DDA Factsheet 5: Access to goods, facilities and services and public authority functions
This factsheet forms part of a set of RNIB DDA factsheets, all of which are available in alternative formats. The legal provisions referred to apply to England, Wales and Scotland. There are separate but similar provisions in Northern Ireland relating to public authority functions, and so this factsheet will also be useful for people in Northern Ireland.
Many service providers also employ people and will need to consult Factsheet 4 on employment and recruitment.
In December 2005 and December 2006, the Act was amended so that it now covers not only access to goods, facilities and services (GFS), but also public authority functions and private clubs. Private clubs are dealt with in factsheet 7. The provision and use of transport vehicles is excluded from this part of the Act, but regulations have lifted this exemption in relation to certain transport vehicles, such as buses and trains. These provisions are within factsheet 8.
Although there are differences in wording between the GFS provisions and those relating to public authority functions, it is the Government’s intention – and this is demonstrated in the EHRC code of practice – that the same principles apply to those new areas of the DDA as to goods, facilities and services. So there is a duty to make adjustments in advance of disabled people accessing the function, for example. The differences in wording are merely intended to reflect the slight different nature of the new areas covered.
Some of the most important new rights under the Disability Discrimination Act (DDA) will apply to all blind and partially sighted people, not just those of working age. This is perhaps the most complicated area of the Act and the Code of Practice Rights of Access: Services to the public, public authority functions, private clubs and premises provides a detailed explanation of how the Act should apply in practice.
The Code (available to purchase from the Stationery Office or to download from the Equality & Human Rights Commission (formerly Disability Rights Commission) website, is not the law itself, but it has to be taken into account by the courts where relevant.
Provision of goods facilities and services
Who has obligations under the Act – Definition of a ‘service provider’ under DDA?
A service provider includes anyone providing a service directly to the general public, whether a public authority, private agency, or an individual and whether for payment or for free. Manufacturers who provide goods through retailers will not be covered by the Act as they are not providing services directly to the public.
For example: Hotels, shops, banks, local authorities, sports and arts venues, surgeries and hospitals. Information services and information about services are also covered.
Right of access to goods, facilities and services
For those providing goods, services and facilities directly to the general public, it is unlawful:
- To refuse to serve a disabled person for a reason which relates to their disability. For example: a pub refusing to serve a blind person on the assumption that they will spill their drink.
- To offer a sub-standard service to disabled people. For example: a restaurant asking a guide dog user to sit in a separate room away from other customers.
- To provide or offer a service on different terms. For example: a loan company insisting that a blind person consult a solicitor before being allowed to take out a loan, based on the assumption that s/he is less likely to have read and understood the terms of the agreement.
- To fail to comply with the duty to make reasonable adjustments, in circumstances in which the failure makes it impossible or unreasonably difficult for a disabled person to use a service.
Discrimination
“Discrimination” is defined as:
- treating a disabled person less favourably, for a reason relating to their disability, than a person to whom that reason does not apply, would be treated, without justification; or
- failing to make reasonable adjustments, without justification.
The duty to make reasonable adjustments
The duty to make reasonable adjustments means that duties are placed on providers of services to make changes (called ’reasonable adjustments‘) so that disabled people can use the services more easily. These changes have been phased in (see below for timetable details).
Changes the service provider will have to consider
There are three broad types of 'reasonable adjustments' which the service provider has to consider (NB there is bound to be overlap between some of the obligations already):
Changes to practices, policies and procedures
To ensure that they do not make it impossible or unreasonably difficult for a disabled person to access the goods, service or facility. For example: a video store’s policy of only accepting driving licenses as a means of identification being adapted to allow disabled people to produce other forms of identification. A cinema’s policy of refusing to allow dogs would have to be amended to allow guide or assistance dogs.
Provision of ’auxiliary aids and services‘
To provide additional help or assistance to enable a disabled person to make use of a services or facility. For example: making information available in Braille.
Addressing Physical features of premises where services are provided
- By removing a physical feature.
- By altering it so that it no longer is inaccessible.
- By providing a reasonable means of avoiding a feature
- By providing a reasonable alternative means of service (for example, service someone at the door of a shop where it is not accessible and it is not feasible to make it accessible).
The first three parts of this DDA duty came into force in October 2004.
Please see Factsheet 6: ‘Reasonable adjustments’ in accessing goods, facilities and services for more details.
Grounds for justifying less favourable treatment
If service providers have treated a disabled person less favourably, they will have to prove that they had a genuine belief that one of the following grounds of justification applied to their situation; and it has to be reasonable for them to hold that belief:
1. Health and safety
This has often been used as an excuse for banning guide dog users from theatres for example. Now the service provider has to prove that:
- They genuinely believed that there was a health and safety risk endangering the disabled person or others, and that the discriminatory treatment was necessary because of this.
- The belief was 'reasonable'
- The risk could not be overcome by the ’reasonable adjustments‘ which the service provider will have to consider making (see above) - such as providing assistance.
- Each situation should be viewed individually and blanket bans on all disabled people on grounds of health and safety should be a thing of the past.
2. Inability to give informed consent or to enter into an enforceable agreement.
- This condition will only apply when a disabled person is clearly unable to understand a complicated transaction.
- It will be unlawful to discriminate on these grounds at all if the disabled person operates with the assistance of an advocate.
- These circumstances are most likely to affect people with learning difficulties.
3.If, by serving the disabled person, the service provider is unable to serve others.
- This will only apply when serving a disabled person would prevent the service from being provided at all.
4. If, in order to serve the disabled person or other members of the public, it is necessary to provide the service on different terms, or of a different standard or manner.
For example: a cinema owner has set aside a designated area on the ground floor for wheelchair users because the other floors are not accessible. Wheelchair users therefore have a restricted choice of seating, but this is necessary in order to provide the service to other customers.
5. Greater Expense.
Whilst the service provider cannot provide services on different terms to disabled people, including charging a disabled person more for a service, it can do so where the service is individually tailored to the requirements of a disabled customer. But a service provider can never make a charge for a reasonable adjustment.
For example: A tailor could charge extra if a disabled person wanted a suit specially designed.
If the service provider cannot show the appropriate justification then their discriminatory treatment will be unlawful.
Service providers excluded or treated differently under DDA
This applies to several services including the following:
1. Education services
These have different provision applying – see factsheets 10 and 11 on Education.
2.Transport
Transport termini (stations, airports etc) and some facilities related to transport – such as booking tickets – are covered by this section of the Act and will have to take reasonable steps to improve their services.
Although anything involving the provision or use of transport vehicles is broadly excluded from the Act, this exclusion has been lifted in relation to certain transport vehicles – such as buses, trains and taxis. They are covered by a modified version of these provisions – see factsheet 8 on transport for more details of these provisions. There are separate provisions for licensed minicabs and assistance dogs.
The use of Planes and ships/ferries are completely excluded from the Act (although planes are covered by a European directive – see factsheet 8 for details).
3. Employment Services
Employment Services (meaning vocational guidance, vocational training, or services to assist a person to obtain or retain employment, or to establish himself as self-employed) are covered by Part 3 of the Act, although Part 3 is specifically modified for them. It is unlawful to discriminate against a disabled person by:
- refusing to provide or deliberately not providing a service
- failing to comply with the duty to change policies practices and procedures, where the failure puts the disabled person at a substantial disadvantage
- failing to comply with the duty to provide auxiliary aids or services, or to address physical barriers, where the failure makes it impossible or unreasonably difficult for the disabled person to use the service
- in the standard of service provided (offering a sub-standard service)
- in the terms on which service is provided
The duty to make adjustments, and justification of discrimination, is also modified in relation to employment services. In particular, direct discrimination, as outlined above, can never be justified under the Act, and neither can a failure to make changes to policies practices or procedures which puts a disabled person at a substantial disadvantage.
Claims of discrimination relating to employment services are brought in the employment tribunal and not in the County Court, like the rest of goods and services claims. They are also subject to a 3 month, as opposed to a 6 month, time limit.
4. Manufacturers
Manufacturers providing a service through a third party (such as a retailer) are not covered by the Act.
For example: the onus falls on the retailer as the provider of the direct service to the customer to explain how an electrical item can be operated. There is no obligation for the manufacturer to ensure that an instruction booklet that comes with a product is transcribed into an accessible format.
However, manufacturers providing a direct service to the public, including mail order companies, will be covered by this part of the Act (although it is the provision of the service or goods that must be accessible, and not the goods themselves).
5.Insurance
This is covered but dealt with in a different way since discrimination is inherent to calculations of risk when insuring.
Whilst it is unlawful for insurers to discriminate against someone with a disability for a reason relating to their disability, this will be justified if:
- The less favourable treatment is based upon information
- (For example: actuarial or statistical or a medical report) which is relevant to the assessment of the risk to be insured.
- It is from a source on which it is reasonable to rely.
- It is ’reasonable‘ to do so having regard to the information relied upon and any other factors.
6. Housing services
There are separate provisions in the DDA relating to the sale and rent of premises. However housing providers may also have duties under the service provisions aspects of the Act.
Please see Factsheet 9 on the DDA and housing.
Service providers – liability for others
The service provider is liable for the actions of his/her employees or others involved in his/her service.
Alternatively, s/he must prove that s/he has taken reasonable steps to prevent staff from discriminating.
For example: Providing staff training on disability awareness.
Public Authority functions
Some things that Public Authorities – such as Local Authorities – do are not classed as services but are classified as “Public Authority functions”. It is not always easy to work out whether something is a Public Authority function or not. They are usually, but not exclusively, things that are done under to comply with a piece of legislation, and this distinction has come about through cases brought under the Race Relations Act and the Sex Discrimination Act about what is a “service”.
For example, when the Inland Revenue are providing information about tax allowances, they are providing a service. When they are collecting tax that is due, they are carrying out a Public Authority function. When an Immigration Officer is detaining someone for questioning, he is carrying out a Public Authority function. When the police are providing information on crime prevention, they are providing a service. When they are arresting someone, they are carrying out a Public Authority function.
The DDA now covers these functions – so that everything (with a few exceptions) a Public Authority does is covered by the provisions of the DDA.
What is a Public Authority?
The Public Authority function provisions cover all Public Authorities, such as Government departments, NHS trusts, Local Authorities, and it includes anyone carrying out a function of a public nature. This might be, for example, a private security firm which is running a prison.
Does the duty apply to every Public Authority function?
There are certain exceptions to this part of the Act:
- Parliament
- The Security Services
- The Armed Forces when assisting GCHQ
- The Courts or other bodies when carrying out judicial acts
- Ministers carrying out legislative functions (includes members of the Scottish
- Executive and the National Assembly for Wales)
- The Crown Prosecution Service when deciding whether or not to prosecute someone
In addition, this part of the act does not apply where another part of the Act would apply. For example, if a disabled person wishes to complain about employment with a Public Authority, they cannot complain under these provisions – any claim would have to brought under the employment provisions, and these ones would not apply.
They also does not apply where an exemption means that another part of the Act does not apply; for example, the education provisions for pre 16 education exclude auxiliary aids and services from their scope. You cannot use the Public Authority function provisions to bring a claim in relation to auxiliary aids and services for pre-16 education.
The duty does, though, apply in relation to certain “voluntary” appointments with Public Authorities, which are not already covered by the employment provisions. For example, appointment or election to the position of school Governor, or to a NHS Trust Board (see the EHRC Code of Practice for more details)
Rights in relation to Public Authority functions
The Act makes it unlawful for a Public Authority to discriminate against a disabled person in carrying out its functions. There are two ways in which a Public Authority may discriminate:
- by treating a disabled person less favourably, for a reason relating to his disability without justification;
- failing to comply with the duty to make reasonable adjustments, in circumstances in which the disabled person is put at a disadvantage, without justification.
What is less favourable treatment?
This means that you can’t be treated less favourably, for a disability related reason, without justification. Some examples of less favourable treatment would be:
- A local council will not be able to refuse a trader’s licence to a disabled person for a reason related to their disability
- A local authority could not refuse to allow a visually impaired person to adopt a child purely for a reason relating to disability, unless it could justify the decision
- A benefits assessment officer could not subject a visually impaired person to insulting comments for a reason relating to their disability
The duty to make reasonable adjustments
The duty to make reasonable adjustments is similar to the duty to make adjustments contained in the goods, facilities and services provisions. There is different wording, though, to reflect the different nature of Public Authority functions.
The exercise of some functions by Public Authorities confers a benefit, such as the payment of state benefits or receipt of tax allowances. ‘Benefits’ would also cover, for example, a decision by a Local Authority on whether to permit a disabled person to adopt a child, or the making of grants to members of the public.