Annex L - Guide to non-discrimination in service provision under the DDA

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1. The legal provisions are set out in the Code. This guide aims to give you a feel for the issues involved in avoiding discrimination. Examples are given which should help to clarify the types of situation in which discrimination may arise. The fundamental principle that should be born in mind is that avoiding disability discrimination requires you to give thought to the situation of the individual with whom you are dealing. Disability differs in this way from the more categoric types of discrimination (race, sex, religion, sexuality) which are based on groups of people.

1.1. Certain general points can be taken from the DRC codes:

- Remember to be flexible, as there may be several ways to avoid discrimination in any one situation. The examples given in what follows indicate what should or should not be done in those and other broadly similar types of situations. They cannot cover every possibility, so it is important to consider carefully how the guidance applies in any specific circumstances. Many ways of avoiding discrimination will cost little or nothing.

- Try to avoid making assumptions. Where possible talk to the disabled person about what the real effects of the disability might be or what might help. There is less chance of a dispute where the person is involved from the start. However try to avoid conducting such discussions in a way which would itself give the disabled person any reason to believe that he was being discriminated against.

- Do you need expert advice? You may avoid discrimination using personal, or in-house, knowledge and expertise, particularly if the views of the disabled person are sought. However it could help to seek independent advice on the extent of a disabled person's capabilities. This might be particularly appropriate where a person is newly disabled or the effects of someone's disability become more marked. It may also help to get advice on what might be done to change premises or working arrangements, especially if discussions with the disabled person do not lead to a satisfactory solution.

- Plan ahead: When planning for change (for example choosing a new set of premises) it could be cost-effective to consider the needs of a range of possible future disabled clients. There may be helpful improvements that could be built into plans at little or no cost. Have systems that will enable persons with disabilities to inform you about the adjustments they may need.

- Promote equal opportunities A culture of equal opportunities is more likely to result in sensitivity to the needs of disabled people both within chambers and visiting chambers.

2. Less favourable treatment: It does not matter whether the barrister knows or does not know that the client is disabled. If the barrister treats the disabled person less favourably for a reason relating to the person’s disability, then unless the barrister can justify the less favourable treatment, such treatment will be unlawful.

For example a barrister is considering whether to enter into a conditional fee agreement in a personal injury case, knowing that the claimant has a history of mental illness. On the same facts (apart from the history of mental illness) the barrister would enter into a conditional fee agreement, but, based on his preconceptions about the nature of mental illness, decides that the claimant is likely to be an unreliable witness and refuses to enter into a conditional fee agreement. The barrister is treating the disabled person less favourably than he would treat a person without a disability and as such will have unlawfully discriminated against him unless he can justify the less favourable treatment.

3. It is unlawful to refuse to serve a disabled person or deliberately not serve for a reason relating to the disabled person’s disability. Even if you consider that there are other chambers/barristers who may be able to provide a better service for the disabled person the refusal for this reason is likely to be unlawful.

4. Similarly because it is unlawful to provide service of a lower standard or in a worse manner to a person for a reason relating to that person’s disability, care must be taken in ensuring those standards.

A member of chambers who failed to take instructions from a client with a slight learning disability (but who was able to enter into contracts and conduct his own affairs) preferring to take instructions from the client’s relative, would probably be acting unlawfully unless he could justify his approach. Similarly if a clerk insisted that a person with a severe facial disfigurement should sit in a separate room to the normal waiting-room because of the reactions of other clients attending conferences that is likely to be unlawful.

5. You cannot provide the service on worse terms, for example by charging more, for a reason relating to the person’s disability.

So, a barrister who increased his fees (within his usual band of fees) on the basis of that he did not wish to act for the lay client for a reason relating to the lay client’s disability would be acting unlawfully unless he could show justification for acting in this way. Similarly it would be unlawful to charge a disabled client more because of the additional costs of making a reasonable adjustment (e.g the costs of hiring an accessible meeting room to take instruction)

6. But you don’t have to put up with more from a disabled person than from a non-disabled person by way of unreasonable behaviour which is not related to the disability

For example the barrister is not obliged to remain in a conference where the lay client is becoming unreasonably abusive. The fact that the lay client is in a wheelchair does not make any difference.
7. Reasonable adjustment: By far the most difficult concept to understand in the Disability Discrimination Act 1995 is that of reasonable adjustment. As a service provider you are required to make reasonable adjustments in several areas unless you can show that the failure to make the adjustment is justified.

8. Plan ahead : The duty to make reasonable adjustments is owed to disabled persons at large and not just individual disabled persons. You should not wait until a disabled person wants to use your services before investigating whether there are reasonable adjustments that could be made to make your services more accessible. We recommend that you look at adjustments that you can make on an ongoing basis (whether or not you are providing services to disabled persons). The idea is to anticipate the general requirements of disabled persons to whom you may provide services. To do this effectively you should consult with existing disabled clients, potential disabled clients, and in any event with organisations of disabled persons to obtain their views.

A chambers could ensure that it has a movable ramp available to ensure accessibility for wheelchair users as and when needed.

A chambers using barristers’ rooms for conferences could ensure that their lay out maximized accessibility (for example by ensuring that the floor remains uncluttered).

8.1. There is a duty to make adjustments to physical features of premises from 1 October 2004, so as to ensure accessibility. A court, on a complaint, will take account of the extent to which any preparations were made prior to that date to ensure compliance with this duty. It makes sense therefore to plan ahead.

9. Unreasonable difficulty. The key to whether your practices or policies render use of your services unreasonably difficult is consideration of the time, inconvenience, effort, discomfort, or loss of dignity entailed in using the services. Would a non-disabled person experiencing similar difficulties consider that it rendered use of the service unreasonably difficult? Thus if your client cannot hear you properly you may have to write down what you are saying otherwise the client cannot receive your advice or is likely to receive only parts of it. Most people would regard it as unreasonably difficult to have to listen to a person in circumstances that render it impossible or very difficult to listen to what is being said.

For example unless the barrister is prepared to record an advice onto audiotape, a visually impaired client may have to find another person to read the advice in order to be able to digest it. This obstacle would be considered unreasonable by other people if they had to endure it.
10. As you can see it not necessary for there to be some very significant barrier to be placed in the way of using the service for the duty to make an adjustment to arise.

For example a set of chambers, which has not made prior provision in the attendance of a client who uses a wheelchair at a conference, decides to lift the client and wheelchair up a series of stairs to the conference rooms. Although the experience may be momentary for the disabled person, the loss of dignity at being physically carried up the stairs would be considered by most people to be unreasonable.
11. If you anticipate working on a particular case with a disabled person, consider consulting organisations of disabled persons to see whether, in general, a certain type of adjustment would be helpful. You should indicate in your publicity that reasonable adjustments will be made on request by disabled persons if this will assist disabled persons to use your services.

In any event, your website should be accessible to persons with visual disabilities. Consider adjustments relating to contrast, size of print and clarity of print.

12. There should always be the opportunity for the client to disclose the nature of a disability and the effects of that disability. Something in your literature should give that opportunity and if your chambers sends out a map or other literature to those attending, that can be used to remind the client to make their requirements known. What is important is to be prepared to ask in advance what reasonable adjustments can be made to ensure your services can be used without unreasonable difficulty for the disabled person.

For example, it would be unlawful for a clerk to refuse a case because a client had a history of mental health problems and he assumed that the client would pose a safety risk. If he had taken the trouble to ask about the nature of the disability and whether any adjustments were required he would have discovered that this was not an issue.

13. If you decide to make adjustments to increase accessibility these should be publicized.

For example a Chambers decides to make it services available using accessible formats such as large print and audiotape. It chooses to mailshot instructing solicitors to inform them of these adjustments and to advertise this fact on its (accessible) web site and in the Bar Directory.
14. No requirement fundamentally to alter the nature of the service provided:

If a barrister never takes on conditional fee work and refuses to accept a conditional fee agreement on that basis for a disabled person, the barrister is not obliged to make an adjustment to service provision as making this adjustment would fundamentally alter the nature of the service the barrister holds themselves out as providing.

15. Passing on costs to the disabled client: You may not pass on any additional costs of making reasonable adjustments to the disabled client alone.

Thus the barrister who hires accessible rooms in which to conduct conferences with a client who otherwise would not be able to access the services of the barrister may not include an element for the hire of the rooms in the fee charged for professional services (or as a separate billing item) to the disabled person.
16. However you are entitled to charge more for the provision of your services if it takes longer to provide the same services to the disabled client than it would to a person who does not have that disability.

The barrister who charges by the hour takes twice as long to advise a depressed client in conference. This is because the depressed client needs frequent breaks and cannot concentrate for more than a short period. The barrister is entitled to charge for the additional time, which is not the cost to the barrister of providing a reasonable adjustment. The extra charge reflects the additional time needed to provide the service and is likely to be justified.

17. Policies and practices: The policies of a chambers (what it intends to do) may have to be adjusted.

A set of chambers may have a policy that no dogs are to be admitted on the premises. Naturally that policy will need to be adjusted in the case of persons accompanied by an assistance or guide dog.

18. Auxiliary aids or services: You may need to consider providing extra assistance for disabled persons.

A set of chambers regularly sends to lay clients who are attending conferences a map of how to get to chambers. In the case of a client with learning disabilities an auxiliary aid might be to provide a simplified map. An auxiliary service might be to offer to meet with the client at a place other than chambers in order to conduct the conference.

Recommended Actions

The underpinning approach is to avoid making ill informed decisions, whether it is about the nature of a disability and the impact that it has on a client, or the type of adjustments that may be required to provide an inclusive service.

A common concern is that the "reasonable adjustments" which chambers may be obliged to make to provide services to disabled will be onerous and expensive. However, many of the adjustments that disabled people will require may be achieved at little of no cost, and many adjustments will be unintrusive and simple to perform. Furthermore, they will generally be beneficial to other clients.

For example a client with a learning disability may require a barrister to explain the case in simple straightforward terms, taking the time to check his/her understanding. There is no capital outlay required, although the barrister may have to invest more time and think about how effectively he or she is communicating. Many clients would appreciate this approach
Decisions relating to the location of Chambers, and the facilities to be available at a set of chambers should include consideration of how the set of chambers can be made accessible to disabled people. It makes commercial sense to anticipate the needs of disabled clients when determining the location of the chambers or negotiating the lease, so as to ensure that common part of the premises are accessible.

In addition to the duty of barristers to become familiar with their obligations under the DDA, a nominated member of chambers or a member of chambers staff should have responsibility for being familiar with the guidance given in the code.

A set of chambers will be legally responsible for the actions of its employees. It is therefore sensible to ensure that all employees are aware of their obligations not to discriminate against disabled persons. Employees also ought to be aware that some of their practices may need to be modified in order to be able to provide services to disabled people without unreasonable difficulty. This will sometimes be difficult but all employees of chambers should at least be aware of disability etiquette if they have contact with the public.

General recommendations

Decisions and judgements concerning disabled people should not consciously or unconsciously be based on assumptions and stereotypes. People should be dealt with as individuals and their opinions and wishes taken into account. The Bar Council recommends that all members of the Bar take steps: --

· to inform themselves as to the range and types of impairment which may affect people with disabilities;

· become familiar with the terms and language which are likely to be acceptable or unacceptable to disabled people so as to avoid unintentional offence;

· inform themselves as to their obligations towards disabled people under the legislation and the code of conduct;

· inform themselves as to the sources of funding, information and advice available to them on disability issues (for example, the Bar Council, the Disability Rights Commission, external consultants, disability charities and other voluntary and statutory bodies .

Specific recommendations

In order to prepare for the needs of disabled people it is recommended that barristers and chambers should undertake the following steps: --

· develop a disability equality policy, ensuring that it is communicated to all staff, all members of chambers and pupils etc;

· audit the services provided currently, examining policies practices and procedures;

· audit the premises to identify any barriers to access caused by any physical features;

· consult with disabled clients (or disabled potential clients) to gain an understanding of their needs;

· provide information to instructing solicitors, clients or potential clients explaining any adjustments that have been made in order to enable them to use the services;

· avoid making assumptions about disabled people or the kinds of adjustment that could be made to enable them to use chambers or barristers services;

· to adopt a flexible approach, and try to think around any potential barriers that the disabled potential client may have in using the services of chambers or barristers -- with consultation and imagination there is usually an alternative method of providing the service;

· periodically review all service provision (particularly in the light of any developments in new technology);

· provide training in disability issues to all members of chambers and staff and pupils and monitor the way it is put into practice.

Disability Etiquette

There are some basic principles of politeness which are worth recalling as some of the language used about and to disabled people is derogatory and very deeply entrenched.

The language you use reflects and reinforces your own prejudices and therefore it is recommended that barristers should aim to use language which is a more positive description of disabled people (or at least does not carry pejorative connotations): --

It is better to use	Than to use
"people with disabilities" or "disabled person"	“the disabled” or "Disabled" as a collective noun
"person with a disability" or “disabled person”	“handicapped”
"a person who has” or "a person with"	"suffering from/crippled by/a victim of/afflicted by"
"learning disabilities” or “learning difficulties"	“mental handicap”, “subnormal’
"blind people" or "people who are deaf"	"the blind", "the deaf"
"deaf without speech"	"deaf and dumb"
"wheelchair user"	"confined to a wheelchair", "wheelchair bound"
"person with epilepsy” or "person with a diagnosis of schizophrenia"	Medical diagnoses as a shorthand for people with these conditions e.g. "epileptic”, “schizophrenic"
"mental health problems"	"mad”, “crazy", “bonkers"

Of course all these are simply examples, what is important is not to reduce the person before you to the condition. Disabled people have a right not to be defined in terms of their disability but to be viewed as individuals. To do anything less may be to undermine that individual’s dignity.

What follows should not be viewed as some form of political correctness, but the simple process of being polite and engaging with disabled people as clients. They are also recommendations made by the Disability Rights Commission about communication. The simplest point to make is that you should put yourself in the disabled person’s place. Most of what follows is just good manners.

· talk directly to the disabled person if they are with another person and not to the person with them. This also applies to a person who is accompanied by an interpreter (for example a sign language interpreter).

· if you are talking to a deaf person, find out whether they lip read (in writing if necessary). It is good practice, if they do, to make sure that your face is in the light, and to look directly at the person, speaking clearly and naturally. Also, remember to keep your hands away from your face.

· when you first meet a blind person, introduce yourself. Remember when you are going to move away to tell them that you are doing so. Do not leave the blind person talking to an empty space.

· if a person has a speech impediment, when talking to them, concentrate on what is being said. Be patient and do not trying to guess what they are saying or want to say. If you do not understand, do not pretend that you do.

· if someone has difficulty understanding you -- perhaps because they have a learning disability -- be patient and be prepared to explain something more than once. Concentrate on using simple language.

· in relation to wheelchair users, try to ensure that your eyes are at the same level as theirs (for example by sitting down). The wheelchair is part of the person’s personal space; so do not lean on it or move it unless they have asked you to.

· avoid asking personal questions about a person's disability.

· if someone looks "different", concentrate on what they are saying and not on the way they look. Avoid staring.

· treat the person like an adult if they are an adult.

· if someone looks as if they need assistance offer it, but wait for them to accept before you actually help.

· in relation to a blind person, when guiding them, do not push or pull them. Ask if they would like to take hold of your arm. If there are steps, tell them whether the steps go up or down.

· if a person has an assistance dog, remember that they are working animals and not pets. They should not be fed, patted or distracted when they are working.