Action Area G - Service Provision

G. SERVICE PROVISION

Service provision to disabled clients

Introduction

1.93 This section will focus on the practical issues connected with service delivery, as it relates to disability, within the context of the legislative framework. It is designed to assist Chambers and individual barristers to comply with the disability legislation and generally to improve the services offered to disabled people by the Bar.

1.94 Disability is not always visible and many disabled people choose not to disclose their disability. Disability encompasses, for example, certain musculo-skeletal problems, circulatory conditions and mental illness.

1.95 Barristers are likely to come into professional contact with many disabled people including lay and professional clients, colleagues, pupils, members of the judiciary, witnesses and staff within the judicial system.

Obligations Under the Disability Discrimination Act 1995 (“DDA”)

Who are the Clients to Whom Duties are Owed?

1.96 Obligations are owed to "disabled" persons. The term "disabled" receives a statutory definition in section 1 of the DDA. The disabled person may be the lay client or any person from the instructing solicitors. The duties under this code will also apply to other persons to whom the barrister or set of Chambers provide services or come into contact (such as witnesses in a case).

Who Owes the Duties?

1.97 A set of Chambers will be a "service provider" for the purposes of the provisions of the DDA dealing with discrimination in the provision of services. A set of chambers will therefore owe duties under section 19 of the DDA both to the lay client and to the professional client. An individual barrister will also be a service provider and will therefore owe duties as such under the DDA.

What are the Duties?

1.98 The DDA makes it is unlawful for a barrister or set of Chambers to discriminate against a disabled person:

· by refusing to provide (or deliberately not providing) any service which it provides (or is prepared to provide) to members of the public; or

· in the standard of service which it provides to the disabled person or the manner in which it provides that service; or

· in the terms on which it provides a service to the disabled person (S19.DDA).

1.99 Pro bono cases remain part of service provision and are subject to exactly the same duties as paid cases. Providing conference facilities at Chambers is also deemed to be the provision of a service.

1.100 It is also unlawful for service providers such as a set of Chambers or an individual barrister to discriminate in failing to comply with a duty to make reasonable adjustments (section 21 DDA).

1.101 The following are the duties owed by a service provider to a disabled person:

· not to discriminate against the disabled person by treating the disabled person less favourably for a reason related to the disabled person's disability (section 20 (1));

· not to discriminate against the disabled person by failing to comply with a duty to make a reasonable adjustment causing the disabled person to find it either impossible or unreasonably difficult to use the service provider's services for example by failing to remove, alter or avoid physical features which make it impossible or unreasonably difficult for the disabled person to use the service;

· not to victimise any person (whether disabled or not) by treating them less favourably because they brought proceedings, gave evidence or information or made allegations relating to the DDA.

1.102 It is possible to justify discrimination against a disabled person but only in certain limited circumstances, defined in the DDA.

Less Favourable Treatment

1.103 A service provider discriminates against a disabled person if, for a reason which relates to the disabled person's disability, it treats the disabled person less favourably than it treats (or would treat) others to whom the reason does not (or would not) apply and it cannot show that the treatment in question is justified (section 20 (1) DDA).
It is not necessary that the barrister knows that the person is a disabled person for less favourable treatment to occur.

1.104 It is unlawful to refuse to serve a disabled person or deliberately not serve the disabled person for a reason relating to the disabled person’s disability (section 19(1) (a) DDA).

1.105 It is unlawful to provide service of a lower standard or in a worse manner to a person for a reason relating to or the disabled person’s disability (section 19(1)(c) DDA).

1.106 It is unlawful to provide a disabled person with a service on worse terms (for example by charging more) for a reason relating to that person’s disability (section 19 (1) (d) DDA).

1.107 Chambers should note that the DDA does not prohibit positive action in favour of disabled people (see para. 2.2 for distinction between positive action and positive discrimination). The protection of the DDA confers positive advantages on disabled people in certain respects.

The Duty to Make Reasonable Adjustments

1.108 As a service provider, a set of Chambers is required to make reasonable adjustments in several areas unless it can show that the failure to make a reasonable adjustment is justified.

1.109 The duty to make reasonable adjustments is owed to disabled people at large and not just individual disabled people. Barristers and Chambers therefore should not wait until a disabled person wants to use their services before investigating the need to make reasonable adjustments. It is recommended that barristers and Chambers should look at adjustments that they can make on an ongoing basis (whether or not they currently provide services to disabled people). The idea is to anticipate the requirements of disabled people and in order to do this effectively consultation should take place with existing disabled clients or disabled potential clients. Whilst this may not be possible to do on an individual basis, barristers and Chambers should consider consulting organisations of disabled persons to obtain their views.

1.110 The law requires reasonable adjustments to be made in the following areas:

· changing practices, policies and procedures;

· providing auxiliary aids and services;

· adjusting a physical feature by either removing the feature or altering it or ensuring that it can be avoided, or providing services by alternative means.

1.111 The service provider has a duty to take reasonable steps to change the policy, practice or procedure which makes it impossible or unreasonably difficult for disabled people to make use of its services.

1.112 When considering whether the services of a barrister or Chambers are unreasonably difficult for disabled people to use, account should be taken of whether the time, inconvenience, effort, discomfort or loss of dignity entailed in using the service would be considered unreasonable by other people if they had to endure similar difficulties. There may be unreasonable difficulty, for example, where a client in a wheelchair has to be carried up three steps to a conference room.

1.113 It is sensible to try to anticipate the needs of disabled clients rather than acting in a wholly reactive way. Consultation with organisations of disabled people about the needs of a group which may use the services of Chambers will help to give Chambers an idea of the kind of adjustments that it may need to make. Similarly an individual barrister should consider consulting such organisations if he or she anticipates working with a disabled person on a particular case. Chambers and individual barristers should therefore indicate that reasonable adjustments will be made on request if this will assist disabled people to use their services.

1.114 Chambers or a barrister may discriminate unlawfully even if they do not know that a client is disabled. It is worthwhile remembering that not all disabilities are visible. What is important is not to act on assumptions, but to be prepared to ask in advance what reasonable adjustments can be made to ensure that the service of Chambers or the barrister can be used without the disabled person being put to unreasonable difficulty. If it is not reasonable to anticipate a particular requirement the barrister will not act unlawfully if he or she does not anticipate it.

1.115 The duty to make reasonable adjustments is a continuing duty, and it may be necessary to make more than one adjustment. The best approach is to consider what changes can be made in practical terms to ensure that the disabled person can use the barrister's or Chambers’ services without unreasonable difficulty. The disabled person should be consulted about what he or she believes is the best solution. That view is not going to be conclusive and the barrister will have to consider what is a reasonable step to have to take in order to achieve this end.

1.116 In deciding whether it is reasonable to take any particular step, consideration could be given to whether it would be effective in overcoming the difficulty that disabled people face in accessing the services of Chambers or the barrister. Consider whether it would be practicable to take the step, and the financial and other costs of making the adjustment. Some steps which are suggested would cause disruption. A certain amount of disruption can be required but not a disproportionate amount. Chambers and barristers are entitled to take account of financial and other resources as well as the amount of resources already spent on making adjustments.

1.117 What needs to be borne in mind is the ultimate aim of rendering services accessible without unreasonable difficulty. Making adjustments for one group of disabled people will not absolve the Chambers from making different adjustments for different disabled people.

1.118 Providing access to Chambers for any purpose is also covered. Both the set of Chambers and also the Inns of Court may owe duties to members of the public attending Chambers. If the Inns of Court do not provide a reasonable means of access to Chambers through the common parts so that access through them remains impossible or unreasonably difficult for disabled people (which may result from difficulties in obtaining planning permission), the Chambers may have duties to provide a reasonable means of avoiding the physical feature which is causing the difficulty. In those circumstances, Chambers will also have a duty to provide a reasonable alternative method of making its services available to disabled persons. For example a Chambers which does not have wheelchair access may have to consider holding conferences with a wheelchair user away from Chambers.

1.119 If Chambers decides to make adjustments to its premises these should be drawn to the attention of disabled people (for example by a sign). Similarly if it is the intention of Chambers to make its services accessible by providing auxiliary aids, this should be made known.

1.120 It will be exceptionally rare for a Chambers or a barrister not to have to make any adjustments that would render services accessible to disabled persons. It is strongly recommended that a periodic audit be conducted by a nominated person in Chambers who should be mandated to discuss matters with individual barristers.

1.121 There is no obligation on Chambers or a barrister to take any steps which would fundamentally alter the nature of its service.

1.122 When a barrister or Chambers complies with the duty to make reasonable adjustments they are not entitled to pass on any additional costs of compliance solely to disabled clients.

1.123 The duty to make adjustments may affect the Chambers’ policies (what it intends to do), its policies (how it plans to go about providing its services) and its practices (what it actually does when providing services).

1.124 The barrister or set of Chambers must take reasonable steps to provide auxiliary aids including equipment or services if these would facilitate disabled people using its services. An auxiliary aid may be the provision of a special piece of equipment but it is more likely, in the case of barrister services, simply to be the provision of some extra assistance to disabled people.

1.125 The obligation is to take such steps as it is reasonable for the barrister or Chambers to take in all the circumstances of the case to make it services accessible to disabled people. Therefore consideration needs to be given to the size and resources of the Chambers (or the resources of the individual barrister) as well as the cost of providing the auxiliary service.

1.126 The Disability Rights Commission (DRC) Code of Practice gives examples of the kind of auxiliary services or aids that may be appropriate for people with hearing disability (paragraph 5.23 and following) and visual impairments (paragraph 5.26 and following).

LINK TO THE DISABILITY RIGHTS COMMISSION

Adjustments to Physical Features

1.127 In terms of physical features it is advisable that an access audit should be carried out on a Chambers’ premises. During this the views of people with different disabilities or those representing them should be sought, as this may help in identifying barriers and developing solutions. The best approach to removing the effect of physical features on accessibility is to alter the physical feature itself so as to create an inclusive environment. Removal of physical barriers will be preferable to alternative arrangements. There is an inherent loss of dignity for the disabled person in having to use some alternative route for example. It is only if it is not reasonable to remove the physical feature, or to alter it, that such alternative route adjustments should be made.

1.128 The DRC Code contains specific guidance on how the building regulations and leases affect reasonable adjustment duties. What needs to be borne in mind is that the duty to make adjustments will still arise in respect of any access issues and regardless of whether no physical adjustments are required or permitted.

1.129 Adjustments to physical features may require the consent of the landlord. Regulations provide that it is reasonable for the service provider to have to request consent but that it is not automatically reasonable for the service provider to have to make an alteration just because consent has been given. In essence the landlord may not unreasonably refuse consent to a reasonable alteration which is necessary to comply with the duty to make adjustments. The landlord is entitled to attach reasonable conditions to the consent. Detailed guidance is given in the DRC's Code concerning these regulations and the obtaining of consent [see para. 1.126 above].

Justification

1.130 Both less favourable treatment and a failure to make reasonable adjustments may be justified on specific grounds which are set out in section 20 (4) of the DDA provided that the discrimination is not direct discrimination. The Chambers or the barrister must reasonably believe that one or more of the following conditions are satisfied:

· the service provider is not obliged to do anything which would endanger the health or safety of any person;

· the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case;

· (in relation to refusing to provide, or deliberately not providing, any service) the treatment is necessary because the Chambers or barrister would otherwise be unable to provide the service to members of the public;

· (in relation to the standard of service or the terms on which it is provided) the treatment is necessary in order for the Chambers or barrister to be able to provide the service to the disabled person or to other members of the public.

· (In relation to the terms on which the service is provided) the difference in the terms on which the services provided to the disabled person and those on which it is provided to other members of the public reflects the greater cost to the provider of services in providing the service to the disabled person. However any increase in the cost of providing a service to the disabled person resulting from compliance with the duty to make reasonable adjustments disregarded for this purpose.

LINK TO PRACTICAL GUIDANCE ON SERVICE PROVISION FOR DISABLED CLIENTS

Other Areas of Potentially Discriminatory Service Provision

1.131 Discrimination by barristers as service providers on the ground of race or sex is unlawful. Discrimination on any other ground covered in paragraph 305 of the Code of Conduct is prohibited.

1.132 Examples of discriminatory service provision include the following:

· the racial or sexual harassment of a professional or lay client;

· a refusal to accept instructions to act on behalf of individuals or groups defined by their race, sex, sexuality, religion or belief;

· providing a service that is inappropriate (e.g timing of conferences with clients with childcare responsibilities)

· failing to take account of the religious needs of clients in relation to dress, food and drink or religious observance;

· asking irrelevant questions based upon assumptions about client’s sexuality.

1.133 Chambers should ensure that their members are equipped to provide an appropriate level of service for their clients by arranging diversity training for members of chambers and chambers staff. Clients whose first language is not English may have particular needs for interpreters and the Bar Council has produced a guidance document on this subject.

LINK TO INFORMATION ABOUT DIVERSITY CONSULTANTS AND TRAINERS CAN BE FOUND ON THE DIVERSITY WEBSITE- ANNEX A.

USE OF INTERPRETERS IN COURT CAN BE FOUND ON THE BAR COUNCIL WEBSITE- ANNEX A.

INFORMATION ON THE JUDICIARY CAN BE FOUND ON THE JUDICIAL STUDIES BOARD WEBSITE