (or would not) apply and it cannot
show that the treatment in question is justified.
This means that the treatment of the disabled
person is compared with how the service
provider treats (or would treat) other people
to whom the reason for the treatment does
not (or would not) apply. Whether and when a
service provider might be able to justify the
less favourable treatment of a disabled person
is considered in Chapter 7 below.

A football club admits visiting supporters to

its stadium. However, one visiting supporter
is refused entry because he has cerebral palsy
and has difficulty controlling and co-ordinating
his movements. No other visiting supporter
is refused entry. This would amount to less
favourable treatment for a reason related to
disability and, unless the football club can
justify its actions, would be an unlawful refusal
of service contrary to the Act.

3.4 If the treatment is caused by the fact that the

person is disabled, that is treatment which
‘relates to’ the disability. This is the case even
if some non-disabled people are also treated
unfavourably for a broadly similar reason.
Broadly speaking, this means that a disabled
person will have been treated less favourably
if he would not have received the treatment
but for his disability.

26
 A popular disco turns away prospective
patrons who do not satisfy their ‘image’ in
one respect or another. A woman with a severe
facial disfigurement is not admitted by the
doorman for this reason. Even though the club
also does not allow entrance to many non-
disabled people, for example, because it does
not consider they are appropriately dressed,
the woman with the severe disfigurement has
been treated less favourably for a reason
related to her disability. This is likely to be
unlawful.

3.5 Bad treatment is not necessarily the same as

less favourable treatment although, where a
service provider acts unfairly or inflexibly, a
court might draw inferences that discrimination
has occurred.

All the supporters of a visiting team are

refused entry to the stadium by the football
club in the example in paragraph 3.3 above.
A visiting supporter with cerebral palsy is
being treated no differently from all the other
visiting supporters. He has not been subjected
to any less favourable treatment for a reason
related to disability. However, if the football
club refused entry to all the visiting supporters
because one of their number has cerebral
palsy, that could amount to unlawful
discrimination against the disabled supporter.

3.6 The comparison can also be between the way in

which one disabled person is treated compared
to the way in which people with other
disabilities are treated.

27
 The football club in the example in paragraph
3.3 above refused entry to the disabled
supporter with cerebral palsy. It cannot claim
that it did not discriminate simply because
people with other disabilities were allowed
entry. The supporter with cerebral palsy has
been less favourably treated in comparison
with other members of the public, including
the supporters with other disabilities.

3.7 A disabled person does not have to show that

others were treated more favourably than they
were. It is still less favourable treatment if others
would have been treated better.

A party of adults with learning disabilities has

exclusively booked a restaurant for a special
dinner. The restaurant staff spend most of the
evening making fun of the party and provide it
with worse service than normal. The fact that
there are no other diners in the restaurant that
evening does not mean that the disabled
people have not been treated less favourably
than other people. Other diners would not have
been treated in this way.

3.8 There must be a connection between the less

favourable treatment and a reason related to
the disabled person’s disability.

A publican refuses to serve a disabled person

whom he knows has epilepsy. He gives her no
reason for refusing to serve her. Other
customers in the pub are not refused service.

28
 A court is likely to draw an inference of
discrimination in the absence of a reasonable
explanation. However, if the ground for
refusing her service is because she has no
money, then the treatment is not for a reason
which is related to the disabled person’s
disability.

3.9 Treating a disabled person less favourably for

a reason related to his disability cannot be
excused on the basis that another customer who
behaved similarly (but for a reason not related
to disability) would be treated in the same way.

A group of deaf people who use British Sign

Language (BSL) is refused entry to a disco.
The doorman assumes that other customers
might mistake communication using BSL as
threatening gestures. This refusal of service
is for a reason related to disability. It is likely
to be unlawful even though the disco would
have refused entry to any person who made
similar gestures.

3.10 Nevertheless, the Act cannot be used as a

pretext for disruptive or anti-social behaviour
unrelated to a person’s disability.

A disco ejects a person with an artificial

arm because he has drunk too much and has
become abusive and disorderly. The disco
would have ejected any other patron in similar
circumstances. The ejection (or refusal to
serve) is not for a reason related to the
disabled person’s disability and is unlikely to
be unlawful.

29
 Must a service provider know that a
person is disabled?
3.11 A service provider may have treated a disabled
person less favourably for a reason related to
their disability even if it did not know the person
was disabled. The test which has generally been
adopted by the courts is whether, as a matter of
fact, this was the reason why the disabled
person was less favourably treated.

A pub employee orders a customer who is

lying prone on a bench seat to leave the
premises because he assumes she has had too
much to drink. However, the customer is lying
down as a result of a disability rather than
alcoholic consumption. The refusal of further
service is for ‘a reason which relates to the
disabled person’s disability.’ This will be
unlawful unless the service provider is able to
show that the treatment in question is justified,
as defined by the Act.

3.12 As explained in Chapter 2, the Disability

Discrimination Act only protects those who fall
within the Act’s definition of ‘disabled person’.
This definition has been the subject of
developing interpretation by the courts.
Moreover, some disabilities are not visible, or
the extent of the impairment may be masked. It
may not be practicable for service providers, or
their employees, to make accurate assessments
as to whether particular individuals fall within
the statutory definition.

3.13 Service providers seeking to avoid

discrimination, therefore, should instruct their
staff that their obligations under the Act extend
to everyone who falls within the definition of

30
 ‘disability’ and not just to those who appear to
be disabled. They may also decide that it would
be prudent to instruct their staff not to attempt
to make a fine judgement as to whether a
particular individual falls within the statutory
definition, but that they should focus instead on
meeting the needs of each customer.

A service provider’s legal liability for its

employees
3.14 Under the Act, service providers are legally s 58(1)
responsible for the actions of their employees in
the course of their employment. An employee
who discriminates against a disabled customer
will usually be regarded as acting in the course
of their employment, even if the service provider
has issued express instructions not to
discriminate.

3.15 However, in legal proceedings against a service s 58(1),

provider based on the actions of an employee, s 58(5)
it is a defence that the service provider took
‘such steps as were reasonably practicable’
to prevent such actions. A policy on disability
which is communicated to employees is likely
to be central to such a defence. It is not a
defence for the service provider simply to show
that the action took place without its knowledge
or approval.

What steps should a service provider

consider?
3.16 Service providers are more likely to be able to
comply with their duties under the Act and
prevent their employees from discriminating
against disabled customers if they consider the
following steps:

31
 ■ establishing a positive policy on the
provision of services to ensure inclusion of
disabled people and communicating it to all
staff;
■ informing all staff dealing with the public
that it is unlawful to discriminate against
disabled people;
■ training staff to understand the service
provider’s policy towards disabled people,
their legal obligations and the duty of
reasonable adjustments;
■ monitoring the implementation and
effectiveness of such a policy;
■ providing disability awareness and disability
etiquette training for all staff who have
contact with the public;
■ addressing acts of disability discrimination
by staff as part of disciplinary rules and
procedures;
■ having a customer complaints procedure
which is easy for disabled people to use;
■ consulting with disabled customers,
disabled staff and disability organisations;
■ regularly reviewing whether their services
are accessible to disabled people;
■ regularly reviewing the effectiveness of
reasonable adjustments made for disabled
people in accordance with the Act, and
acting on the findings of those reviews; and
■ providing regular training to staff which is
relevant to the adjustments to be made.

32
 Refusal or non-provision of service
3.17 A service provider cannot refuse to provide (or s 19(1)(a)
deliberately not provide) a service to a disabled
person which it offers to other people, unless
the refusal (or non-provision) can be justified.

A party of disabled children is on a visit to

a zoo. Without giving any explanation, the
manager refuses to allow the children to enter
the zoo. This is a refusal of a service and is
likely to be unlawful.

Bar staff in a pub pretend not to see a disabled

person who is trying to be served at the bar.
This is a non-provision of a service and is likely
to be unlawful.

3.18 Although there is nothing unlawful about

genuinely seeking to assist disabled people by
informing them where they might get service
more suited to their requirements, refusing
to serve a disabled person may be unlawful
irrespective of the intention or motive. For
example, a service provider cannot refuse to
serve a disabled person simply on the ground
that another service provider caters better for
disability-related requirements.

An assistant in a small shop refuses to serve a

disabled person, arguing that a nearby larger
shop can offer a better service to disabled
people. This is a refusal of service and is likely
to be against the law.

33
 3.19 Spurious reasons cannot be used to refuse to
serve a disabled person – even if the service
provider thinks that serving the disabled person
will upset or raise objections from other
customers.

A disabled person with a learning disability

wishes to book a hotel room. The hotel
receptionist pretends that all rooms are taken
in order to refuse his booking because of his
disability. This is likely to be against the law.

Standard or manner of service

s 19(1)(c) 3.20 A service provider must not offer a disabled
person a lower standard of service than it offers
other people or serve a disabled person in a
worse manner, without justification. A lower
standard of service might include harassment of
disabled customers or being offhand or rude
towards them.

The manager of a fast food outlet tells a person

with a severe facial disfigurement that he must
sit at a table out of sight of other customers,
despite other tables being free. This is likely to
be against the law.

A theatre manager allots a seat with an

obstructed view, despite other seats being
available, to a visually impaired woman on the
assumption that she would not be able to see
the whole stage anyway. This is likely to be
against the law.

34
3.21 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, if the service provider would take
orders from other customers for products which
it does not normally stock, it would be likely to
be unlawful to refuse to take such an order from
a disabled person.

A disabled customer with a visual impairment

wishes to buy a large print edition of a book
from a bookshop. The bookshop does not stock
large print books. This is not against the law.
However, the disabled customer asks the
bookshop to order a large print copy of the
book. If the bookshop would usually take
special orders from non-disabled customers, a
refusal to accept the disabled customer’s order
is likely to be unlawful.

Terms of service
3.22 A service provider should not provide a service s 19(1)(d)
to a disabled person on terms which are worse
than the terms offered to other people, without
justification. Worse terms include charging more
for services or imposing extra conditions for using
a service (but see paragraph 7.24 and 7.25 below).

A person who has Usher’s syndrome (and who,

as a consequence, is deafblind) is booking a
holiday. The travel agent asks her for a larger
deposit than it requires from other customers.
The travel agent believes, without good
reason, that because of her disability she is
more likely to cancel her holiday. This is likely
to be against the law.

35
 A disabled customer who is partially sighted
applies for a hire purchase loan from a finance
company. The company is willing to lend to the
customer, but on the condition that he should
have his signature to the loan agreement
witnessed by a solicitor. The company would
not ask other borrowers to do this. This is likely
to be unlawful.

Can service providers treat a disabled

person more favourably?
3.23 The Act does not prohibit positive action in
favour of disabled people (unless this would be
unlawful under other legislation). Therefore,
service providers may provide services on more
favourable terms to a disabled person.

A cinema manager offers a better seat in the

cinema without extra charge to a person with a
hearing impairment who is accompanied by an
assistance dog. This is to allow room for the
dog. This is within the law.

A leisure park offers free entry to a

communicator-guide accompanying a
deafblind person. This allows the deafblind
person to enjoy the park without having to pay
two entrance fees. This is within the law.

36
 Making changes for disabled people:
4 the service provider’s duty to make
reasonable adjustments

Introduction
4.1 This chapter is concerned with the duty to make s 21
reasonable adjustments for disabled people.
That duty is a cornerstone of the Act and
requires service providers to take positive steps
to make their services accessible to disabled
people. This goes beyond simply avoiding
treating disabled people less favourably for a
disability-related reason.

What does the Act say?

4.2 One of the ways in which a service provider s 20(2)
discriminates against a disabled person is where
the service provider:
■ fails to comply with a duty to make s 20(2)(a)
reasonable adjustments imposed on it in
relation to the disabled person; and
■ cannot show that the failure to comply with s 20(2)(b)
that duty is justified.
Whether and when a service provider might
be able to justify a failure to make a
reasonable adjustment is considered in
Chapter 7 below.

4.3 It is unlawful for a service provider to s 19(1)(b)

discriminate in this way if the effect is to make it
impossible or unreasonably difficult for the
disabled person to make use of services which
the service provider offers to the public.

37
 4.4 As explained in paragraphs 3.14 and 3.15 above,
under the Act service providers are legally
responsible for the actions of their employees in
the course of their employment. An employee
who discriminates against a disabled customer
will usually be regarded as acting in the course
of their employment. This applies equally in
respect of a failure by a service provider’s
employees to comply with the duty to make
reasonable adjustments.

What is the duty to make reasonable

adjustments?
s 21 4.5 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 Code as the duty to make reasonable
adjustments.

4.6 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.

38
4.7 From 1 October 1999, a service provider has had
to take reasonable steps to:
■ change a practice, policy or procedure s 21(1)
which makes it impossible or unreasonably
difficult for disabled people to make use of
its services;
■ provide an auxiliary aid or service if it would s 21(4)
enable (or make it easier for) disabled
people to make use of its services;
■ provide a reasonable alternative method of s 21(2)(d)
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.

4.8 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 s 21(2)(a)
■ alter it so that it no longer has that effect; or s 21(2)(b)
■ provide a reasonable means of avoiding it; or s 21(2)(c)
■ provide a reasonable alternative s 21(2)(d)
method of making the services available
(see paragraph 4.6 above).

It makes sense for service providers to plan

ahead by taking any opportunities which arise,
or bringing forward plans, to make alterations to
their premises to benefit disabled people before
2004. Structural or other physical changes will
not be required before 1 October 2004 (but
might be made before that date; see paragraphs
5.33 to 5.35 below). Examples of these are:
widening a doorway; providing a permanent

39
 ramp for a wheelchair user; relocating light
switches, door handles or shelves for someone
who has difficulty in reaching; providing
appropriate contrast in decor to assist the safe
mobility of a visually impaired person; installing
a permanent induction loop system; providing
tactile buttons in lifts.

General approach to making reasonable

adjustments
4.9 It is important that service providers do not
assume that the only way to make services
accessible to disabled people is to make a
physical alteration to their premises (such as
installing a ramp or widening a doorway). Often,
minor measures such as allowing more time to
serve a disabled customer, will help disabled
people to use a service. Disability awareness
training for staff is also likely to be appropriate.
However, adjustments in the form of physical
alterations may be the only answer if other
measures are not sufficient to overcome barriers
to access.

4.10 A service provider should be able to identify the

more obvious physical or other barriers or
impediments to access by disabled people to its
services. Regularly reviewing the way in which it
provides its services to the public, for example
via periodic disability audits, might help a
service provider identify any less obvious or
unintentional barriers to access for disabled
people. Obtaining the views of disabled
customers and disabled employees will also
assist a service provider. 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

40
 adjustments. In addition, local and national
disability groups or organisations of disabled
people have extensive experience which service
providers can draw on. Listening carefully and
responding to what disabled people really want
helps service providers find the best way of
meeting disabled people’s requirements and
expectations.

4.11 Employee training is also an important factor in

providing reasonable adjustments. Employees
should be generally aware of the requirements
of disabled customers and potential customers
and should appreciate how to respond
appropriately to requests for a reasonable
adjustment. They should know how to provide
an auxiliary service and how to use any auxiliary
aids which the service provider offers.
Employees could also be encouraged to acquire
additional skills in serving disabled people; for
example, communicating with hearing impaired
people and those with speech impairments.

Use of reasonable adjustment examples

4.12 Section 21 of the Act refers to such steps as it is s 21(1)
reasonable, in all the circumstances of the case,
for the service provider ‘to have to take’ to make
its services accessible to disabled people. The
examples in this Code use the same language
by discussing whether the step in the example
concerned is likely to be a reasonable step for
the service provider ‘to have to take’. This is not
intended to indicate that the step considered in
the example is the only way in which the service
provider can meet its duty under the Act. In any
particular case, the service provider’s duty to
make reasonable adjustments might be
discharged by taking a different step or steps.

41
 To whom is the duty to make reasonable
adjustments owed?
4.13 A service provider’s duty to make reasonable
adjustments is a duty owed to disabled people
at large. It is not simply a duty that is weighed
up in relation to each individual disabled person
who wants to access a service provider’s
services. Disabled people are a diverse group
with different requirements which service
providers need to consider.

At what point does the duty to make

reasonable adjustments arise?
4.14 Service providers should not wait until a
disabled person wants to use a service which
they provide before they give consideration to
their duty to make reasonable adjustments.
They should be thinking now about the
accessibility of their services to disabled people.
Service providers should be planning
continually for the reasonable adjustments they
need to make, whether or not they already have
disabled customers. They 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 customers
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.

42
 An invitation to the public to make
submissions and to attend a public inquiry
indicates that any reasonable adjustments will
be made on request if this will assist disabled
people to make submissions or to attend the
inquiry. This helps to ensure that the public
inquiry is accessible.

Does the duty of reasonable adjustment

apply even if the service provider does
not know that the person is disabled?
4.15 A service provider owes a duty of reasonable
adjustment to ‘disabled persons’ as defined by
the Act. This is a duty to disabled people at
large, and applies regardless of whether the
service provider knows that a particular member
of the public is disabled or whether it currently
has disabled customers.

4.16 For this reason, employees should be made

aware that they may be discriminating unlawfully
even if they do not know that a customer is
disabled and they should be reminded that not
all impairments are visible. As explained in this
chapter and in Chapters 3 and 5, the duty of
reasonable adjustment is best met by the
service provider trying to anticipate the types of
problems which could arise, and by training its
employees to enquire rather than act on
assumptions. The aim should be that, when
disabled customers request services, the service
provider has already taken all reasonable steps
to ensure that they can be served without being
put to unreasonable difficulty.

43
 Must service providers anticipate every
barrier?
4.17 When considering the provision of a reasonable
adjustment, a service provider should be flexible
in its approach. However, there may be
situations where it is not reasonable for a
service provider to anticipate a particular
requirement.

4.18 Once a service provider has become aware

of the requirements of a particular disabled
person who uses or seeks to use its services,
it might then become reasonable for the service
provider to take a particular step to meet these
requirements. This is especially so where a
disabled person has pointed out the difficulty
which he or she faces in accessing services,
or has suggested a reasonable solution to that
difficulty.

How long does the duty continue?

4.19 The duty to make reasonable adjustments is
a continuing duty. Service providers should
keep the duty under regular review in the light
of their experience with disabled people wanting
to access their services. 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.

A large sports complex amends its ‘no dogs’

policy to allow entry to guide dogs. It offers
guide dog users a tour of the complex to

44
 acquaint them with routes. This is likely to
be a reasonable step for it to have to take at
this stage. However, the complex then starts
building work and this encroaches on paths
within the complex, making it difficult for
guide dog users to negotiate their way around.
Offering an initial tour is therefore no longer
an effective adjustment as it does not make
the complex accessible to guide dog users.
The service provider therefore decides to offer
guide dog users appropriate additional
assistance from staff whilst the building
work is being undertaken. This is likely to be
a reasonable step for the service provider to
have to take in the circumstances then existing.

4.20 Equally, a step which might previously have

been an unreasonable one for a service provider
to have to take could subsequently become a
reasonable step in the light of changed
circumstances. For example, technological
developments may provide new or better
solutions to the problems of inaccessible services.

A library has a small number of computers for

the public to use. When the computers were
originally installed, the library investigated the
option of incorporating text to speech software
for people with a visual impairment. It rejected
the option because the software was very
expensive and not particularly effective. It
would not have been a reasonable step for the
library to have to take at that stage. The library
proposes to replace the computers. It makes
enquiries and establishes that text to speech
software is now efficient and within the
library’s budget. The library decides to install

45
 the software on the replacement computers.
This is likely to be a reasonable step for the
library to have to take at this time.

What is meant by ‘reasonable steps’?

s 21 4.21 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 have to take depends on all the circumstances
of the case. It will vary according to:
■ the type of services being provided;
■ the nature of the service provider and its
size and resources;
■ the effect of the disability on the individual
disabled person.

4.22 However, 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
service provider to take the steps;
■ the financial and other costs of making the
adjustment;
■ the extent of any disruption which taking
the steps would cause;
46
■ the extent of the service provider’s financial
and other resources;
■ the amount of any resources already spent
on making adjustments;
■ the availability of financial or other
assistance.

Customers in a busy post office are served

by staff at a counter after queuing in line.
A disabled customer with severe arthritis
wishes to purchase a TV licence. He
experiences great pain if he has to stand
for more than a couple of minutes. Other
customers would not expect to have to
undergo similar discomfort in order to buy
a TV licence. Thus, the post office’s queuing
policy makes it unreasonably difficult for
the disabled person to use the service.
Consideration will have to be given to how
the queuing policy could be adjusted so as
to accommodate the requirements of such
disabled customers.
The post office staff could ask the customer
to take a seat and then serve him in the same
way as if he had queued. Alternatively, it might
provide a separate service desk with seating
for disabled customers. Depending on the size
of the post office, these might be reasonable
steps to have to take to adjust the queuing
policy. However, it is not likely to be a
reasonable step for the post office to send a
member of staff to the disabled customer’s
home in order to sell him the TV licence.
The time and expense involved would
probably be an unreasonable use of the post
office’s resources, particularly in proportion to
the degree of benefit to the disabled customer.

47
 4.23 It is more likely to be reasonable for a service
provider with substantial financial resources to
have to make an adjustment with a significant
cost than for a service provider with fewer
resources. The resources available to the
service provider as a whole are likely to be
taken into account as well as other calls on
those resources. Where the resources of the
service provider are spread across more than
one business unit or profit centre, the calls on
them all are likely to be taken into account in
assessing reasonableness.

A small retailer has two shops within close

proximity to each other. It has conducted an
audit to identify what adjustments for disabled
people will be needed. At one of its shops,
customers with mobility impairments cannot
use all the services provided. The other shop
can be easily reached by such customers and
offers the same services, all of which are
accessible to disabled people. Although the
retailer originally hoped to make its services in
both shops equally accessible, it is constrained
by its limited resources. Therefore, for the
present, it decides not to make all the services
at the first shop accessible to customers with
mobility impairments. In these circumstances,
it is unlikely to be in breach of the Act.

4.24 Service providers should bear in mind that

there are no hard and fast solutions. Action
which may result in reasonable access to
services being achieved for some disabled
people may not necessarily do so for others.
Equally, it is not enough for service providers
to make some changes if they still leave their
services impossible or unreasonably difficult
for disabled people to use.
48
 The organiser of a large public conference
provides qualified British Sign Language (BSL)
interpreters to enable deaf delegates to follow
and participate in the conference. However,
this does not assist delegates with a mobility
impairment or visual disabilities to access the
conference, nor does it help delegates with a
hearing impairment who do not use BSL but
who can lipread. The conference organiser will
need to consider the requirements of these
delegates also.

4.25 Similarly, a service provider will not have taken

reasonable steps if it attempts to provide an
auxiliary aid or service which in practice does
not help disabled people to access the service
provider’s services. The way in which an
auxiliary aid or service is provided may be just
as important as the auxiliary aid or service itself.

Despite providing qualified British Sign

Language (BSL) interpreters for deaf
delegates who use BSL, the conference
organiser fails to ensure that those delegates
have the option to be seated near and in full
view of the interpreters (who are themselves
in a well-lit area). As a result, not all those
delegates are able to follow the interpretation.
The auxiliary service provided has not been
effective in making the conference fully
accessible to those deaf delegates.

4.26 Once a service provider has decided to put a

reasonable adjustment in place, it is important
to draw its existence to the attention of disabled
people. The service provider should also
establish a means for letting disabled people
49
 know about the adjustment where the service
is otherwise likely to be unreasonably difficult
to use. This might be done by a simple sign or
notice at the entrance to the service provider’s
premises or at a service point. Alternatively,
the availability of a reasonable adjustment
might be highlighted in forms or documents
used by the service provider, such as publicity
materials. In all cases, it is important to use
a means of communication which is itself
accessible to disabled people.

An airport provides transfer by electric buggy

between terminals and gates for passengers
with a mobility impairment. Prominent signs
at the entrance to the arrivals and departures
halls and at check-in desks assist disabled
passengers in accessing that auxiliary service.

A hospital has its forms and explanatory

literature in accessible alternative formats
such as large print, audio tape and braille.
A prominent note to that effect on the literature
sent to patients, or a specific mention of this by
reception staff when a patient first visits the
hospital, assists disabled patients to access
the service.

4.27 If, having considered the issue thoroughly,

there are genuinely no steps that it would be
reasonable for a service provider to take to make
its services accessible, the service provider is
unlikely to be in breach of the law if it makes no
changes. Such a situation is likely to be rare.

50
 Protecting the fundamental nature of a
business or service
4.28 The Act does not require a service provider to s 21(6)
take any steps which would fundamentally alter
the nature of its service, trade, profession or
business. This means that a service provider
does not have to comply with a duty to make
reasonable adjustments in a way which would
so alter the nature of its business that the
service provider would effectively be providing
a completely different kind of service.

A restaurant refuses to deliver a meal to the

home of a disabled person with severe
agoraphobia (a fear of public or open spaces)
on the grounds that this would result in the
provision of a different kind of service. This is
unlikely to be against the law. However, if the
restaurant already provides a home delivery
service, it is likely to be discriminatory to
refuse to serve the disabled person in this way.

A night club with low level lighting is not

required to adjust the lighting to accommodate
customers who are partially sighted if this
would fundamentally change the atmosphere
or ambience of the club.

A hair and beauty salon provides appointments

to clients at its premises in a town centre. A
disabled person with a respiratory impairment
is unable to travel into town because this
exacerbates her disability. She asks the salon
to provide her with an appointment at home.

51
 The salon refuses as it does not provide a
home appointment service to any of its clients.
This is likely to be within the law.

4.29 However, there might be an alternative

reasonable adjustment which would ensure
the accessibility of the services. If this can be
provided without fundamentally altering the
nature of the services or business, it would be
a reasonable step for the service provider to
have to take.

Cost of providing reasonable adjustments

s.20(5) 4.30 The Act does not allow a service provider to
pass on the additional costs of complying with
the duty to make reasonable adjustments to
disabled customers alone. The costs of
providing reasonable adjustments are part of
the service providers’ general expenses.

A guest house has installed an audio-visual

fire alarm in one of its guest bedrooms in
order to accommodate visitors with a sensory
impairment. In order to recover the costs of
this installation, the landlady charges disabled
guests a higher daily charge for that room,
although it is otherwise identical to other
bedrooms. This is unlikely to be within the law.

s 20(5) 4.31 Sometimes a service provider makes an

additional service available to customers
for which there is a charge. If the additional
service is itself a reasonable adjustment which
the service provider has to provide under the
Act to its disabled customers, those disabled
customers cannot be charged for that service.
52
 A wine merchant runs an online shopping
service and charges all customers for home
delivery. Its customers include disabled people
with mobility impairments. Since this online
service is not impossible or unreasonably
difficult for disabled people with mobility
impairments to use, home delivery, in these
circumstances, will not be a reasonable
adjustment that the wine merchant has to make
under the Act. Therefore, the wine merchant
can charge disabled customers in the same
way as other customers for this service.
However, another wine merchant has a
shop which is inaccessible to disabled people
with mobility impairments. Home delivery in
these circumstances might be a reasonable
adjustment for the wine merchant to have to
make for such customers. The wine merchant
could not then charge such customers for
home delivery, even though it charges other
customers for home delivery.

What is ‘unreasonably difficult’?

4.32 It is unlawful for a service provider to s 19(1)(b)
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 Act does not define
what is meant by ‘unreasonably difficult’.

4.33 However, when considering if services are

unreasonably difficult for disabled people
to use, service providers should take account
of whether the time, inconvenience, effort,
discomfort or loss of dignity entailed in using
53
 the service would be considered unreasonable
by other people if they had to endure similar
difficulties (see the example at paragraph 4.22
above).

What happens if the duty to make

reasonable adjustments is not complied
with?
s 19(1)(b) 4.34 A service provider must comply with the
duty to make reasonable adjustments in
s 20(2) order to avoid committing an act of unlawful
discrimination. A disabled person is able to
s 21(10) 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
the service provider to the public; and
■ the service provider cannot show that such
a failure is justified in relation to the
disabled person.

54
 5 Reasonable adjustments in practice

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

5.2 As explained in Chapter 4, 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
● providing a reasonable means of
avoiding it; or
● providing the service by a reasonable
alternative method.

A physical feature includes, for example, a

feature arising from the design or construction
of a building or the approach or access to
premises (and see paragraph 5.44 below).

55
 5.3 These duties are being introduced in two stages.

Since 1 October 1999 the duties in respect of:

■ changing practices, policies and procedures;
■ providing auxiliary aids and services;
■ overcoming a physical feature by providing
services by reasonable alternative methods,
have been in force.
From 1 October 2004 the duties in respect of:
■ overcoming a physical feature by
● removing the feature; or
● altering it; or
● providing a reasonable means of
avoiding it, will also apply.

This chapter considers each in turn.

Practices, policies and procedures

What is the duty to change a practice, policy or

procedure?
5.4 When a service provider is providing services
to its customers, it will have established a
particular way of doing this. Its practices
(including policies and procedures) may be set
out formally or may have become established
informally or by custom. A service provider
might have a practice which – perhaps
unintentionally – makes it impossible or
unreasonably difficult for disabled people to
make use of its services.

56
5.5 In such a case, the service provider must take s 21(1)
such steps as it is reasonable for it to have to
take, in all the circumstances, to change the
practice so that it no longer has that effect.
This may simply mean instructing staff to
waive a practice or amending a policy to allow
exceptions or abandoning it altogether. Often,
such a change involves little more than an
extension of the courtesies which most service
providers already show to their customers.

A restaurant has a policy of refusing entry to

male diners who do not wear a collar and tie.
A disabled man who wishes to dine in the
restaurant is unable to wear a tie because he
has psoriasis (a severe skin complaint) of the
face and neck. Unless the restaurant is
prepared to waive its policy, its effect is to
exclude the disabled customer from the
restaurant. This is likely to be unlawful.

A video rental shop allows only people who can

provide a driving licence as proof of their identity
to become members. This automatically excludes
some disabled people from joining because the
nature of their disabilities prevents them from
obtaining a driving licence (for example blind
people or some people with epilepsy or mental
health problems). The shop would be required
to take reasonable steps to change this
practice. It does so by being prepared to accept
alternative forms of identification from its
customers. This is likely to be a reasonable
step for the shop to have to take.

57
 What are practices, policies and
procedures?
5.6 Practices, policies and procedures relate to the
way in which a service provider operates its
business or provides its services. This includes
any requirements that it makes of its customers.
In principle, the terms 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).

However, the three terms overlap and it is not

always sensible to treat them as separate
concepts.

A DIY superstore has a policy of not allowing

dogs onto its premises. Members of staff are
instructed to prevent anyone with a dog from
entering the superstore. The ‘no dogs’ policy
is enforced in practice by this procedure.
The policy makes it unreasonably difficult for
disabled people accompanied by a guide or
assistance dog to use the DIY superstore.
The superstore has a duty to take such steps
as are reasonable for it to have to take to avoid
that effect and to make its services accessible
to disabled people. It decides to amend its
‘no dogs’ policy by allowing an exception
for disabled people accompanied by a guide
or assistance dog. This is likely to be a
reasonable step for the superstore to have
to take.

58
 What are ‘reasonable steps’ in relation to
practices, policies and procedures?
5.7 The Act does not define what are ‘reasonable
steps’ for a service provider to have to take in
order to change its practices. The kinds of
factors which may be relevant are described in
paragraphs 4.21 to 4.27 above.

5.8 The purpose of taking the steps is to ensure that

the practice 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 service provider could
reasonably put in place and which would make
the service accessible, it is not sufficient for the
service provider to take some lesser step which
would not result in the service being accessible.

A medium-sized supermarket installs one

extra-wide check-out lane intending it to be
available to customers who are wheelchair
users or accompanied by infants. However,
that check-out lane is also designated as an
express lane available only to shoppers with
10 or less items. The effect of this practice
is to exclude wheelchair-users from taking
advantage of the accessible check-out unless
they are making only a few purchases.
It is likely to be a reasonable step for the
supermarket to have to take to amend its
practice by designating another check-out
lane as the express lane.

5.9 A practice may have the effect of excluding or

screening out disabled people from enjoying
access to services. Or the practice may create a

59
 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 a service
provider to have to take might be to abandon it
entirely or to amend or modify it so that it no
longer has that effect.

A town hall has procedures for the evacuation

of the building in the event of a fire or
emergency. Visitors are required to leave
the building by designated routes. The
emergency procedures are part of the way
in which the town hall provides services to
its visitors. It modifies the procedures (with
the agreement of the local fire authority) to
allow visitors with mobility impairments or
sensory disabilities to be evacuated safely.
This is likely to be a reasonable step for the
town hall to have to take.

A hotel refurbishes a number of rooms on

each floor which are fully accessible to
disabled guests. However, the hotel’s
reservations system allocates rooms on
a first come, first served basis as guests
arrive and register. The effect is that on
some occasions the specially refurbished
rooms are allocated to non- disabled guests
and late-arriving disabled guests cannot be
accommodated in those rooms. The hotel
decides to change its reservation policy so
that the accessible rooms are either reserved
for disabled guests in advance or are allocated
last of all. This is likely to be a reasonable
step for the hotel to have to take.

60
 Auxiliary aids and services

What is the duty to provide auxiliary aids or

services?
5.10 A service provider must take reasonable steps s 21(4)
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.

What is an auxiliary aid or service?

5.11 The Act gives two examples of auxiliary aids or s 21(4)
services: the provision of information on audio
tape and the provision of a sign language
interpreter.

A building society provides information

on an audio tape about its savings accounts.
A customer with a visual impairment can
use the audio tape at home or in a branch
to decide whether to open an account. This
is an auxiliary aid.

A department store has a member of staff

able to communicate with deaf clients who
use British Sign Language. This is an
auxiliary service.

5.12 But these are only illustrations of the kinds of

auxiliary aids or services which a service
provider 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.
61
 A large supermarket provides specially
designed shopping baskets and trolleys which
can be easily used by disabled shoppers in a
wheelchair or with reduced mobility. It also
provides electronic hand-held bar code readers
with synthesised voice output which helps
customers with a visual impairment to identify
goods and prices. These are auxiliary aids
which enable disabled shoppers to use the
supermarket’s services.

Disabled customers with a visual impairment

or a learning disability may need assistance
in a large supermarket to locate items on their
shopping list. The supermarket instructs one
of its employees to find the items for them.
The supermarket is providing an auxiliary
service which makes its goods accessible.

A petrol station decides that an assistant will

help disabled people use the petrol pumps on
request. It places a prominent notice at the
pumps advertising this. This is an auxiliary
service.

5.13 In any event, service providers should ensure

that any auxiliary aids they provide are carefully
chosen and properly maintained.

A person with a hearing impairment is

attending a performance at a theatre. When
booking the tickets he is told that the theatre

62
 auditorium has an induction loop. However,
the theatre does not check that the loop is
working and on the day of the performance the
system is not working properly. Although the
theatre has provided an auxiliary aid, its failure
to check that the loop is working properly
means that the theatre is unlikely to have taken
reasonable steps to enable disabled people to
make use of its services.

5.14 What is an appropriate auxiliary aid or service

will vary according to the type of service
provider, the nature of the services being
provided, and the requirements of the disabled
customers or potential customers. Auxiliary
aids and services are not limited to aids to
communication.

A community centre is accessible by two raised

steps. It provides a suitably chosen portable
ramp which helps disabled people with a
mobility impairment to enter the premises
safely. This is an auxiliary aid which is suited to
the requirements of those people.

A new cinema complex has deep airline-style

seats. A disabled patron with restricted growth
finds it difficult to see the screen when using
such a seat. The cinema provides a bolster
cushion on request which enables him to enjoy
the film. This is an auxiliary aid appropriate to
the circumstances.

63
 A museum provides a written guide to its
exhibits. It wants to make the exhibits
accessible to visitors with learning disabilities.
The museum produces a version of the guide
which uses plain language, text and pictures to
explain the exhibits. This is an auxiliary aid
suited to visitors with learning disabilities and
may also benefit other people.

s 21(4) 5.15 From 1 October 2004 auxiliary aids and services

SI 1999/1191 could be any kind of aid or service (whether
reg 4 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 Act, however, to prevent such
provision in anticipation of 1 October 2004 and
service providers should take note of
paragraphs 5.33 to 5.35 below.

5.16 Nothing in the Act requires a service provider to

provide an auxiliary aid or service to be used for
personal purposes unconnected to the services
being provided or to be taken away by the
disabled person after use.

A solicitors’ firm lends an audio tape recorder

to a client with multiple disabilities who is
unable to communicate in writing or to attend
the firm’s office. The client uses this auxiliary
aid in order to record his instructions or
witness statement. The client would be
expected to return the recorder after use.

64
 What are ‘reasonable steps’ in relation to
auxiliary aids or services?
5.17 The duty to provide auxiliary aids or services
requires the service provider to take such steps
as it is reasonable for it to have to take in all the
circumstances of the case to make its services
accessible to disabled people. What might be
reasonable for a large service provider (or one
with substantial resources) might not be
reasonable for a smaller service provider. The
size of the service provider, the resources
available to it and the cost of the auxiliary
service are relevant factors.

A large national museum has hourly guided

tours of a popular major exhibition. It provides
a radio microphone system for hearing aid
users to accompany the tour and on one day
a week has a BSL interpreter available.
The museum advertises this service and
encourages BSL users to book space with the
interpreter on the tours on that day. These are
likely to be reasonable steps for the museum to
have to take.

A small, private museum with limited

resources provides a daily guided tour of its
exhibits. It investigates the provision of
equipment for hearing aid users such as an
induction loop in the main gallery or a radio
microphone system to accompany the tour,
but, after careful consideration, it rejects both
options as too expensive and impracticable.
Instead, with little effort or cost, the museum
decides to provide good quality audio taped
guides (with an option of plug-in neck loops)
which can be used by people with hearing aids

65
 who want to follow the guided tour. This is
likely to be a reasonable step for the museum
to have to take.

5.18 The reasonableness of the service provider’s

response to disabled people’s requirements will
inevitably vary with the circumstances. The
kinds of factors which may be relevant are
described in paragraphs 4.21 to 4.27 above.

A hospital physiotherapist has a new patient

who uses BSL as his main means of
communication. The hospital arranges for
a qualified BSL interpreter to be present at
the initial assessment, which requires a good
level of communication on both sides. At this
initial assessment the physiotherapist and the
disabled patient also discuss what other forms
of communication services or aids would be
suitable. They agree that for major assessments
a BSL interpreter will be used but that at routine
treatment appointments they will communicate
with a notepad and pen. This is because these
appointments do not require the same level
or intensity of communication. This is likely
to be a reasonable step for the hospital to have
to take.

5.19 For a deaf person who uses British Sign

Language as his or her main form of
communication, having a qualified BSL
interpreter is the most effective method of
communication. This is because for people
whose first language is BSL (rather than spoken
or written English) exchange of written notes or
lipreading can be an uncertain means of
communication.
66
 British Sign Language Interpretation may not
be easily available and should be arranged in
advance wherever possible. If an interpreter
is not available, the service provider should
consider an alternative method of communication,
in consultation with the deaf person.

5.20 A service provider will have to consider what

steps it can reasonably take to meet the
individual requirements of disabled people. How
effectively the service provider is able to do so
will depend largely on how far it has anticipated
the requirements of its disabled customers.
Many things that seem impossible at the time
they are confronted might have been
accommodated relatively easily if prior thought
had been given to the question.

5.21 The Act leaves open what particular auxiliary

aids or services might be provided in specific
circumstances. Disabled people may be able to
help the service provider to identify difficulties
in accessing the service and what kind of
auxiliary aid or service will overcome them. It is
good practice to include disabled customers in
the process of considering what reasonable
adjustments should be made. However the duty
remains on the service provider to determine
what steps it needs to take.

Using auxiliary aids or services to improve

communication
5.22 In many cases, a service provider 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 disabilities. The type of auxiliary aid or
service will vary according to the importance,

67
 length, complexity or frequency of the
communication involved. 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.

A cinema offers patrons a telephone booking

service. Its booking office installs a textphone
and trains its staff to use it. This offers access
to deaf patrons and is likely to be a reasonable
step for the cinema to have to take.

The booking office of a small heritage railway

decides to communicate with passengers who
have speech or hearing impairments by
exchanging written notes. This is likely to be a
reasonable step for this service provider to
have to take.
However, it is unlikely to be a sufficient
reasonable adjustment for the booking office at
a mainline rail terminus to make for such
passengers. Instead, it installs an induction
loop system and a textphone. These are likely
to be reasonable steps for a large station to
have to take.

Provision for people with a hearing disability

5.23 For people with hearing disabilities, 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:
68
■ 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;
■ subtitles;
■ videos with BSL interpretation;
■ information displayed on a computer screen;
■ accessible websites;
■ textphones, telephone amplifiers and
inductive couplers;
■ teletext displays;
■ audio-visual telephones;
■ audio-visual fire alarms;
■ qualified BSL interpreters or lipspeakers.

A deaf defendant (or defender) in court

proceedings uses BSL as his main form of
communication. The court arranges for a
qualified BSL interpreter to interpret and voice
over his evidence in court. This is likely to be a
reasonable step for the court to have to take.

A hearing impaired person who lipreads as her

main form of communication wants a secured
loan from a bank. In the initial stages it might
be reasonable for the bank to communicate
with her by providing printed literature or
information displayed on a computer screen.

69
 However, before a secured loan agreement
is signed, this particular bank usually
provides a borrower with an oral explanation
of its contents. At that stage it is likely to be
reasonable, with the customer’s consent, for
the bank to arrange for a qualified lipspeaker
to be present so that any complex aspects of
the agreement can be fully explained and
communicated.

A television broadcasting company provides

teletext sub-titles to some of its programmes.
This allows viewers with a hearing impairment
to follow the programmes more easily. This is
likely to be a reasonable step for the
broadcasting company to have to take.

5.24 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. Other interpretation
services such as lipspeakers and Makaton
communicators should similarly be capable of
communicating accurately and effectively.

5.25 Service providers 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.

A bus station fits an induction loop system at its

booking office. This ensures that customers who
have reduced hearing and use hearing aids are

70
 able to communicate effectively with the booking
office. However, this does not help profoundly
deaf customers. The bus company instructs its
staff to take time to communicate by using a
pen and notepad to discover what the customer
wants and to give information. The staff are
also trained to speak looking directly at the
customer to allow those customers who can
lipread to do so. These are likely to be reasonable
steps for the bus station to have to take.

Provision for people with a visual impairment

5.26 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
communication;
■ accessible websites;
■ assistance with guiding;
■ audiodescription services;
■ large print or tactile maps/plans and three-
dimensional models;
■ touch facilities (for example, interactive
exhibits in a museum or gallery).
71
 A restaurant changes its menus daily. For that
reason it considers it is not practicable to
provide menus in alternative formats, such as
braille. However, its staff spend a little time
reading out the menu for blind customers and
the restaurant ensures that there is a large print
copy available. These are likely to be reasonable
steps for the restaurant to have to take.

A utility company supplying gas and electricity

to domestic customers sends out quarterly
bills. On request, the company is willing to
provide the bills in alternative formats such as
braille or large print for customers with visual
impairments. This is likely to be a reasonable
step for the utility company to have to take.

Every year a local council sends out

information to local residents about new
council tax rates. Because the information is
important, the council provides copies in large
print. On request, it is also prepared to supply
the information in alternative media such as
braille or audiotape or to explain the new rates
to individual residents with visual impairments.
These are likely to be reasonable steps for the
council to have to take.

A customer with a visual impairment wishes

to buy a compact disc player from a small
specialist hi-fi shop. The shop arranges for
a member of staff to assist the customer
by reading out product details, packaging
information or prices. This is likely to be a
reasonable step for the shop to have to take.
72
5.27 As with other forms of sensory impairments,
visual disabilities are of varying kinds and
degrees. Service providers 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.

A small estate agent is reviewing the

accessibility of its sales literature for clients
who are partially sighted or blind. Because of
the nature of the service it provides and the
size of its business, the estate agent concludes
that it is not practicable to make particulars of
houses for sale available in braille. However,
the estate agent decides to change the print
size and redesign the appearance of its written
sales particulars. This makes the estate agent’s
sales information more accessible to its
partially sighted clients, but does not assist
those who are blind. It therefore also decides
to put the information on audio tape on
request. These are likely to be reasonable steps
for the estate agent to have to take.

A housing benefit office ensures that claim

forms and information literature are available
in large print for partially sighted claimants. It
also arranges for the forms and literature to be
provided in braille or audiotape on request.
These are likely to be reasonable steps for the
housing benefit office to have to take.

Provision for people with other

disabilities or multiple disabilities
5.28 There are many examples of how auxiliary aids
or services can be used to improve
communication with people who have hearing 73
 disabilities or visual impairments. Service
providers should also consider how
communication barriers can be overcome for
people with other disabilities. For example, a
customer 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.

A coach company issues its staff at a ticket office

with a card showing destinations, types of
tickets and prices. It trains the staff so that
customers with learning disabilities can point to
or ask for the options on the card that they want.
These are likely to be reasonable steps for the
coach company to have to take.

5.29 Service providers 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.

5.30 For example, deafblind people (individuals who

have a severe combined sight and hearing
impairment) are not necessarily assisted in
accessing services by the simple provision of
communication aids designed for use by people
with hearing disabilities or visual impairments.
Such aids could assist deafblind people if
appropriately used (for example, information
leaflets produced in braille or Moon, good
lighting and acoustics, induction loop systems,
etc). However, what is appropriate will depend
on the nature and extent of the individual’s dual
sensory impairment and the methods he or she
uses to communicate and access information.
Adjustments which may be of assistance to a
deafblind person might include engaging a
deafblind manual interpreter for important
74
 meetings or having a member of staff trained in
specific ways to help a deafblind person. Where
service providers give their staff disability
awareness training, they should consider
including ways of helping deafblind people,
such as guiding them safely and tracing capital
letters and numbers on the palm of the hand.

A branch of a bank with a regular customer

who is deafblind has a particular staff member
trained in communicating with deafblind
people. At the customer’s request, the bank
arranges for statements and letters to be sent
in braille. These are likely to be reasonable
steps for the bank to have to take.

Overcoming barriers created by physical

features
What is the duty to make reasonable
adjustments in relation to physical features?
5.31 Where a ‘physical feature’ makes it impossible s 21(2)
or unreasonably difficult for disabled people to
make use of any service which is offered to the
public, a service provider must 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 the
feature; or
■ provide a reasonable alternative method of
making the service available to disabled
people.

The meaning of a ‘physical feature’ is explained

in paragraph 5.44 below and includes, for example,
a feature arising from the design or construction of
a building or the approach or access to premises.
75
 5.32 The duty to make reasonable adjustments in
relation to a physical feature sets out four
possible ways in which the barriers created by
such features might be overcome. The fourth
duty – to provide a reasonable alternative
method of making the service available – has
been in force since 1 October 1999. The other
duties come into force on 1 October 2004.

5.33 Whilst service providers are not obliged to

comply with these latter duties – to remove,
alter or provide a reasonable means of avoiding
a physical feature – prior to 1 October 2004, the
Code of Practice has been issued in advance of
this date to give service providers an
opportunity to consider the adjustments that
they need to make under these provisions. The
period between the issue of this Code and 1
October 2004 is intended to be a ‘transitional’
period during which service providers can
prepare for their new obligations. It will be good
practice and may make business sense to take
action to remove or alter a physical feature
or to provide a reasonable means of avoiding
it before October 2004 and there is nothing to
prevent a service provider from doing so.

5.34 In considering whether or not a service provider

has taken reasonable steps to comply with its
duties after 1 October 2004, a court might take
into account the time that the service provider
has had prior to that date to make preparations.

A public inquiry point is located on the second

floor of a government office building and is
accessed by a flight of stairs. This makes it
impossible or unreasonably difficult for some
disabled people to get to it. People with a

76
mobility disability or a mental health
disability (like anxiety related depression)
may find using the stairs difficult.
Since 1 October 1999 the government
department has had to consider what it
could do to provide a reasonable alternative
method of making its inquiry service
accessible to disabled members of the public.
For example, it might provide the service in
the form of a telephone inquiry line. This
may be a reasonable alternative method
of providing the service if it effectively
delivers the service in another way.
However, if it does not do so (for instance,
if staff at the inquiry point also help people
to complete forms and that cannot be done
by telephone), the provision of a telephone
service may not be a reasonable alternative.
The department will then have to consider
whether there are other reasonable steps it
can take to provide the same service. For
example, it might provide a courtesy telephone
on the ground floor to enable disabled people
to call staff down to help them.
Despite this, if the service is still not accessible
to all disabled people, from 1 October 2004
further reasonable steps may involve a
physical alteration of some kind. For example,
it might be reasonable to install a lift or to
move the inquiry point to the ground floor.
Although there is no requirement to make
physical alterations before 1 October 2004,
it may be sensible to consider and give effect
to such possibilities before then, especially
if refurbishment of the building is being
planned.

77
 5.35 It would be sensible for service providers to plan
ahead and to apply for any necessary consents
before 1 October 2004 so they are able to make
any physical alterations. Whenever a service
provider is planning and executing building or
refurbishment works, such as extending existing
premises or making structural alterations to an
existing building, it is sensible to provide for the
removal or alteration of physical features which
create a barrier to access for disabled people or
to consider providing a reasonable means of
avoiding the physical feature. Even though the Act
does not require this until 1 October 2004, it might
be more cost effective to make these alterations
as part of planned refurbishment before 2004.

A public launderette is planning to install new

washing machines and tumble dryers in 2002.
In doing so, it chooses the machines and their
positioning so as to facilitate their use by disabled
customers. This has the effect of improving the
accessibility of the launderette to disabled people.

A firm of accountants is refurbishing its offices

in 2001. In replacing the carpets, the firm
ensures that low pile, high density carpeting is
fitted. This helps many of its clients with
mobility impairments (for example, those who
use a wheelchair, artificial limb or walking aid)
to move with greater ease within the office.
The firm also decides to make improvements
to the office lighting and signage. This aids its
clients with visual, hearing or learning
disabilities. As part of the refurbishment, the
firm also fits braille markings to lift buttons and
installs an induction loop system in one of its
meeting rooms. By these means, the firm has
placed itself in a good position to provide
accessible services to its disabled clients.
78
 What are a service provider’s obligations
in respect of physical features?
5.36 The Act does not require a service provider to s 19(1)(b),
adopt one way of meeting its obligations rather s 21(2)
than another. The focus of the Act is on results.
Where there is a physical barrier, the service
provider’s aim should be to make its services
accessible to disabled people. What is important
is that this aim is achieved, rather than how it
is achieved. If a service remains inaccessible,
a service provider may have to defend its
decisions.

5.37 For example, a service provider may decide to

provide a service by the option of an alternative
method. If the result is that disabled people
are then able to access the service without
unreasonable difficulty, that will satisfy the
service provider’s obligations under the Act.
If, on the other hand, it is still unreasonably
difficult for a disabled person to make use of
the service, the service provider would then
have to show that it could not have reasonably
removed or altered the physical feature, or
provided a reasonable means of avoiding it.
The cost of taking such action may be a relevant
consideration. Similarly, if the service provider
takes no action, it will have to show that there
were no steps which it could reasonably have
taken. The kinds of factors which may be
relevant in deciding what are reasonable steps
for a service provider to have to take are
described in paragraphs 4.21 to 4.27 above.

79
 An estate agent is marketing a new residential
property development. It decides to hold
detailed presentations for prospective buyers
at the company’s premises, at which there will
be a talk illustrated with slides. However, the
only meeting room available in the building
is inaccessible to many disabled people. The
estate agent obtains a quotation to make its
premises more accessible, but the cost is
more than it anticipated, and it delays making
the alterations.
When disabled people who are unable to
attend a presentation because the room is
inaccessible to them make enquiries, they
are merely sent copies of comparatively brief
promotional literature. This is unlikely to be
a reasonable alternative method of making
the service available.
If an issue arose under the Act as to whether
the estate agent had failed to comply with its
obligations to disabled people who are unable
to make use of its service, regard might be had
to the reasonableness of making the service
available by any of the four different ways set
out in the Act for complying with the duty to
make reasonable adjustments in relation to
barriers created by physical features. In this
case, this would involve consideration of
whether it would have been reasonable to
avoid the feature, such as by holding the
meeting at another venue, whether there was
a more effective alternative method of
providing the service that could reasonably
have been adopted, or whether the cost the
company would have incurred in altering its
premises was such that this would have been
a reasonable step for it to have to take.

80
 Adopting an ‘inclusive’ approach
5.38 It is in the interests of both service providers
and disabled people to overcome physical
features that prevent or limit disabled people
from using the services that are offered.
Although the Act does not place the different
options for overcoming a physical feature in any
form of hierarchy, it is recognised good practice
for a service provider to consider first whether
a physical feature which creates a barrier for
disabled people can be removed or altered.

5.39 This is because removing or altering the barriers

created by a physical feature is an ‘inclusive’
approach to adjustments. It makes the services
available to everyone in the same way. In
contrast, an alternative method of service offers
disabled people a different form of service than
is provided for non-disabled people.

5.40 Removing or altering the barriers created by a

physical feature will also be preferable to any
alternative arrangements from the standpoint of
the dignity of disabled people. In addition, it is
likely to be in the long-term interests of the
service provider, since it will avoid the ongoing
costs of providing services by alternative means
and may expand the customer base.

5.41 Therefore, it is recommended that service

providers should first consider whether any
physical features which create a barrier for
disabled people can be removed or altered. If
that is not reasonable, a service provider should
then consider providing a reasonable means of
avoiding the physical feature. If that is also not
reasonable, the service provider should then
consider providing a reasonable alternative
method of making the service available to
disabled people.
81
 How can service providers identify possible
adjustments?
5.42 Service providers are more likely to be able to
comply with their duty to make adjustments in
relation to physical features if they arrange for
an access audit of their premises to be
conducted and draw up an access plan or
strategy. Acting on the results of such an
evaluation may reduce the likelihood of legal
claims against the service provider.

5.43 In carrying out an audit, it is recommended that

service providers seek the views of people with
different disabilities, or those representing them,
to assist in identifying barriers and developing
effective solutions. Service providers can also
draw on the extensive experience of local and
national disability groups or organisations of
disabled people.

What is a ‘physical feature’?

s 21(2) 5.44 The Disability Discrimination (Services and
SI 1999/1191 Premises) Regulations 1999 make provision for
regs 2-3 various things to be treated as physical features.
A ‘physical feature’ includes:
■ 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
a building;
■ any fixtures, fittings, furnishings, furniture,
equipment or materials in or on such
premises;

82
 ■ any fixtures, fittings, furnishings, furniture,
equipment or materials brought onto
premises (other than those occupied by the
service provider) by or on behalf of the
service provider in the course of (and for the
purpose of) providing services to the public;
■ any other 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.

5.45 Physical features will include steps, stairways,

kerbs, exterior surfaces and paving, parking
areas, building entrances and exits (including
emergency escape routes), internal and external
doors, gates, toilet and washing facilities, public
facilities (such as telephones, counters or
service desks), lighting and ventilation, lifts and
escalators, floor coverings, signs, furniture, and
temporary or movable items (such as equipment
and display racks). This is not an exhaustive list.

5.46 Where physical features are within the

boundaries of a service provider’s premises and
are making it impossible or unreasonably
difficult for disabled people to use the service,
then the duty to make reasonable adjustments
will apply. This will be the case even if the
physical features are outdoors; for example, the
paths and seating in a pub garden.

5.47 Where the physical features are within the remit

of a highway authority and the highway
authority is a service provider, it will have a duty
to make reasonable adjustments.

83
 A highway authority has placed some benches
on the pavement of a busy main road which is
also a shopping street. These benches are very
low and have no arms. Some disabled people
are finding them very difficult to use. The
highway authority decides to make simple
alterations to the benches so that they have
arms and are slightly higher. This is likely to
be a reasonable step for the authority to have
to take.

Removing the physical feature

5.48 Removing the physical feature may be a
reasonable step – and the most effective one –
for a service provider to take. Physical features
often create physical barriers which impede
disabled people accessing services.
Display units at the entrance of a small shop
restrict the ability of wheelchair users to enter
the shop. The owner decides that, without any
significant loss of selling space, the display units
can be removed and repositioned elsewhere in
the shop. This is likely to be a reasonable step
for the shop to have to take.
A countryside visitor centre includes, as an
attraction, a lakeside walk. However, a stile
prevents access to the lakeside walk for those
with mobility difficulties. The park authority
which runs the centre removes the stile and
replaces it with an accessible gate. This is likely
to be a reasonable step for the service provider
to have to take.

84
 Altering the physical feature
5.49 Altering the physical feature so that it no longer
has the effect of making it impossible or
unreasonably difficult for disabled people to use
the services may also be a reasonable step for a
service provider to take.

A local religious group holds prayer meetings

in a building entered by steps. The room in
which the prayer meetings are held has a
narrow entrance door. To ensure that its prayer
meetings are accessible to disabled people,
the religious group installs a permanent ramp
at the entrance to the building. It also widens
the door to the room. These are likely to be
reasonable steps for the religious group to
have to take.

Providing a reasonable means of avoiding the

physical feature
5.50 Providing a reasonable means of avoiding the
physical feature may also be a reasonable step
for a service provider to take.

A public art gallery is accessible by a flight

of stairs at its front entrance. It is housed in
a listed building, and has not been able to
obtain consent to install a ramped entrance
to the gallery. A side entrance for staff use is
fully accessible and always open. The gallery
arranges for people with a mobility impairment
to use this entrance. This is likely to be a
reasonable step for the gallery to have to take.
It could of course go further and adopt an
inclusive approach by also making the side
entrance available to everyone.

85
 5.51 The Act requires that any means of avoiding the
physical feature must be a ‘reasonable’ one.
Relevant considerations in this respect may
include whether the provision of the service in
this way significantly offends the dignity of
disabled people and the extent to which it
causes disabled people inconvenience.

A firm of solicitors is located in a building

whose front entrance is only accessible by
climbing a flight of stairs. At ground level
there is a bell and a sign saying ‘Please ring
for disabled access.’ However, the bell is not
answered promptly, even in bad weather, so
that a disabled person often has to wait for an
unreasonable time before gaining access to
the building. This is unlikely to be a reasonable
means of avoiding thefeature.

Providing a reasonable alternative method of

making services available
5.52 Providing a reasonable alternative method of
making services available to disabled people
may also be a reasonable step for a service
provider to take. The Act requires that any
alternative method of making services available
must be a ‘reasonable’ one. Relevant
considerations in this respect may include
whether the provision of the service in this way
significantly offends the dignity of disabled
people and the extent to which it causes
disabled people inconvenience.

86
A small self-service pharmacist’s shop has
goods displayed on high shelving separated by
narrow aisles. It is not practicable to alter this
arrangement. The goods are not easily
accessible to many disabled people. The shop
decides to provide a customer assistance
service. On request, a member of staff locates
goods and brings them to the cash till for a
disabled customer. This is the provision of a
service by an alternative method, which makes
the service accessible for disabled people. This
is likely to be a reasonable step for the shop to
have to take.

The changing facilities in a women-only gym

are located in a room which is only accessible
by stairs. The service provider suggests to
disabled users of the gym with mobility
impairments that they can change in a corner
of the gym itself. This is unlikely to be a
reasonable alternative method of making the
service available, since it may significantly
infringe their dignity.

87
 How do building regulations
6 and leases affect reasonable
adjustments?

Introduction
6.1 In Chapters 4 and 5 of the Code, an explanation
is given of the duty to make reasonable
adjustments and how it works in practice,
including the duties that will apply from
1 October 2004 in respect of overcoming
physical barriers. This chapter addresses the
issues of how building regulations and leases
affect the duty to make reasonable adjustments
to physical features where they make it
impossible or unreasonably difficult for
disabled people to use a service.

Building regulations
Summary
6.2 A building in England or Wales that complies Approved
with Part M of Building Regulations (see Document M
paragraph 6.4 below) should make reasonable
ISBN
provision for disabled people to gain access to
0 11 752447 6
and use the building. Broadly, a building will
comply with Part M when its physical features ISBN
(or aspects of physical features) accord with 011 753469 2
those described in the Approved Document M
(see paragraph 6.6 below). These will make it
‘reasonably safe and convenient’ for disabled
people to gain access to and within a building
and to use it. As the paragraphs below explain,
an exemption set out in Regulations (see
paragraph 6.7 below) means that a service
provider who provides services from a building
will not have to make alterations or adjustments
89
89
 to physical features which accord with Approved
Document M if 10 years or less have passed
since their construction or installation.

6.3 The Approved Document M is not mandatory,

however, and it is open to a developer to comply
with Part M in other ways. Only certain features
are addressed in the Approved Document.
Where a building complies with Part M any
alternative treatment of those features must
enable any disabled person to use the building
with the same degree of ease as would have
been the case had those features (or aspects of
those features) accorded with those set out in
the Approved Document. Therefore a service
provider who provides services from such a
building is unlikely to have to make alterations
or adjustments to those specific features if 10
years or less have passed since their
construction or installation (see paragraph 6.8
below). The position is similar in Scotland.

Requirements
SI 2000/2531 6.4 Since 1985 building regulations in England and
Wales have required reasonable provisions to be
made for disabled people to gain access to and
to use new buildings (and some extensions).
Part M of the Building Regulations (Access and
facilities for disabled people), was extended in
1992 and again in 1999. It now applies to:
■ New buildings, and
■ Ground floor extensions to existing
buildings but not the existing buildings
themselves.

Buildings to which Part M applies should make

reasonable provision for access and use by
disabled people.

90
6.5 Where an extension has its own entrance it
is treated as a new building but where it is
accessed through the existing building the
extension need not be any more accessible
than the existing building. When alterations
or extensions are made they should not have
the effect of reducing the level of access to
the existing building.

6.6 Guidance is issued to accompany the building ISBN

regulations. For Part M of the Building 011 752447 6
Regulations in England and Wales this is the
ISBN
Approved Document M. This sets out a number
0 11 753469 2
of ‘objectives’ to be met, ‘design considerations’
and technical details of design solutions (called
‘provisions’). These provisions suggest one way
in which the requirements of the regulations
might be met but there is no obligation to adopt
any of them. Most buildings will have followed
the guidance in the Approved Document, but
some will have adopted other acceptable design
solutions.

6.7 Some disabled people might find it impossible SI 2001/3253

or unreasonably difficult to use services provided reg 3(3)
at a building even though the building meets
the requirements of Part M. In this situation, if a
physical feature accords with the 1992 or 1999
Approved Documents to Part M, an exemption
provided by The Disability Discrimination
(Providers of Services) (Adjustment of Premises)
Regulations 2001 (the ‘2001 Regulations’) means
that the service provider will not have to make
adjustments to that feature if 10 years or less
have passed since it was constructed or installed.
This is explained in paragraphs 6.12 below.

6.8 A building with features which do not accord

with the effective edition of the Approved
Document (see paragraph 6.12 below) may have

91
 been accepted as meeting the requirements
of Part M. If the feature is one which is covered
by the Approved Document (for example, a lift)
then, provided it enables any disabled person
to access and use the building with the same
degree of ease as would have been the case
had the feature accorded with the Approved
Document, it is unlikely to be reasonable for a
service provider to have to make adjustments to
that feature if 10 years or less have passed since
its installation or construction. This is because
the 2001 Regulations are not intended to deter
people from adopting effective innovative or
alternative design. Where a feature is one which
is not covered by the Approved Document (for
example, lighting) then under the DDA the
service provider may still have to make
adjustments to that feature.

A sports centre built in 1995 in England has

a shower compartment for use by disabled
customers. The centre was subject to scrutiny
by a Building Control Officer. In his opinion
the design provided reasonable access for
disabled people, sufficient to satisfy Part M
of the Building Regulations. The shower
compartment has a seat fixed to the floor
rather than a tip up seat as shown in Approved
Document M because the partition walls will
not bear the weight of a tip up seat. The fixed
seat means it is difficult for some disabled
people to use the shower. It would nonetheless
be unlikely to be reasonable for the sports
centre to have to consider changing the seating
arrangements in the shower cubicle until 2005.

6.9 Similar provisions to those in England and

Wales were also introduced in Scotland in 1985
when ‘facilities for disabled persons’ were
92
 added to the Building Standards (Scotland)
Regulations. As in England and Wales, there
have been various versions. From April 1991
until April 2000 the detailed requirements for
compliance with the Building Standards
(Scotland) Regulations 1990 were set out in Part
T of the Technical Standards. In April 2000 Part T
was discontinued and its requirements were
integrated into the general Technical Standards.

6.10 In Scotland the Technical Standards apply to:

■ New buildings,
■ Conversions,
■ Extensions to existing buildings but not the
existing buildings themselves,
■ Parts of a building that are altered or that
are adversely affected by an alteration being
carried out elsewhere in the building, and
■ Parts of a building that are subject to a
change of use.

6.11 The Technical Standards stipulate requirements SI 2001/3253

that must be met in order to comply with the reg 3 (3)
building standards regulations. In general,
no building work of a type that is subject to
the regulations may be carried out without
a warrant from the Local Authority. The Local
Authority will only grant a warrant if the
building works proposed comply with the
Technical Standards. However, a standard may
be relaxed or dispensed with entirely if it is
considered to be unreasonable in a particular
situation. Where this occurs it is unlikely to be
reasonable for a service provider to have to
make adjustments to relevant physical features
for a period of 10 years from their installation or
construction (see paragraphs 6.2 to 6.3 above).
An exemption from the duty to make reasonable
93
 adjustments to physical features applies where
those features accord with the relevant version
of Part T or the corresponding requirements in
the Technical Standards introduced in April 2000
and March 2002 (see paragraph 6.17 below).

Where the exemption applies in England

and Wales
SI 2001/3253 6.12 The overall effect of the 2001 Regulations is that,
Sch, para 2 for a period of 10 years, a service provider in
England and Wales need not remove or alter any
aspect of a physical feature of a building that
accords with the relevant objectives, design
considerations and provisions in the Approved
Document M. At the date of publication of the
Code, the effective edition of the Approved
Document M will be either the1992 or 1999
edition. For building works where the building
regulations applied, the effective edition will be
the version which applied in meeting those
building regulations. For building works where
the building regulations did not apply the
effective edition will be that which was in force
when those works commenced. Any building
works undertaken before I October 1994 will not
be protected by the exemption.

6.13 The service provider may still however be

required to provide:
■ a reasonable means of avoiding that
feature; or
■ a reasonable alternative method of making
services available.

6.14 In England and Wales there are areas of

development, such as alterations, where Part M
of the Building Regulations does not require that
accessibility be improved. Despite the

94
 absence of any legal obligation under the
building regulations, a service provider may still
decide to adopt the guidance in the Approved
Document M. Physical features that the service
provider includes, that accord with the objectives,
design considerations and provisions set out in
the relevant Approved Document M, will not
have to be removed or altered if 10 years or less
have passed since their construction or
installation.

A corner shop was converted to a social

services neighbourhood office in 1996. A ramp
was installed to the front door and all internal
doors were widened. The length and gradient
of the ramp accord with the provisions set out
in the applicable Approved Document M (1992)
and the doors provide the recommended clear
opening width. The service provider would not
be required under Part III of the DDA to alter
the length or gradient of the ramp or the
internal door widths before 2006.

6.15 The 10 year exemption period commences SI 2001/3253

from the date the installation of that feature Sch, para 1(3)
was completed or, where the physical feature
is installed as part of a larger building project,
from the date the works in relation to that
project were completed. The 2001 Regulations
do not stipulate how the date will be established.
However, it is likely that in the majority of cases
it will be the day on which the service provider
is able to make use of the physical feature.
Where industry standard forms of contract are
used this is known as ‘practical completion’ and
is the date on which the contractor hands over
the work to the service provider.

95
 The toilets in a restaurant were redecorated in
1996. The service provider took the opportunity
to install handrails in one of the cubicles,
in accordance with the provisions of the
applicable Approved Document M (1992), to
assist people with ambulant disabilities. The
service provider finished the work and the
toilets were brought back into use on 15 June
1996. The service provider would be exempted
from any requirement under Part III to replace
or alter those handrails before 15 June 2006,
when the exemption elapses.

The construction of a large department

store in England began in 1997 and practical
completion was achieved on 27 July 1999.
The width of the main entrance and the
dimensions of the lobby accord with those
set out in the provisions of the applicable
Approved Document M (1992). The service
provider would be exempted from any
requirement under Part III to replace or alter
the width of the door or the size of the lobby
before 27 July 2009, when the exemption
elapses.

6.16 If new guidance is brought into effect to replace

the 1999 editionof the Approved Document M,
new DDA regulations might provide a similar
exemption. Service providers whose premises
include physical features that are constructed in
accordance with the revised design guidance
should check whether the 2001 Regulations have
been amended before relying on them to justify
a decision not to remove or alter any of those
features.

96
 Where the exemption applies in Scotland
6.17 The 2001 Regulations make similar provisions SI 2001/3253
in Scotland but take into account the fact that reg 3(3)
in Scotland the requirements to provide
access and facilities for disabled people are SI 1994/1266;
now dispersed among the general Technical SI 1996/2251;
Standards (see paragraph 6.9 above). However, SI 1997/2157;
the general effect of the 2001 Regulations is the SSI 1999/173;
same. That is, for a period of 10 years, a service SSI 2001/320
provider need not remove or alter any aspect
of a physical feature of a building that accords
with the relevant version of Part T or the
corresponding requirements now included in
other Technical Standards introduced in April
2000 and March 2002.

6.18 The relevant standard will be that which was SI 2001/3253

in effect at the time the works to install the Sch, para 1
physical feature commenced, provided they (2),(3)
did not commence before 30 June 1994 or after
the Technical Standards 2001 (commencing as
of 3 March 2002) cease to have effect. Where
an application for a warrant for the construction
or change of use of the building has been made
and granted, the works are deemed to commence
on the day the application for the warrant was
made.

6.19 The service provider may still however be

required to provide:
■ a reasonable means of avoiding that
feature; or
■ a reasonable alternative method of making
services available.

6.20 The 10 year exemption period commences SI 2001/3253

from the date the installation of that feature Sch, para 1(3)
was completed or, where the physical feature
is installed as part of a larger building project,
97
 from the date the works in relation to that
project were completed. The 2001 Regulations
do not stipulate how the date will be
established. However, it is likely that in the
majority of cases it will be the day on which the
service provider is able to make use of the
physical feature.

The construction of a health centre in Scotland

was completed in1998 in accordance with
the applicable version of Part T. The health
authority, as the service provider in these
circumstances, is not exempt from the duty
to remove or alter any physical feature of the
building beyond 2008 when the 10 year period
elapses.

6.21 If new Technical Standards are brought into

effect new DDA regulations might provide a
similar exemption. Service providers whose
premises are constructed in accordance with
future Technical Standards should check
whether the 2001 Regulations have been
amended before relying on them to justify a
decision not to remove or alter any of those
features.

Application of the exemption throughout

Great Britain
6.22 The exemption relates only to the particular
aspect of the physical feature in question, that
accords with the provisions of the Approved
Document M in England and Wales or the
relevant Technical Standard in Scotland and
not to the building as a whole.

98
 The dimensions of the risers and treads of
steps to the entrance of a multi screen cinema
(built in 1996) accord with the provisions of the
relevant Approved Document M (1992). Those
aspects of the steps will not have to be altered
for a period of 10 years from the date their
installation was complete. That is not to say
that the service provider will not have to
improve access to its premises in other ways
and it may still have to consider improving
the accessibility of the steps by, for instance,
improving the lighting or fitting a non-slip
surface treatment.

6.23 Where a particular aspect of a physical feature

accorded with the applicable provision in the
relevant Approved Document M, or Technical
Standard in Scotland, no alteration will be
required, so long as it continues to accord
with the provision. The exemption will last
for 10 years from the date that the feature was
constructed or installed. It will not apply to
other aspects of the same feature if they did
not conform with or were not covered by the
provisions in the guidance.

The clear opening width of the door to a

restaurant (built in Wales in 1998) conformed
to the relevant provision of the Approved
Document M. The service provider would not
be expected to consider altering the width of
the door, under Part III of the DDA, until 2008.
If, however, in 2002 the door was replaced by
a narrower one, which no longer provided the
clear opening width described in the provisions
of the Approved Document M, then this aspect
of the feature would no longer be exempt from
a possible requirement for alteration.
99
 In any event, the service provider might have
to consider altering other aspects of the door’s
design (for example, the type of handle, the
colour or the weight of the door) that are not
covered by the Approved Document M.

6.24 Service providers should be aware of the limited

scope of the Approved Document M or Technical
Standards in Scotland. For those aspects of
design that fall beyond their scope, service
providers are recommended to take account of
the wealth of published advice on the principles
and practice of ‘inclusive design’. For instance,
building regulations do not cover the design
of the external environment (except for those
features that are needed to provide access to the
building from the edge of the site and from car
parking within the site) nor does it cover the
provision of signage.

The design of a new visitors’ centre in a

Welsh country park adopts in full the guidance
provided in the Approved Document M. Once
the centre is open to the public the manager
receives a number of complaints from people
with mobility and visual impairments who find
that stiles and gates along the centre’s nature
trail are extremely difficult to negotiate. There
is no guidance on the design of these physical
features in the Approved Document M.
Consequently they would not be exempt from
a possible requirement for alteration under
Part III of the DDA.
There is no signage to assist people with visual
impairments within the visitors’ centre with the
result that some people become disorientated

100
 and are unable to locate the toilets or cafeteria.
The service provider would be expected to
consider what reasonable steps might be taken
to remedy the situation, including the provision
of signage.

6.25 The Approved Document M in England and

Wales and the Technical Standards in Scotland
describe circumstances where the requirement
might be met despite the fact that certain physical
features, which would facilitate access, are not
provided on the premises. The exemption only
applies to a physical feature that was included
(and which accords with the provisions of the
relevant Approved Document M or Technical
Standard). It does not apply to a physical feature
that was not required and therefore not included
on the premises. The service provider will need
to consider whether the provision of those
features would be reasonable under Part III of
the DDA.

The designer of a library built in Scotland

in 1997 was careful to adopt all relevant
provisions of Part T of the Technical Standards.
A deaf person who uses a hearing aid cannot
participate fully in seminars convened in the
small meeting room because there is no
induction loop in it. The exemption does not
apply even though the Technical Standard
states that induction loops need not be
provided in meeting rooms of this size.
The service provider would have to consider
whether it would be reasonable under Part III
of the DDA to provide an induction loop in
this room.

101
 Leases, binding obligations and
reasonable adjustments
6.26 Set out in paragraphs 6.27 to 6.49 below
are those issues which are relevant to service
providers who occupy premises under a lease,
or other binding obligation, in terms of their
duty to make reasonable adjustments,
particularly in relation to removing or altering
physical barriers. These include arrangements
for obtaining consent for alterations.

6.27 Service providers should remember that even

where consent is not given for removing or
altering a physical feature, they still have a duty
to consider providing a reasonable means of
avoiding a feature or providing the service by a
reasonable alternative means (see Chapter 5).

What about the need to obtain statutory

consent for some building changes?
s 59 6.28 A service provider might have to obtain
statutory consent before making adjustments
involving changes to premises. Such consents
include planning permission, building regulations
approval or a building warrant in Scotland,
listed building consent, scheduled monument
consent and fire regulations approval. The Act
does not override the need
to obtain such consents.

6.29 Service providers should plan for and anticipate

the need to obtain consent to make a particular
adjustment. It might take time to obtain such
consent, but it could be reasonable to make an
interim or other adjustment – one that does not
require consent – in the meantime.

102
 A historic country house is open to the
public. To enable visitors with a mobility
impairment to visit the house, the owners
are considering installing a ramped entrance.
In the circumstances, installing a ramp is likely
to be a reasonable adjustment for the service
provider to have to make.
However, the service provider in this case
needs statutory consent to do so because the
house is a listed building. The service provider
consults the local planning authority and learns
that consent is likely to be given in a few weeks.
In the meantime, as a temporary measure
only, the service provider arranges for disabled
visitors to use an inconvenient but accessible
entrance at the side of the house. Although not
ideal, this is likely to be an acceptable solution
for a limited period while statutory consent is
being obtained.

6.30 Where consent has been refused, there is likely

to be a means of appeal. Whether or not the
service provider’s duty to take such steps as it is
reasonable to take includes pursuing an appeal
will depend on the circumstances of the case.

What if a binding obligation other than a

lease prevents a building being altered?
6.31 The service provider may be bound by the SI 2001/3253
terms of an agreement or other legally binding reg 3(2)
obligation (for example, a mortgage, charge
or restrictive covenant or, in Scotland, a feu
disposition) under which he cannot alter the
premises without someone else’s consent.
In these circumstances, the 2001 Regulations
provide that it is reasonable for the service
provider to have to request that consent, but
103
 that it is not reasonable for the service provider
to have to make an alteration before having
obtained that consent.

A church holds social functions in the church

hall, built with the assistance of a bank loan.
The bank loan is secured by way of a charge
on the hall under which the bank’s consent
is required for any changes. The church is
proposing to make alterations to the hall to
comply with its duty to make reasonable
adjustments. It is reasonable for the church
to have to seek the bank’s consent but it is not
reasonable for the church to have to make the
alteration if the bank does not give its consent.

What happens if a lease says that certain

changes to premises cannot be made?
s 27 (2) 6.32 Special provisions apply where a service
provider occupies premises under a lease,
the terms of which prevent it from making
an alteration to the premises. In such
circumstances, if the alteration is one which
the service provider proposes to make in order
to comply with a duty of reasonable adjustment,
the Act overrides the terms of the lease so as to
entitle the service provider to make the
alteration with the consent of its landlord
(‘the lessor’). In such a case the service provider
must first write to the lessor asking for consent
to make the alteration. The lessor cannot
unreasonably withhold consent but may attach
reasonable conditions to the consent.

104
6.33 If the service provider fails to make a written Sch 4, Part II
application to the lessor for consent to the para 5
alteration, the service provider will not be
able to rely upon the fact that the lease has a
term preventing it from making alterations to
the premises to defend its failure to make an
alteration. In these circumstances, anything in
the lease which prevents that alteration being
made must be ignored in deciding whether it
was reasonable for the service provider to have
made the alteration.

A service provider occupies premises under

a lease, a term of which says that the service
provider cannot make alterations to a staircase.
When deciding whether or not it was reasonable
for the service provider to make an alteration
to the staircase in order to make it more
accessible to disabled people, a court will
ignore the terms of the lease unless the service
provider has written to ask the lessor for
permission to make the alteration.

What happens if the lessor has a

‘superior’ lessor?
6.34 The service provider’s lessor may himself hold SI 2001/3253
a lease the terms of which prevent him from reg 9
consenting to the alteration without the consent
of his landlord (‘the superior lessor’). The 2001
Regulations made under the Act cover this by
modifying the effect of any superior lease so
as to require the lessee of that lease to apply
in writing to his lessor (the ‘superior lessor’
in this context) if he wishes to consent to the
alteration. As with the service provider’s
lessor, the superior lessor must not withhold
such consent unreasonably but may attach
reasonable conditions to the lease.

105
 A bakery occupies the premises under a lease,
the terms of which prevent it from making
alterations without the consent of its landlord.
The landlord holds the premises under a lease
which has a similar term. The landlord receives
an application from the bakery for consent to
alter the premises. He is entitled to consent to
the application if he receives the consent of his
landlord. He writes to his landlord asking for
that consent. His landlord cannot unreasonably
refuse to give consent but may consent subject
to reasonable conditions.

6.35 Where a superior lessor receives an application

from his lessee the provisions described in
paragraphs 6.36 to 6.49 below apply as if his
lessee were the service provider.

How will arrangements for gaining

consent work?
reg 5(2),(6) 6.36 Once the application has been made, as a
general rule the lessor has 42 days, beginning
with the day on which he receives the
application, to reply in writing to the service
provider (or the person who made the
application on its behalf). If he fails to do so
he is taken to have withheld his consent to
the alteration and the provisions described
in paragraph 6.47 below apply.

reg 5(3),(4) 6.37 However, the lessor has 21 days to make a

written request for any plans and specifications
that it is reasonable for him to require and
which were not included with the application.
If he makes such a request the 42 day period
will begin with the day on which he receives the
plans and specifications. It would be sensible,

106
 in order to ensure that the application is dealt
with as speedily as possible, for service providers
to include the plans and specifications with the
application for consent.

6.38 If the lessor replies consenting to the application reg 5(2),(4)

subject to obtaining the consent of another
person (required under a superior lease or
because of a binding obligation), but he fails
to seek the consent of the other person within
42 days of receiving the application (or receiving
the plans and specifications, if these arrive later),
he will be taken to have withheld his consent
and the provisions described in paragraph 6.47
below apply.

6.39 The 2001 Regulations provide that a lessor will reg 5(7)
be treated as not having sought the consent of
another person unless:
■ the lessor has applied in writing to the other
person indicating that the occupier has
asked for consent for an alteration in order
to comply with a duty to make reasonable
adjustments, and the lessor has given his
consent conditionally upon obtaining the
other person’s consent; and
■ he has submitted to the other person any
plans and specifications which he has
received.

6.40 A lessor who receives the consent required reg 5(5)

from another person will also be taken to have
withheld his consent if he fails within 14 days to
let the service provider (or the person who made
the application on behalf of the service provider)
know in writing that he has received consent.

107
 A gift shop wishes to alter its entrance to make
it more accessible. It applies to the lessor for
consent to make the alteration and encloses
plans and specifications with the application.
The lessor is content for the alteration to be
made but he has mortgaged the premises with
a bank. The terms of the mortgage require him
to obtain the bank’s consent before making or
permitting any alteration.
Within 42 days of receiving the application
the lessor writes to the shop saying that he
will consent to the alteration if the bank agrees.
At the same time he applies in writing to the
bank for consent. He encloses the plans and
specifications with the application and makes
clear that the shop wishes to make the
alteration to comply with the reasonable
adjustments duty. He also makes clear to the
bank that he has consented to the alteration,
provided the bank gives its consent. The bank
replies to the lessor, giving its consent and the
lessor informs the shop of this within 14 days
of receiving the consent.

When is it unreasonable for a lessor to

withhold consent?
6.41 Whether withholding consent will be reasonable
or not will depend on the specific circumstances.
For example, if a particular adjustment is likely
to result in a substantial permanent reduction in
the value of the lessor’s interest in the premises,
the lessor is likely to be acting reasonably in
withholding consent. The lessor is also likely to
be acting reasonably if he withholds consent
because an adjustment would cause significant
disruption or inconvenience to other tenants (for
example, where the premises consist of multiple
adjoining units).
108
6.42 A trivial or arbitrary reason would almost
certainly be unreasonable. Many reasonable
adjustments to premises will not harm the
lessor’s interests and so it would generally be
unreasonable to withhold consent for them.

A florist occupies shop premises in a row of

shops which are part of a new marina complex.
The shop is leased from the marina owner.
To comply with its duties under the Act,
the florist wishes to improve the accessibility
of the shop to disabled people by the provision
of a wider front door. It seeks permission to
do so from the marina owner who refuses
permission on the ground that all the shops
in the marina must have the same appearance.
It is likely to be unreasonable to withhold
consent in these circumstances.

6.43 The 2001 Regulations provide that it is reg 6

unreasonable for a lessor to withhold consent
in circumstances where the lease says that
consent will be given to alterations of the kind
for which consent has been sought.

6.44 The 2001 Regulations provide that withholding reg 7

consent will be reasonable where:
■ there is a binding obligation requiring the
consent of any person to the alteration;
■ the lessor has taken steps to seek consent;
and
■ consent has not been given or has been
given subject to a condition making it
reasonable for the lessor to withhold his
consent.

109
 Withholding consent will also be reasonable
where a lessor does not know, and could not
reasonably be expected to know, that the
alteration is a reasonable adjustment.

In the example in paragraph 6.42 above, the

original developer of the marina sold it to the
present owner (the lessor of the florist shop)
with an enforceable restrictive covenant
requiring the developer’s consent to any
alteration to the façade or appearance of the
marina shops. The lessor has applied for that
consent, but it has been refused. In these
circumstances, it will be reasonable for the
lessor to refuse permission to the florist to
make the alterations requested.

What conditions would it be reasonable

for a lessor to make when giving consent?
6.45 The 2001 Regulations set out some conditions
which it is reasonable for a lessor to make.
Depending on the circumstances of the case
there may be other conditions which it would
be reasonable for a lessor to require the service
provider to meet. Where a lessor imposes
other conditions (for example, a reinstatement
condition) their reasonableness may be
challenged in the courts (see paragraph 6.47
below).

reg 8 6.46 The conditions set out in the Regulations as

ones which a lessor may reasonably require
a service provider to meet are that it:
■ obtains any necessary planning permission
and other statutory consents;
■ carries out the work in accordance with any
plans and specifications approved by the
lessor;
110
 ■ allows the lessor a reasonable opportunity
to inspect the work (whether before or after
it is completed);
■ reimburses the lessor’s reasonable costs
incurred in connection with the giving of
consent; or
■ obtains the consent of another person
required under a binding obligation or
superior lease.

What happens if the lessor refuses consent

or attaches conditions to consent?
Reference to Court
6.47 If the service provider has written to the lessor Sch 4, Part II,
for consent to make an alteration and the lessor para 6
has refused consent or has attached conditions
to his consent, the service provider or a disabled SI 2001/3253
person who has an interest in the proposed reg 9(5), (6)
alteration may refer the matter to a county court
or, in Scotland, the sheriff court. The court will
decide whether the lessor’s refusal or any of the
conditions are unreasonable. If it decides that
they are, it may make an appropriate declaration
or authorise the service provider to make the
alteration under a court order (which may
impose conditions on the service provider).
Where the service provider occupies premises
under a sub-lease or sub-tenancy, these
provisions are modified to apply also to the
service provider’s landlord.

Joining lessors in proceedings

6.48 In any legal proceedings on a claim under Sch 4, Part II,
Part III of the Act, involving a failure to make para 7
an alteration to premises, the disabled person
concerned or the service provider may ask the
court to direct that the lessor be made a party to
111
SI 2001/3253 the proceedings. The court will grant that
reg 9(7) request if it is made before the hearing of the
claim begins (unless it appears to the court that
a different lessor should be made a party to the
proceedings). It may refuse the request if it is
made after the hearing of the claim begins. The
request will not be granted if it is made after the
court has determined the claim.

6.49 Where the lessor has been made a party to the

proceedings, the court may determine whether
the lessor has unreasonably refused consent to
the alteration or has consented subject to
unreasonable conditions. In either case, the
court can:
■ make an appropriate declaration;
■ make an order authorising the service
provider to make a specified alteration,
■ order the lessor to pay compensation to the
disabled person.

The court may require the service provider to

comply with any conditions specified in the
order. If the court orders the lessor to pay
compensation, it cannot also order the service
provider to do so.

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 Can a service provider justify
7 less favourable treatment or failure
to make reasonable adjustments?

Introduction
7.1 A service provider should not be looking for
reasons or excuses to discriminate against
disabled people who wish to use its services.
It is in the service provider’s own best interests
to ensure that its services are fully accessible
to all customers.

7.2 However, in limited circumstances, the Act

does permit a service provider to justify the
less favourable treatment of a disabled person
or a failure to make a reasonable adjustment.
This cannot be used as a reason for a general
exclusion of disabled people from access to
services. The circumstances in which such
treatment or failure might be justified are
examined in this chapter.

7.3 There are special rules affecting the provision

of insurance, guarantees and deposits (these
are dealt with in Chapter 8 below).

Less favourable treatment

7.4 A service provider discriminates against a
disabled person if:
■ for a reason which relates to the disabled s 20(1)(a)
person’s disability, it treats him or her less
favourably than it treats or would treat
others to whom that reason does not or
would not apply; and

113
 s 20(1)(b) ■ it cannot show that the treatment in
question is justified.

Failure to make reasonable adjustments

7.5 A service provider also discriminates against a
disabled person if:
s 20(2)(a) ■ it fails to comply with a duty to make
reasonable adjustments imposed on it
under the Act in relation to the disabled
person; and
s 20(2)(b) ■ it cannot show that the failure to comply
with that duty is justified.

s 20(9) 7.6 Treating a disabled person less favourably for a

reason related to disability or failing to comply
with a duty to make reasonable adjustments
may be justified only if:
s 20(3)(a) ■ the service provider believes that one or
more of the relevant conditions detailed in
paragraphs 7.11 to 7.24 below are satisfied;
and
s 20(3)(b) ■ it is reasonable in all the circumstances of
the case for that person to hold that opinion.

s 20(4) 7.7 The conditions specified in the Act relate to:

■ health or 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 provider to provide the
service to the disabled person or other
members of the public;
■ the greater cost of providing a tailor-made
service.
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 These are explained in more detail in
paragraphs 7.11 to 7.25 below.

If the reason for less favourable treatment or

failure to comply with a duty to make
reasonable adjustments does not fall within one
of the relevant conditions, it cannot be justified
and will therefore be unlawful.

The general approach to justification

7.8 The test of justification is twofold; what did the
service provider believe? (a subjective test) and
was that belief reasonably held? (an objective
test). A service provider does not have to be an
expert on disability, but it should take into
account all the circumstances, including any
information which is available, any advice which
it would be reasonable to seek, and the opinion
of the disabled person. The service provider
should also consider whether it could make
reasonable adjustments so that there would no
longer be any less favourable treatment to
justify; for example, by amending an evacuation
procedure where a refusal of service might
otherwise be justified on health and safety
grounds. The lawfulness of what a service
provider does or fails to do will be judged by
what it knew (or could reasonably have known),
what it did and why it did it at the time of the
alleged discriminatory act.

7.9 In some instances, it will not be clear whether

any of the justifications apply. It may be shown
subsequently that a service provider was
mistaken in its opinion in a particular case.
Coming to an incorrect conclusion does not
necessarily mean that the service provider has
discriminated unlawfully against a disabled
person. In such cases, a service provider may

115
 be able to justify less favourable treatment or
a failure to make reasonable adjustments if it
can show that it was reasonable, in all the
circumstances of the case, for it to hold that
opinion at the time.

7.10 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. Similarly, if a disabled
person can show that the service provider has
failed to comply with a duty to make reasonable
adjustments in relation to the disabled person,
it is for the service provider to show that the
failure was justified. In either case, the
justification must fall within one of the relevant
categories of justification set out in the Act and
which are described in paragraphs 7.11 to 7.25
immediately below. Some of the categories of
justification only apply to particular acts of
otherwise unlawful discrimination.

Health or safety
s 20(4)(a) 7.11 The Act does not require a service provider to
s 20(9) do anything which would endanger the health
or safety of any person. A service provider can
justify less favourable treatment or a failure to
make an adjustment if it is necessary in order not
to endanger the health or safety of any person,
including the disabled person in question.

An amusement park operator refuses to allow

a person with muscular dystrophy onto a
physically demanding, high speed ride. Because
of her disability, the disabled person uses
walking sticks and cannot stand unaided. The
ride requires users to brace themselves using

116
 their legs. The refusal is based on genuine
concerns for the health or safety of the
disabled person and other users of the ride.
This is likely to be justified.

7.12 The justification cannot apply unless the service

provider reasonably believes that the treatment
is necessary in order not to endanger the
health or safety of any person. Health or safety
reasons which are based on generalisations
and stereotyping of disabled people provide no
defence. For example, fire regulations should
not be used as an excuse to place unnecessary
restrictions on wheelchair users based on the
assumption that wheelchair users would be
an automatic hazard in a fire. It is for the
management of the establishment concerned,
with advice from the licensing authority or local
fire officer, to make any special provision
needed. Service providers should ensure that
any action taken in relation to health or safety
is proportionate to the risk. There must be a
balance between protecting against the risk
and restricting disabled people from using the
service. Disabled people are entitled to make
the same choices and to take the same risks
within the same limits as other people.

Although there are adequate means of escape,

a cinema manager turns away a wheelchair
user because she assumes, without checking,
that he could be in danger in the event of a fire.
Although she genuinely believes that refusing
admission to wheelchair users is necessary in
order not to endanger the health or safety of
either the disabled person or other cinema
goers, the cinema manager has not made

117
 enquiries as to whether there are adequate
means of escape. Her belief is therefore
unlikely to be reasonably held. In these
circumstances, the refusal of admission is
unlikely to be justified.

7.13 As indicated in paragraph 7.11 above, before

a service provider relies on health or safety to
justify less favourable treatment of a disabled
person, it should consider whether a reasonable
adjustment could be made which would allow
the disabled person to access the service
without concerns for health or safety. Similarly,
if health or safety is used to justify a failure to
make a particular reasonable adjustment, the
service provider should consider whether there
is any alternative adjustment that could be made
to allow the disabled person to use the service.

An outdoor centre provides adventure

weekends involving strenuous physical effort
and some personal risk. On safety grounds,
it has a policy of requiring its customers to
undergo a medical examination before they are
admitted to the course. This tends to screen
out customers who are disabled as a result of
high blood pressure or heart conditions. This is
likely to be justified. However, the centre might
make adjustments to its policy by admitting the
disabled customers to any parts of the course
which do not create a safety risk.

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 Incapacity to contract
7.14 The Act does not require a service provider to s 20(4)(b)
contract with a disabled person who is incapable s 20(9)
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 also justify
discriminatory standards or manner or terms of
service, as well as a failure to make a reasonable
adjustment.

7.15 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
that a disabled person is able to enter into any
contract.

A jeweller refuses to sell a pair of earrings to

a person with a learning disability. 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 earrings.
This is unlikely to be justified.

A person with senile dementia applies for

a mortgage loan from a building society to
finance the purchase of a house. Although
he has the means of keeping up with the
mortgage loan repayments, the building
society has sound reasons for believing that
the disabled person does not understand the
nature of the legal agreement and obligations
involved. The building society refuses his
application. This is likely to be justified.

119
 A long-term patient in a psychiatric hospital
wishes to open a bank account. The bank
wrongly assumes that because she is in a
hospital she is incapable of managing her
affairs. It refuses to open an account unless it is
provided with an enduring power of attorney.
The bank continues with its refusal despite
being provided with good evidence that the
person has full capacity to manage her own
affairs. This is unlikely to be justified.

SI 1996/1836 7.16 The Disability Discrimination (Services and

reg 8 Premises) Regulations 1996 made under the
Act prevent service providers from justifying
less favourable treatment of a disabled person
on the ground of incapacity to contract or
inability to give an informed consent where
another person is legally acting on behalf of the
disabled person. For example, that other person
may be acting under a power of attorney (or, in
Scotland, under a power exercisable in relation
to the disabled person’s property or affairs by
a curator bonis, tutor or judicial factor).

A salesman refuses to rent a television to a

woman simply because she is legally acting
on behalf of her son who has a mental health
problem. This is less favourable treatment of
the son and is unlikely to be justified.

7.17 Before a service provider seeks to justify any

form of discrimination against a disabled person
on the ground of incapability of entering into an
enforceable agreement or of giving an informed
consent, the service provider should consider
whether a reasonable adjustment could be
made to solve this problem. For example,
120
 it might be possible to prepare a contractual
document in plain English to overcome an
inability to give an informed consent.

Service provider otherwise unable to

provide the service to the public
7.18 A service provider can justify refusing to provide s 20(4)(c)
(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 tour guide refuses to allow a person with a

severe mobility impairment on a tour of old
city walls because he has well-founded reasons
to believe that the extra help the guide would
have to give her would prevent the party from
completing the tour. This is likely to be justified.

7.19 However, refusing service to a disabled person

is only justifiable if other people would be
effectively prevented from using the service at
all unless the service provider treated the
disabled person less favourably than other
people. It is not enough that those other people
would be inconvenienced or delayed.

Disabled customers with a speech impairment

or a learning disability may have difficulty in
explaining to a bank cashier what their service
requirements are. If the cashier asks the
disabled customers to go to the back of the
queue so as not to delay other customers
waiting to be served, this is unlikely to be
justified.

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 7.20 Before a service provider seeks to rely on this
justification for a refusal of provision (or a
non-provision) of services to a disabled person,
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 7.18 above,

the tour guide might consider whether an
additional guide could be provided without
fundamentally changing the nature of the
service (see paragraphs 4.28 and 4.29 above).
This would be an example of an auxiliary
service and might be a reasonable step for
the tour guide to have to take.

To enable the service provider to provide

the service to the disabled person or
other members of the public
s 20(4)(d) 7.21 A service provider can justify providing service
of a lower standard or in a worse manner or on
worse terms (an inferior service) if this is
necessary in order to be able to provide the
service to the disabled person or other members
of the public.

A hotel restricts a wheelchair user’s choice

of bedrooms to those with level access to the
lifts. Those rooms tend to be noisier and have
restricted views. The disabled person would
otherwise be unable to use the hotel. The
restriction is necessary in order to provide the
service to the disabled guest. This is likely to
be justified.

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7.22 However, providing an inferior service to a
disabled person is only justifiable if other people
or the disabled person would be effectively
prevented from using the service at all unless
the service provider treated the disabled person
less favourably than other people. A service
provider cannot justify such treatment of a
disabled person simply because of other
people’s preferences or prejudices.

A public fitness centre restricts the times a

customer who has AIDS is allowed to use its
facilities. The other users have objected to his
presence and use of the centre’s facilities
because of a groundless fear that they might
become infected with HIV by normal contact
with him. Despite his reassurances, the centre
has bowed to the pressure of the other
customers. This is unlikely to be justified.

7.23 Before a service provider seeks to rely on this

justification for an inferior service to a disabled
person, it should first consider whether there are
any reasonable adjustments that could be made
to allow the disabled person to enjoy the
service.

Greater cost of providing a tailor-made

service
7.24 A service provider can justify charging a s 20(4)(e)
disabled person more for some services than it
charges other people. This is where the service
is individually tailored to the requirements of the
disabled customer. If a higher charge reflects the
additional cost or expense of meeting the
disabled person’s specification, that would
justify the higher charge.

123
 A disabled customer orders a bed which is
specifically made to accommodate her
disability. The store charges more for this bed
than it does for a standard one, as the specially
made bed costs more to make. This is likely to
be justified.

A pedicurist charges clients a flat rate for

certain foot treatments, which generally
take 30 minutes. A disabled customer has
a treatment which, due to the arthritis in his
feet, takes 1 hour. The pedicurist charges
double the usual rate. The extra cost reflects
the additional time needed to provide the
service and is likely to be justified.

7.25 However, justification on this ground cannot

apply where the extra cost results from the
provision of a reasonable adjustment – see
Chapter 4 for further details.

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 Special rules affecting insurance,
8 guarantees and deposits

Introduction
8.1 There are special rules affecting the provision of
particular services. The services in question are:
■ insurance;
■ guarantees;
■ deposits in respect of goods and facilities.

This chapter addresses these special rules.

Insurance
When is disability relevant to the provision of
insurance services?
8.2 In some circumstances, the fact that a person SI 1996/1836
is disabled may be a relevant factor in deciding
whether to provide insurance services (including
life assurance) to that person and, if so, on
what terms. The Disability Discrimination
(Services and Premises) Regulations 1996
(the ‘Regulations’) made under the Act provide
special rules to deal with those circumstances.

8.3 The special rules on insurance only apply to the reg 2(1)
provision of insurance services by an insurer.
They are relevant where a provider of insurance
services:
■ for a reason which relates to a disabled
person’s disability
■ treats a disabled person less favourably
125
 ■ than it treats or would treat others to whom
that reason does not or would not apply.

A disabled person with a history of cancer

applies for a life insurance policy. The
insurance company refuses to provide life
insurance to her. Whether the refusal of
insurance is justified will depend on the
application of the special rules on insurance
services.

A disabled person with diabetes applies to a

motor insurer for comprehensive insurance on
his motor car. The insurer is willing to provide
insurance cover to the disabled person but,
because of his disability, only at a higher
premium than would be charged to other
motorists. Whether the less favourable terms
on which the insurance cover is provided are
justified will depend on the application of the
special rules on insurance services.

reg 2(2) 8.4 The special rules state that disability-related

less favourable treatment in the provision of
insurance services is deemed to be justified if
all the following conditions are satisfied:
■ it is in connection with insurance business
carried on by the service provider;
■ it is based on information which is relevant
to the assessment of the risk to be insured;
■ the information is from a source on which it
is reasonable to rely;
■ the less favourable treatment is reasonable
having regard to the information relied on
and any other relevant factors.

126
 In the first example in paragraph 8.3 above,
the insurer has based its refusal of life
insurance on clear medical evidence from
a cancer specialist that the disabled person
is unlikely to live for more than 6 months. In
the circumstances, the refusal of insurance is
likely to be justified because all the conditions
above are satisfied.

A person with a diagnosis of manic depression

applies for motor insurance. He is told that he
will have to pay double the normal premium
because of his condition. The insurer is relying
on actuarial data relating to the risks posed by
a person driving when in a manic episode.
However, the applicant produces credible
evidence that he has been stable on medication
for some years and has an unblemished
driving record. In these circumstances, the
charging of a higher premium in this case is
unlikely to be justified because not all of the
conditions above have been fully satisfied.

What is information relevant to the

assessment of an insurance risk?
8.5 Information which might be relevant to the reg 2(2)(b)
assessment of the risk to be insured includes
actuarial or statistical data or a medical report.
The information must also be current and from
a source on which it is reasonable to rely. An
insurer cannot rely on untested assumptions or
stereotypes or generalisations in respect of a
disabled person.

127
 In the second example in paragraph 8.3 above,
if the motor insurer has based its decision to
charge an increased premium on sound
medical evidence and reliable statistical data,
it is likely to be able to justify the increased
premium.

What is the practical effect of the special

rules on insurance?
8.6 An insurer should not adopt a general policy or
practice of refusing to insure disabled people or
people with particular disabilities unless this can
be justified by reference to the four conditions
set out in paragraph 8.4 above. Similarly,
unless justifiable in this way, an insurer should
not adopt a general policy or practice of only
insuring disabled people or people with
particular disabilities on additional or adverse
terms or conditions.

A private health insurer is considering an

application for private health insurance from
a disabled person with chronic bronchitis and
emphysema. The insurer is willing to provide
health insurance to her, but on the condition
that claims resulting from respiratory illnesses
are excluded from cover. That decision is based
on relevant and reliable medical evidence
relating to the individual applicant for insurance.
This is likely to be reasonable and therefore
justified.

8.7 The special rules on insurance services

recognise that insurers may need to distinguish
between individuals when assessing the risks
which are the subject of an insurance proposal
128
 or insurance policy. However, it is for the
insurer to show that there is an additional risk
associated with a disabled person which arises
from his or her disability. Blanket assumptions
should be avoided.

Existing insurance policies, cover

documents and master policies
8.8 The Regulations provide for insurance policies reg 3
which existed before the Regulations came into
force on 2 December 1996. Any less favourable
treatment of a disabled person which results
from such a policy is treated as automatically
justified until the policy falls for renewal or
review on or after 2 December 1996. Once
renewed or reviewed, the policy falls within
the special rules above.

Guarantees
8.9 Manufacturers and service providers frequently
give their customers guarantees in respect of
goods, facilities or services. The Regulations
contain special rules in respect of guarantees.

8.10 The special rules deal with situations where reg 5

a disabled person’s disability results in higher
than average wear or tear to goods or services
supplied and where it would not be reasonable
to expect service providers to honour a guarantee.

What is a guarantee?
8.11 A guarantee includes any document (however reg 5(3)
described) by which a service provider provides
that:
■ the purchase price of goods, facilities or reg 5(2)(a)(i)
services provided will be refunded if they
are not of satisfactory quality; or
129
reg 5(2)(a)(ii) ■ services in the form of goods provided will
be replaced or repaired if not of satisfactory
quality.

reg 5(2)(a) It does not matter whether the guarantee is

legally enforceable.

A double-glazing firm gives customers a

document described as a ‘warranty’. The
document promises to refund the purchase
price of the double-glazing within 6 months
if the customer is not completely happy
with their quality. This is a guarantee.

A manufacturer of telephones and answer

machines distributes its products to high street
stores. The high street stores sell the products
to their customers. In the product packaging
there is a card from the manufacturer promising
to replace or repair its products free of charge
if defective within one year of purchase.
The card has to be completed and returned
to the manufacturer by the purchaser.
This is a guarantee.

A retail chain of stores undertakes to replace

goods if they wear out or break within 3 months
of purchase. Although this practice is not
contained in a formal document and might not
be legally enforceable, it is likely to be a
guarantee.

130
 Guarantees and less favourable treatment
of disabled persons
8.12 The Regulations deal with the question of less reg 5(1)
favourable treatment of disabled people in
respect of guarantees. The special rules apply
where, in respect of a guarantee, a service
provider:
■ for a reason which relates to a disabled
person’s disability
■ treats a disabled person less favourably
■ than it treats or would treat others to whom
that reason does not or would not apply.

8.13 Less favourable treatment of a disabled person reg 5(2)

in respect of a guarantee may be justified if all
the following conditions are satisfied:
■ the service provider has provided a guarantee
(as explained in paragraph 8.11 above);
■ damage has occurred for a reason which
relates to the disabled person’s disability;
■ the service provider refuses to provide a
replacement, repair or refund under the
guarantee;
■ that refusal is because the damage is above
the level at which the guarantee would
normally be honoured;
■ the refusal is reasonable in all the
circumstances of the case.

A disabled person with a mobility impairment

buys a pair of shoes from the retail chain of
stores in the third example in paragraph 8.11
above. He wears out the left shoe after a few
months because his left foot has to bear most

131
 of his weight. The store refuses to provide a
new pair of shoes because the old pair has
undergone abnormal wear and tear. This is
likely to be justified.

A wheelchair user has ordered a new front

door from the double-glazing firm in the first
example in paragraph 8.11 above. Despite
being properly installed, within a few weeks
the door is marked, scuffed and misaligned.
This is because, as she enters and leaves her
house, the customer’s wheelchair regularly
catches the door. The customer is unhappy
because the firm specifically stated that the
door would be able to withstand contact with
her wheelchair. The double-glazing firm
refuses to refund the purchase price on the
ground that this represents abnormal wear
and tear. In the light of the firm’s express
statement, this is unlikely to be justified.

Deposits
reg 6 8.14 A service provider may be prepared to provide
goods or facilities for hire or rent on a ‘sale or
return’ basis. The customer is then often
required to pay a deposit which is refundable if
the goods or facilities are returned undamaged.
The Regulations provide special rules to deal
with the question of whether the service
provider can refuse to return the deposit in full if
damage has occurred to the goods or facilities
because of the customer’s disability or a reason
related to it.

132
8.15 The special rules apply where, in relation to a reg 6(1)
deposit, a service provider:
■ for a reason which relates to a disabled
person’s disability
■ treats a disabled person less favourably
■ than it treats (or would treat) others to
whom that reason does not (or would not)
apply.

8.16 Less favourable treatment of a disabled person reg 6(2)

in respect of a deposit may be justified if all the
following conditions are satisfied:
■ the service provider has provided goods or
facilities;
■ the disabled person is required to provide a
deposit;
■ the deposit is refundable if the goods or
facilities are undamaged;
■ damage has occurred to the goods or
facilities for a reason which relates to the
disabled person’s disability;
■ the service provider refuses to refund some
or all of the deposit;
■ that refusal is because the damage is above
the level at which the service provider
would normally refund the deposit in full;
■ the refusal is reasonable in all the
circumstances of the case.

A disabled person hires an evening suit from

a menswear hire shop. The hire shop requires
all customers to pay a deposit against damage
to the hired clothing. Because of the nature of
his disability, the disabled person wears a leg

133
 calliper. This causes abnormal wear and tear
to the suit. When the suit is returned, the hire
shop retains part of the deposit against the
cost of repairing the damage. This is likely to
be justified.

s 19(1)(d) 8.17 The special rules on deposits do not justify

a service provider charging a disabled person
a higher deposit than it would charge to other
people. Similarly, a service provider is not
justified in charging a disabled person a deposit
where the service provider would not expect
other people to pay such a deposit. In either
case, this could amount to discrimination in the
terms on which goods or facilities are provided
to the disabled person.

reg 6(2)(b) 8.18 Where a service provider requires a disabled

person to pay a deposit, it may only refuse to
repay the deposit if any damage to the goods or
facilities is above the level at which the service
provider would normally refund the deposit in
full. If the damage is of a level where the service
provider would normally repay the deposit in
full, a disabled person must not be treated less
favourably than any other person who has paid
a deposit and has caused comparable damage
to the goods or facilities.

reg 6(2)(c) 8.19 A refusal to refund a deposit to a disabled

person must be reasonable in all the
circumstances of the case. A service provider
is unlikely to be justified in withholding the
whole or part of a deposit if the amount
withheld exceeds the loss suffered by the
service provider as a result of the damage.

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 9 Selling, letting or managing premises

Introduction
9.1 The Act makes it unlawful for landlords and ss 22-24
other persons to discriminate against disabled
people in the disposal or management of
premises in certain circumstances. Such persons
may also have duties as service providers where
they are providing services to the public. Those
duties have been discussed in the preceding
chapters. This chapter explains the particular
responsibilities that apply to landlords and other
persons when selling, letting or managing
premises. Such persons may include a legal
entity such as a company, but, for convenience,
they are referred to in this chapter as ‘he or she’.

What does the Act make unlawful?

9.2 It is unlawful for a person with power to dispose s 22(1)
of any premises to discriminate against a
disabled person:
■ in the terms on which he or she offers to
dispose of those premises to the disabled
person; or
■ by refusing to dispose of those premises to
the disabled person; or
■ in his or her treatment of the disabled
person in relation to any list of persons in
need of premises of that description.

These provisions are explained below. The

disposal of premises includes selling or letting
them. 135
 s 22(3) 9.3 It is also unlawful for a person managing any
premises to discriminate against a disabled
person occupying those premises:
■ in the way he or she permits the disabled
person to make use of any benefits or
facilities; or
■ by refusing (or deliberately omitting) to
permit the disabled person to make use
of any benefits or facilities; or
■ by evicting the disabled person or
subjecting the disabled person to any other
detriment.

These provisions are explained below.

s 22(4) 9.4 It is also unlawful for a person whose licence

or consent is required for the disposal of any
leased or sub-let premises to discriminate
against a disabled person by withholding that
licence or consent.

These provisions are explained below.

What does the Act mean by

‘discrimination’?
s 24(1) 9.5 For the purposes of the provisions in relation
to premises, a person discriminates against a
disabled person if he or she:
■ treats the disabled person less favourably,
for a reason relating to the disabled
person’s disability, than he or she treats
(or would treat) others to whom that reason
does not (or would not) apply; and
■ cannot show that the treatment is justified.

136
The concept of less favourable treatment for a
reason related to a disabled person’s disability
is discussed in Chapter 3 above. Whether less
favourable treatment of a disabled person in
relation to premises is capable of being justified
is discussed below.

A landlord asks a deaf person for a non-

refundable deposit as a condition of him
renting a flat. Other tenants are simply asked
for a refundable deposit. This is less favourable
treatment for a reason relating to his disability.
Unless justified, this is likely to be unlawful.

The owner of an office block refuses to lease

office space to a disabled self-employed
businesswoman. This is because the owner
has evidence that she is bankrupt and would
be unable to pay the rent. The less favourable
treatment of the disabled person is not for a
reason related to her disability and is likely to
be lawful.

A housing association has a blanket policy

of requiring all new tenants with a history of
mental health problems to have only a short
term tenancy in the first instance. This is so
that the association can see whether such
tenants are suitable. This policy is not applied
to other new tenants and is likely to be
unlawful.

137
 Is there a duty to make adjustments in
relation to selling, letting or managing
premises?
9.6 There is no legal duty to make reasonable
adjustments to premises which are sold, let or
managed. Although there is nothing in the Act
to prohibit positive action in favour of disabled
people, those who are selling, letting or managing
premises do not have to make adjustments to
make those premises more suitable for disabled
people. However, persons managing or disposing
of premises may also be service providers (for
example, estate agencies, accommodation
bureaux or management companies). In that
respect they will have to ensure that the services
which they provide are accessible to disabled
people (see Chapters 4, 5 and 6).

What is a ‘disposal’ under the Act?

s 22(6) 9.7 The Act covers both the sale and lease of
premises, and any other form of legal disposal
(for example, by licence). It includes the grant
of a right to occupy the premises. Where the
premises are comprised in or the subject of a
tenancy, they include:
■ assigning (or the assignation of) the
tenancy; or
■ sub-letting the premises or any part of
them; or
■ parting with possession of the premises
or any part of them.

Disposing of premises does not, however,

include the hire of premises or the booking
of rooms in hotels or guest houses. These are
covered by the provisions relating to services
(see Chapters 2 to 7 above).

138
 What is meant by ‘premises’ and
‘tenancy’?
9.8 The Act only applies to premises in the United s 22(8)
Kingdom. Premises include land of any s 68(1)
description. For example, dwelling-houses,
office blocks, flats, bed-sits, factory premises,
industrial or commercial sites, and agricultural
land are covered by these provisions.

9.9 The Act applies to the granting and assignment s 22(6)

of tenancies and sub-leases. A tenancy includes
a tenancy created:
■ by a lease or sub-lease; or
■ by an agreement for a lease or sub-lease; or
■ by a tenancy agreement; or
■ by or under any enactment (for example, a
statutory tenancy).

Does the Act apply to all disposals of

premises?
9.10 The Act does not apply to every disposal of s 22(2)
premises. The provisions which prohibit
discrimination against disabled people by a
person with a power to dispose of premises do
not apply to an owner-occupier if:
■ that person owns an estate or interest in the
premises; and
■ wholly occupies the premises.

9.11 However, if the owner-occupier: s 22(2)

■ uses the services of an estate agent; or s 22(a)
■ publishes, or arranges to be published, an s 22(b)
advertisement or notice (whether to the
public or not),

139
 s 22(6) for the purpose of disposing of the premises,
that is a disposal of premises to which the Act
applies. An estate agent is anyone carrying on
a trade or profession providing services for the
purpose of finding premises for people seeking
to acquire them or assisting in the disposal of
premises. This includes letting agents.

Disposal of premises
s 22(1) 9.12 It is unlawful for a person with power to dispose
of any premises to discriminate against a
disabled person (see paragraphs 9.2 and 9.5
above). A person includes a legal entity such as
a company.

Terms of disposal
s 22(1)(a) 9.13 It is unlawful to discriminate in the terms on
which a person with power to dispose of
premises offers to dispose of those premises
to a disabled person.

A landlord charges a disabled tenant a higher

rent for a flat than the landlord would have
charged a non-disabled tenant. This is likely
to be unlawful.

A house owner agrees to sell his house to

a disabled person, subject to contract. He
requires the disabled person to pay a 25 per
cent deposit as a condition of continuing with
the sale. The house owner would not ask for
such a large deposit from a non-disabled
person. This is likely to be unlawful.

140
 As a condition of granting a tenancy to a
disabled person with muscular dystrophy, a
housing association insists that the disabled
person signs an agreement that she will not
apply for aids and adaptations during the
tenancy. This is likely to be against the law.

Refusal of disposal
9.14 It is unlawful for a person with power to dispose s 22(1)(b)
of premises to discriminate by refusing to
dispose of those premises to a disabled person.

A commercial landlord refuses to let office

space to a self-employed businessman who
had Hodgkin’s disease five years ago but is
now fully recovered. Without any supporting
evidence, the landlord believes that his former
disability may recur and that he will then be
unable to keep up the rent payments. This is
likely to be unlawful.

Treatment in relation to housing lists

9.15 It is unlawful for a person with power to dispose s 22(1)(c)
of any premises to discriminate against a
disabled person in his or her treatment of that
disabled person in relation to any list of people
in need of such premises.

A private letting agency refuses to place people

with any form of disability on its waiting lists.
This is likely to be unlawful.

141
 A person has been on a council housing list
for some time. He is then involved in a serious
motor accident resulting in permanent
paraplegia (paralysis of the legs). Despite the
fact that suitable housing is available for him,
the council allocates housing to other people
who have been on the list for a shorter period
than the newly-disabled person, simply
because of his disability. This is likely to be
unlawful.

Exemption for small dwellings

s 23(1) 9.16 The provisions of the Act prohibiting
discrimination against disabled people in the
disposal of premises do not apply to certain
small dwellings. This exemption only applies
to houses or other residential property. It does
not apply to commercial or industrial premises.
A number of conditions must be satisfied
before a small dwelling is exempted.

9.17 First, the person with the power to dispose of

the premises (or whose licence or consent is
required for the disposal), referred to in the Act
as the ‘relevant occupier’, must:
s 23(2)(a) ■ reside on the premises; and
s 23(2)(a) ■ intend to continue to reside on the
premises; and
s 23(2)(b) ■ be sharing accommodation on the premises
with other people who are not members of
the relevant occupier’s household.

s 23(6)-(7) The ‘relevant occupier’ includes a ‘near relative’

of the person concerned. A ‘near relative’
for this purpose means a person’s spouse
(i.e. husband or wife), partner, parent, child,
142
 grandparent, grandchild, or brother or sister
(whether of full or half blood or through
marriage). The term ‘partner’ means the other
member of a couple consisting of a man and a
woman who are not married to each other but
are living together as husband and wife.

9.18 Second, the shared accommodation must not be s 23(2)(c)

storage accommodation or a means of access.

9.19 Third, the premises must be ‘small premises’. s 23(2)(d)

When are premises ‘small premises’?

9.20 Premises are ‘small premises’ if the following s 23(3)-(4)
conditions are satisfied:
■ only the ‘relevant occupier’ and members s 23(4)(a)
of his or her household reside in the
accommodation occupied by him or her;
and
■ the premises include residential s 23(4)(b)
accommodation for at least one other
household; and
■ that other residential accommodation is let s 23(4)(c)
(or is available for letting) on a separate
tenancy or similar agreement for each other
household; and
■ there are not normally more than two such s 23(4)(d)
other households.

The basement and ground floor of a large

Victorian house have been converted into two
self-contained flats which are let to tenants
under separate tenancies by the house owner.
The house owner and her family continue to
reside exclusively in the remaining floors of the
house. The house satisfies the Act’s definition

143
 of small premises (but the house may still not be
exempt from the Act, see paragraph 9.22 below).

s 23(3) 9.21 Alternatively, premises are ‘small premises’ if

s 23(5) there is not normally residential accommodation
on the premises for more than six people in
addition to the ‘relevant occupier’ and any
members of his or her household.

The owner of a four bedroomed detached

house has converted two bedrooms into
bed-sit accommodation for two people.
He continues to live in the house with his
family. The house satisfies the Act’s definition
of small premises.

When does the small dwellings exemption

apply?
9.22 The small dwellings exemption is likely to apply
to a multi-occupancy residential building with
shared accommodation. All the conditions in
paragraphs 9.17 to 9.20 or 9.21 above must be
satisfied if the exemption is to apply.

The converted Victorian house in the example

in paragraph 9.20 above has a communal
entrance door and hallway giving private
access to the two flats and the remainder of the
house. Although the house satisfies the
definition of small premises, the small dwellings
exemption does not apply. This is because the
owner of the house resides on the premises
but does not share any accommodation (other
than means of access) with the tenants of the
two self-contained flats.

144
 The four bedroomed detached house in the
example in paragraph 9.21 above has a
bathroom and kitchen which is shared by the
owner (and his family) with the tenants of the
bed-sit rooms. Not only does the house satisfy
the definition of small premises, it is also
subject to the small dwellings exemption.
This is because the house owner lives in the
house and shares some accommodation
(other than access or storage accommodation)
with the tenants of the bed-sit rooms.

Management of premises
9.23 It is unlawful for a person managing any s 22(3)
premises to discriminate against a disabled
person occupying those premises (see
paragraphs 9.3 and 9.5 above). A person
includes a legal entity such as a company.

Who is a ‘person managing any premises’?

9.24 The Act is not simply concerned with
discrimination against disabled people by
property owners in relation to premises. A
property management agency, accommodation
bureau, housekeeper, estate agent or rent
collection service may also be liable under the
Act for discrimination in connection with
managing premises, as would the managing
agents of commercial premises.

Use of benefits or facilities

9.25 It is unlawful for a person managing any
premises to discriminate against a disabled
person occupying those premises:

145
 s 22(3)(a) ■ in the way he or she permits the disabled
person to make use of any benefits or
facilities; or
s 22(3)(b) ■ by refusing or deliberately omitting to
permit the disabled person to make use of
any benefits or facilities.

Benefits or facilities include, for example,

laundry facilities, access to a garden and parking
facilities.

A property management company manages

and controls a residential block of flats on
behalf of the landlord-owner. The block has a
basement swimming pool and a communal
garden for use by the tenants. A disabled
tenant with a severe disfigurement is told by
the company that he can only use the
swimming pool at restricted times because
other tenants feel uncomfortable in his
presence. This is likely to be unlawful.

The company also refuses to allow the

disabled child of one of the tenants to use the
communal garden. The child has attention
deficit disorder and other tenants object to his
use of the garden. This is likely to be unlawful.

Eviction
s 22(3)(c) 9.26 It is unlawful for a person managing any
premises to discriminate against a disabled
person occupying those premises by evicting
the disabled person. This prohibition does not
prevent the eviction of a disabled tenant where
the law allows it, for example, where he or she
is in arrears of rent or has breached other terms
146
 of the tenancy, and where the reason for the
eviction is not related to disability. However, in
each case, appropriate court action needs to be
taken to obtain an eviction order.

A tenant of a house has recently been

diagnosed with AIDS. His landlord gives him
a week’s notice to quit the house, although he
is not in arrears of rent or otherwise in breach
of his tenancy. This is likely to be unlawful.

Other detriment
9.27 It is unlawful for a person managing any s 22(3)(c)
premises to discriminate against a disabled
person occupying those premises by subjecting
him or her to any other detriment. This includes
subjecting disabled people to harassment (or
failing to prevent them being subjected to
harassment by others), for example, physical
attack, damage to their property, verbal abuse
and other similar behaviour, which deprives
them of the peaceful enjoyment of their
premises.

A block of flats is managed by a management

committee of tenants. The members of the
committee harass a disabled tenant who
has sickle cell disease and who is mobility
impaired. They believe that her use of a
wheelchair causes above average wear and
tear to the doors and carpets in communal
areas, and that this will lead to an increase in
their annual maintenance charges. This is likely
to be unlawful.

147
 Small dwellings exemption
s 23(1) 9.28 The small dwellings exemption explained in
paragraphs 9.16 to 9.22 above applies equally to
alleged discrimination in the management of
premises.

Licence or consent
s 22(4)-(5) 9.29 It is unlawful for any person whose licence or
consent is required for the disposal of any
premises, comprised in or the subject of a
tenancy, to discriminate against a disabled
person by withholding that licence or consent
(see paragraphs 9.4 and 9.5 above). A person
includes a legal entity such as a company. It is
irrelevant whether the tenancy was created
before or after the passing of the Act.

A tenant of a house occupies the premises

under a tenancy agreement with a right to
sub-let the house with the prior consent of the
landlord-owner. The tenant is being posted to
work abroad for a year. He wishes to sub-let
the house to a disabled person who has partial
paralysis as a result of polio. The owner of the
house refuses to consent to the sub-letting.
She wrongly assumes that the disabled person
will be unable to keep up rent payments and
may cause damage to the fabric of the house.
This is likely to be unlawful.

Small dwellings exemption

s 23(1) 9.30 The small dwellings exemption explained in
s 23(6)(b) paragraphs 9.16 to 9.22 above applies equally
to alleged discrimination in relation to the
withholding of a licence or consent.

148
 Justifying less favourable treatment in
relation to premises
9.31 Less favourable treatment of a disabled person s 24(1)(b)
for a reason relating to disability amounts to
discrimination unless that treatment can be
shown to be justified.

9.32 Treating a disabled person less favourably for s 24(2)

a reason related to disability may be justified
only if:
■ he or she believes that one or more of the s 24(2)(a)
conditions in paragraph 9.33 below are
satisfied; and
■ it is reasonable in all the circumstances of s 24(2)(b)
the case for that person to hold that opinion.

9.33 The Act sets out four possible conditions which s 24(3)
could apply, but for ease of explanation this
Code sets them out under three headings:
■ health or safety;
■ incapacity to contract;
■ treatment necessary in order for the
disabled person or other occupiers to use a
benefit or facility.

As will be seen, these conditions do not apply to

all forms of discrimination in relation to
premises.

9.34 At the time of the alleged discrimination, the

person said to be discriminating must reasonably
believe that one of those conditions is satisfied
to justify less favourable treatment. These
conditions are similar to (but not exactly the
same as) the conditions that apply to justifying
discrimination in the provision of services.
The general approach to justification is the
same (see paragraphs 7.8 to 7.10 above).
149
 Health or safety
s 24(3)(a) 9.35 In any case of alleged discrimination in relation
to the disposal or management of premises (or
the withholding of a licence or consent), the less
favourable treatment of a disabled person may
be justified only if it is reasonably believed that
the treatment is necessary in order not to
endanger the health or safety of any person,
including the disabled person in question.

A landlord refuses to let a third floor flat to

a disabled person who has had a stroke
resulting in mobility problems and who lives
alone. The disabled person is clearly unable
to negotiate the stairs in safety or use the fire
escape or other escape routes in an emergency.
The landlord believes that there is a health or
safety risk to the disabled person. Provided
it is reasonable for the landlord to hold that
opinion, the refusal to let is likely to be
justified.

A landlord refuses to let a flat to someone with

AIDS, believing him to be a health risk to other
tenants. The prospective tenant provides the
landlord with government literature confirming
that AIDS is not a health risk, but the landlord
continues to refuse to let the flat. The landlord’s
opinion that the prospective tenant is a health
risk is unlikely to be a reasonable one for the
landlord to hold. The refusal to let is unlikely
to be justified.

150
 Incapacity to contract
9.36 In any case of alleged discrimination in relation s 24(3)(b)
to the disposal or management of premises (or
the withholding of a licence or consent), the less
favourable treatment of a disabled person may
be justified if it is reasonably believed that the
disabled person is incapable of entering into an
enforceable agreement or of giving an informed
consent, and for that reason the treatment is
reasonable in the particular case.

The owner of a lock-up garage refuses to

rent it to a person with a learning disability.
Despite the owner attempting to explain that
she expects to be paid a weekly rent for the
garage, the disabled person appears incapable
of understanding the legal obligation involved.
The garage owner believes that the disabled
person is incapable of entering into an
enforceable agreement. This is likely to be
a reasonable opinion for the garage owner
to hold and the refusal to rent the garage
is therefore likely to be justified.

However, if the disabled person in the above

example offers to pay rent monthly in advance,
or if his friend is able to act as guarantor for
payment of the rent, the refusal to rent the
garage is unlikely to be reasonable and would
therefore not be justified.

151
 Treatment necessary in order for the disabled
person or other occupiers to use a benefit or
facility
s 24(3)(c)-(d) 9.37 In a case of alleged discrimination by a person
managing premises:
■ in the way a disabled person occupying the
premises is permitted to make use of any
benefit or facility; or
■ by refusing (or deliberately omitting) to
permit a disabled person occupying the
premises to make use of any benefit or
facility,

less favourable treatment of the disabled person

may be justified if it is reasonably believed that
the treatment is necessary for the disabled
person or occupiers of other premises forming
part of the building to make use of the benefit or
facility.

A disabled tenant with a mobility impairment

is prevented by the management agency of a
block of flats from parking in front of the main
entrance to the block. The agency requires him
to park in the car park at the back of the block.
Although this causes the disabled tenant
inconvenience and difficulty, the reason for the
agency’s decision is that there is insufficient
space at the front of the building and the
disabled tenant’s car frequently causes an
obstruction to other tenants. The decision is
likely to be justified.

152
 A landlord refuses to allow a disabled tenant
with a learning disability to use the shared
laundry facilities in a block of flats because the
disabled tenant frequently breaks the washing
machines. She does not understand the
instructions. The landlord’s refusal is likely
to be justified.

Deposits
9.38 A person with power to dispose of any premises Sl 1996/1836
may be prepared to grant a tenant a right to
occupy the premises on the condition that the
tenant pays a deposit. The deposit is usually
refundable at the end of the occupation if the
premises and its contents are undamaged. The
Regulations provide special rules to deal with
the question of whether the person with power
to dispose of the premises can refuse to return
the disabled tenant’s deposit in full.

9.39 The special rules apply where, in relation to a reg 7(1)

deposit, a person with power to dispose of the
premises:
■ for a reason which relates to a disabled
person’s disability
■ treats a disabled person less favourably
■ than it treats (or would treat) others to
whom that reason does not (or would not)
apply.

9.40 Less favourable treatment of a disabled person reg 7(2)

in respect of a deposit may be justified if all the
following conditions are satisfied:
■ the person with power to dispose of the
premises has granted the disabled person
a right to occupy premises (whether under
a formal tenancy agreement or otherwise); 153
 ■ the disabled person is required to provide a
deposit;
■ the deposit is refundable at the end of the
occupation if the premises and its contents
are undamaged;
■ damage has occurred to the premises or its
contents for a reason which relates to the
disabled person’s disability;
■ the person with the power to dispose of the
premises refuses to refund some or all of
the deposit;
■ that refusal is because the damage is above
the level at which he or she would normally
refund the deposit in full;
■ the refusal is reasonable in all the
circumstances of the case.

A disabled person rents a flat for 12 months.

The landlord requires all tenants to pay a
deposit against damage to the flat and its
furnishings. Because of the nature of her
disability, the disabled person uses a
wheelchair. In this particular case, it causes
abnormal wear and tear to the carpets and
floorings in the flat. At the end of the tenancy,
the landlord retains part of the deposit against
the cost of repairing the damage. This is likely
to be justified.

s 22(1)(a) 9.41 The special rules on deposits do not justify a

person with power to dispose of premises
charging a disabled person a higher deposit
than it would charge to other people. Similarly,
a person with power to dispose of premises is
not justified in charging a disabled person a
deposit where he or she would not expect other

154
 people to pay such a deposit. In either case, this
could amount to unlawful discrimination in the
terms on which the premises are offered for
disposal to the disabled person.

9.42 Where a person with power to dispose of reg 7(2)

premises requires a disabled person to pay a
deposit, he or she may only refuse to repay the
deposit if any damage to the premises or its
contents is above the level at which he or she
would normally refund the deposit in full. If the
damage is of a level where he or she would
normally repay the deposit in full, a disabled
person must not be treated less favourably than
any other person who has paid a deposit and
has caused comparable damage to the premises
or its contents.

9.43 A refusal to refund a deposit to a disabled reg 7(2)

person must be reasonable in all the
circumstances of the case. A person with power
to dispose of premises is unlikely to be justified
in withholding the whole or part of a deposit if
the amount withheld exceeds the loss suffered
by that person as a result of the damage.

155
 10 Other provisions under the Act

Introduction
10.1 A number of other provisions of the Act are
relevant to understanding the protection which
the Act affords disabled people in respect of
services and premises. These provisions also
assist service providers (and those selling,
letting or managing premises) to appreciate the
extent of their responsibilities under the
legislation.

Victimisation
10.2 Victimisation is a special form of discrimination s 55
covered by the Act. It applies whether or not the s 19(4)
person victimised is a disabled person. For the s 22
purposes of Part III of the Act, victimisation is s 19
treated as discrimination. Victimisation is s 22
unlawful if it occurs in relation to the provision
of services or in relation to the selling, letting or
management of premises.

10.3 The Act also says that a person discriminates s 55(1)

against another person (the victim) if he or she s 55(2)(a)
treats the victim less favourably than he or she s 55(3)
treats (or would treat) other people in the same
circumstances – disregarding the victim’s
disability – because the victim has:
■ brought proceedings under the Act (whether
or not proceedings are later withdrawn); or
■ given evidence or information in connection
with such proceedings; or
157
 ■ done anything else under the Act; or
■ alleged someone has contravened the
Act (whether or not the allegation is later
dropped).

A non-disabled person acts as a witness in

a complaint by a disabled person of disability
discrimination by a police officer. Later,
in retaliation, other police officers refuse to
provide to the non-disabled person local crime
prevention services which the police provide
to the public. This is victimisation and is likely
to be unlawful.

s 55(1) 10.4 The Act also says that a person discriminates

s 55(2)(b) against another person (the victim) if he or she
s 55(3) treats the victim less favourably than he or she
treats (or would treat) other people in the same
circumstances – disregarding the victim’s
disability – because he or she believes or
suspects that the victim had done or intends to
do any of the above things.

s 55(4) 10.5 However, it is not victimisation to treat a person

less favourably because that person has made
an allegation which was false and not made in
good faith.

A disabled person makes an allegation in a

local newspaper that a local pub discriminates
against disabled people. That allegation is
untrue and is made without any foundation
as part of a personal vendetta against the
publican. The publican subsequently bars
the disabled person from the pub. In the
circumstances, this is not victimisation
and is unlikely to be unlawful.

158
 Aiding unlawful acts
10.6 The Act says that a person who knowingly helps s 57(1)
someone else to do something made unlawful
by the Act is also to be treated as having done
the same kind of unlawful act.

A bar owner instructs his bartender employee

not to serve a group of people with learning
disabilities. The employee knows that this is
likely to be against the law, but feels compelled
to comply with the instruction. When the
disabled people request service, the bartender
refuses to serve them. It is likely that the bar
owner is acting unlawfully and the bartender
may also be liable for aiding the owner’s
unlawful act.

10.7 A person does not knowingly aid someone else s 57(3)

to do something unlawful if:
■ that other person makes a statement to him
or her that it would not be unlawful because
of any provision of the Act; and
■ he or she acts in reliance on that statement;
and
■ it is reasonable to rely on the statement.

A person who knowingly or recklessly makes s 57(4)-(5)

such a statement which is false or misleading in
a material respect is guilty of a criminal offence
and will be liable on conviction to a fine up to
level 5 on the standard scale (£5,000 at present).

The owner of a small newsagent’s shop tells

his staff that the provisions of the Act on
providing services do not apply to small
businesses. The owner knows this is not legally

159
 correct. He instructs his staff to refuse to serve
disabled customers who are patients at a
psychiatric clinic next door. Relying on the
owner’s statement, the staff follow those
instructions. It is likely that the shop owner is
acting unlawfully and has committed a criminal
offence, but it is unlikely that the staff are liable
for knowingly aiding an unlawful act.

Liability for employees’ and agents’ acts

s 58(1) 10.8 The Act says that employers are responsible for
s 57(2) anything done by their employees in the course
of their employment. A service provider (and a
person selling, letting or managing premises)
may be an employer. It is not a defence for the
employer simply to show that the act took place
without its knowledge or approval. If the
employer is liable for the act of an employee in
this way, the employee might also be treated as
having knowingly aided the employer to do the
act (see paragraphs10.6 and 10.7 above).

A waiter in a café refuses to serve a disabled

customer whom he knows has had tuberculosis
in the past. He wrongly believes that the
customer still has an infectious disease. It is
likely that the refusal of service is unlawful.
Although the owner of the café is unaware that
this is happening, the owner may be liable
under the Act. The waiter might also be liable if
he has knowingly aided the employer.

s 58(5) 10.9 If a claim under the Act is made against an

employer based on anything done by an
employee, it is a defence that the employer took
such steps as were reasonably practicable to
160
 prevent such acts. It is important that employers
should develop policies on disability matters
and communicate these to their employees. All
staff should be made aware that it is unlawful to
discriminate against disabled people.

Unknown to her employer, the receptionist in

an estate agent refuses to give details of
houses for rent to a client with a mental health
condition. The estate agent has issued clear
instructions to its staff about their obligations
under the Act, has provided disability awareness
training, and regularly checks that staff are
complying with the law. It is likely that the
receptionist has acted unlawfully but that her
employer will have a defence under the Act.

10.10 Service providers (and those selling, letting or s 58(2)-(3)

managing premises) are also liable for anything s 57(2)
done by their agents, if done with their
authority. That authority may be express or
implied and may have been given before or after
the act in question. The agent may also be taken
to have aided the service provider (or those
selling, letting or managing premises) to have
committed an unlawful act.

Terms of agreements
10.11 Any term in an agreement is void (that is, s 26(1)
unenforceable) if its effect is to:
■ require someone to do something which
would be unlawful under Part III of the Act
(the part relating to services and premises);
■ exclude or limit the operation of Part III; or
■ prevent someone making a claim under
Part III.

161
 s 26(2) However, an agreement to settle or compromise
a claim brought under the Act is not affected by
this rule.

A landlord’s lease includes a term allowing a

tenant to sub-let the premises, but the term
forbids the tenant from sub-letting to people
with learning disabilities. This term is not
legally binding.

A travel agent accepts a booking from a

disabled customer for a holiday at a hotel in
the UK. The terms of booking exclude any
liability of the travel agent or the hotel under
the Act. This term is not legally binding.

Statutory authority and national security

s 59 10.12 A service provider (or person selling, letting or
managing premises) is not required to do
anything under the Act that will result in a
breach of legal obligations under any other
legislation or enactment. Nothing in the Act
makes unlawful anything done for the purpose
of safeguarding national security.

What happens if there is a dispute under

the Act?
s 25(1) 10.13 A person who believes that a service provider
s 25(3)–(4) (or person selling, letting or managing
Sch 3, premises) has unlawfully discriminated against
para 6 him or her may bring civil proceedings. Those
proceedings take place in the county court in
England and Wales (in Scotland, the sheriff
court) or, in respect of insurance services
provided to employees, the employment
tribunals. Similar proceedings may also be
162
 brought against a person who has aided someone
else to commit an unlawful act. Court action
must be brought within six months of the alleged
discrimination (the time limit is three months in
the employment tribunal).

10.14 Before legal proceedings are begun, it may be

sensible to raise a complaint with the service
provider (or person selling, letting or managing
premises) to see whether the issue can be
determined to the satisfaction of both parties.
Even when legal proceedings have been brought,
the service provider (or person selling, letting,
or managing premises) may wish to attempt
to settle the matter through discussion with the
complainant. Any discrimination may have been
unintentional and the dispute may be capable of
being resolved by negotiation.

10.15 The Disability Rights Commission (see s 28 and Sch 3,

paragraph 10.17 below) has established an para 6(2)
independent conciliation service for disputes as amended
arising under Part III of the Act with a view to by Disability
promoting the settlement of such disputes Rights
otherwise than through the courts. The time Commission
limit for bringing an action in court is extended Act 1999
by two months when a person is referred to the
conciliation service by the Commission.

What happens if a dispute cannot be

resolved?
10.16 If a dispute cannot be resolved by conciliation s 25(2)
or agreement, and the complainant has brought s 25(5)
legal proceedings, the matter will have to be
decided by a court. If successful, a disabled
person could be awarded compensation for any
financial loss, including injury to feelings. The
disabled person may also seek an injunction (in
Scotland, an interdict) to prevent the service
provider (or person selling, letting or managing
163
 premises) repeating any discriminatory act in
the future. The court may make a declaration as
to the rights and responsibilities of the parties
involved.

Disability Rights Commission

Disability 10.17 The Disability Rights Commission has statutory
Rights powers to work towards the elimination of
Commission discrimination and to promote the equalisation
Act 1999 of opportunity in respect of the provision of
services to disabled people.In particular, the
Commission:
■ keeps the Act under review;
■ supplies assistance and support to disabled
litigants under the Act;
■ provides information and advice to anyone
with rights or obligations under the Act;
■ carries out formal investigations;
■ prepares new or revised Codes of Practice;
and
■ arranges independent conciliation of
disputes under the legislation.

The Commission may be contacted at:

DRC Information, Freepost, MIDO 2164,
Stratford upon Avon, CV37 9BR.

For other contact details, please see

paragraph 1.11 above.

164
 Appendix: The Meaning of Disability

This appendix is included to aid understanding

about who is covered by the Act and should
provide sufficient information on the definition
of disability to cover the large majority of cases.
The definition of disability in the Act is designed
to cover only people who would generally be
considered to be disabled. A Government
publication ‘Guidance on matters to be taken
into account in determining questions relating
to the definition of disability’ is also available.

When is a person disabled?

A person has a disability if he has a physical or
mental impairment which has a substantial and
long-term adverse effect on his ability to carry
out normal day-to-day activities.

What about people who have recovered from a

disability?
People who have had a disability within the
definition are protected from discrimination
even if they have since recovered.

What does ‘impairment’ cover?

It covers physical or mental impairments; this
includes sensory impairments, such as those
affecting sight or hearing.

Are all mental impairments covered?

The term ‘mental impairment’ is intended to
cover a wide range of impairments relating to
mental functioning, including what are often
165
 known as learning disabilities. However, the Act
states that it does not include any impairment
resulting from or consisting of a mental illness,
unless that illness is a clinically well-recognised
illness. A clinically well-recognised illness is one
that is recognised by a respected body of
medical opinion.

What is a ‘substantial’ adverse effect?

A substantial adverse effect is something which
is more than a minor or trivial effect. The
requirement that an effect must be substantial
reflects the general understanding of disability as
a limitation going beyond the normal differences
in ability which might exist among people.

What is a ‘long-term’ effect?

A long-term effect of an impairment is one:
■ which has lasted at least 12 months; or
■ where the total period for which it lasts is
likely to be at least 12 months; or
■ which is likely to last for the rest of the life
of the person affected.

Effects which are not long-term would therefore

include loss of mobility due to a broken limb
which is likely to heal within 12 months and
the effects of temporary infections, from which
a person would be likely to recover within
12 months.

What if the effects come and go over a period of

time?
If an impairment has had a substantial adverse
effect on normal day-to-day activities but that
effect ceases, the substantial effect is treated as
continuing if it is likely to recur; that is, if it is
more probable than not that the effect will recur.

166
To take the example of a person with rheumatoid
arthritis whose impairment has a substantial
adverse effect, which then ceases to be substantial
(i.e. the person has a period of remission). The
effects are to be treated as if they are continuing,
and are likely to continue beyond 12 months, if:
■ the impairment remains; and
■ at least one recurrence of the substantial
effect is likely to take place 12 months or
more after the initial occurrence.

This would then be a long-term effect.

What are ‘normal day-to-day activities’?

They are activities which are carried out by most
people on a fairly regular and frequent basis.
The term is not intended to include activities
which are normal only for a particular person or
group of people, such as playing a musical
instrument, or a sport, to a professional
standard or performing a skilled or specialist
task at work. However, someone who is affected
in such a specialised way but is also affected in
normal day-to-day activities would be covered
by this part of the definition. The test of whether
an impairment affects normal day-to-day
activities is whether it affects one of the broad
categories of capacity listed in Schedule 1 to the
Act. They are:
■ mobility;
■ manual dexterity;
■ physical co-ordination;
■ continence;
■ ability to lift, carry or otherwise move
everyday objects;
■ speech, hearing or eyesight;

167
 ■ memory or ability to concentrate, learn or
understand; or
■ perception of the risk of physical danger.

What about treatment?

Someone with an impairment may be receiving
medical or other treatment which alleviates or
removes the effects (though not the
impairment). In such cases, the treatment is
ignored and the impairment is taken to have the
effect it would have had without such treatment.
This does not apply if substantial adverse effects
are not likely to recur even if the treatment stops
(i.e. the impairment has been cured).

Does this include people who wear spectacles?

No. The sole exception to the rule about
ignoring the effects of treatment is the wearing
of spectacles or contact lenses. In this case, the
effect while the person is wearing spectacles or
contact lenses should be considered.

Are people who have disfigurements covered?

People with severe disfigurements are covered
by the Act. They do not need to demonstrate
that the impairment has a substantial adverse
effect on their ability to carry out normal day-to-
day activities.

What about people who know their condition is

going to get worse over time?
Progressive conditions are conditions which are
likely to change and develop over time. Examples
given in the Act are cancer, multiple sclerosis,
muscular dystrophy and HIV infection. Where
a person has a progressive condition he will
be covered by the Act from the moment the
condition leads to an impairment which has
some effect on ability to carry out normal day-
168
to-day activities, even though not a substantial
effect, if that impairment is likely eventually to
have a substantial adverse effect on such ability.

What about people who are registered

disabled?
Those registered as disabled under the Disabled
Persons (Employment) Act 1944 both on
12 January 1995 and 2 December 1996 were
treated as being disabled under the Disability
Discrimination Act 1995 for three years from the
latter date. At all times from 2 December 1996
onwards they are covered by the Act as people
who have had a disability. This does not preclude
them from being covered as having a current
disability any time after the three year period
has finished. Whether they are or not will depend
on whether they, like anyone else, meet the
definition of disability in the Act.

Are people with genetic conditions covered?

If a genetic condition has no effect on ability to
carry out normal day-to-day activities, the
person is not covered. Diagnosis does not in
itself bring someone within the definition. If the
condition is progressive, then the rule about
progressive conditions applies.

Are any conditions specifically excluded from

the coverage of the Act?
Yes. Certain conditions are to be regarded as not
amounting to impairments for the purposes of
the Act. These are:
■ addiction to or dependency on alcohol,
nicotine, or any other substance (other than
as a result of the substance being medically
prescribed);
■ seasonal allergic rhinitis (e.g. hayfever),
except where it aggravates the effect of
another condition;
169
 ■ tendency to set fires;
■ tendency to steal;
■ tendency to physical or sexual abuse of
other persons;
■ exhibitionism;
■ voyeurism.

Also disfigurements which consist of a tattoo

(which has not been removed), non-medical
body piercing, or something attached through
such piercing, are to be treated as not having a
substantial adverse effect on the person’s ability
to carry out normal day-to-day activities.

170
 Index

access audit, 82
access plan, 82
agents’ acts, liability for, 158
aiding unlawful acts, 159
auxiliary aids and services, 38, 54, 56, 61, 64–5, 67–8,
71, 73–4
barriers, iii, 40, 74–6, 80–82, 84, 89, 102
building regulations, v, 89–92, 94–5, 100, 102
Approved Document M, 89, 90–92, 94–6, 98–101
Part M, 89–92, 94
Technical Standard in Scotland, 98, 99
the position in Scotland, 90, 92–3, 97

Code of Practice
purpose, 1
status, 2
communication
audio tape, 50
auxiliary aids and services, 67
braille, 50, 71–5, 78
British Sign Language (BSL), 29, 49, 61, 65–7, 69
computer disk, 71
e-mail, 71
induction loop, 40, 63, 65, 68–70, 74, 78, 101
large print, 35, 50, 71–3
lipspeakers, 69–70
Makaton, 70
Moon, 71–4
171
 telephone, 68–9, 71, 77, 130
textphone, 68–9
compensation, 112, 163
conferences, 18, 20, 49
court, county or sheriff, 110–12, 162
definition of disability, 2, 5, 9–10, 30, 165
delivery service, 51
deposits, 125, 132, 134, 153–154
dignity, 53, 81, 86–87
disability organisations, 32, 41, 82
Disability Rights Commission, ii, v, 2, 4, 163–4
disabled customers, 9, 17–18, 23, 31–2, 34–5, 40–43,
47, 52–3, 62–3, 67, 78, 92, 118, 121, 160
anticipating the requirements of, 17, 67
consulting with, 32
knowledge of, 31
DRC Helpline, 5, 20

education, 19–20
emergency evacuation procedures, 14, 60, 83, 115,
117, 148
employee, 2, 12, 16, 30–31, 38, 40–43, 62, 159–162
employer, 18, 160–61
enforcement
complaints, 163
conciliation, 163
legal proceedings, 163
evolving duty, 44
examples
role of within the Code, 3

fire alarms, 69
franchise, 18
172
guarantees, 113, 125, 129, 131
guide or assistance dog, 21, 36, 45, 58

health or safety (see justification)

highway authority, 83–4
housing, 135–155
eviction, 146
harassment, 147
housing lists, 141
small dwellings, 142, 144–5

incapacity to contract (see justification)

insurance, 113, 125–9

justification, 8, 26, 30, 34–5, 37, 53, 59, 115–7, 122–4, 149

knowledge, lack of, 30

landlord, 14–16, 104–6, 111, 135, 137, 140–1, 146–8,

150, 153–4, 162
lease, 15, 17, 20, 86, 89, 136–9, 162
gaining consent, 106
superior lessor, 105–6
less favourable treatment, iii, 8, 25–30, 37, 113–4, 116,
121, 123–5, 131, 133–4, 136, 149, 153, 155
lessor, 104–112
lighting, 51, 74, 78, 83, 92, 99
lower standard of service, 34

manufacture and design of products, 23

more favourable treatment, 28, 36

occupier, 14–16, 107, 139, 142–4, 149, 152

173
 physical feature, iii–v, 17, 38–9, 55–6, 75–6, 78–86,
89–91, 93–102
alteration of, 77–8
definition of, 75, 82
listed building, 85, 102–3
means of avoiding, 17, 39, 75–6, 78–9, 81, 85–6
outdoors, 83
removal of, 78–9, 81, 84
planning ahead, 39, 78
practices, policies and procedures, 38, 55–6, 58–9
premises
common parts, 14–17
with more than one occupier, 14
private clubs, 22
providing service of a lower standard, 25, 34, 122
providing service on worse terms, 25, 35
public bodies, 11
publicity materials, 50

reasonable adjustments, iii, 2, 7–10, 15, 21, 24–5, 32,

37–8, 40–44, 46, 51–5, 67, 75–6, 80, 83, 89, 93, 102,
104, 107–9, 113–16, 122–3, 138
anticipatory duty, 42
charging, 51
continuing duty, 44
drawing attention to, 49
identifying possible adjustments, 82
reasonable steps, 14, 16, 39, 43, 46–7, 49, 57, 59, 61,
63, 65, 68, 71–7, 79, 85
refusal of service, 26, 29, 33
responsibility
identification of, 15, 17–18, 31, 38, 160

174
 selling, letting or managing premises, 2, 135–155
deposits, 153
disposal, 155
harassment, 147
use of benefits or facilities, 146

service provider, size of, 65

services
definition of, 11
inclusive approach, 81
reasonable alternative method of delivery, 15, 37,
56, 76–7, 79–81, 86–7
signage, 78, 100–101

tailor made services, 114, 123

tenants, 16–17, 108, 137, 143–47, 150, 152, 154
terms of service, 35
training, 18–20, 32, 40–41, 43, 75, 161
disability awareness, 30, 40, 75, 161
transport, 4, 19– 20
parking, 9–10, 83, 100, 146, 152

unreasonably difficult
factors to take into account, 46

victimisation, 157–8
voluntary organisations, 11, 20

websites, 69, 71

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Published by The Stationery Office and available from:
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Copies of the publication in Welsh and in braille,

audio cassette and disk formats are also available
from The Stationery Office.

For information and advice from the Disability Rights

Commission, call the DRC Helpline between 08.00 and
20.00 hours, Monday to Friday.

Telephone: 08457 622 633

Textphone: 08457 622 644
£13.95
Fax: 08457 778 878
Email: enquiry@drc-gb.org ISBN 0-11-702860-6

Post: DRC Helpline, FREEPOST, MID 02164,

Stratford upon Avon, CV37 9BR
9 780117 028609
Or visit the DRC website at: www.drc-gb.org