1.   Introduction

Purpose of Part III of the Act

1.1       On 2 December 1996 , the Disability Discrimination Act  1995 (the Act) brought in measures to prevent discrimination against disabled people. Part III of the Act is based on the principle that disabled people should not be discriminated against by service providers or those involved in the disposal or management of premises. Subject to limited exceptions, anyone who comes within either of these categories must comply with the duties set out in Part III. It should be noted that those selling, letting or managing premises could also have duties as service providers.

Purpose of the Code

1.2       This Code of Practice (the Code) gives practical guidance on how to prevent discrimination against disabled people in accessing services or premises. It describes the duties on those providing services to the public and those selling, letting or managing premises under Part III of the Act. The Code helps disabled people to understand the law and assists service providers, landlords and other persons to avoid complaints and litigation by adopting good practice. It also aims to advance the elimination of discrimination against disabled people and to encourage good practice.

ss 51-54

1.3       The Disability Rights Commission (DRC) has prepared and issued this Code under the Act on the basis of a request by the Secretary of State. It applies to England , Wales and Scotland . A similar but separate Code applies to Northern Ireland .

Status of the Code

s 51(3)-(5)

1.4       The Code does not impose legal obligations. Nor is it an authoritative statement of the law — that is a matter for the courts. However, the Code can be used in evidence in legal proceedings under the Act. Courts (and, in respect of insurance services provided to employees, employment tribunals) must take into account any part of the Code that appears to them relevant to any question arising in those proceedings. If service providers and those involved in selling, letting or managing premises follow the guidance in the Code, it may help to avoid an adverse judgement by a court in any proceedings.

How to use the Code

1.5       This chapter gives a general introduction to the Code and to Part III of the Act. Chapters 2-8 deal with the duties on service providers, including a description of the duty to make reasonable adjustments for disabled people. Chapter 9 deals with the duties on those selling, letting or managing premises. Chapter 10 describes other actions made unlawful by the Act and explains what happens if discrimination is alleged.

1.6       The Appendix gives more information on what is meant by disability and who are disabled persons. Separate statutory guidance relating to the definition of disability has been issued under the Act (see paragraph 2.12 below).

1.7       Each chapter of the Code should be viewed as part of an overall explanation of Part III of the Act and the regulations made under it. In order to understand the law properly it is necessary to read the Code as a whole. The Code should not be read too narrowly or literally. It is intended to explain the principles of the law, to illustrate how the Act might operate in certain situations and to provide general guidance on good practice. There are some questions which the Code cannot resolve and which must await the authoritative interpretation of the courts. The Code is not intended to be a substitute for taking appropriate advice on the legal consequences of particular situations.

Examples in the Code

1.8       Examples of good practice and how the Act is likely to work are given in boxes. They are intended simply to illustrate the principles and concepts used in the legislation and should be read in that light. The examples should not be treated as complete or authoritative statements of the law.

1.9       While the examples refer to particular situations, they should be understood more widely as demonstrating how the law is likely to be applied generally. They can often be used to test how the law might apply in analogous situations involving different disabilities, services or service providers. They attempt to use as many different varieties of disabilities and services as possible to demonstrate the width and scope of the Act. References to male or female disabled people are given for realism and could, of course, apply to either sex.

References in the Code

1.10    Throughout the Code, references are made to “service providers” for convenience. Subject to certain exceptions, Part III of the Act applies to any person or any organisation or entity which is concerned with the provision in the United Kingdom of services (including goods and facilities) to the public or a section of the public. Similarly, the Act applies to disabled people who use, or seek to use, the services so provided, whether as customers, buyers, shoppers, consumers, clients, patrons or service users.

1.11         References to the Act are shown in the margins. For example, s 1(1) means section 1(1) of the Act and Sch 1 means Schedule 1 to the Act. Where reference is made to regulations made under the Act, the Statutory Instrument number is shown in the margin (for example, SI 1996/1836).

For the most part, references to "the Act" apply to Part III of the Disability Discrimination Act.

Changes to the legislation

1.12    This Code refers to the Disability Discrimination Act as of November 2001. There may be changes to the Act or to other legislation, for example, on transport, which may have an effect on the duties explained in this Code, and you will need to ensure that you keep up to date with any developments which may affect the Act’s provisions. You can get information about this from the Disability Rights Commission (see paragraph 1.14 below for contact details).

Further information

1.13    Copies of the Act and regulations made under it (and further copies of this Code) can be purchased from the Stationery Office bookshops (see back cover). A separate Code covering the employment provisions of the Act and guidance relating to the definition of disability are also available from the same source, as is a Code dealing with the duties of trade organisations to their disabled members and applicants.

1.14    Free information about the Act can be obtained by contacting the DRC Helpline:

                        Telephone:                 08457 622 633

                        Faxback service:       08457 622 611

                        Textphone:                 08457 622 644.

            The Code and information about the Act are also available in alternative formats or via the Internet [http://www.drc-gb.org].

2.   What does the Act say about providing services?

Introduction

2.1       This chapter provides an overview of the provisions of Part III relating to the provision of services. It outlines what is made unlawful by the Act and explains what is meant by “discrimination”. It describes the scope of services affected by the Act (and those which are excluded) and those people who have rights under the Act.

What does the Act make unlawful?

s 19(1)(a)

s 19(1)(c)

s 19(1)(d)

2.2       The Act makes it unlawful for a service provider 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 it; or

·                    in the terms on which it provides a service to the disabled person.

            References to providing a service include providing goods or facilities.

s 19(1)(b)

2.3       It is also unlawful for a service provider to discriminate in:

            ·          failing to comply with any duty imposed on it by section 21 (a duty to make reasonable adjustments) in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service.

            The reference to making use of a service includes using goods or facilities.

What does the Act mean by "discrimination"?

2.4       The Act says that discrimination against a disabled person occurs in two possible ways.

s 20(1)

2.5       One way in which discrimination occurs is when a service provider:

            ·          treats the disabled person less favourably — for a reason relating to the disabled person’s disability — than it treats (or would treat) others to whom that reason does not (or would not) apply; and

            ·          cannot show that the treatment is justified.

2.6       Making sure that a service provider does not treat a disabled person less favourably is considered in more detail in Chapter 3 below. Whether and when a service provider might be able to justify the less favourable treatment of a disabled person is considered in Chapter 7 below.

s 20(2)

2.7       The other way in which discrimination occurs is when a service provider:

            ·          fails to comply with a duty imposed on it by section 21 of the Act (a duty to make “reasonable adjustments”) in relation to the disabled person; and

            ·          cannot show that the failure is justified.

2.8       The duty to make reasonable adjustments is covered in greater detail in Chapters 4, 5 and 6 below. Whether and when a service provider might be able to justify a failure to make a reasonable adjustment is considered in Chapter 7 below.

Who has rights under the Act?

ss 1-2      Schs 1-2

2.9       An adult or child has protection from discrimination under the Act if he or she is a disabled person. A disabled person is someone who has a physical or mental impairment which has an effect on his or her ability to carry out normal day-to-day activities. That effect must be:

            ·          substantial (that is, more than minor or trivial); and

            ·          adverse; and

            ·          long term (that is, it has lasted or is likely to last for at least a year or for the rest of the life of the person affected).

2.10         Physical or mental impairment includes sensory impairments. Hidden impairments are also covered (for example, mental illness or mental health problems, learning disabilities and conditions such as diabetes or epilepsy).

In considering its duties under the Act, a service provider should not use any definition of “disabled person” which is narrower than that in the Act.

           A large supermarket has its own car park with spaces close to the entrance for use by disabled customers which are reserved for those with an orange badge car parking concession. After the introduction of the duty to make reasonable adjustments, the supermarket recognises that it must also provide appropriate assistance to all disabled people who find it unreasonably difficult to access its services and not just to those with an orange/blue badge car parking permit.  For example, the supermarket also offers a carry-to-car service for disabled people who are unable to carry their shopping themselves, but who might not be orange/blue badge holders.

2.11    People who have had a disability within the terms of the Act in the past are protected from discrimination even if they no longer have the disability.

           A person with a past history of mental illness, who met the definition of “disabled person” in the Act, is turned down for travel insurance because of a blanket exclusion policy, even though she has not had any recurrence of her mental illness for many years. The provider of insurance services would be acting unlawfully under the Act unless it is able to justify the exclusion in accordance with the special rules on insurance services set out in Regulations (see Chapter 8).

2.12    For a fuller understanding of the concept of disability under the Act, reference should be made to the Appendix to this Code. A Government publication, Guidance on matters to be taken into account in determining questions relating to the definition of disability, provides additional help in understanding the concept of disability and in identifying disabled persons (see paragraph 1.13 above). Where relevant, the Guidance must be taken into account in any legal proceedings.

What services are affected by Part III of the Act?

s 19(2)

2.13    Under the Act, the provision of services includes the provision of goods or facilities (and in this Code “services” is used in this sense). Subject to the exclusions set out in paragraphs 2.32 to 2.37 below, the Act affects everyone concerned with the provision in the United Kingdom of services to the public, or to a section of the public, whether in the private, public or voluntary sectors. It does not matter if services are provided free (such as access to a public park) or in return for payment (for example, a meal in a restaurant).

s 19(3)

2.14    Among the services which are covered are those provided to the public by local councils, Government departments and agencies, the emergency services, charities, voluntary organisations, hotels, restaurants, pubs, post offices, banks, building societies, solicitors, accountants, telecommunications and broadcasting organisations, public utilities (such as gas, electricity and water suppliers), national parks, sports stadia, leisure centres, advice agencies, theatres, cinemas, hairdressers, shops, market stalls, petrol stations, telesales businesses, places of worship, courts, hospitals and clinics. This list is for illustration only and does not cover all the services falling under the Act.

Some public bodies will be providing a service which may be covered by the Act in certain situations but not in others. For example, the police will be providing a service under the Act when giving advice and information about crime prevention, but are unlikely to be providing a service  when arresting someone. A highway authority may be providing a service when assuring passage along the highway. Whether or not a function performed by a public body is a service for the purposes of the Act will depend on all the circumstances of the case.

2.15     All those involved in providing services are affected — from the most senior director or manager to the most junior employee, whether full or part-time, permanent or temporary. It does not matter whether the services in question are being provided by a sole trader, firm, company or other organisation, or whether the person involved in providing the services is self-employed or an employee, volunteer, contractor or agent.

2.16     In most cases a service provider will be providing services to a disabled person in that person’s individual or personal capacity.  However, sometimes a disabled person will be accessing services on behalf of an organisation (perhaps as an employee or representative of that organisation). For instance, as part of a business relationship between that organisation and the service provider, a disabled employee or representative of the organisation might have to visit parts of the service provider’s premises to which a section of the public is normally admitted. The service provider is likely to owe the disabled person duties under the Act during such visits.

2.17    It is important to remember that it is the provision of the service which is affected by Part III of the Act and not the nature of the service or business or the type of establishment from which it is provided. In many cases a service provider is providing a service by a number of different means. In some cases, however, each of those means of service might be regarded as a service in itself and subject to the Act.

            If a bank provides its services from temporary or mobile premises during a two week tennis tournament, those services are still covered by the Act.

          A bank branch provides a cash withdrawal service over the counter from Monday to Friday during opening hours.  It also provides a 24-hour cash withdrawal facility all through the week from cash machines (ATMs).  To the extent that the ATM service is available when the counter service is not, the bank is likely to be providing an additional service which is subject to the duties in the Act. 

            A local leisure centre is subject to the Act because it provides a service to the public and not, for example, because its services are provided from a public building.

           An airline company provides a flight reservation and booking service to the public on its website. This is a provision of a service and is subject to the Act.

          A television company invites members of the public to participate in a game show by telephoning its national call centre. This is the provision of a service and is subject to the Act.

s 19(3)

2.18         A wide range of services are covered by the Act so as to include access to and use of any place which members of the public are permitted to enter.  For example, toilet facilities and in–store restaurants open to the public are covered and a service provider might have to make changes to entrances, fire exits and emergency escape procedures which make it impossible or unreasonably difficult for disabled people to use its service (see Chapter 5).  

          A service provider converts a large building for use as retail premises. It recognises that it must take reasonable steps to provide a means of escape in an emergency, accessible for disabled people, which might include adjustments to the premises.

s 19(3)

2.19    The Act says that "services" include "access to and use of any place which members of the public are permitted to enter".  Thus, a person who permits "members of the public" to enter such a place is providing a service to those people consisting of access to and use of that place.

2.20    Complex issues arise in the case of premises with more than one occupier, where there are common areas such as entrance halls, stairways and lifts.  The Act does not expressly state whether or not the landlord (including any operator of the common parts) in such a case is a service provider for the purposes of the Act in respect of those common areas.  Therefore, it does not make it explicit whether the landlord is under a duty to make reasonable adjustments to the common parts to make them accessible to disabled people.

2.21    Whether the landlord is under such an obligation is likely to depend on whether the place is one “which members of the public are permitted to enter”.  If members of the public are permitted to enter the premises, the landlord is likely to be a service provider in respect of access to the premises. If members of the public are not permitted to enter the premises, the landlord is unlikely to be a service provider under the Act.

2.22    However, the Act does not define who are “members of the public”, except to the extent that the definition of service provider refers to the provision of services to “the public or to a section of the public”.

2.23    Members of the public are clearly permitted to enter some places. A shopping mall is an example. If the owner of a shopping mall leases shop units to individual retailers, the owner will be responsible for the common areas, such as access roads, pavements, car parks, toilets, lifts and stairs.  By allowing members of the public to use these common parts, the owner is providing services to the public and is subject to the Act.

2.24    The situation of an office building with more than one occupier is not so clear.  Whether the landlord is himself a service provider in respect of the common parts is likely to depend upon whether members of the public are permitted to enter the premises.

2.25    There appears to be no single test that determines whether a place is one which members of the public are permitted to enter.  Whether or not a person entering the premises is a member of the public is likely to depend on all the circumstances of the case.  A number of factors may be relevant, including:

·        whether tenants who are service providers are actually providing services in the building rather than from the building;

·        whether those admitted to the building are there for the purposes of the occupier (such as employees or maintenance and service personnel) or whether they are there for purposes of their own (such as existing or potential clients or customers); and

·        the nature and extent of the security and screening arrangements in place.

2.26    Thus, a building which is normally used only by employees of the tenants is unlikely to be regarded as a place which members of the public are permitted to enter. Conversely, a building which is normally used by customers or clients of tenants may well be a place which members of the public are permitted to enter.

2.27    Because the issue is complex, landlords of premises with more than one occupier should not assume that they are not service providers for the purposes of the Act. They should anticipate that they may have responsibilities to make the common parts accessible to disabled people. They are advised to keep up to date with how the law in this respect is being interpreted.

2.28    If tenants are providing services to the public in their own right from the premises, they will have a duty under the Act to take reasonable steps to make their services accessible to disabled people (see Chapters 4 to 6). Where the common parts make it impossible or unreasonably difficult for disabled people to use their services, asking the landlord to make such alterations as are required in order to make the premises accessible is likely to be a reasonable step for the tenant to have to take.

2.29    If access through the common parts remains impossible or unreasonably difficult for disabled people, tenants should recognise that they may have duties themselves to provide a reasonable means of avoiding the physical feature concerned, or a reasonable alternative method of making their services available to disabled people.  In any event, it makes commercial sense for service providers to anticipate the needs of their disabled customers or potential customers when determining the location of their premises, or negotiating a lease, by ensuring that the common parts of the premises they lease are accessible.

2.30    A service might appear to be provided by more than one service provider. In such a case it may be important to identify who is actually responsible for the provision of the service which has given rise to the alleged discrimination. In some cases, liability under the Act may be shared among a number of service providers.

            A bank provides a cash machine facility inside a supermarket. Although the facility is located on the supermarket’s premises, the service is being provided by the bank. The bank is likely to be responsible for any duties that may arise under the Act in respect of the cash machine. However, the supermarket is likely to be responsible for ensuring that the cash machine is physically accessible to disabled customers using its premises.

            An airport grants a franchise to a crèche to provide its services in a part of the airport. Although the crèche is located on the airport’s premises, the service is being provided by the franchisee. The franchisee is likely to be responsible for any duties that may arise under the Act in respect of the crèche. However, access through the airport to the crèche is the responsibility of the airport.

           A training company provides a non-residential conference at a hotel. The training company is responsible for any duties that may arise under the Act in respect of the conduct of the conference and the choice of an accessible venue. However, the hotel may provide some services which are part of the conference facilities, such as toilets, for which it is responsible under the Act.  In addition, services provided by the hotel which are ancillary to the conference (for example, accommodation the night before the conference) are also those for which the hotel is likely to be liable under the Act.

What services are not affected?

2.31    At present Part II of the Act exempts some employers according to the number of people they employ. There are no exemptions of this kind (whether relating to size, turnover or any other factor) for service providers under Part III.

s 19(5)

2.32    Some services are currently excluded under Part III of the Act. These are education and certain services closely related to it (see paragraphs 2.33 to 2.35 below) and the use of any means of transport (see paragraphs 2.36 and 2.37 below).

Education

s 19(5)(a)

SI 1996/1836 reg 9

2.33         At present Part III of the Act specifically excludes education from the provisions relating to goods, facilities and services.  Generally, primary and secondary schools, youth services and further and higher educational establishments are excluded from Part III.

Part IV of the Act currently requires schools, local education authorities, colleges and universities to provide information on access to education for disabled pupils and students.

2.34         Although education as outlined above is not covered by Part III of the Act, any other educational or training services provided to the public are likely to be subject to Part III.  For example, privately-run establishments providing further education or training to the public are likely to be covered by Part III.  Non-educational services which are provided by any school, college or university, whether wholly or partly to the public, are also likely to be subject to this part of the Act.

           A privately-run college which provides typing courses is providing a service which is likely to be subject to Part III of the Act.

            A parent-teacher association holds a fund-raising event in a school hall. This is a provision of a service which is likely to be subject to Part III of the Act.

            A university puts on a conference which is not aimed wholly or mainly at students.  Even if the majority of people who take up the places are students, the conference is still likely to be subject to Part III of the Act.

Education after 1 September 2002

2.35    The SEN and Disability Act 2001 has amended Part IV of the DDA and expanded the duties relating to disabled pupils and students.  It has also removed the exemption of education from Part III of the Act, although where a Part IV duty applies, Part III cannot apply.

These new obligations will come into force in stages, beginning on 1 September 2002 .

Following this implementation date, some services which had previously been excluded from Part III, and which do not fall within Part IV, are likely to be covered by Part III of the Act.  This includes non-statutory youth services, such as clubs and activities run by voluntary organisations, the Scouts or church youth clubs.  For further details, please see the SEN and Disability Act Code of Practice: Schools and the SEN and Disability Act Code of Practice: Post 16 Education (both available from the DRC Helpline).

Those educational or training services which currently fall within Part III of the Act (see paragraph 2.34 above) will continue to do so after 1 September 2002 .

The use of any means of transport

s 19(5)(b)

2.36    Part III of the Act does not apply to any service so far as it consists of the use of any means of transport (for example, taxis, hire cars, buses, coaches, trains, aircraft and ships). However, this does not mean that transport providers are wholly exempt from Part III. They still have a duty to avoid discrimination against disabled people and to make reasonable adjustments for them in respect of matters like timetables, booking facilities, waiting rooms etc. at airports, ferry terminals and bus, coach and rail stations.

            A wheelchair user has no protection under Part III of the Act if a ferry on which he wishes to travel is not accessible. However, if he is refused service in the buffet bar of the ferry terminal because of his disability, this is likely to be unlawful.

SI 1998/1970,

SI 2000/3318

SI 1998/2456,

SI 2000/3215

SI 2000/2990

2.37    Part V of the Act allows the Government to set access standards for buses, coaches, trains, trams and taxis. The Government has produced regulations on access standards for rail vehicles and these apply to vehicles entering service from 1 January 1999 . Regulations on access standards for certain buses and coaches, which are used on local or scheduled services, have applied to new vehicles from the end of 2000. 

           Since April 2001 it has been unlawful for licensed taxis in England and Wales to refuse to carry, or to make any extra charge for, disabled passengers who are accompanied by a guide or assistance dog.  It has also been unlawful not to allow the dog to remain with the passenger.  A driver who fails to comply with this duty may be guilty of a criminal offence and subject to a fine.  Similar regulations in Scotland are likely to be in place during 2002.

Services not available to the public

Private clubs

s 19(2)(b)

2.38    Services not available to the public, such as those provided by private clubs, are not covered by Part III of the Act. However, where a club does provide services to the public then the Act applies to those services.

            A private golf club refuses to admit a disabled golfer to membership. This is not covered by the Act. However, if the golf club hires out its facilities for a wedding reception, the Act applies to this service. If the club allows non-members to use the course, a refusal to allow a disabled golfer to play is likely to be subject to the Act.

2.39    Private clubs are generally those where membership is a condition of participation and members have to comply with a genuine process of selection, usually by a club committee operating the club rules. Private clubs may include special interest clubs, such as a film club or cricket club, or clubs for particular groups of people, such as military or political clubs. However, simply calling a service a “club” does not necessarily mean that the courts will consider it to be a private club. For example, commercially run businesses which may require membership — such as a health club or a video rental shop — would normally still be providing services to the public and, therefore, would be covered by the Act.

            A health club in a hotel is open to the public. Club members pay an annual subscription and are provided with a membership card. Before using the club’s fitness equipment, a member must undergo a fitness test. Although members have to satisfy certain requirements in order to use some of its facilities, compliance with a genuine selection procedure for membership is not a condition of using the club. The club is providing services to the public and is unlikely to be excluded from Part III of the Act.

Manufacturers and designers of products

2.40    The manufacture and design of products are not in themselves covered by Part III of the Act because they do not involve the provision of services direct to the public. Nothing in the Act requires manufacturers or designers to make changes to their products, packaging or instructions. However, it makes good business sense for manufacturers and designers to make their goods (and user information) more accessible to disabled customers and they should consider doing so as a matter of good practice.

            A manufacturer of garden tools distributes its products only through high street shops. The Act does not require the manufacturer to design or market the goods so as to be easily useable by disabled purchasers.

            A food processing company produces tinned food which it supplies to a supermarket chain. Whether the tins are branded with the supermarket’s own label or with that of the producer, the food processing company is not supplying goods to the public and so does not have duties under the Act. The supermarket is likely to have duties under the Act because it is supplying goods to the public, but these duties do not extend to the labelling or packaging of the tinned food.

2.41    However, if a manufacturer does provide services direct to the public, then it may have duties under the Act as a service provider.

            A manufacturer of electrical goods provides a free guarantee. A purchaser of the goods is then entitled to have the goods replaced by the manufacturer if they are faulty within 6 months of purchase. For a fixed sum the manufacturer also provides an optional extended guarantee covering the goods against defects for up to 2 years after purchase. In both cases, the manufacturer is providing a service to the public (the guarantee) and is subject to the Act in relation to the provision of that service (but not in relation to the goods themselves).

            A manufacturer of self-assembly furniture sells its products direct to the public by mail and telephone order and through a factory shop on its premises. It has duties under the Act because it is providing a service to the public. For example, it may have to make reasonable adjustments to the way in which it provides its service.

3.   The service provider’s duty not to treat a disabled person less favourably

Introduction

3.1       This chapter addresses the duty of service providers to ensure that disabled people are not treated less favourably than other people when using their services. It explains what is made unlawful by the Act and what is meant by “less favourable treatment”.

What is unlawful?

s 19(1)

s 19(1)(a)

s 19 (1)(c)

s 19(1)(d)

s 19(1)(b)

3.2       The Act says that it is unlawful for a service provider to discriminate against a disabled person by:

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

·                    providing service of a lower standard or in a worse manner; or

·                    providing service on worse terms; or

·                    failing to comply with a duty to make reasonable adjustments (under section 21 of the Act) if that failure has the effect of making it impossible or unreasonably difficult for the disabled person to make use of any such service.

            The consequences of a failure to comply with a duty to make reasonable adjustments are considered in Chapters 4, 5 and 7.

Less favourable treatment

s 20(1)

3.3       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 that reason does not (or would not) apply and it cannot show that the treatment in question is justified. This means that the treatment of the disabled person is compared with how the service provider treats (or would treat) other people to whom the reason for the treatment does not (or would not) apply.  Whether and when a service provider might be able to justify the less favourable treatment of a disabled person is considered in Chapter 7 below.

            A football club admits visiting supporters to its stadium. However, one visiting supporter is refused entry because he has cerebral palsy and has difficulty controlling and co-ordinating his movements. No other visiting supporter is refused entry. This would amount to less favourable treatment for a reason related to disability and, unless the football club can justify its actions, would be an unlawful refusal of service contrary to the Act.

3.4      If the treatment is caused by the fact that the person is disabled, that is treatment which “relates to” the disability. This is the case even if some non-disabled people are also treated unfavourably for a broadly similar reason.  Broadly speaking, this means that a disabled person will have been treated less favourably if he would not have received the treatment but for his disability.

            A popular disco turns away prospective patrons who do not satisfy their “image” in one respect or another. A woman with a severe facial disfigurement is not admitted by the doorman for this reason.  Even though the club also does not allow entrance to many non-disabled people, for example, because it does not consider they are appropriately dressed, the woman with the severe disfigurement has been treated less favourably for a reason related to her disability. This is likely to be unlawful.

3.5       Bad treatment is not necessarily the same as less favourable treatment although, where a service provider acts unfairly or inflexibly, a court might draw inferences that discrimination has occurred.

            All the supporters of a visiting team are refused entry to the stadium by the football club in the example in paragraph 3.3 above. A visiting supporter with cerebral palsy is being treated no differently from all the other visiting supporters. He has not been subjected to any less favourable treatment for a reason related to disability. However, if the football club refused entry to all the visiting supporters because one of their number has cerebral palsy, that could amount to unlawful discrimination against the disabled supporter.

3.6       The comparison can also be between the way in which one disabled person is treated compared to the way in which people with other disabilities are treated.

            The football club in the example in paragraph 3.3 above refused entry to the disabled supporter with cerebral palsy. It cannot claim that it did not discriminate simply because people with other disabilities were allowed entry. The supporter with cerebral palsy has been less favourably treated in comparison with other members of the public, including the supporters with other disabilities.

3.7       A disabled person does not have to show that others were treated more favourably than they were. It is still less favourable treatment if others would have been treated better.

            A party of adults with learning disabilities has exclusively booked a restaurant for a special dinner. The restaurant staff spend most of the evening making fun of the party and provide it with worse service than normal. The fact that there are no other diners in the restaurant that evening does not mean that the disabled people have not been treated less favourably than other people. Other diners would not have been treated in this way.

3.8       There must be a connection between the less favourable treatment and a reason related to the disabled person’s disability.