How to deal with common excuses

Dealing with common excuses

Unless specified otherwise, this document uses the following legislation:

The Equality Act 2010 – EA 2010
Services, Public functions and Associations: Statutory Code of Practice issued by the Equality and Human Rights Commission – Code of Practice

Below we list some of the most common justifications public bodies and service providers often use to dispute discrimination claims. We also give tips on how to deal with those.

We are already making adjustments for other Disabled people

Service providers or public bodies are not required by law to anticipate all possible needs, but they have to think of the barriers Disabled people with different impairments might face when accessing their service. In any event, once the service provider or a public body was made aware about the specific needs of an individual, they have to consider what reasonable steps they can take to make adjustments for this individual.

For more details and references see paras 7.24 – 7.26 of Code of Practice on goods and services

Your choice is a bit limited, but you can still use our service.

This justification is sometimes used by organisations to justify the lack of communication support at face to face appointments because the same service is available online. Small shops try to use this excuse to justify their decision not to make their premises more accessible and offer to serve customers outside. This justification is sometimes used to explain the delays caused by poor quality of assistance on rail or a failure of a rail company to inform Disabled passengers that accessible toilet was not working.

The courts have clarified this point in the past and Equality Act Code of Practice makes it clear that the duty to make reasonable adjustments is not a minimalist one, so often these excuses will not be good enough to justify a reasonable adjustment not being made. Service providers and public bodies should take all possible steps to make sure the Disabled people’s experience is as far as possible similar to that of non-Disabled people.

For more reference see para 7.4 CoP on goods and services

We did not know you were going to use our service and that’s why the adjustments were not made

This justification is often used by public transport providers to justify their failure to provide assistance on the turn up and go basis. This reason is also often given to justify the lack of information in accessible formats or the absence of communication support.

The Equality Act requires service providers and public bodies to anticipate the barriers Disabled people might have when using their service. They cannot sit and wait for a person to come through the door. CoP on goods and services para 7.3.

You should ask them to explain what kind of assessments they have made of the barriers or difficulties Disabled people might experience when using their services, what arrangements have been put in place and why in their view it was not reasonable for them to make the adjustment that you needed.

We are doing this for a very good reason

Sometimes service providers and public bodies can justify the way they treat Disabled people. If they can show their actions, policies, decisions were a proportionate means of achieving a legitimate aim; they will not be considered breaching the law. This reason is given in a variety of situations from not allowing people in buildings because of health and safety policies, explaining refusals to communicate via email by security concerns or justifying the lack of accessible engagement by time constraints.

Service providers often try to use this sort of justification when you claim discrimination arising from disability or indirect discrimination. In order to justify their actions, service providers and public bodies have to show tier decisions, actions or policies are a proportionate means of achieving a legitimate aim. Firstly check if the reason is a good reason, so for example, is a health and safety policy about a particular access issue a good one. Secondly check if the action or decision or action in question actually helps to achieve the aim; for example is stopping you accessing a particular part of a building going to avoid foreseeable accidents. Then think if there is something less discriminatory that could have been done to achieve the aim; for example, could they make the building safer, or move the services to a part of the building that it is safe for you to access. You should also think whether there were any reasonable adjustments that could have been made. For example, could an organisation have installed a ramp?

We suggest not taking the service provider’s or public body’s word for an answer. Ask further questions and require evidence to support what they are saying. Under the law, it is them who have to prove they have very good reason to do what they are doing and there are no less restrictive options available to them. If you are claiming discrimination arising from disability, they not only have to justify their policy, but also the way they treated you in that particular situation.

We don’t think it is reasonable for us to take the steps you are asking us to take

The Equality Act does not set out the test for what is reasonable. However, The Equality Act Code of Practice sets out some criteria that could be taken into consideration. This includes:
How effective is the proposed step in helping to overcome the barriers Disabled people face when accessing the service;

• how practical it is for the service provider to make the adjustment;
• the financial and other costs of making the adjustment;
• the extent of any disruption which making the adjustment 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.

This list shows that the cost is not the only factor; there are other things such as the practicality effectiveness and the impact on the service provider or a public body. At the end of the day what is reasonable in each individual case is a question for courts to decide. If the service provider insists it is not reasonable for them to make the adjustment you are asking for, ask for an explanation. Think of how you can dispute it using the bullet points listed above.

It is worth keeping in mind that you don’t have to prove that the reasonable adjustment you are asking for is bound to work. It is enough for you to convince the court that it has a good chance of working.

This is too expensive

Costs and other resources of the company are relevant when deciding whether or not it is reasonable to make a certain adjustment. It would be difficult for an organisation with substantial resources to justify their actions by prohibitive costs. Therefore how good this reason is will depend on the cost of adjustment and the resources of the organisation in questions.

It is also worth remembering that the Equality Act prohibits service providers or public bodies from charging Disabled people for the cost of making an adjustment. So when a taxi company recommends you use a larger vehicle and pay more or when a gym asks you to pay for your interpreter they are acting unlawfully.

We depend on third parties to make adjustments and they are not doing their job

This situation often happens when a third company maintains lifts or when an agency is used to book interpreters. This excuse can also be used in a situation when a service provider needs consent from a landlord to make building more accessible.

In relation to the situations when the landlord’s or a freeholders consent is required to make changes to the building, the organisation can only use this as an excuse if they have asked the freeholder or a landlord to consent to adaptations.

When organisations depend on others to maintain buildings or lifts or they ask other organisations to help them make reasonable adjustments, contracting an interpreting agency to help find interpreters for example or asking another organisation to put information in an alternative format the question would be whether the service provider or a public body has taken all reasonable steps to ensure third parties contracted by them are doing their job properly.

For example, when a company contracts the agency to find BSL interpreters, you should check how quickly the agency was informed, how much time they had to find someone.

If the agency fails to find interpreters on numerous occasions, even when given a reasonable notice, you should check what actions was taken by the service provider or a public body to address this problem.

Still not sure what to do?

If you need help to deal with the response you received, contact our Disability Justice Project. We may be able to advise you.