DDA Hits Service Providers

On 16th January Sheffield County Court handed down its decision in one of the most significant “service provision” cases so far issued under the Disability Discrimination Act (DDA). The unprecedented decision included the highest award yet for such a claim in addition to imposing an injunction on the service provider. The case involved David Allen, a 17 year old wheelchair user, who brought a disability discrimination claim against the Royal Bank of Scotland on the basis that his local RBS branch had failed in its duty to make reasonable adjustments for wheelchair access.

Mr Allen had been a loyal RBS customer since the age of 9 when the bank visited his school. Mr Allen’s need to visit the branch in person however did not occur until some years later when he began to receive his Disability Living Allowance directly into his account. Reluctant to use an ATM due to the security risk in addition to both machines at his local branch being inaccessible for wheelchair users Mr Allen required to go into the branch for his banking needs.

What does the DDA say?
Where a physical feature (for example the access to the service provider's premises) makes it impossible or unreasonably difficult for a disabled person to access the services provided by a service provider, the DDA creates a duty on the service provider to take such steps as are reasonable in all the circumstances to remove the feature, alter it or to provide the service to the disabled person by alternative means. It was this provision that Mr Allen said the bank had breached.

What was the case about?
Having heard all the evidence the Court found that, when Mr Allen wanted to visit his branch, a series of events ensued that amounted to discrimination as well as causing considerable embarrassment to Mr Allen. 

Firstly, the bank had a sign at the branch indicating that there was wheelchair access which was incorrect resulting in Mr Allen having to wait outside whilst his mother dealt with his banking. Upon complaining to RBS Mr Allen was told he could use the staff entrance but upon arrival he was informed this would not be possible. Thereafter, again due to lack of access, Mr Allen was required to engage in a private conversation on the street. In an attempt to resolve the matter RBS referred Mr Allen to a local NatWest branch where he could do his RBS banking but after queuing Mr Allen was told by a NatWest staff member that this was not possible. RBS suggested the use of other RBS branches but the Judge felt that this would have involved potential additional expense, time and inconvenience or reliance upon others which was unacceptable and contrary to Mr Allen’s right to independence.

The bank had gone as far as getting planning permission for alterations to be carried out but decided against proceeding not because of the cost it transpired but because of the disruption to other customers and the loss of one of its private meeting rooms. In Court, the bank failed to provide evidence that they had reached a reasoned conclusion as to why they could not proceed with the plans.

The Outcome
The Court held that RBS had not approached this case and the difficulties which Mr Allen faced in the way they might have. Indeed the Judge stated that the Bank “has not approached this case... with the zeal that one could have expected." The Judge was satisfied that this was not a case where compensation for injury to feelings could be limited to the least that should be awarded. Given the long period of discrimination plus the embarrassment and indignity suffered, the Judge felt an award of £6,500 was appropriate. In addition – and of more significance to other service providers - the court granted injunctive relief to preclude further discrimination by ordering the bank to install a platform lift by September 2009.

The Implications
The size of the award demonstrates the court's view on the seriousness of the breach - but it is the use of an injunction to force an adjustment that has caused the biggest stir in the service sector. In Scotland the courts would proceed by way of an order for specific implement and although this has never been used in these circumstances in Scotland, there is no reason to suppose the Scottish courts would shy away from doing so.

Although the court took notice of the fact that RBS had made good efforts to address access at a high percentage of its branches, the court focused on the bank's failure to make progress with this particular branch. Equally, the fact that the bank provided telephone and internet banking was not sufficient in the court's view. The court put some emphasis on the bank's audit trail which it described as "extremely unclear" and found that the fact that the bank had failed to fully cost any of the options or to commission a structural engineers report meant it had failed to demonstrate how the decision not to proceed with a platform lift had been reached.

The decision suggests that service providers will need to be able to show that they have considered the accessibility of their building and have put in place a plan for achieving this. And if they are not going to progress, in particular, with say,  structural changes they should be able to say why and what alternative method of access they are providing. RBS have said however that they do not agree with the decision and will pursue its right of appeal, so time will tell whether the decision will stand or not. As it stands however the case provides an interesting indication of how the courts may now view any such cases brought before them. If that is right, service providers would be well advised to re-visit any issues of accessibility and to keep them under regular review.

Further information
For further information on the issues raised in this e-zine, please contact Jill Bell.

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