February 2003
GPC
General
Practitioners
Committee
The Disability
Discrimination Act: physical adjustments to GP premises
Guidance for GPs
Contents
Introduction 2
Background to the Act 2
What counts as a physical
feature 3
What constitute “reasonable
steps”? 3
What happens if premises do
not comply? 4
Checking compliance with the
Act 4
Local issues 5
Staff issues 5
Leased premises 6
Appendix 1: basic DDA
checklist 7
Appendix 2: further reading 10
THE DISABILITY DISCRIMINATION ACT
OBLIGATIONS OF GPs TO MAKE
PHYSICAL ADJUSTMENTS TO PREMISES
1.
INTRODUCTION
On 1 October 2004, Part III of the Disability Discrimination
Act will come fully into force. This
section of the Act requires providers of goods, facilities and services, which
includes GP practices, to make physical adjustments to their premises to enable
disabled people to use their services.
This applies not only to patients using the premises, but also to staff
employed by practices which employ 15 staff or more, whether full or part time.
The exemption of employers with under 15 staff will be removed in October
2004. Employment issues are handled
briefly in this guidance, but will be addressed in more detail in separate
future guidance. This main purpose of
this note is to give a general introduction to what the physical adjustments to
surgery premises might be and how to approach the problem.
Unfortunately, neither the GPC nor other organisations can
give GPs definitive guidance on what adjustments will protect them against any
discrimination claims under the act. The
general principle is that a service provider has a duty to take reasonable
steps to change either the practice or procedure or physical characteristic of
a building that makes it difficult for a disabled person to use the
service. However, it will be for the
courts to decide whether or not a service provider has taken reasonable steps
to remove or adjust the feature that has given rise to a claim. The concept of reasonableness will therefore
be open to interpretation on the basis of the circumstances of the case. The authoritative document to guide the
courts will be the Disability
Discrimination Act - New Code of
Practice (see appendix 2 - further reading).
Practices are strongly advised to start planning and making
their adjustments ahead of the 1 October 2004 deadline. The adjustments that need to be made will
often be simple ones, such as the installation of a handrail or the removal of
an obstruction. Often it will be possible to avoid making an adjustment by
finding an alternative way of providing the service or re-locating the point of
service.
Other possible adjustments will be more expensive and
complex, such as the installation of an induction loop at the reception desk or
a stair lift. However, you are
encouraged to think creatively about how to avoid the need for expensive
changes, particularly if there is at first sight no funding available from the
PCO or HA. Relocating a service to an
accessible ground floor level, for example, would obviate the need for a stair
lift. Ensuring a reception area is
quiet and well lit enough to allow lip reading may be an acceptable substitute for an induction loop. It all comes
down to the concept of reasonableness, and it is likely that the courts would
take prohibitive costs into account when deciding if the steps you have taken
are reasonable.
Practices are also encouraged to involve PCOs at an early
stage. There is more information about
this in the following sections.
It would be advisable to record any discussions and
decisions taken at practice meetings about complying with the DDA. This would
provide evidence that the practice has taken its obligations under the Act
seriously and considered how best to implement the necessary changes.
2.
BACKGROUND - THE DISABILITY DISCRIMINATION
ACT 1995
The Disability Discrimination Act 1995 aims to end the
discrimination that many disabled people face and aims to give them equal rights
in terms of employment, access to goods facilities and services, and buying or
renting property or land.
Part I of the Act deals mainly with the definition of
disability. It defines a disabled person as someone with "a physical or
mental impairment which has a substantial and long-term adverse effect on his
ability to carry out normal day-to-day activities”. It is worth noting the following exclusions
from the definition:
·
addiction
to or dependency on alcohol, nicotine, or any other substance (other than in
consequence of the substance being medically prescribed);
·
the
condition known as seasonal allergic rhinitis (e.g. hayfever), except where it
aggravates the effect of another condition;
·
tendency
to physical or sexual abuse of other persons.
Part II of the Act deals with the duties of employers and
trade organisations towards their disabled employees and members.
The relevant section of the Act for the purpose of this
guidance is Part III – Access to Goods and Services. Its provisions are being introduced in three
stages.
since 2 December 1996 it has been unlawful for
service providers to treat disabled people less
favourably for a reason
related to their disability;
since 1 October 1999 service providers have had
to make ‘reasonable adjustments’ for disabled
people, such as
providing extra help or making changes to the way they provide their services;
and
from 1
October 2004 service providers
may have to make other ‘reasonable adjustments’ in
relation to the physical
features of their premises to overcome physical barriers to access.
The requirement to make physical adjustments to premises is
contained in paragraph 21 (2).
“Where a physical
feature (for example, one arising from the design or construction of a building
or the approach or access to premises) makes it impossible or unreasonably
difficult for disabled persons to make use of such a service, it is the duty of
the provider of that service to take such steps as it is reasonable, in all the
circumstances of the case, for him to have to take in order to-
(a) remove the feature;
(b) alter it so that it no longer has that effect;
(c) provide a reasonable means of avoiding the feature; or
(d) provide a reasonable alternative method of making the service in
question available to disabled persons.”
3.
WHAT COUNTS AS A PHYSICAL FEATURE?
The DDA defines a physical feature as
“anything on the
premises arising from a building’s design or construction or the approach to, exit
from or access to such a building: fixtures, fittings, furnishings, equipment
or materials and any other physical element or quality of land in the
premises….whether temporary or permanent”.
Physical features will therefore include
|
|
|
4.
WHAT
CONSTITUTES “REASONABLE STEPS”?
The Disability Rights Commission suggests that the following
factors will have a bearing on whether a change is a reasonable one for service
providers to have to make:
whether
taking any particular measures would be effective in overcoming the difficulty
that disabled people face in accessing the services in question
the
extent to which it is practicable for the service provider to take the measures
the
financial and other costs of making the adjustment
the
extent of any disruption which taking the measures would cause
the
extent of the service provider’s financial and other resources
the
amount of any resources already spent on making adjustments
the
availability of financial or other assistance.
Affordability and feasibility are therefore key factors in
deciding what is reasonable. The level
of resources available to make the changes is likely to be taken into account,
as are other calls on resources. If it
can be shown that a major adjustment could divert resources from patient care,
this would be a good argument in favour of the practice. However, it would not relieve the practice of
the duty to consider the problem altogether.
You may well need to show that you have considered and made reasonable
alternative adjustments or alternative ways of providing the service to
disabled people.
5.
WHAT HAPPENS IF PRACTICES PREMISES DO NOT
COMPLY WITH THE NEED TO MAKE REASONABLE ADJUSTMENTS BY 1 OCTOBER 2004?
If a practice does not comply with the need to make
reasonable adjustments by 1 October 2004 and cannot justify its failure to do
so, a disabled person will be able to bring civil proceedings against the
practice in the County Court. If
successful, the claimant would be awarded compensation (on which there is no
upper limit) for any financial loss suffered, including injury to
feelings. The disabled person may also
seek an injunction to prevent the practice repeating any discriminatory act in
the future. The court may make a
declaration as to the rights and responsibilities of the parties involved but
it cannot order the practice to make some physical changes to its premises.
The Disability Rights Commission has established an
independent conciliation service for disputes arising under Part III of the
Act, with a view to settling the same without resorting to court action. Court action must be brought within six
months of the alleged discrimination but this time limit is extended by a
further two months when a person is referred to the conciliation service by the
Commission.
6.
CHECKING COMPLIANCE WITH THE DDA
A short checklist is provided in appendix 1. This is intended to help you start the
process of making your premises compliant.
It is not as comprehensive as a full access audit. An access audit assesses how easy your premises make
it for disabled people to access and use your services. They are usually divided into two stages:
gathering information and making recommendations. A practice might want to do the first of
these itself, with the help of the Department of Health’s audit checklist[1]. However, the recommendations would need
specialist technical advice.
Some PCTs are offering practices full audits. GPs should encourage this, as it is a
good opportunity to have premises assessed at no cost and draws the funding
problems to the attention of the PCT in a manner they cannot ignore. Employing an access consultant will be
expensive and carrying out such a survey yourself will be time-consuming. That the audit may reveal the need for
improvements should not be considered a threat.
It is far more risky in the long term to avoid making these
improvements, as this could result in a claim against the practice and possibly
the award of damages to the complainant after 1 October 2004. These would fall to the practice, not the
PCT.
Acceptance of a PCT audit cannot indemnify the practice
against claims, but it could strengthen its case greatly in the event of any
claim, as it demonstrates the practice’s intent to comply with the Act. It would also be a good opportunity to make a
case for PCT reimbursement for the necessary adjustments. Unfortunately, the
Department of Health has so far refused to release funding for adjustments, and
so PCT funding is entirely discretionary.
That a practice has made an application for funding, even if this was
refused, would help it to demonstrate that it has taken reasonable steps to
comply with the Act.
7.
DDA CHECKLIST
A suggested initial checklist for DDA adjustments is
provided in appendix 1.
As the introduction states, this checklist is no substitute for a full access audit and is only
intended to give you an initial idea of the scale of necessary physical
adjustments.
9. LOCAL ISSUES
Funding for DDA adjustments is a problematic area. The Department of Health has offered no
ring-fenced, central funding for compliance with what is a legal, but not an
NHS obligation.
For new-builds, DDA compliance should be built into the
building costs and included in the planning of the premises, site and funding
arrangements. This should not usually be an issue.
However for most of the NHS primary care estate, conversion
of old premises is likely to be necessary, with attendant planning and funding
problems. Under the Act, the provider of the premises is responsible for making
the necessary changes. GPs and LMCs
should strongly encourage PCOs to approve maximum levels of Improvement Grants
to fund the necessary changes.
In the interests of providing a high quality service, PCTs
will be unwilling to see non-compliant premises in their area. They will also
be unwilling to see practices threatened with actions as a result of a
complaint brought under the Act, as this would reflect badly on local
healthcare provision.
It is therefore in practices’ interests to encourage PCTs at
an early stage to participate in joint solutions, by suggesting that they fund
an access audit, for example. Access audits and the resulting cost estimates
should form part of early planning for the PCT budget round with the assistance
and involvement of the LMC.
In the event of discrimination claims, all this could lend
weight to the practice’s argument that it has taken all reasonable steps to
raise premises to the level of compliance with the Act with the resources
available.
10 STAFF ISSUES
10.1 Employers’
obligations towards disabled staff
If you employ 15 people or more (full or part-time) you have
obligations under the DDA towards those employees. This will be extended to all employers,
regardless of the number of employees, on 1 October 2004. It is unlawful to treat any employees with
disabilities, or applicants for jobs with disabilities, less favourably for a
reason related to those disabilities.
This applies to recruitment, doing the work (including career
development and promotion) and redundancy and dismissal. An employee may make a complaint against
you, which could be referred to an employment tribunal, which may award them
compensation for financial loss or injury to feelings.
As employers, you need to consider whether any employment
arrangements or physical features of the workplace are disadvantaging disabled
employees in any way, and then make reasonable adjustments to remove these
disadvantages.
The Disability Rights Commission suggests the following
specific types of adjustments:
Making adjustments to the premises. This is covered elsewhere in this
guidance, but obviously need to be extended to staff areas.
Reallocation of minor duties to another
employee
Offering flexible working hours, to
avoid rush hours, for example.
Allowing absences during working hours,
for rehabilitation, assessment or treatment.
Assigning or transferring a job or an
employee to a place of work more suited to their needs. For example, moving a workstation to a more
accessible location.
Making instructions and manuals more
accessible; for example, providing a Braille version for a blind person.
Providing appropriate or additional
training.
It is important to ensure that recruitment procedures do not
discriminate against applicants with disabilities. The job specification, applications forms,
selection process, assessment technique and terms of employment offered all
need to be designed so as not to disadvantage disabled people.
10.2 Staff Training
In view of the role of staff in facilitating disabled
patients’ access to services, it would be advisable for practices to include in
the staff training programme a basic grounding in the DDA, equal opportunities
legislation and recruitment policies.
Once again, the demonstration by the practice that it has taken this
step could be very helpful in the event of discrimination claims.
Employers are held to be vicariously liable for their
employees’ actions under the DDA 1995 (and under the Sex Discrimination and
Race Discrimination Acts). The argument
that the employer had no knowledge of their employer’s actions is therefore not
an adequate defence under the Act.
11. LEASED PREMISES
Under the DDA, it is the service provider, not the owner of
the premises, who has to make physical adjustments to the premises if such
adjustments are justified. However,
where service providers rent premises they will be obliged under their leases
to ask the landlord’s permission before making any changes to the premises. The DDA allows for this and states that where
an adjustment is reasonable, the service provider must merely write to their
landlord informing them that they wish to make changes to the premises under
the DDA. It is then up to the landlord
to agree or disagree to these changes.
If the landlord withholds their consent then the service provider’s
obligations under the DDA have ended.
They should for their own protection obtain the landlord’s response in
writing and keep it on file.
As it is up to the service provider to make the relevant
changes to premises under the DDA, they must bear the cost. Where a number of practices share leased
premises, they should share the costs of any work required.
APPENDIX 1 – BASIC
DDA CHECKLIST
As the introduction states, this checklist is no substitute for a full access audit and is only
intended to give you an initial idea of the scale of necessary physical
adjustments.
GROUNDS, PUBLIC OR COMMON AREAS
Even if the grounds around your
premises are not practice-owned, you will need to ensure that there are no
obstacles or impairments to people using sticks, crutches and wheelchairs and
people with visual impairments.
Is the pavement outside the premises free
of potholes, uneven paving surfaces, etc?
If not, you may need to get in
touch with the local authority roads department to request repairs.
Is all vegetation cut back from paths
leading up to the entrance?
Is the route to the building kept free of
leaves, snow and ice?
If the route is not level, is there a
slip-resistant ramp with handrails available?
Are all paths free of obstacles, such as
litter bins?
Are all surgery signs clearly visible?
Signs should be as visible and
possible. Lettering needs to be large to
help people with visual impairments.
Is external lighting good enough to help
people find their way to the premises?
If you have a parking area, is there a
reserved, wider bay for disabled people?
ACCESS TO MAIN ENTRANCE
Do you have alternative access, or a ramp,
for people in wheelchairs?
If the main entrance is not level, or is inaccessible and hard to
change in some other way, is there a rear or side entrance where level access
is possible?
Do the steps have a clearly visible
handrail?
Are the steps themselves clearly visible?
Painting steps a different colour
to the surrounding surfaces can make them easier for visually impaired people
to see.
Is the entrance well lit?
Is there an accessible bell, or entryphone
system, for people to use if they are having difficulties getting in?
This would be particularly
desirable if access is not ideal.
DOORWAYS
Is the door opening wide enough for all
users?
Wheelchair users generally need
at least 750mm clear opening width (the space available between the door frame
and the door in the open position).
If doorways do not meet this
specification, you may need to have the doorway widened if there is no
alternative way in.
Is the door-handle low enough for a
wheelchair user to reach easily?
The recommended height is 1000
mm.
Are entrance mats flush with the floor so
that the surface is even?
If a door closer is fitted, does it have a
delayed, or slow-action closure mechanism?
GETTING AROUND INSIDE THE PREMISES
Are there enough signs?
Are signs simple, short and easy to read,
and located at convenient levels for wheelchair users?
Signs can be made clearer by
using pictorial symbols and visual clues.
Are aisles, corridors and areas near doors
free of obstacles and wide enough for wheelchairs to manoeuvre?
If there is a change of level, is there a
platform lift available? If not, is
there a permanent ramp that is wide enough for wheelchairs?
Are internal steps, and other potential
hazards, clearly marked and fitted with a handrail and ramp?
Are all floor surfaces as level as
possible, without the need for major adjustments? For example, are mats and joins between
different floors, etc flush with the floor and each other?
RECEPTION/WAITING AREAS
Does your reception desk have an induction
loop?
This is an expensive adjustment
but may be necessary, particularly at a glass counter.
Is the reception area reasonably quiet and
located away from any noisy machinery?
Is seating suitable for people with
mobility impairments?
Is there waiting space for wheelchair user?