Information and Advisory Note Number 156(Revision of Note 117) Back to menu
The revisions in this note interpret the Code of Practice and recent revised British Standards.
1.1 The Disability Discrimination Act 1995 (the Act) came into effect on 2nd
December 1996 to prevent discrimination against disabled people. This note is
not a comprehensive review of every aspect of the Act. Rather it examines the
main aspects of the Code of Practice, Rights of Access, Good Facilities and
Services (the Code) relating to Part Ml of the Act. This Code came into effect
on 27th May 2002. This latest version of the code takes account of the further
duties on service providers to make adjustments when physical features make it
impossible or reasonably difficult for disabled people to use their services.
The Code aims to help disabled people understand the law and assist service
providers to avoid complaints and litigation by adopting good practice.
1.2 This note is a guide about the Disability Discrimination Act 1995 (DDA) and
its associated Code of Practice from the point of view of countryside recreation
service providers. It is not a substitute for obtaining legal advice and no-one
should rely solely on the information contained in this guide. The author and
publishers accept no liability in relation thereto.
2.1 Alongside provisions on employment, education and public transport an
important part of the DDA for countryside service providers is Part III. This
makes it unlawful for a service provider to discriminate against a disabled
person by:
• refusing to provide (or deliberately not providing) any service which it
provides to members of the public; or
• providing service of a lower standard or in a worse manner; or
• providing service on worse terms, whether or not there is a charge for the
service.
2.2 It is also unlawful to fail to comply with any duty imposed by Section 21 of
the Act (a duty to make reasonable adjustments) in circumstances in which the
effect of that failure is to make it impossible or unreasonably difficult for a
disabled person to make use of any such service.
2.3 The DDA says that discrimination occurs in two ways when a service provider:
• treats a disabled person less favourably (for a reason relating to the
disabled person's disability) than it treats other people and cannot show that
the treatment is justified;
• fails to comply with the duty to make reasonable adjustments in relation to
the disabled person and cannot show that the failure is justified.
3.1 Adults and children have protection under the Act. A disabled person is
someone who has a physical or mental impairment which has an effect on his or
her ability to carry out normal day-to-day activities. That effect must be:
• substantial; and
• adverse; and
• long term (at least a year).
4.1 Under the Act the provision of services includes the provision of goods or
facilities. It does not matter whether services are provided free or in return
for payment. It is the provision of the service which is important not the
nature of that service or the type of situation in which it is provided. All
countryside services are therefore covered by the Act: walks programmes, events,
information, interpretation, paths and trails, visitor centres, etc.
4.2 Everyone involved in providing services is affected. A ranger providing a
service to the public must not discriminate against disabled people. The most
senior manager of a countryside service who rarely meets the public may also be
affected if the service for which he or she is responsible treats disabled
people less favourably. Volunteers and self employed people are also covered by
the Act.
4.3 Services provided by private clubs are not covered by Part III of the Act. A
Rambling Club refusing membership to a disabled person would not be liable under
the Act. However, if that club provides services to the public, for instance by
organising guided walks for non-members the refusal to allow a disabled person
to participate would be covered.
5.1 Refusal or non-provision of service
5.1.1 For discrimination to have taken place under the Act a disabled person
must have been treated less favourably (a) in comparison with how other people
are treated; and (b) for a reason relating to the disabled person's disability.
A country park runs a birdwatching programme. A blind person is told the course
is full when there are in fact places available. Unless the management can
justify its actions this would be unlawful refusal of service under the Act. If
there are really no places available on the programme the likelihood is that
there would have been no discrimination under the Act as any other member of the
public would have been refused the service.
A disabled person seeking entry to a wildlife park has not brought sufficient
money to cover the entrance charge. She is refused entry.
This refusal is not for a reason associated with disability and is not likely be
unlawful.
A group of people, some with learning disabilities and some non-disabled people,
are refused entry to a visitor centre. The fact that all members of this group
are treated the same, including the non-disabled people, would not exempt the
service provider from liability under the Act as other members of the public are
not treated in this way.
A guided walk leader refuses to allow two deaf people using British Sign
Language to join a walk because a sign language interpreter will be available on
the following week's walk. This refusal of service is likely to be unlawful.
5.2 Standard or manner of service
5.2.1 A service provider must not offer a
disabled person a lower standard of service
than it offers to other people, or serve a
disabled person in a worse manner, without
justification.
A ranger asks a person with a speech impediment to wait to the end of an
activity before asking questions so as not to hold up other visitors' queries.
This is likely to be unlawful.
5.2.2 A service provider does not have to
stock special products for disabled people to
avoid providing a worse standard of service
(although as a matter of good practice it might
consider doing so). However, where general
services are available to the other customers a
refusal to cater for a disabled person would be unlawful.
A sailing facility does not have an adapted dinghy available for hire to a
disabled person. This may not be against the law. However, a disabled sailor
asks to launch his own adapted boat. If the facility allows other members of the
public to launch their own boats it would be likely to be unlawful to refuse to
allow the disabled person this service.
5.3 Terms of service
5.3.1 A service provider should not provide a service to a disabled person on
terms which are worse than the terms offered to other people, without
justification. Worse terms include charging more for a service or imposing extra
conditions for using a service.
A guided walks programme requires disabled people to book in advance in order
that their needs can be met. Other members of the public can just turn up and
take part. This extra condition is likely to be unlawful.
A person with a learning disability is asked not to handle stuffed animals and
birds in a visitor centre. The staff believe, without good reason, that the
disabled person will damage them. If other people are allowed to handle the
exhibits this action is likely to be unlawful.
5.3.2 The Act does not prohibit positive action in favour of disabled people.
The provision of a better seat in a visitor centre audio-visual suite for a
sight impaired person would not be in breach of the DDA. Similarly, a visitor
attraction could allow a disabled person's companion free entry without
breaching the law. This would allow the disabled person to enjoy the facility
without having to pay two entrance fees.
6.1 From 1st October 1999 a service provider
has had to take reasonable steps to:
• change a practice, policy or procedure which makes it impossible or
unreasonably difficult for disabled people to make use of services;
• provide a reasonable alternative method of making services available to
disabled people where a physical feature makes it impossible or unreasonably
difficult for disabled people to make use of them;
• provide an auxiliary aid or service if it would enable (or make it easier for)
disabled people to make use of services.
6.2 From 1st October 1999, where a physical
feature makes it impossible or unreasonably
difficult for disabled people to make use of
services, a service provider has had to take
reasonable steps to:
• remove the feature; or
• alter it so 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.
6.3 These duties to make reasonable
adjustments are owed to disabled people at
large and are not simply relevant to each
individual disabled person who wants to
access a service provider's services. Some of the factors which might be
considered in determining what is reasonable adjustment include:
• whether taking any particular steps would be effective;
• the extent to which it is practicable;
• the financial and other costs;
• the extent of any disruption;
• the extent of the service provider's financial and other resources;
• the amount of any resources already spent on making adjustments;
• the availability of financial and other assistance.
A disabled person with arthritis complains that standing in a queue for an
audio-visual show in a visitor centre causes them pain. The centre's queuing
policy makes it unreasonably difficult for this person to use the service as no
other people would be expected to suffer similar discomfort to access it. The
provision of seating in the queuing area would probably be a reasonable
adjustment Allowing the disabled person to the head of the queue might or might
not be a reasonable adjustment depending upon the effect on other visitors.
6.4 A service provider must comply with the duty to make reasonable adjustments
in order to avoid committing an act of unlawful discrimination. A disabled
person is able to make a claim against a service provider if:
• the service provider fails to do what is required; and
• that failure makes it impossible or unreasonably difficult for that disabled
person to access any services provided by that service provider to the public;
and
• the service provider cannot show that such failure is justified.
7.1 A service provider must take such steps as it is reasonable for it to have
to take, in all the circumstances, to change a practice that makes it impossible
or unreasonably difficult for a disabled person to access the service it
provides. The Act does not define "unreasonably difficult" but service providers
should consider the time, effort, inconvenience and effort needed for a disabled
person to use the service and how other people would view the position if they
had to endure similar difficulties.
7.2 The terms referred to here cover:
• what a service provider actually does (its practice);
• what a service provider intends to do (its policy);
• how a service provider plans to go about it (its procedure).
7.3 The Act does not define what are "reasonable steps" for a service provider
to take in order to changes its practices. For factors that may be relevant see
para 6.3.
7.4 The purpose of making reasonable adjustments is to ensure that the practice
no longer has the effect of making it impossible or unreasonably difficult for
disabled people to access a service. It is not sufficient for a service provider
to make an adjustment which -does not achieve this.
On a countryside path there is a locked gate with an adjacent stile. It would be
a reasonable adjustment for the gate to be unlocked for people who cannot use
the stile. The erection of a sign indicating that disabled people may obtain a
key from the visitor centre (several hundred yards from the gate) is unlikely to
be a sufficient adjustment unless there is justification for the gate to remain
locked.
7.5 What might be a reasonable adjustment
for a service provider to have to take initiaily
might be insufficient later in the light of its
experience.
A country park amends its car-parking policy by marking designated car-parking
spaces close to the visitor centre for disabled people. This is likely to be a
reasonable step for the service provider to take at this point. However,
non-disabled visitors frequently use these spaces. In the light of this, simply
making designated spaces available is no longer a reasonable adjustment because
in practice it does not make the visitor centre accessible to disabled people.
The country park manager instructs the rangers to monitor the use of the car
park and discourage inappropriate use of the designated parking spaces. This is
likely to be a reasonable step for the country park to take in the circumstances
then known to it.
7.6 A practice may have the effect of
excluding or screening out disabled people
from enjoying access to services. Or the
practice may create a barrier or hurdle which
makes it unreasonably difficult for disabled people to access the services. In
such cases, unless the practice can be justified, a reasonable step for the
service provider to take might be to abandon it entirely or to amend or modify
it so that it no longer has that effect.
A residential field studies centre refurbishes a number of rooms in its main
block so that they are accessible to disabled people. However, the booking
policy is such that rooms are allocated on a first come first served basis with
rooms in the main block being allocated first. The effect is that sometimes only
non-accessible rooms are left for disabled people seeking accommodation. The
centre decides to changes its booking policy so that the accessible rooms are
either reserved for disabled people in advance or are allocated last of all.
This is likely to be a reasonable step for the centre to have to take.
8.1 A service provider must take reasonable
steps to provide auxiliary aids or services if
this would enable (or make it easier for)
disabled people to make use of any service
which it offers to the public. An auxiliary aid or
service might be the provision of a piece of
equipment or simply extra assistance to
disabled people from (perhaps specially
trained) staff. The Act give two examples of
auxiliary aids and services: the provision of
information on audio tape and the provision of
a sign language interpreter.
A nature reserve provides binoculars and telescopes for visitors to view birds.
Some of these are on adjustable mountings that can be used by disabled people
unable to hold heavy objects. A country park has several steep paths. Disabled
people may borrow powered scooters to get round the facilities. These are
examples of auxiliary aids.
Disabled visitors with a visual impairment or learning disability may need
assistance to locate various events and activities at a large agricultural show.
The organisers have volunteers available to help such people find their way
around the show ground. The organisers are providing an auxiliary service which
makes its show accessible.
8.2 The reasonableness of the service
provider's response to the requirements of
disabled people will inevitably vary with the
circumstances. The factors that may be relevant are described in paragraph 6.3.
9.1 Where a "physical feature" makes it
impossible or unreasonably difficult for
disabled people to make use of a 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 the effect; or
• provide a reasonable means of avoiding the feature; or
• provide a reasonable alternative method of making the service available to
disabled people.
9.2 The Disability Discrimination (Services
and Premises) Regulations 1999 make
provision for various things to be treated as
physical features, including:
• any feature arising from the design or construction of a building on the
premises occupied by the service provider;
• any feature on those premises or any approach to, exit from or access to such
building;
• any fixtures, fittings, furnishings, furniture, equipment or materials in or
on such premises;
• any fixtures, fittings, furnishings, furniture, equipment or materials brought
onto premises (other than those occupied by or on behalf of the service
provider) in the course of (and for the purpose of) providing services to the
public .".
• any physical element or quality of land comprised in the premises occupied by
the service provider
9.3 All these features are covered whether temporary or permanent. A building
means an erection or structure of any kind.
9.4 Removing the physical feature may be a reasonable step, and the most
effective one, for a service provider to take.
A countryside visitor centre includes, as an attraction, a lakeside walk.
However, a stile prevents access to the 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 take.
9.5 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 to take.
The entrance to a bird hide has four steps. To ensure disabled people are able
to use the hide the wildlife group responsible for it installs a ramp with a
handrail. This is, likely to be a reasonable step for the group to have to take.
9.6 Providing a reasonable means of avoiding
the physical feature may also be a reasonable
step for a service provider to take.
The route from a car park to a popular viewpoint climbs a steep track. The
service provider might not feel able to modify the gradient and surface of the
track because of cost and/or environmental impact (see justifications below).
However, it might be a reasonable step to allow disabled people to drive to and
park at the top of the gradient in order to reach the viewpoint.
A path to a popular beach crosses sand dune where the grass paths have eroded to
leave deep soft sand along a lot of the route. Many people with mobility
difficulties find this difficult. It is likely to be a reasonable step for a
service provider to install a board walk from the car park to the firmer sand of
the beach.
9.7 Providing a reasonable alternative
method of making services accessible may
also be a reasonable step for a service
provider to take.
A visitor centre provides audio-visual presentations in first floor facilities.
This makes it impossible or unreasonably difficult for some people to access
this service. The service provider might not be expected at present to make
alterations to its premises. Now that the Code refers to the duties relating to
physical features it might be reasonable to install a lift or move the
audio-visual presentations to an accessible ground floor room. A reasonable
alternative way of providing the service could be to install a video of the
presentations in an accessible ground floor position.
9.8 Building Regulations: A service provider
who operates from a building is unlikely to
have to make alterations to features
specifically covered by building regulations if those regulations were complied
with in the last ten years. The Code provides considerable detail on the subject
of compliance with building regulations in relation to duties under the Act and
should be consulted in reference to specific queries.
9.9 BS 8300:2001: The British Standards
Institute has recently published a standard for
'Disability Access'. This is another useful
source of information for specifications for
access for disabled people in buildings and to
formal environments. In that this publication
embraces what may be recognised as current
best practice, compliance with its
specifications should go a long way to
avoiding discrimination under the Act.
9.10 BS5709:2001: This British Standard
relates to the provision of features where
countryside paths cross field boundaries (i.e.
gaps, gates and stiles). As well as providing specifications and examples of
various
structures, the standard indicates how various
gates and stiles will restrict different users
including disabled people.
10.1 A service provider should not be looking for reasons or excuses to
discriminate against disabled people. In limited circumstances the . Act does
permit a service provider to justify the less favourable treatment of disabled
people or a failure to make reasonable adjustment. This cannot be used as a
reason for a general exclusion of disabled people from access to services.
10.2 The test of justification is both subjective (what did the service provider
believe?) and objective (was that belief reasonably held?). A service provider
does not have to be an expert on disability, but is expected to take account of
all the circumstances, including the information available to it, whether it was
possible to seek advice, and whether the service provider asked or took account
of the opinion of the disabled person concerned. The lawfulness of what a
service provider does or fails to do will be judged by what it knew (or could
have reasonably known), what it did and why it did it at the time of the alleged
discriminatory act.
10.3 If a disabled person can show that he or she has been treated less
favourably than others for a reason related to his or her
disability, it is for the service provider to show that the action taken was
justified.
10.4 Health & Safety: The Act does not
require a service provider to do anything which
would endanger the health or safety of any
person
A country park refuses to loan a disabled person a powered scooter because they
believe that person to be unable to operate the braking system effectively. The
refusal is based on genuine concerns for the safety of the disabled person and
others and is likely to be justified. However, this justification cannot be used
to bar all disabled people from using this service. Those who can demonstrate
the ability to operate the scooter safely may need to be considered differently.
The requirement to make reasonable adjustments will still apply and if the
braking system of the scooters can be modified or alternative access routes
opened up these may be reasonable steps for the service provider to have to
take.
10.5 Incapacity to contract: The Act does not require a service provider to
contract with a disabled person who is incapable of entering into a legally
enforceable agreement or of giving an informed consent. If a disabled person is
unable to understand a particular transaction, a service provider may refuse to
enter into a contract. This might justify discriminatory standards or manner or
terms of service, as well as a failure to make a reasonable adjustment.
10.6 Any such refusal must be reasonable. A person may be able to understand
less complicated transactions but have difficulty with more complex ones. Unless
there is clear evidence to the contrary, a service provider should assume a
disabled person is able to enter into a contract.
A country craft shop refuses to sell a person with learning disabilities an
item. 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 Hem. This is
unlikely to be justified.
10.7 The Disability Discrimination (Services
and Premises) Regulations 1996 prevent
service providers from justifying less
favourable treatment of a disabled person on
the grounds of incapacity to contract or
inability to give an informed consent where
another person is legally acting on behalf of
the disabled person.
10.8 Otherwise unable to provide the service
to the public: A service provider can justify
refusing to provide (or deliberately not
providing) a service to a disabled person if this
is necessary because the service provider
would otherwise be unable to provide the
service to other members of the public.
A guided walk leader refuses to allow a person with a mobility impairment on a
moorland walk because he has well-founded reasons to believe the extra help the
leader would have to give would prevent the rest of the party from completing
the walk. This is likely to be justified.
Refusing service in this manner is only justifiable if other people would be
effectively prevented from using the service at all. It is not enough that those
other people would be inconvenienced or delayed. Before a service provider seeks
to rely on this justification it should first consider whether there are any
reasonable adjustments that could be made to allow the disabled person to enjoy
the service.
In the example above in paragraph 10.8 the y leader might consider using an
easier alternative route for the walk or providing an auxiliary service in the
form of an additional helper.
10.9 To enable provision of the service: A
service provider can justify an inferior service if
this is necessary to be able to provide the
service to the disabled person or other
members of the public.
A fishing facility restricts a wheelchair user to those fishing stations
accessible from a
surfaced track. These are by the poorer fishing areas. The disabled person
would otherwise not be able to fish the loch/lake. The restriction is
necessary in order to provide the service to the disabled angler. This is
likely to be justified.
This only applies if the disabled person or
other people would effectively be prevented from using the service at all.
A service provider cannot justify such treatment simply because of other
people's preferences or prejudices.
A bird watcher with an impairment causing erratic and irregular hand movements is
restricted to a bird hide some distance from the main features of interest
because of other birdwatchers' groundless fears that the birds might be
disturbed. Despite the reassurances of the disabled person the hide manager has
bowed to the pressure from other customers. This is unlikely to be justified.
10.10 Greater expense: A service provider
can justify charging a disabled person more for
services where the service is individually
tailored to the requirements of the disabled
person and the charge reflects the additional
cost of meeting the disabled person's
specification.
A canoe builder charges more for a paddle with a special moulded grip for a
disabled person than for standard paddles. This is likely to be justified.
10.11 Additional-cost of providing services:
The Act does not allow a service provider to
pass on additional costs of complying with the
duty to make reasonable adjustments to
disabled people alone. Reasonable
adjustments form part of the general expenses
of providing the service and cannot be used to
justify different terms for disabled people.
A visitor centre modifies its audio-visual presentations so that subtitles can
be displayed be request. People requesting this service are charged an
additional fee even though the presentations are the same in every other way. This
is unlikely to be justified.
10.12 Protecting the nature of the business:
The Act does not require a service provider to take steps which would fundamentally alter the
nature of its service.
A guided walk leader refuses to change a walk onto an accessible route thus
preventing a disabled person from enjoying it. The leader's reason is that only
by following the planned route will a particular butterfly be seen. This is the
main purpose of the guided walk. This is likely to be justified.
A nature reserve warden refuses to give a talk at a disabled person's day centre
on the grounds that this would be the provision of a different kind of service
than that usually provided at the nature reserve visitor centre. This is
unlikely to be against the law. However, if the warden gives talks at other
places such as schools it is likely to be discriminatory to refuse to serve the
disabled person in this way.
Fieldfare Trust
7 Volunteer House
69 Crossgate
CUPAR
Fife
KY15 5YU
Tel: 01334 657708
Web site: www.fieldfare.org.uk
(Publishes: BT Countryside for
All Good Practice Guide)
Bob Grant
Recreation and Access Group
Scottish Natural Heritage
27-29 Ardconnel Terrace
INVERNESS
IV2 3AE
Tel. 01463 667919
E-mail: recreation&access@snh.gov.uk
Web site: www.snh.org.uk
Disability Rights Commission (Scotland)
Riverside House
502 Gorgie Road
EDINBURGH
EH11 3AF
Tel: 0131-444 4300
Web site: www.drc-gb.org
Scottish Disability Equality Forum
c/o Scottish Council of Voluntary
Organisations
18/19 Claremont Crescent
EDINBURGH
EH7 4QD
Tel: 0131-556 3882
Web site: www.sdef.org.uk
British Standards Institute
Chiswick High Road
LONDON W4 4AL
Tel: 020 8996 9001
Web site: www.bsi-global.com
Department for Works and Pensions
Correspondence Unit
Room 540
The Adelphi
1-11 John Adam Street
LONDON
WC2N 6HT
Tel: 020 7712 2171
Web site: www.disabiIity.gov.uk
Ian Newman
Fieldfare Trust
7 Volunteer House
69 Crossgate
CUPAR
Fife
KY15 5AS
Tel: 01334 657708
E-mail: ian.newman@fieldfare.org.uk
Web site: www.fieldfare.org.uk