http://www.opsi.gov.uk/acts/acts1995/ukpga_19950050_en_3#pt2-pb4-l1g16

http://www.opsi.gov.uk/acts/acts2005/ukpga_20050013_en_1

On October 1st 1999 the statutory rights of disabled persons to have better access to goods and services came into force under Part III of the Disability Discrimination Act 1995. A service provider now has to ensure that it takes reasonable steps to:

• Change a practice policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of its services;
• Provide an auxiliary aid or service if it would facilitate the use of its services by disabled persons;
• Provide a reasonable alternative method of making its services available to disabled persons where a physical feature makes it impossible or unreasonably difficult for disabled persons to make use of those services.

The above is detailed in the Code of Practice on Rights of Access, Goods, Facilities, Services and Premises issued by the National Disability Council (now Disability Rights Commission) in June 1999. This code is currently under review in order to allow clear guidelines for the successful implementation of the last part of the DDA, which is due to come into force on 1st October 2004, the main provisions being as follows:-

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
• Alter it so that it no longer has that effect or;
• Provide a reasonable means of avoiding it; or
• Provide a reasonable alternative method of making the services available

As defined in SI 1999 No 1191, For the purpose of s21(2) of the Act, the following are to be treated as a physical feature (whether permanent or temporary):-

• any feature arising from the design or construction of a building on the premises occupied by the provider of services.
• any feature on the premises occupied by the provider of services or any approach to, exit from or access to such a building.
• any fixtures, fittings, furnishings, furniture, equipment or materials in or on the premises occupied by the provider of services.
• any fixtures, fittings, furnishings, furniture, equipment or materials; brought on to premises other than those occupied by the provider of services by or on behalf of the provider of services.
• in the course of providing services to the public or to a section of the public
• for the purpose of providing such services.

No changes have to be made to physical features until the balance of duties in relation to physical features come into force in 2004, and for the purpose of S21(4) of the DDA the following are not to be treated as auxiliary aids or services:

"devices, structures or equipment the installation, operation or maintenance of which would necessitate making a permanent alteration to or which would have a permanent effect on the physical fabric of premises, fixtures, fittings, furnishings, furniture, equipment or materials"

As loop systems will not have a permanent effect on any aspect of the premises they would probably fall under the provision of auxiliary services in force from 1st October 1999. It would follow that it would be a reasonable step to provide loop systems to facilitate hard of hearing customers to be able to use a particular service.

The Act will affect everyone concerned with the provision of services to the public, whether in the public, private or voluntary sectors. The Code of Practice gives a non-exhaustive list and includes local councils, government departments, voluntary organisations, hotels, restaurants, banks, solicitors, national parks, leisure centres, theatres, shops, churches, courts and hospitals.

Planning Ahead

The proposed Code of Practice makes it clear that service providers should be planning ahead and taking any opportunities which arise, or bringing forward plans to make alterations to premises to benefit disabled people before 2004 as structural changes will be required from that date. The Act does not define what are reasonable steps but the Code does suggest factors for consideration:-

• Would a particular step be effective to enable a disabled person to use the service?
• Is it practicable for the service provider to take that step?
• The extent of service provider's financial resources and the amount already spent on making adjustments.

No time scale for the adjustments to be made is suggested within the Code of Practice but it could be said that the code of practice suggests that large service providers, should be starting a programme of refurbishment to increase access to all disabled people immediately, in order to avoid claims being made against them after October 2004. As a result, a large chain retailer could be said to be taking reasonable steps to include in their programme of refurbishment the fitting of permanent induction loop systems at counters etc to allow deaf/ hard of hearing customers to effectively communicate with staff and thus be complying with the implementation of the 2004 legislation.

Under the DDA an adult or child has protection from discrimination on the grounds of his or her disability. Thus the act would allow a disabled person who had been discriminated against by a service provider to bring an action against that service provider. The provision of services includes the provision of goods or facilities. Services not available to the public, such as those provided by private clubs, are not covered by the Act. It is also important to note that education and the use of any means of transport are excluded under Part III of the DDA(2). However, non-educational services provided by a school, college or University on its premises are subject to the Act eg. if the lecture theatre is offered as a conference venue, then this service would be likely to be subject to Part III. This would result in educational establishments being required to recognise their obligations under the DDA Part III if they wished to use their premises for any other purpose than as an educational establishment.

The Human Rights Act 1998

The Human Rights Act came fully into force in October 2000, presenting a challenge to public authorities to look at they way they operate, and consequently their treatment of disabled persons. Under the Act all public authorities will have responsibilities to abide by basic rights and freedoms of the individual. In the Act under s6(3) a public authority includes

(a) a court or tribunal
(b) any person certain of whose functions are functions of a public nature.

Proceedings can be brought under the Act if a person is a victim of an unlawful act. A person is defined as a victim of an unlawful act under Article 34 of the Convention:-

The court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation of the rights set forth in the convention.

The Act requires a public authority not to act in any way that would be incompatible with a convention right. This basically requires public authorities to ensure that all have rights such as, the rights for all to education and the right to freedom of expression which includes the right to receive information. These duties can only be enforced by a person who has been or is likely to be a victim of an unlawful act.

The convention is likely to affect disabled persons in different ways and may overlap in some circumstances with the provisions of the DDA 1995.

For example, Article 6 provides rights of due process in criminal and civil cases. This will require courts to ensure that disabled people can fully understand all proceedings within a court, and indeed the court service is currently equipping its courts with induction loop systems for people with hearing impairments. Article 10, the right to Freedom of Expression, includes the right to access information. Public authorities will thus have to make provision to enable disabled people to access its information eg. through the use of braille texts or the fitting of equipment to permit the hard of hearing to receive information across a counter in a benefits office.

The Human Rights Act is in force now, and the remainder of the DDA will follow shortly, so service providers are advised to look at their facilities now and begin to make relevant adjustments to facilitate access to customers with disabilities.

(1) SI 1999 No 1191 Reg 4
(2) However, by 2004 taxis will require to be compliant with the Act. The Secretary of State will also have discretion on whether to regulate "public vehicles", eg buses, coaches and trains.
Reproduced with the permission of Murray Beith Murray WS.

This summary is intended to provide general guidance only, and refers to the legal position in force as at 1 February 2002. Specific legal advice should be sought in relation to any particular legal query or problem.