Who is a disabled person?
According to the Equality Act 2010; a disabled person is defined as someone who has a mental or physical impairment that has a substantial effect on the ability to carry out normal day-to-day activities.
Impairments are listed as:
- Mobility
- Doing something with your hands
- Physical coordination
- Continence (controlling your bladder and bowels)
- Ability to lift, carry or move everyday objects
- Speech, hearing or eyesight
- Memory or ability to concentrate, learn or understand or
- Perception of the risk of physical danger.
- Substantial means that it is more than minor or trivial.
Impairment covers, for example, long-term conditions like asthma or diabetes and conditions that come and go. Mental impairments include mental health conditions (e.g. bipolar disorder, depression), learning difficulties (e.g. dyslexia) and learning disabilities (autism or Down’s syndrome).
How we help businesses meet the Equality Act 2010
We at About Access take the view that it is physical features and policies that make people disabled. For example, a building with a flight of steps at the entrance will not be accessible to a person who uses a wheelchair. But by providing a ramp of suitable design, a wheelchair would then be able to enter the building. It is the steps that are disabling not the fact that the person uses a wheelchair.
There are three options to consider when making adjustments.
Change the way things are done, formal or informal policies, and rules.
Physical features:
– Remove,
– alter,
– avoid a physical feature
Provide auxiliary aids or services.
Requirement 1: change the way things are done. An organisation has rules about the way it carries out its business, which could have been written or adopted on the basis of ‘that’s the way we’ve always done it’. These rules may be a barrier to a disabled person.
These rules may have to change or be dropped so that they no longer make it unreasonably difficult for a disabled person to use the service or amenity.
Requirement 2: consider physical features that are disabling. Where features are disabling then making adjustments should be considered in the following order:
Remove the feature
Alter it so that it no longer has the disabling effect
Avoid the feature
Provide a reasonable alternative method of making the service available to disabled people.
Requirement 3: provide auxiliary aids and services if this would let disabled people use the organisation’s services.
The type of auxiliary aid or service will depend on what the organisation does or offers. Where equipment is offered, it must be in working order, maintained and staff must be trained in its use. Also, the need for back-up service should be considered. The type of auxiliary aid would typically be a hearing enhancement system – induction loop.
Making adjustments
In most environments, reasonable adjustments have to be made to remove physical or any other types of barrier – created by policies or attitudes for example – that could make it difficult or impossible for disabled person to use or access the building.
The aim of making the adjustment is to ensure that a disabled person (e.g. someone who may be deaf or visually impaired or have difficulty in walking) can use the building or service to a standard as close as reasonably possible to the standard usually offered to a non-disabled person.
What is seen as reasonable will depend on the type of service being offered.
Things to consider are:
Would the suggested steps be effective in improving accessibility?
Is it practical to take the recommended steps?
How much disruption will be caused while making the adjustments?
What are the main types of Discrimination according to the Equality Act 2010?
Direct discrimination
This occurs when someone receives worse treatment than someone who does not have a disability. For example, a person is asked to leave a restaurant because they have Tourette’s Syndrome.
Discrimination Arising from Disability
This occurs when someone is discriminated against because of something connected with their disability and the unfair treatment cannot be justified. This differs from direct discrimination, where the discrimination results because of the disability. In ‘arising from disability’ the discrimination is because of something associated with the disability.
Discrimination will not be unlawful if it was not known or it could not have reasonably been expected to know that the person was disabled.
This means that reasonable steps should be taken to find out if someone is disabled or not, but care needs to be taken not to infringe on the disabled person’s dignity or privacy.
Indirect Discrimination
This occurs because of rules, policy or practice that applies to all but puts people with particular impairments at a disadvantage when compared to a non-disabled person and cannot be shown to be justified and meet a legitimate aim in a balanced, reasonable and fair way.
Reasonable Adjustments
In most environments, reasonable adjustments have to be made to remove physical or any other types of barrier – created by policies or attitudes for example – that could make it difficult or impossible for disabled customers to use or access the services or information being provided.
The aim of making the adjustment is to ensure that a disabled person (e.g. someone who may be deaf or visually impaired or have difficulty in walking) can use an organisation’s service to a standard as close as reasonably possible to the standard usually offered to a non-disabled person.
The duty to make changes is anticipatory. The organisation must think in advance about how people who have impairments may be affected in accessing their services and what could be done to remove any barriers.
If an organisation finds there are barriers to access for disabled people, then it has a duty to consider making changes to remove or adjust any barriers to access. It will be up to the organisation to consider if the adjustments are reasonable to make.
If barriers to access are identified and the organisation concerned believes they are not reasonable to remove, alter, avoid or provide the service by an alternative means, then the organisation should make a dated record of the reasoning along with any evidence to support this belief. The evidence could be:
A letter from the local conservation officer stating that proposed changes to a listed building are not allowed
A quote from a lift supplier giving details of installation costs.
This information should also include a review date.
An organisation has to do what is reasonable, which will depend on a wide range of factors. These include but are not limited to:
- Cost
- Disruption caused in making the adjustment
- Resources, other than cost, available
- The types of service being offered
- Time needed to make adjustment.
Under the Equality Act 2010, adjustments do not have to be made to make the building or service more accessible if it will lead to a breach of any other legal duties. However, this is likely to be in exceptional circumstances and only where the other legal duties are very specific, and the service provider has no other choice.
The duty to make reasonable adjustment falls into three main areas.
Service providers can:
- Change the way things are done — the provision, criterion or practice
- Provide auxiliary aids and services
- Overcome a physical feature by
- removing the feature, or
- altering it, or
- avoiding it, or
- providing services by alternative methods.
What is seen as reasonable will depend on the type of service being offered, along with the size of the provider, taking into account the nature of the service and resources available to it.
Things to consider are:
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Would the suggested steps be effective in improving accessibility?
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Is it practical for the service provider to take the recommended steps?
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What is the financial cost of the recommendations?
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How much disruption will be caused while making the adjustments?
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What financial resources are available?
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How much has already been spent making improvements to access?
- What other resources (financial or otherwise) are available?
Evidence should be gathered for not making adjustments. For example, this could show the financial implications, disruption caused and the number of visitors affected. This evidence should be recorded and reviewed. It could then be part of a defence against a claim of discrimination.
Harassment
This is unwanted behaviour related to disability that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This is unlawful treatment.
Victimisation
It is unlawful for a person to be treated badly if they:
Make a complaint about discrimination or harassment relating to the Act, or
Help another person make a complaint, or
Are believed to have helped or complained.
This applies whether or not the person being treated badly is disabled.
Positive Action
Positive action toward disabled people is allowed; this can be used to target a particular group, in this case disabled people. Guidance states that under-representation of a group of people should not be assumed and that research is needed to confirm that they are.
Public Sector Equality Duty (PSED)
The countries that makeup Great Britain all have a PSED
The public sector Equality Duty is Section 149 of the Equality Act 2010.1 It applies to public bodies listed in Schedule 19 of the Act.
Schedule 19 includes sections such as armed forces, broadcasting and local government, Examples of public bodies listed under health, social care and social security include: an NHS trust; a primary care trust; a special health authority; the Care Quality Commission, schools.
The Equality Duty ensures that all public bodies play their part in making society fairer by tackling discrimination and providing equality of opportunity for all.
General Duties of PSED
Under the Equality Duty a public body when exercising its functions must have due regard to the need to:
- eliminate unlawful discrimination, harassment, victimisation and any other conduct that is prohibited under the Act;
- advance equality of opportunity between people who share a relevant protected characteristic and persons who do not share it; and
- foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
It must consider its duties under the Act across its duties, as a service provider and an employer. For example, a hospital trust cannot ignore its duties to staff while meeting those to patients.
It must not directly or indirectly discriminate, harass or victimise anyone in relation to one or more protected characteristics.
Specific Duties
Each country has slightly different requirements when it comes to the Specific Duties.
Listed Buildings
The Equality Act does not override existing legislations such as Planning Permission or Listed Building Approval. However, this does not mean that listed buildings cannot be altered: many have already been altered numerous times through their history. We suggest you work with conservation officers and English Heritage to make any alterations that you feel would be a benefit.
Saying ‘the building has listed status, so we can’t do anything’ is not enough. Evidence that a particular change is not allowed should be obtained from the local conservation officer or English Heritage. Alternatives should then be sought to overcome the particular access issue.
Building Regulations
Building Regulations Approved Document M – Buildings other than dwellings 2000:2015 Edition (AD M) provides guidance on access and facilities for disabled people in non-domestic buildings and dwellings.
AD M also gives reference to Part K of the Building Regulations (Protection from falling, collision and impact) (Part K). Where there appears to be conflict between the guidance in AD M and Part K, AD M takes precedence.
Under the Equality Act it is seen as not reasonable for service providers, a public authority carrying out its functions or an association, to remove or alter a physical feature that has been provided in accordance with the design standards/objectives of AD M. This lasts for 10 years from when construction was completed, or the feature installed.
However, this does not mean there is a total exemption from the Equality Act. Features that are outside the scope of AD M may still require reasonable adjustment and reasonable adjustment in other ways, such as policies should be considered when features do fall within the scope of AD M and are disabling.
Equality Act 2010, Building Regulations, BS 8300 & Accessibility Compliance
The Equality Act is not about buildings or physical features. It is about not putting disabled people at a substantial disadvantage, and if physical features have a disabling effect, then reasonable adjustments need to be made to remove that effect.
The Equality Act covers buildings (irrespective of age) and sites. For example, this includes parks, whether used free or in return for payment or as a place of employment. Importantly, they are part of the public realm, which is usually the responsibility of a local authority.
However, the Equality Act does not give guidance about design or where to get design guidance when looking to make environments accessible. It cannot therefore indicate whether a building or site complies with the legislation.
Building Regulations apply to new builds and extensions. Building Regulations are lawful and compulsory, whereas deviation from the AD M is allowed, subject to approval, as this is only guidance. A physical feature designed to meet building regulations or the AD M is not necessarily Equality Act compliant.
BS8300-1 & 2: 2018 Design of an accessible and inclusive built environment. External & Buildings. Code of Practices, is guidance only. It is frequently used as a benchmark to assess accessibility of the built environment and is seen as complementing AD M. It exceeds the scope of design features when compared to AD M. Following this guidance will not mean a building is Equality Act compliant.
You can learn more about the Equality Act 2010, access audits and more with our tailored courses.
