? In 1995 the Disability Discrimination Act (DDA) set out important new rights for disabled people across the UK. For the first time this gave disabled people the right to challenge discrimination when trying to access goods and services. But 15 years on disabled people still report problems in accessing shops, services and other facilities. Enjoying equal access to goods and services must be seen as a basic right – it cannot be acceptable for disabled people to be denied access to services simply because of their impairment.
It is the barriers and inaccessibility that people face that disables them – it is what denies people opportunities, it is what leads to inequality, social exclusion and disability poverty. Whilst access to goods and services is only part of this wider issue, it should be considered a critical aspect of any drive to challenge poverty and to reach a fairer, more equitable society. This report examines: why services are still not fully accessible; the extent of the problems that disabled people are facing; what barriers people face to accessing their rights under the law; what might be done to make the situation better.
Key findings This report is based on two key pieces of research. Firstly it presents the findings of a large-scale quantitative survey, carried out on Leonard Cheshire Disability’s behalf by Ipsos MORI. A total of 1,095 disabled people were identified and interviewed face-to-face over four waves of Ipsos MORI’s weekly Omnibus service (Capibus). Secondly it reports on in-depth qualitative interviews with 15 disabled people, conducted by Leonard Cheshire Disability, all of whom had experienced problems accessing goods and services.
The in-depth interviews are not used to provide statistical data, but instead are used to explore people’s views and experiences in more detail. The Leonard Cheshire Disability and Ipsos MORI research asked about the extent to which disabled people had experienced discrimination in accessing goods and services: Two in five (40%) disabled people in Britain were able to identify difficulties they had experienced accessing goods and services in the last 12 months One in four (23%) disabled people in Britain believe that they have experienced discrimination related to their impairment in accessing goods and services in the last 12 months.
The types of problems experienced include: 16% of disabled people have experienced difficulty using public transport; 15% of disabled people have experienced a lack of facilities for disabled people; 13% of disabled people have experienced difficulty entering or getting around premises; 5% of disabled people have experienced service providers talking down to them or using inappropriate language; 2% of disabled people have experienced difficulty in getting information in an accessible format.
The survey also asked about disabled people’s knowledge of the law: one in five (20%) of disabled people in Britain have never heard of the Disability Discrimination Act (DDA); a further 51% of disabled people stated that they knew little or nothing about it; In other words: seven in ten (71%) disabled people reported that they had either never heard of the Disability Discrimination Act, or knew little or nothing about it. The survey also asked what action disabled people had taken against discrimination from service providers if they had experienced it:
More than a quarter (28%) of disabled people who had experienced difficulty in accessing goods and services had taken some sort of action to challenge this. This action included: 17% mentioned the issue to a member of staff 12% made a formal complaint to the organisation 12% made sure they didn’t use the shop or service again Just 1% took legal action However, 62% who had experienced difficulties said they did not challenge them This tallied with the experiences of the participants in our in-depth interviews – whilst many had challenged service providers, only one had actually taken a case all the way through the court process.
We went on to ask about the outcome of these actions and how service providers had responded. Of those who had taken action: 47% stated that there had either been no outcome yet or that the service provider did not do anything at all: 16% said there has not yet been an outcome; 24% said they did not do anything at all; and 7% have been told the organisation will make improvements in its provision of services for disabled people but has yet to do so 39% stated they had received a formal apology
9% stated the organisation had made improvements in its provision of services for disabled people Despite the relatively low numbers of people taking action, and the poor experiences of responses from service providers, there was a sense that more effective legislation could have an impact: 76% of disabled people agree with the statement ‘shops and providers would make their service more accessible if they felt they might face legal action’. 77% of disabled people also agree that ‘challenging unfair treatment will improve the way services are provided to disabled people’.
For those disabled people who did not recall experiencing any form of discrimination in the past year, the LCD / Ipsos MORI survey asked what action they would take if they felt as though they had been treated unfairly or differently to non-disabled people: 30% stated they would mention the issue to a member of staff 26% stated they would not use the shop or service again 4% stated they would definitely take legal action, although this does contrast with the reality of only 1% of disabled people who have experienced difficulties accessing goods and services taking legal action in response.
The survey then examined why more people were not taking action: 57% of disabled people agreed with the statement ‘I don’t think I would be able to afford the cost of taking legal action if I felt unfairly treated’. more than a third (36%) of disabled people agreed with the statement ‘I would not know where to go for advice on how to challenge fair treatment’. only 42% of disabled people feel they know enough about the law to be able to challenge unfair treatment.
The findings of the survey were reinforced through our in-depth interviews. Participants reported on the costs and the complexity of trying to challenge discrimination and complaints included being “passed from pillar to post”, that “you can’t win”, that “it’s too difficult” and even “the DDA doesn’t work”. The Leonard Cheshire Disability and Ipsos MORI survey also examined the ‘business case’ for improving access – looking at the potential benefits for businesses in becoming more accessible, and the potential risks of failing to do so:
79% of disabled people agreed with the statement: ‘If I felt a shop had discriminated against me because of my disability, impairment or illness I would tell my friends and family about it’. 62% of disabled people agreed with the statement: ‘If I felt a shop had discriminated against me because of my disability, impairment or illness I would advise my friends and family not to shop there. ’ A participant in our in-depth interviews summed up the case saying: “If we could get in your shop then we would spend money in there! ” Recommendations
Improving the accessibility of goods and services is a vital step in achieving equality for disabled people. Leonard Cheshire Disability would also argue that it will also help strengthen the UK economy, improving opportunities for disabled people and opening up new markets for shops and services. But the findings of our research show that disabled people still face major barriers to access despite the fact that legislation setting out their rights has been in place for 15 years. In other words, the rights in legislation are simply not translating into reality for many disabled people.
This report has found that the major block to change is the complexity and difficulty that disabled people face in actually enforcing their rights and challenging discrimination. Leonard Cheshire Disability would argue that improving this situation is a critical next step in making the UK genuinely accessible for all. This report sets out a series of key recommendations to help make the law work more effectively. These are explained in more detail in Chapter 4 of the report, and include proposals to: Conduct a formal review examining the effectiveness of the law and how disabled people’s access to their rights in this area can be improved.
This review should inform the development of future guidance and regulations, and examine in detail any areas where future extension or adjustment of the law may be necessary. Work must be undertaken to raise awareness among disabled people of their rights under the law. The Government should work with the EHRC, the Legal Services Commission and any other bodies as appropriate to identify how to increase the support available to disabled people to be able to take accessibility cases. The Questions Procedure for Part 3 of the DDA must be better publicised.
Any disabled person who has experienced discrimination whilst accessing goods and services should be able to find the relevant advice and be able to use the procedure to engage with a service provider. A new, strengthened Questions Procedure that incorporates arbitration should be considered. If appropriate this system should be tested out in pilot areas so that the impact and any additional costs could be closely monitored. Consideration should be given to introducing the capacity for joint or representative actions on accessibility issues.
Consider the development of ‘Equality Tribunals’ to take over responsibility for hearing accessibility cases. The Government and the EHRC will need to work extensively with service providers in order to raise awareness of their legal obligations around providing equal access. Chapter 1 – Introduction and background Background In 1995 the Disability Discrimination Act (DDA)1 was introduced to help protect disabled people from discrimination in a variety of key aspects of their lives. The Act introduced new rights in areas such as employment, transport, education, and in accessing goods and services.
This report focuses primarily on this last area – exploring the impact and effectiveness of disabled people’s rights to equal treatment when accessing goods and services. The DDA 1995 set out a basic framework of rights to equal treatment in accessing goods and services, but these rights have been introduced gradually, in order to give service providers the time to adapt to the requirements. Many small businesses were not fully covered until the Act was extended in 2004, and public transport vehicles were only covered after the Disability Discrimination Act 2005 further extended the law.
But now, broadly speaking, the duties in the Act apply to any provider that offers goods or services to the public – so for example this would include any shops, hotels, public libraries, public transport and many other services. The rights established in the DDA mean that disabled people in the UK are able to challenge discrimination when accessing shops or services, and that providers of any publicly available service have to make sure that they are not excluding disabled people.
This means that it is unlawful for service providers to refuse to provide a service to a disabled person without justification, to provide a service to a lesser standard or on worse terms without justification, or to fail to make ‘reasonable adjustments’ to the way services are provided to ensure that they were not discriminating against disabled people. The ‘reasonable adjustment duty’ is one of the most important and widely recognised elements of the DDA and is the principle duty that gives disabled people the right to access services.
In broad terms, the duty means that a service provider must do whatever is reasonable in order to ensure that a disabled person can access their services on the same terms as any other customer. In relation to accessing goods and services, the duty says that service providers should anticipate the needs of disabled customers. In other words, it is not enough for a shop or a service provider to say that they will think about making a change after someone has been unable to access their services – they should anticipate what barriers people may face and do whatever they reasonably can to overcome them.
They must also continually assess how their policies, practices or provisions might impact on disabled people. If disabled people feel that they have been discriminated against they can challenge the service provider. If the disabled person is not content with the response, or agreement cannot be reached as to what is required, then the disabled person can take the service provider to court. Whilst there are published ‘codes of practice’ that set out what sort of actions are likely to be considered reasonable, ultimately only a court has the power to decide what is ‘reasonable’ for that service provider.
This report examines whether disabled people still face barriers to accessing goods and services in the UK, and how the rights set out in the law are working in practice for those who do experience discrimination. Inaccessibility, disability poverty and social exclusion Leonard Cheshire Disability is campaigning to end disability poverty. Disabled people are twice as likely to live in relative poverty as non-disabled people and our research has found that when the additional costs disabled people face as a result of their impairment are factored in, well over half of disabled people in the UK face living in poverty. 2.
There are many different dimensions to disability poverty. As well as the key measures of financial poverty it is important to consider wider aspects of social exclusion: disabled people are twice as likely as non-disabled people to have no qualifications; disabled people are far less likely than non-disabled people to be in employment; disabled people are less likely than non-disabled people to have savings; disabled people are less likely than non-disabled people to own their own home; continuing inaccessibility in society means that disabled people face barriers to accessing goods, services, facilities and opportunities3.
Lack of access to goods and services is a key contributing factor to disability poverty. In 2003 Leonard Cheshire Disability published ‘Mind the Gap’, a report examining the links between transport accessibility, poverty and exclusion. 4 It highlighted the detrimental effects of inaccessible transport on disabled people’s independence, social participation and employability. It also explored the wider implications of inaccessibility, in terms of limiting access to healthcare, leisure activities and socialising with family and friends. And ‘access’ is not only about transport.
It encompasses a broad range of areas such as housing, employment and training, the built environment, communication and information technologies, the justice system and leisure services. Leonard Cheshire Disability’s ‘Disability Review 2009’ revealed a series of instances where poor accessibility was having a negative social and material impact on disabled people’s quality of life: 28% of respondents had been unable to take up an education or training course because of inaccessible transport 18% had been forced to turn down a job and
48% had missed a hospital appointment. 5 Given the qualification gap between disabled and non-disabled people, the substantial discrepancy in employment rates, and the links between disability and health inequalities, it is clear that the role of poor accessibility as a driver of many aspects of disability poverty should not be underestimated. An inaccessible society not only denies disabled people opportunities and contributes towards poverty, it is also in itself a manifestation of social exclusion and disability poverty. Definitions
The issue of access to goods and services is covered in Part 3 of the DDA. These provisions cover most services provided to the public, including, for example, services provided by local councils, doctors’ surgeries, shops, hotels, banks, pubs, post offices, theatres, places of worship, courts and voluntary groups. Non-educational services provided by schools are also included. There are a few areas where slightly different rules can apply, such as private member clubs which have a meaningful selection process for members, and education.
6 Similarly, the DDA gives disabled people rights in access to certain types of transport – including aspects connected to transport such as stations, airports and booking facilities, whilst transport vehicles themselves are generally only covered by certain aspects of Part 3. The technical requirements for the design of public transport are dealt with elsewhere in the DDA, in Part 5, although it is of note that recent regulations will require all buses to meet accessibility standards by 2017 and all trains by 2020.
The law does not stipulate a single definition of what is ‘reasonable’, allowing for different adjustments to be applied in different contexts. Some of the factors that may be taken into account include the size of, and resources available to, a service provider, how practicable it is to take steps and whether they would overcome the difficulty faced in accessing a service. The DDA outlines four main types of discrimination: direct discrimination; disability-related discrimination; victimisation; failure to make reasonable adjustments.
Discrimination in access to goods and services most commonly falls within ‘failure to make reasonable adjustments’. Disabled people who have been discriminated against unlawfully can bring a complaint in their local County Court, or, in Scotland, in the Sheriff’s Court. Ultimately it is down to a court to decide what is ‘reasonable’. The current system Although the reasonable adjustment duty has been incredibly important in helping to change attitudes and move towards a fairer and more accessible society, it has also proven extremely difficult for disabled people to actually enforce their rights under the law.
Challenging a service provider who refuses to make a reasonable adjustment essentially requires an individual disabled person to take a court case. Yet despite continuing evidence of discrimination from inaccessible services, there have been remarkably few cases actually brought under these provisions of the Act. In 2002, research commissioned by the DWP found that between December 1996 and September 2000, there were around 9, 000 tribunal cases issued and/or decided in the UK under Part 2 of the DDA. In contrast, only 53 cases were decided under Part 3 of the Act during an even longer survey period, from December 1996 to February 20017.
The report identified a number of possible reasons for the relative paucity of cases under Part 3, including: the costs of taking a case and the heavy reliance on voluntary and pro bono advice; a lack of awareness among some advisers / representatives of the processes for lodging cases, and of wider disability issues; the perceived complexity of the court system and its procedures. Attempts to evaluate the effectiveness of the law have been further complicated by an absence of reliable national information sources detailing Part 3 claims.
8 In any case, simply tracking the number of cases brought under Part 3 would not in itself provide an adequate yardstick for measuring progress in this area. As noted above, evidence suggests that there are a number of barriers within the current system that are preventing disabled people from challenging discrimination in the first instance. Thus, low numbers of DDA cases appearing in court and an absence of case law should not be considered to indicate low incidences of discrimination.
Indeed, the research conducted for this report, and previous Leonard Cheshire Disability studies9 have identified that goods and services remain far from universally accessible. Detailed information that captures the accessibility of goods and services in the UK would clearly be instructive here, but there are very few nationally recognised statistics on the number of accessible businesses or services, or the reasonable adjustments service providers have made to ensure equal access for disabled people.
This is in part due to the broad terms in which the reasonable adjustment duty is framed, which, whilst giving service providers flexibility in meeting disabled people’s varied requirements, does also mean that there can be a lack of clarity for both providers and disabled people as to exactly what is and isn’t required under the law. This in turn means that it is difficult to collect authoritative statistics on the level of accessibility in the UK.
Against this background, there has been some recognition from policy-makers that problems in this area are far from resolved. In 2008, the Government published the Independent Living Strategy10, which recognised the critical importance of tackling inequality in access to promoting disabled people’s independence. Of its two key stated aims, the Strategy promised that by 2013: “Disabled people will have greater access to housing, transport, health, employment, education and leisure opportunities and to participation in family and community life. ”
The Equality Act A key factor for the timing of this report is the development of the Equality Act. Announced in April 2009 and passed into law in April 2010, the Act brings together all the UK’s key pieces of anti-discrimination legislation, including the DDA, into a single Act. It is intended to consolidate, simplify and strengthen the law, helping individuals to better understand their rights and helping businesses to comply with legislation. The Act is due to come into force in stages, with the majority of measures coming into force in October 2010.
In time this would mean that disabled people’s rights to equal access in goods and services will not be enforced through the Disability Discrimination Act 1995, but instead through the Equality Act 2010. In the area of access to goods and services for disabled people, for the most part the Equality Act simply replicates the provisions in the Disability Discrimination Act. As such the strengths and benefits of the legislation will broadly be maintained – but so will the flaws and weaknesses.
The development of the Equality Act, and the rules and regulations that will accompany it, represents an important opportunity to look to tackle some of the problems in the current system. In particular, whilst the legislation itself will set out the primary rights and responsibilities in the area of goods and services, much of the detailed implementation of those rights is steered through guidance and ‘codes of practice’ for which the Equality and Human Rights Commission will take responsibility.
In other words, whilst the legislation itself will largely maintain the status quo with regard to the principles behind disabled people’s rights to access to goods and services, there is now a rare opportunity now to shape the way in which those rights will be implemented. The need to improve access to the law was acknowledged as one of the key drivers behind the development of the Equality Act: “Our discrimination laws have helped us make progress on equality, but…they have become complex and difficult for people to understand and navigate.
”11 However, other than the simplification achieved by bringing several pieces of legislation into one place, there seems to be little in the Equality Act that will specifically make it easier for disabled people to access their rights. The mechanisms used to actually enforce the law remain largely the same. Leonard Cheshire Disability is broadly supportive of the aims of the legislation; in particular it will help to close a number of significant legal loopholes.
From the time that the Act was first proposed we have been engaged in lobbying to ensure that disabled people’s rights are enhanced, and not reduced. But going forward it will be just as important to ensure that disabled people can practically and effectively access and use their rights, as it has been to first ensure that the principles enshrined in law are correct. We hope that this report will help to inform the development of an implementation process for the Equality Act that makes disabled people’s rights under the law fully accessible, usable and enforceable.
Chapter 2 – Findings of our research About the study The principal aim of this research was to explore disabled people’s experiences of accessing goods and services, and their experiences of challenging discrimination if they did experience it. More specifically, we have sought: to examine disabled people’s awareness and understanding of their rights under Part 3 of the DDA; to explore the experiences of disabled people in accessing goods and services, particularly in relation to the legal protections contained within the DDA; to understand any barriers or
difficulties disabled people face to challenging unfair treatment and discrimination; to establish and analyse possible alternatives to the current system, formulating recommendations for policy makers on how to enhance the effectiveness of the law. The report presents the findings of research carried out by Leonard Cheshire Disability between November 2009 and January 2010, which comprised two distinct stages. The first stage was a large-scale quantitative survey, carried out on Leonard Cheshire Disability’s behalf by Ipsos MORI12.
A total of 1,095 disabled people were identified and interviewed over four waves of Ipsos MORI’s weekly Omnibus service (Capibus). Capibus interviews a nationally representative quota sample of adults throughout Great Britain aged 15+. Two screener questions were used to establish disability status (based on the Disability Discrimination Act definition) and hence eligibility for the rest of the questions, from a total sample of 7,680 Capibus respondents.
The second stage consisted of in-depth qualitative interviews with 15 disabled people, all of whom had experienced problems accessing goods and services. Participants were recruited through Leonard Cheshire Disability’s Campaigns Network and were selected to reflect a range of impairments. A significant number of participants had physical impairments that required them to use a wheelchair or walking aid. Other impairment types included sensory-related impairments, learning difficulties and disabilities and mental health conditions.
The sample group also covered a range of socio-demographic characteristics, including sex, age, ethnicity and geographic location. The in-depth interviews are not used to provide statistical data, but instead are used to explore people’s views and experiences in more detail. This allows us to go beyond the wider statistical data and examine not just what happened to people, but also why they felt it happened, how it impacted upon them and what might have improved the situation for them.
As such, we have included verbatim comments from interview participants, with a view to highlighting the precise views and opinions articulated. This evidence is situated alongside the findings from our quantitative survey work. Experience of discrimination The Leonard Cheshire Disability / Ipsos MORI survey began by asking about disabled people’s experiences of discrimination related to their impairment. It found that nearly one in four (23%) disabled people in Britain believe they have experienced discrimination related to their impairment in accessing goods and services in the last 12 months.
40% of disabled people could identify a difficult experience whilst accessing goods and services in the past 12 months. It is clearly a matter of significant concern that experiences of discrimination remain so high 15 years after the introduction of the Disability Discrimination Act and more than 5 years after the Act was extended to cover almost all service providers. These comparatively high figures also stand in stark contrast to the remarkably low number of cases that ever reach a court.
It is clear that disabled people continue to experience treatment that they consider unacceptable when trying to access goods and services, but few seem to make the leap from this experience to tackling the issue through legal action. Analysing the extent to which this means that service providers are breaking the law is, however, extremely difficult. Because only a court can conclusively decide what is and is not a reasonable adjustment, it is very difficult to say definitively what constitutes a breach of the DDA.
The guidance and codes of practice produced by the Disability Rights Commission (DRC) on this area do however give a clear indication of what is likely to be unlawful. Certainly many of the experiences reported in more detail through our in-depth interviews would, by the terms set out in the codes of practice, clearly represent breaches of the law – although of course few of these actually reached a court. Types of problems experienced in the last 12 months Survey participants were asked to identify any particular problems they had experienced when trying to access goods and services over the past 12 months:
16% of disabled people have experienced difficulty using public transport; 15% of disabled people have experienced a lack of facilities for disabled people; 13% of disabled people have experienced difficulty entering or getting around premises; 5% of disabled people have experienced service providers talking down to them or using inappropriate language; 2% of disabled people have experienced difficulty in getting information in an accessible format. These findings demonstrate the range of problems that disabled people continue to face when accessing goods and services.
They also help to highlight the variety of different issues that can render a service inaccessible – for some people physical inaccessibility will be the main barrier, for others inaccessible information can stop them from making use of a service. In this area the broad nature of the reasonable adjustment duty is helpful in terms of ensuring that service providers need to consider all aspects of accessibility, but the variety of different problems experienced suggests that many are still failing to do so.
It is unclear from this study as to whether service providers are actually unwilling to make reasonable adjustments or whether they are simply not aware of the problems. In either case a more effective enforcement mechanism would be beneficial as it would mean that more disabled people would feel empowered to raise issues that they have faced, and service providers themselves would get a much clearer steer as to what they need to do to make their services accessible.
Evidence suggests that there is also a strong business case around reaching more customers by enhancing accessibility. Better approaches for sharing information and ‘best practice’ have the potential both to improve accessibility for disabled people, and to open up new markets for businesses. The ‘business case’ for accessibility is addressed in more detail later in this report.
It is also important to note that in many instances disabled people will have already identified shops and services that they feel are accessible and will tailor their routine accordingly – people will naturally try not return to shops or services where they have had bad experiences, and this in turn could mean that recorded levels of discrimination will not necessarily reflect the number of services that are actually inaccessible.
Inaccessibility is of course not just related to shops – problems with housing or pavements, for example, can reduce people’s mobility, and problems with particular transport routes can make it impossible for some people to reach other services. The survey results suggest that access to public transport continues to be a significant issue for many disabled people, with 16% of disabled people stating that they had experienced problems trying to use public transport in the past year.
These findings in the Leonard Cheshire Disability / Ipsos MORI survey were strongly supported by our qualitative research. For many participants, a key area of difficulty was using public transport, such as taxis, trains, buses and coaches: “I often use the coach service. They require 48 hours advance notice for wheelchair users, which is arranged through assisted travel. Despite arranging this I