Knowledge

Catering for the Disabled

Among the many issues a licensee has to deal with when making any changes to their premises, or opening a new one, is disabled access.  Here, Tods Murray assesses the legal rights and wrongs.

We’ve noticed some recent attention given to the facilities for and access to licensed premises for disabled persons, which seems to have arisen as a result of the implementation of the new LicensingAct.  There are many groups all over Scotland actively seeking to alert licensing boards and the wider community to perceived shortfalls in providing for disability access, for example the Five Digits Disabilities Issues Group in Dundee.  These groups have been vocal for a good number of years – don’t be fooled into thinking that they are  jumping on the 2005 Act bandwagon.  They are simply continuing to exert the view that facilities may not be what they should be.  In fact, the legal requirements here are found in the Disability Discrimination Act 1995, and licensing boards have been under a legal duty to promote equality for persons with a disability since that time.

The 1995 Act doesn’t just place duties on the licensing board though.  It also introduced legal duties for persons who are “providers of services”, which of course includes publicans, to make sure that they do not discriminate against a disabled person in:

• Refusing to provide the person with the service he provides to the public
• Making it impossible or unreasonably difficult for the person to use the services
• Altering their standards of service to the person
• Having different terms on which the service is provided.

The main concerns seem to arise in relation to toilet and access facilities, as opposed to standards of service.

So just what is the position here?  In general terms, you have a duty under Section 21 of the 1995 Act to take steps to resolve a situation where a “physical feature” of  your pub makes it impossible or unreasonably difficult for disabled persons to make use of your service.  In these circumstances, you may be required to remove the physical feature, alter it to remedy the problem, or provide an alternative.  This duty may not only impose financial burdens but pose practical dilemmas for publicans.

Many publicans will have gone though the process of altering the layout of their premises to facilitate access but in some cases, it may simply be impossible owing to the layout of the building.  A key test in the 1995 Act is that the duty under s.21 is subject to a  reasonableness test:  that is, the duty to take steps to alter or remove a physical feature is such steps “as it is reasonable, in all the circumstances of the case”.  Now, let me make it clear – this is not a route to avoid compliance with the Act;  instead it should be seen as covering those instances when a premises genuinely cannot be re-configured.  It does not apply just because the publican wishes to avoid the cost or bother of reconfiguration.

What is certain is that the disabled community still feels there is a lot of work to be done here and that some publicans have been reticent to update their facilities.  They do appreciate that, in some cases, reconfiguration may not be possible because of exorbitant cost and where that is the case, the “reasonableness” test may apply.

Remember that when we are talking about access for  disabled persons we are not simply talking about installing lifts or wheelchair ramps, the Act is about providing parity of service for all disabled people, such as those with hearing or vision difficulties, and people with a learning disability.  Adjustments may be as simple as providing an induction loop for hearing aid users, or using larger signage for people with vision problems and so on.  Staff training on disability awareness is also recommended.

The first port of call for a person who feels you may have discriminated against them is the Equality and Human Rights Commission.  But now that we are into the new Licensing (Scotland) Act 2005 landscape, remember that you are now trading from your new premises licence, and under the new system “any person” can call for a review of that licence.  That could fairly include a disabled person who feels that they have been discriminated against in your pub.  It is not too great a stretch of the imagination that a person could argue that there is an issue of public safety if your premises does not have proper access facilities for wheelchair users, for example.

It is perhaps interesting to note that under s.27 of the 2005 Act a licensing board cannot attach a condition to your licence which relates to a matter regulated under another enactment, meaning a board could not attach a condition regarding disabled access.  But this restriction has not stopped some boards doing just that, for example attaching conditions regarding the location of gaming machines which are regulated under separate gambling laws.  Such conditions may yet be challenged in court.

That aside, I think it is clear that publicans can and should do what they can to ensure they have appropriate access and services to cater for all.  If you receive a complaint in relation to this, then I would suggest that the very least you must do is investigate the concern, conduct a cost exercise to ascertain what adjustments may be required, and share those findings with the person.  You can then consider the way forward from there.

For further information, contact a member of our Hospitality and Leisure Team