ACCESSIBILITY ALTERATIONS – THE LAW HAS REAL TEETH

In its recent landmark judgment in Allen v. Royal Bank of Scotland, the Court of Appeal upheld an order made by Sheffield County Court under the Disability Discrimination Act 1995 (DDA) by which the Court ordered RBS to pay £6,500 to A for injury to feelings and to install a wheelchair lift at a cost of £200,000.

Under the DDA, it is unlawful for a service provider to discriminate against a disabled person. A failure to make reasonable adjustments is one form of discrimination if that failure makes it impossible or unreasonably difficult for a disabled person to make use of a service. In particular, if such impossibility or difficulty is due to a physical feature arising from the design or construction of premises, the service provider must take all reasonable steps so as to:
• Remove or alter that feature;
• Provide a reasonable means of avoiding that feature; or
• Provide a reasonable alternative method of making the service in question available to disabled persons.

In the RBS case, A suffered from Duchenne Muscular D¬ystrophy and used an electric wheelchair. He opened a bank account with RBS at its main branch in Sheffield. This was a 19th century listed building. There were flights of stone steps leading to two customer entrances. There were two ATMs but, because of their height above the ground, these were inaccessible to wheelchair users. In other words, the services provided by RBS at the branch were inaccessible to anyone using a wheelchair.

Two possible schemes were put forward to render the premises accessible. Each involved the installation of a wheelchair lift. In the first, the lift would be installed in the lobby near the customer entrances. This was rejected by RBS because they claimed that it would result in severe disruption. In the second scheme, the lift would be installed in what was part of the main banking hall. However, RBS rejected this out of hand because it entailed the loss of one of eight interview rooms.

RBS ran a number of defences. One argument was that it had offered a reasonable alternative to A – namely, a combination of internet and telephone banking and the use of branches elsewhere in Sheffield. However, the Court of Appeal ruled that that would not do. It said that in applying the DDA it was not enough simply to consider the bare minimum that could acceptably be offered to disabled people. Rather, a service provider must provide access to a service as close as possible to the standard normally offered to other members of the public. The alternative offered by RBS was not a reasonable substitute for the services on offer at the main branch. The Court of Appeal considered that RBS had failed to provide detailed evidence as to the feasibility, or otherwise, of the second scheme. In such circumstances in failing to adopt that scheme, RBS had breached its duty to make reasonable adjustments.

This case is clearly of some significance. However, the DDA is complex and peppered with requirements as to “reasonableness”. Would Mr Allen have been successful in his claim had the defendant been Joe’s Café, a one-man outfit? Probably not. One of the factors taken into account by the County Court Judge was the resources available to RBS (which, notwithstanding the banking crisis, are considerable!). That said, it is clear a service provider faced with a reasonable adjustments issue must carefully consider all the available options and be prepared, if necessary, to back up any decision taken with hard evidence.

If you would like to know more about the implications of this case, please contact Caroline Wilton or Nick Crook.

Filed: 03/12/2009 12:09:39