An open question

In less than five months the Disability Discrimination Act 1995 will come fully into force. It has been gradually introduced for the past eight years, but the full duties of service providers to remove physical barriers to access will become compulsory on 1 October.

So what are the implications of this development? The DDA makes it unlawful for a provider of services to the public (a broadly defined term) to discriminate against a disabled person in the way it provides services to that person. Section 21 states that a service provider has a duty "to take such steps as it is reasonable for it to take in all the circumstances of the case to make reasonable adjustments to deal with barriers to access to its services".

Since 1 October 1999 this duty has required service providers to make reasonable changes to its practices, policies or procedures, provide auxiliary aids or services and to provide reasonable alternative methods of making the service available. From 1 October, however, service providers also have to consider whether they should remove, alter or find a way of avoiding the physical feature in the first place.

Which option should the service provider choose? As you will have gathered from the repeated use of the word "reasonable" in section 21, the court is going to look at this on a case-by-case basis. I would not be surprised, however, if it took the opportunity when it arose to state a number of general principles by which it will seek to implement the provisions of the DDA relating to service providers' duties.

Although the options open to the service provider to deal with the barriers to access in section 21 are not in any order of priority, it is worth bearing in mind that Bert Massie, the chairman of the Disability Rights Commission, has suggested that the DRC's preferred best practice would be to remove or alter the physical barrier wherever possible. The sensible reason behind this is that it would be a permanent resolution of the issue.

Waiting until the court requires you to alter your premises is expensive, and nobody wants to be the subject of publicity over disability discrimination

The other point to consider is the sanctions available to the court under the DDA. The court may award damages, including for injury to feelings, and may make declarations as to the parties' rights. It also has the power in certain circumstances to issue an injunction. At the moment, this power is untested in the context of service providers' duties. It seems to me, however, not unreasonable for a complainant to argue that in order to deal effectively with a particular physical barrier it should be removed completely. The court could then order the service provider to alter or remove it.

Inevitably, waiting until the court requires you to alter your premises is going to be expensive, quite apart from the fact that nobody would wish to be the subject of publicity in relation to a case of discrimination against a disabled person. Disabled people are a significant sector in terms of influence, opinion and buying power. Do you really want to alienate them?

Another implication, quite apart from the fact that it is always more expensive to alter premises after they have been completed, is the effect that all of this may have on property values. If, say, a fund is considering purchasing premises for investment purposes and it has a choice between otherwise comparable premises, one DDA-compliant and the other not, I suspect that it will choose the former.

Of course, you will have thought about this already. You will have been carrying out access audits and putting into place a timetable to carry out any required reasonable adjustments to your premises. Your architect has been thinking about access issues for some time and has involved access consultants where appropriate.