Guidance

Chapter 7 - Disabled people: reasonable adjustments

Published: 2 October 2024

Last updated: 2 October 2024

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Introduction

7.1 This chapter explains the duty to make reasonable adjustments for disabled people in relation to services to the public, public functions and associations. Chapter 11 and Chapter 12 explain the circumstances in which it is unlawful to discriminate against a disabled person by not making reasonable adjustments, and the specific wording of the reasonable adjustment duty in respect of these three areas.

7.2 Services to the public includes services to a section of the public and the provision of goods and facilities, whether or not for payment. Read paragraphs 11.4 to 11.9 for more detail.

Public functions are functions of a public nature which are not services. Read paragraphs 11.13 to 11.16 for more detail.

Associations are bodies which have at least 25 members, have membership criteria, and have a process of selection for members. Read paragraphs 12.2 to 12.12 for more detail.

7.3 The principles relating to the duty to make reasonable adjustments in relation to these three areas are similar. However, where the duty is different we have provided further detail in this chapter.

7.4 The duty to make reasonable adjustments requires service providers, those exercising public functions and associations to take positive steps to ensure access for disabled people. This goes beyond avoiding discrimination. It requires service providers, those exercising public functions and associations to anticipate the needs of disabled people and make reasonable adjustments in advance of providing the service, exercising the public function, or the activities of the association.

7.5 The purpose of the duty to make reasonable adjustments is to provide disabled people with access in relation to services, public functions and associations, and for their experience to be as close as reasonably possible to the standard offered to non-disabled people.

What is the duty to make reasonable adjustments?

7.6 One form of unlawful discrimination against a disabled person occurs where a service provider, person exercising public functions or association fails to comply with the duty to make reasonable adjustments required of it in relation to that disabled person (s.21(2)).

7.7 The duty to make reasonable adjustments comprises three requirements.

7.8 For service providers, those exercising public functions and associations, the requirements are:

  • to take reasonable steps to avoid any substantial disadvantage that a provision, criterion or practice creates for disabled people (s.20(3))
  • to take reasonable steps to avoid any substantial disadvantage that a physical feature creates for disabled people, or adopt a reasonable alternative (s.20(4)), and
  • to provide an auxiliary aid where not doing so puts disabled people at a substantial disadvantage (s.20(5))

The substantial disadvantage to disabled people in each requirement should be considered in comparison to any disadvantage caused to people who are not disabled.

7.9 For associations, the requirements set out in the paragraph above apply in relation to:

  • access to a benefit, facility or service
  • members or associates retaining their rights, or avoiding having them varied
  • being admitted to membership or invited as a guest (Sch. 15)

What is a provision, criterion or practice?

7.10 There is no definitive list of what is a provision, criterion or practice. Further details can be found in paragraphs 5.9 to 5.11 in this Code.

What disadvantage gives rise to the duty?

7.11 For each of the three requirements set out at 7.8, the Act states that disadvantage must be substantial, which is defined as more than minor or trivial (s.212(1)).

7.12 In the context of a person being subjected to a detriment in the exercise of a public function, substantial disadvantage (Sch. 2 para 2(5)(a) and (b)) means:

  • being placed at a substantial disadvantage in relation to obtaining a benefit (such as receiving a grant), or
  • having an unreasonably adverse experience when being subjected to a detriment (for example, when under arrest)

The disadvantage created by the lack of a reasonable adjustment is measured by comparison with a non-disabled person’s experience [footnote 53].

7.13 For service providers and those exercising public functions, the question is whether disabled people generally are put to a substantial disadvantage by a provision, criterion or practice (Sch. 2(2)). As a result, one should look at the effect it is likely to have on people ‘who are disabled in the same way’ rather than solely on the individual themselves [footnote 54]. Even if a provision, criterion or practice applies equally to disabled people and non-disabled people, if that provision, criterion or practice is more likely to substantially disadvantage a disabled person due to their disability, there will be a duty to make reasonable adjustments [footnote 55].

Example

7.14 A person exercising public functions introduces a process for assessing claims for employment support allowance that requires those applying to complete a self-assessment questionnaire. This applies to all applicants, both disabled and non-disabled, but the nature of this means the process may not be accessible to people with a severe mental health condition. There is a substantial disadvantage caused in these circumstances because:

  • this group may not be able to answer some questions fully because they lack insight into their condition or cannot describe it properly, so that they find parts of the process stressful or confusing, and
  • the process may lead the decision-maker to have inadequate or false information about those applicants which means they would be less likely to be granted the employment support allowance

Therefore, there is a duty on the person exercising public functions to make reasonable adjustments to avoid that substantial disadvantage.

Are there any limits on the duty to make reasonable adjustments?

7.15 Where the duty to make reasonable adjustments arises, a service provider, person exercising public functions or association cannot justify a failure to make a reasonable adjustment. However, the Act does place specific restrictions on the duty.

7.16 A service provider (including a person providing a service in the exercise of public functions) will not be required to take any steps which would fundamentally alter the nature of the service or the nature of the provider’s trade or profession (Sch. 2 para 2(7)).

7.17 Those exercising public functions will not be required to take any steps which are outside their powers (Sch. 2 para 2(8)).

7.18 Associations will not be required to take any steps which alter the nature of the benefit, facility or service, or the nature of the association itself (Sch. 15 para 2(7)).

7.19 Where meetings take place in the houses of members or associates of associations, those members or associates are not required to make adjustments to any physical feature of their house. Read Chapter 12 for further details (Sch. 15 para 2(8)).

To whom is the duty to make reasonable adjustments owed?

7.20 In relation to services and public functions, the duty to make reasonable adjustments is owed to disabled people generally (Sch. 2 para 2(2)). It is not simply a duty that is applied in relation to each individual disabled person who wants to access services or who is affected by the exercise of a public function.

7.21 In relation to associations, the pool of disabled people to whom the duty is owed is smaller, but still includes members, those seeking membership, associates and guests, as well as those who might wish to become members and those who are likely to be guests (Sch. 15 para 2(2)).

An anticipatory duty: the point at which the duty to make reasonable adjustments arises

7.22 In relation to all three areas (services, public functions and associations) the duty is anticipatory (Sch. 2 and Sch. 15). This means that it requires consideration of, and action in relation to, barriers that impede people with one or more kinds of disability prior to an individual disabled person seeking to use a service, benefit from or be subject to a function, or participate in the activities of an association.

7.23 Service providers, those exercising public functions and associations should therefore not wait until a disabled person wants to use a service, benefit from or be subject to a function, or participate in the activities of an association before they consider their duty to make reasonable adjustments. They should anticipate the requirements of disabled people and the adjustments that may have to be made for them. Failure to anticipate the need for an adjustment may create additional expense or render it too late to comply with the duty to make the adjustment. However, anticipating the need for an adjustment may not in itself provide a defence to a claim of a failure to make a reasonable adjustment.

Example

7.24 An individual with a visual impairment regularly receives printed letters regarding his social security benefits from a person exercising public functions, despite the fact that on previous occasions he has indicated his need for Braille and this has been provided. He finds this repeated need to telephone to ask for Braille frustrating and inconvenient, but is told that the software, which generates communications, does not enable a record to be kept of individuals’ needs for alternative formats.

This may constitute a failure to make reasonable adjustments if it is judged to have left the disabled person at a substantial disadvantage and there was a reasonable adjustment that could have been made. Even if Braille documents were provided after a request from the individual, this may still constitute a failure to make reasonable adjustments, as the person exercising public functions has failed to anticipate the needs of people with visual impairments.

Does the duty to make reasonable adjustments apply even if the service provider, person exercising public functions or association does not know that the person is disabled?

7.25 Because the duty is anticipatory, it applies regardless of whether the service provider, person exercising public functions or association knows that a particular person is disabled or whether it currently has, for example, disabled customers or members.

7.26 When a disabled person seeks to use a service, benefit from or be subject to a function, or participate in the activities of an association, the service provider, person exercising public functions or association must already have taken all reasonable steps to provide access.

Do service providers, those exercising public functions and associations need to anticipate every barrier?

7.27 Service providers, those exercising public functions and associations are not expected to anticipate the needs of every individual who may use a service, benefit from or be subject to a function, or participate in the activities of an association. They are required to think about and take reasonable steps to overcome barriers that may impede people with different kinds of disability. For example, people with dementia, mental health conditions or mobility impairments may face different types of barriers.

7.28 Disabled people are a diverse group with different requirements – for example, visually impaired people who use guide dogs will be prevented from using services with a ‘no dogs’ policy, whereas visually impaired people who solely use white canes will not be affected by this policy. The duty will still be owed to members of both groups. As a result, a service provider in this case will need to anticipate how its services might need to be adjusted for both groups.

7.29 Once a service provider, person exercising public functions or association has become aware of the requirements of a particular disabled person it might then be reasonable to take a particular step to meet those requirements. This is especially so where a disabled person has pointed out the difficulty that they face in access or has suggested a reasonable solution to that difficulty.

Example

7.30 A disabled person attending the annual general meeting of an association experiences a flare-up of their medical condition, which means they would have experienced severe back pain when sitting on the hard chairs provided for the meeting. Despite the lack of notice, those organising the meeting were able to find a more suitable chair and make this available to the association member.

7.31 Therefore, there are two components to the duty to make reasonable adjustments: the duty to make anticipatory adjustments for a class of people, as well as the continuing duty to make adjustments in individual cases [footnote 56].

How long does the duty continue?

7.32 The duty to make reasonable adjustments is a continuing duty. Service providers, those exercising public functions and associations should keep the duty and the ways they are meeting the duty under regular review, considering their experience with disabled people wishing to be provided with access. In this respect it is an evolving duty, and not something to be considered 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.

Example

7.33 A large sports complex amends its ‘no dogs’ policy to allow entry to assistance dogs. It offers assistance dog users a tour of the complex to acquaint them with routes. This is likely to be a reasonable step for it to take at this stage. However, the complex then starts building work and this changes routes around the complex, making it difficult for assistance dog users to find their way around. Consequently, offering an initial tour is no longer an effective adjustment for assistance dog users. The service provider therefore decides to offer assistance dog users appropriate additional assistance from staff while the building work is being undertaken. This is likely to be a reasonable step for the service provider to take.

7.34 Equally, a step that might previously have been an unreasonable one for a service provider, person exercising public functions or association to take could subsequently become a reasonable step given changed circumstances. For example, technological developments may provide new or better solutions to the problems of inaccessible services.

Example

7.35 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 time. 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 the software on some of the replacement computers and to give priority access to those computers to visually impaired users. This is likely to be a reasonable step for the library to take at this time.

What is meant by ‘reasonable’ steps?

7.36 The duty to make reasonable adjustments places service providers, those exercising public functions and associations under a responsibility to take such steps as is reasonable in all the circumstances to take. The Act does not specify that any particular factors should be considered. What is a reasonable step for a particular service provider, person exercising public functions or association to take depends on all the circumstances of the case. It will vary according to:

  • the type of service being provided, public function being exercised or activity of an association
  • the nature of the service provider, person exercising public functions or association, its size and resources, and
  • the effect of the disability on the individual disabled person

7.37 The following are some non-exhaustive examples of the factors which might be considered when assessing what is reasonable:

  • whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in being provided with access
  • the extent to which it is practicable for the service provider, person exercising public functions or association to take the steps
  • the financial and other costs of making the adjustment
  • the extent of any disruption which taking the steps would cause
  • the extent of the financial and other resources of the service provider, person exercising public functions or association
  • the amount of any resources already spent on making adjustments
  • the availability of financial or other assistance

Example

7.38 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 post a parcel. He experiences pain when standing for more than a couple of minutes. Other customers would not expect to have to undergo similar discomfort to post a parcel. Thus, the post office’s queuing policy places the disabled customer at a substantial disadvantage. Consideration will have to be given to how the queuing policy could be adjusted to accommodate the requirements of such disabled customers.

Depending on the size of 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.

7.39 It is more likely to be reasonable for a service provider, person exercising public functions or association with substantial financial resources to have to make an adjustment with a significant cost than it would be for such a body with fewer resources.

Example

7.40 The operator of a booking office at 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 small service provider to take.

However, it is unlikely to be a sufficient reasonable adjustment for the operator of a ticket office at a mainline railway station to make. Instead, it installs an induction loop system and a textphone for passengers. These are likely to be reasonable steps for a large station to take.

7.41 The resources available to the service provider, person exercising public functions or association as a whole should be considered, as well as other demands on those resources. Where the resources of the service provider, person exercising public functions or association are spread across more than one business unit or profit centre, the demands on them all are likely to be taken into account in assessing reasonableness.

Example

7.42 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.

7.43 The question of the reasonableness of an adjustment is an objective one for the courts to determine.

7.44 Service providers, those exercising public functions and associations should understand that there are no fixed or definitive solutions. Action which may result in reasonable access being achieved for some disabled people may not necessarily be effective for others.

Example

7.45 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 mobility or visual impairments to access the conference, nor does it help those delegates with hearing impairments who do not use BSL but can lip-read. The conference organiser will need to consider the requirements of these delegates also.

7.46 The purpose of taking the steps is to ensure that disabled people are not placed at a substantial disadvantage compared with non-disabled people when using a service, benefitting from or being subject to a public function or participating in the activity of an association. Where there is an adjustment that the service provider, person exercising a public function or association could reasonably put in place, and which would remove or reduce the substantial disadvantage, it is not sufficient for them to take a different step if that would be less effective in providing access.

7.47 Similarly, a service provider, person exercising public functions or association will not have taken reasonable steps if it attempts to provide an auxiliary aid or service which in practice does not provide disabled people with access.

7.48 In all cases it is important to use, as far as is reasonable, a means of communication which is itself accessible to disabled people.

Example

7.49 In the example at 7.45, the conference organiser provides qualified BSL interpreters for deaf delegates who use BSL, and arranges for the interpreters to be seated in a well-lit area. However, the organiser fails to ensure that those delegates have the option to be seated near and in full view of the interpreters. 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.

7.50 In some circumstances, compliance with the duty to make reasonable adjustments will involve placing non-disabled people at an inconvenience [footnote 57].

Example

7.51 A train company has a provision, criterion or practice that train conductors should request non-wheelchair users to vacate a wheelchair space if it is required by a wheelchair user. However, the provision, criterion or practice provides that if the non-wheelchair users refuse, the train conductor is not required to do anything further and the wheelchair user will not be allowed to board the train. The train company may be in breach of its duty to make reasonable adjustments, as it is not enough for the train company to instruct its conductors to make the request and then do nothing further if the request is rejected. Although moving may inconvenience non-wheelchair users, the train conductors should be required to take further steps to challenge an unreasonable refusal to vacate the space to meet the duty to make reasonable adjustments in this case. Wheelchair users should have priority access to wheelchair spaces.

7.52 If, having considered the issue thoroughly, there are genuinely no reasonable steps for a service provider, person exercising public functions or association to take to ensure access for disabled people, it is unlikely to be in breach of the law if it makes no changes. Such a situation is likely to be rare.

Costs of providing reasonable adjustments

7.53 The Act prohibits service providers, those exercising public functions and associations who are under a duty to make reasonable adjustments for a disabled person from requiring those individuals to pay any of the costs of making those adjustments (s.20(7)). As explained above, the cost of making any particular adjustment may affect the extent to which that step is a reasonable one for a service provider, person exercising public functions or association to take.

Example

7.54 A library service provides a free creative writing class. It charges a photocopying fee for enlarging materials used in the class for a participant who has a visual impairment. This is likely to be unlawful.

What happens if the duty to make reasonable adjustments is not complied with?

7.55 Where a service provider, person exercising public functions or association does not comply with the duty to make reasonable adjustments in the circumstances outlined in Chapter 11 and Chapter 12, it will be committing an act of unlawful discrimination. A disabled person will be able to make a claim based on this (read Chapter 14 for more detail about claims).

7.56 An individual claimant seeking to recover damages for discrimination arising out of a breach of the duty to make reasonable adjustments needs to show that they have suffered some detriment as a result of the breach of duty [footnote 58].

Burden of Proof

7.57 Once an individual claimant has shown that they were substantially disadvantaged and has identified the need for one or more potentially reasonable adjustments then the burden of proving that it is not a reasonable adjustment to have to make shifts to the service provider, person exercising a public function or association. For the burden to shift there needs to be sufficient detail about a potential reasonable adjustment to enable a service provider, person exercising a public function or association to engage with whether the potential adjustment could reasonably be made. The individual need not have identified a potentially reasonable adjustment at the point in time it should have been made but needs to have done so by the time of a hearing [footnote 59].

What is the duty to change a provision, criterion or practice?

7.58 A service provider, person exercising public functions or association might have a provision, criterion or practice which – perhaps unintentionally – places disabled people at a substantial disadvantage in using its services, benefitting from or being subject to a public function or participating in the activity of an association. In such a case, and as described in paragraph 7.8 and paragraph 7.9, the service provider, person exercising public functions or association must take those steps that it is reasonable for it to have to take, in all the circumstances, to change the provision, criterion or practice so that it no longer causes the substantial disadvantage. This may simply mean instructing staff to waive a criterion, amending a practice 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.

Provision of information: provision, criterion or practice

7.59 The Act states that where a provision, criterion or practice places a disabled person at a substantial disadvantage, and this relates to the provision of information, the steps which it is reasonable to take include steps to ensure that the information is provided in an accessible format (s.20(6)).

Example

7.60 A museum is reviewing the accessibility of its information literature for customers. It decides to change the print size and redesign the appearance of its pamphlets and literature. This makes the information more accessible to its partially sighted customers. It ensures that information is provided using clear accessible language, which makes it easier for some people with hearing impairment (for whom English is an additional language) and learning disabilities to access it. These are likely to be reasonable steps for the museum to take. Depending on the size and resources of the museum it may also need to provide auxiliary aids or services, such as Braille or Easy Read versions of the information, for people with other impairments, as outlined in paragraph 7.61.

Auxiliary Aids or Services

What is the duty to provide auxiliary aids or services?

7.61 A service provider, person exercising public functions or association must take such steps as it is reasonable for it to take to provide auxiliary aids or services as described in paragraphs 7.8 and above (and, for associations, paragraph 7.9), in order to remove the disadvantage experienced by disabled people.

7.62 Service providers, those exercising public functions and associations should ensure that any auxiliary aids they provide are properly maintained. It would also be advisable to have in place contingency arrangements, in case of an unexpected failure of an auxiliary aid. A failure to ensure the auxiliary aid is in operation may itself constitute a failure to make an adjustment.

What is an auxiliary aid or service?

7.63 An auxiliary aid or service is anything which provides additional support or assistance to a disabled person. Examples include:

  • a special piece of equipment
  • the provision of a sign language interpreter, lip-speaker or deaf-blind communicator
  • extra staff assistance to disabled people
  • an electronic or manual note-taking service
  • an induction loop or infrared broadcast system
  • videophones
  • audio-visual fire alarms
  • readers for people with visual impairments
  • assistance with guiding
  • telephone services to supplement other information

Example

7.64 A woman with both learning disabilities and mobility impairments needs to move to a more accessible property. The local authority choice-based letting scheme uses a weekly paper to advertise properties which are available to people with different categories of assessed need. The properties are allocated on a first-come, first-served basis. The local authority agrees with the disabled person that it will allocate a staff member to provide the necessary assistance to enable her to have equal access to housing choice. This is likely to be a reasonable step for the local authority to have to take.

Provision of information: Auxiliary Aids

7.65 The Act states that where the absence of an auxiliary aid or service places a disabled person at a substantial disadvantage, and this relates to the provision of information, the steps which it is reasonable for a service provider, person exercising public functions or association to take include steps to ensure that the information is provided in an accessible format (s.20(6)).

Example

7.66 A cinema chain ensures that subtitled performances of films are shown in all its branches, and that the times of these are advertised prominently. It also purchases equipment to provide audio description of films for visually impaired customers. These are likely to be reasonable steps for the cinema chain to take.

7.67 The Act does not require a service provider, person exercising public functions or association to provide an auxiliary aid or service to be used for personal purposes unconnected to the service, function or activity or to be taken away by the disabled person after use.

Example

7.68 A solicitors’ firm lends a digital recorder to a disabled client with multiple impairments who is unable to communicate in writing or attend the firm’s office. The client uses this auxiliary aid to record his instructions or witness statement and returns it afterwards. The firm is not required by the Act to let the client borrow the digital recorder for his personal use.

7.69 The Act does not state which particular auxiliary aids or services might be provided in specific circumstances. The duty remains with the service provider, person exercising public functions or association to determine what reasonable steps it might need to take.

Physical features

What is the duty to make reasonable adjustments to physical features?

7.70 A service provider, person exercising public functions or association must take such steps as it is reasonable to take to avoid putting disabled people at a substantial disadvantage caused by a physical feature.

Avoiding substantial disadvantage

7.71 The Act (s.20(9), Sch. 2 para 1 and 2 and Sch. 15 para 1, 2(3) and 2(5) to 2(8)) states that avoiding a substantial disadvantage caused by a physical feature includes:

  • removing the physical feature in question
  • altering it, or
  • providing a reasonable means of avoiding it

Removing the physical feature

7.72 Removing the physical feature may be a reasonable step, and the most effective one, for a service provider, person exercising public functions or association to take.

Example

7.73 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 take.

 Altering the physical feature

7.74 Altering the physical feature so that it no longer causes disabled people substantial difficulty with access may also be a reasonable step for a service provider, person exercising public functions or association to take.

Example

7.75 A private members’ club has a high bar that puts wheelchair users at a substantial disadvantage when wanting to be served at the bar. The club lowers a section of the bar so that wheelchair users can be served more easily. This is likely to be a reasonable step for the club to take.

Providing a reasonable means of avoiding the physical feature

7.76 Providing a reasonable means of avoiding the physical feature may also be a reasonable step for a service provider, person exercising public functions or association to take.

Example

7.77 A probation service holds meetings in its offices with offenders who have been given community rehabilitation orders. The meeting room has two steps into it, which means that people who are wheelchair users or people with mobility impairments cannot use the room. The probation service decides to install a permanent ramp at the side of the two steps to enable disabled offenders to attend meetings. This is likely to be a reasonable step for the probation service to take.

Example

7.78 In the example in paragraph 7.75, the club explores the possibility of lowering the bar but concludes that it is not practicable to carry out the work needed. It decides to offer table service to wheelchair users instead. This is likely to be a reasonable step for the club to take.

7.79 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, exercise of the function or activity of the association in this way significantly offends the dignity of disabled people and the extent to which it causes disabled people inconvenience or anxiety.

Example

7.80 The entrance to a local authority’s planning office is up 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 meeting officials often has to wait for an unreasonable amount of time before gaining access to the building. This is unlikely to be a reasonable means of avoiding the feature.

Providing a reasonable alternative method of access

7.81 Where the substantial disadvantage caused by a physical feature cannot be avoided, service providers, those exercising public functions and associations should consider whether there is a reasonable alternative method of providing access for disabled people (Sch. 2 para 2(3)(b) and Sch. 15 para 2(3)(b)). The Act requires that any alternative method of providing access must be a ‘reasonable’ one. Relevant considerations in this respect may include whether the provision of the service, exercise of the function or activity of the association in this way significantly offends the dignity of disabled people and the extent to which it causes disabled people inconvenience.

Example

7.82 The changing facilities in a gym are located in a room that 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.

7.83 Where there is a physical barrier, the aim of the service provider, person exercising public functions or association should be to make its services, functions or activities accessible to disabled people and for their experience to be as close as reasonably possible to the standard offered to non-disabled individuals.

When considering which option to adopt, service providers, those exercising public functions and associations must balance and compare the alternative options available by having regard to the intention of the Act which is, as far as is reasonably practicable, to provide the same access to disabled people as to non-disabled people.

7.84 If a service provider, person exercising public functions or association decided to provide access through an alternative method, and a disabled person brought a claim against it for a failure to make reasonable adjustments, the court determining the claim would be able to consider the other options that could have been adopted to avoid the substantial disadvantage to the disabled person. For example, arranging to provide an in-person service to a disabled person virtually due to accessibility issues will only be a reasonable alternative if there is no reasonable way of providing the disabled person physical access to the service [footnote 60].

Example

7.85 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 along a narrow corridor and up a short flight of stairs, making access impossible for some and for others allowing access only with discomfort or difficulty. 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.

Some disabled people, who are unable to attend a presentation because the room is inaccessible to them, make enquiries. They are sent copies of comparatively brief promotional literature. This is unlikely to be a reasonable alternative method of making the service available and may leave these disabled people at a substantial disadvantage.

If an issue arose under the Act as to whether the estate agent had failed to comply with its obligations to disabled people, consideration would be given to whether it would have been reasonable to avoid the substantial disadvantage by altering or removing the relevant physical features, or by avoiding them (for example, by holding the meeting at another venue), or whether a more effective alternative method of providing the service could reasonably have been adopted. Arranging to meet virtually may have provided an effective alternative method of providing the service if there was no reasonable way of giving the disabled person physical access to the company’s premises.

What is a 'physical feature'?

7.86 Physical features of a building or premises include:

  • any feature arising from the design or construction of a building
  • any feature on the premises of any approach to, exit from, or access to a building
  • any fixtures, fittings, furnishings, furniture, equipment (or other moveable property in Scotland) in or on premises, and
  • any other physical element or quality

All these features are covered by the duty, whether the feature in question is temporary or permanent. A building means an erection or structure of any kind.

7.87 Physical features include:

  • steps and stairways
  • kerbs, exterior surfaces and paving
  • parking areas
  • building entrances and exits (including emergency escape routes)
  • internal doors, external doors and 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)
  • the scale of premises (for example, the size of a shopping centre)

This is not an exhaustive list.

Example

7.88 A large out-of-town shopping centre provides motorised mobility scooters as a reasonable adjustment for people with mobility impairments who would otherwise experience a substantial disadvantage in accessing the shopping centre.

7.89 Where physical features within the boundaries of the premises of a service provider, person exercising public functions or association are placing disabled people at a substantial disadvantage, then the duty to make reasonable adjustments will apply (s.20(4) and Sch. 2 para 1 and Sch. 15 para 1). This will be the case even if the physical features are outdoors – for example, the paths and seating in a pub garden (s.20(10)).

7.90 A physical feature includes features brought by, or on behalf of, the service provider, person exercising public functions or association onto premises that it does not usually occupy (Sch. 2 para 2(6) and Sch. 15 para 2(6)).

Example

7.91 An outdoor theatre group brings its own terraced seating to the venues where it performs. The seating would be a physical feature for the purposes of the Act.

Leases, binding obligations and reasonable adjustments

What happens if a lease says that certain changes to premises cannot be made?

7.92 Special provisions apply where a service provider, person exercising public functions or association occupies premises under a lease or tenancy agreement, the terms of which prevent it from making an alteration to the premises (Sch. 21 para 3).

7.93 In such circumstances, if the alteration is one which the service provider, person exercising public functions or association proposes to make to comply with a duty to make reasonable adjustments, the Act enables the lease to be read as if it provided:

  • for the service provider, person exercising public functions or association to make a written application to the landlord for that consent
  • for the landlord not to withhold the consent unreasonably
  • for the landlord to be able to give consent subject to reasonable conditions, and
  • for the service provider, person exercising public functions or association to make the alteration with the written consent of the landlord

7.94 If the service provider, person exercising public functions or association fails to make a written application to the landlord for consent to the alteration, the service provider, person exercising public functions or association will not be able to rely upon the lease term preventing it from making alterations to the premises to defend its failure to make an alteration. In these circumstances, anything in the lease preventing the alteration being made must be ignored in deciding whether it was reasonable for the service provider, person exercising public functions or association to have made the alteration.

7.95 Whether a landlord 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 landlord’s interest in the premises, the landlord is likely to be acting reasonably in withholding consent. The landlord is also likely to be acting reasonably if it withholds consent because an adjustment would cause significant disruption or inconvenience to other tenants (for example, where the premises consist of multiple adjoining units).

7.96 A trivial or arbitrary reason would almost certainly be unreasonable. Many reasonable adjustments to premises will not harm the landlord’s interests and so it would generally be unreasonable to withhold consent for them.

7.97 If the service provider, person exercising public functions or association has written to the landlord for consent to make an alteration and the landlord has refused consent or has attached conditions to its consent, the service provider, person exercising public functions or association or a disabled person who has an interest in the proposed alteration may refer the matter to a county court (or, in Scotland, to the Sheriff) (Sch. 21 para 4). The court will decide whether the landlord’s refusal, or any of the conditions, are unreasonable. If it decides that they are, the court may make an appropriate declaration or authorise the service provider, person exercising public functions or association to make the alteration under a court order and may impose conditions.

7.98 In any legal proceedings in a claim involving a failure to make a reasonable adjustment, the disabled individual concerned, or the service provider, person exercising public functions or association, may ask the court to direct that the landlord is made a party to the proceedings (Sch. 21 para 5). The court will grant that request if it is made before the hearing begins. It may refuse the request if it is made after the hearing begins. The request will not be granted if it is made after the court has decided the claim.

7.99 Where the landlord has been made a party to the proceedings, the court may determine whether the landlord has refused to consent, or has consented to the alteration subject to a condition. In each case it may decide whether the refusal or condition was unreasonable.

7.100 If the court finds that the refusal or condition was unreasonable it can:

  • make an appropriate declaration
  • make an order authorising the service provider, person exercising public functions or association to make a specified alteration (subject to any conditions it may specify)
  • order the landlord to pay compensation to the disabled person

7.101 If the court orders the landlord to pay compensation, it cannot also order the service provider, person exercising public functions or association to do so.

What happens if a binding obligation other than a lease prevents a building being altered?

7.102 The service provider, person exercising public functions or association may be bound by the terms of an agreement or other legally binding obligation (for example, a mortgage, charge or restrictive covenant or, in Scotland, a feu disposition) under which it cannot alter the premises without someone else’s consent.

7.103 In these circumstances, the Act provides that it is always reasonable for the service provider, person exercising public functions or association to have to request that consent, but that it is never reasonable for it to have to make an alteration before having obtained that consent (Sch. 21 para 2).

What about the need to obtain statutory consent for some building changes?

7.104 A service provider, person exercising public functions or association 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 or fire regulations approval. The Act does not override the need to obtain such consents.

7.105 Service providers, those exercising public functions and associations 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 alternative adjustment that does not require consent in the meantime.

7.106 The need to obtain statutory consents will be one factor that feeds into the assessment of reasonableness when considering the duty to make reasonable adjustments. However, this factor will not necessarily be decisive, unless consents which are required are refused [footnote 61].

Service providers, those exercising public functions and associations should remember that even where consent is not given for removing or altering a physical feature, they still have a duty to consider providing access by a reasonable alternative means.

Special provisions regarding transport vehicles

7.107 The duty to make reasonable adjustments applies to the use of certain transport vehicles. As explained at paragraph 3.31, this Code does not cover these provisions (Sch. 2 para 3).

Reasonable adjustments in practice

7.108 When a service provider, person exercising public functions or association is considering making reasonable adjustments, the following measures constitute good practice that may help avoid acts of discrimination. In some circumstances, they may either be a means to identify reasonable adjustments or constitute reasonable adjustments themselves:

  • planning in advance for the requirements of disabled people and reviewing the reasonable adjustments in place
  • conducting access audits on premises
  • asking disabled people for their views on reasonable adjustments
  • consulting local and national disability groups
  • drawing disabled people’s attention to relevant reasonable adjustments so they know they can use the service, benefit from or be subject to a function, or participate in the activities of an association
  • properly maintaining auxiliary aids and having contingency plans in place in case of the failure of the auxiliary aid
  • training employees how to respond to requests for reasonable adjustments
  • encouraging employees to develop additional skills for disabled people (for example, communicating with hearing impaired people)
  • ensuring that employees are aware of the duty to make reasonable adjustments and understand how to communicate with disabled people so that reasonable adjustments can be identified and made

7.109 It would be advisable for service providers, those exercising public functions and associations to keep a record of any steps they take in relation to the above.

Chapter 7 footnotes

  1. Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265 at §§41, 47 and 58
  2. R (VC) v Secretary of State for the Home Department [2018] EWCA Civ 57 at §153 and R (Rowley) v Minister for the Cabinet Office [2022] 1 WLR 1179 at §24
  3. Griffiths v Secretary of State for Work and Pensions at §58
  4. R (VC) v Secretary of State for the Home Department
  5. First Group plc v Paulley [2017] UKSC 4
  6. Finnigan v Northumbria Police Chief Constable [2013] EWCA Civ 1191
  7. Latif v Project Management Institute [2007] IRLR 579
  8. Royal Bank of Scotland Group plc v Allen [2009] EWCA Civ 1213
  9. Plummer v Royal Herbert Freehold Limited [2018] 5 WLUK 5

Page updates

Published:

2 October 2024

Last updated:

2 October 2024