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A three-stage test provides some answers in disabled access cases

legal matters

Since it became known that a duty on service providers to take reasonable steps (sic) to provide disabled access to buildings was to be imposed by the Disability Discrimination Act (DDA), there has been a flurry of associated works, writes Kim Franklin. The flurry has been somewhat hampered by the lack of guidance on what the courts might consider to be a reasonable step to take. Some wisdom on the question has now emerged from the Court of Appeal, in Ross v Ryanair (Mr Ross was charged £18 to borrow a wheelchair at Stansted Airport) and Roads v Central Trains. The latter, which the judgment in Ross referred back to, provides clear guidance on how the statutory test works, and sets out some considerations that go to reasonableness.

Mr Roads uses an electric wheelchair. If he travelled from Norwich to Thetford and back again by train, he had to change platforms at Thetford.

A footbridge connects the two platforms, and everyone agreed it was effectively impossible for Mr Roads to use it. A lift was not a viable option, as the station was largely unmanned, and the cost of a ramped bridge was estimated at £750,000.

Against that background, the parties put forward rival contentions as to what constituted reasonable alternative means of avoiding the bridge.

There was a route between the two platforms via Station Lane, which was difficult to negotiate in a wheelchair. Mr Roads contended that Central Trains should provide a taxi to take him from one platform to the other using this route.

In practical terms, this meant that a specially adapted taxi would have to come from Norwich.

It would travel, passengerless, from Norwich, transport Mr Roads to the opposite platform, and return, passengerless, to Norwich. That Mr Roads was planning on coming from and going to Norwich on the train was not lost on the trial judge, who decided it was not reasonable for Central Trains to provide a taxi.

Central Trains' alternative was that Mr Roads should catch a train to Ely, and then catch another train back again, thereby enabling him to alight at the opposite platform in Thetford. This would add about an hour to a 36-minute journey.

For some reason the parties had agreed that the cost of the taxi was not to be taken into account in deciding what was reasonable. The Court of Appeal concluded that the judge at trial had been influenced by that factor when he should not have been, and upheld Mr Roads' appeal that, if cost was not taken into account, a taxi was reasonable. In reaching that conclusion, it explained that there is a three-stage test.

First, does the feature complained of impede people with a particular kind of disability, such as impaired mobility; the duty under section 21?

Second, if it does, has it impeded the particular claimant? That would give rise to the right to claim under section 19. Third, is the provision that has been made, reasonable?

The Court of Appeal acknowledged that this third question is not straightforward. The following pointers as to how it may be answered appear in the judgment:

l Where there is only one practicable solution, this may have to be treated as reasonable, even if it presents difficulties for disabled people.

l Where a range of solutions is available, demonstrating that one of them meets the requirements of section 21 may not be enough to discharge the duty to take reasonable steps. The policy behind the DDA is not a minimalist policy of ensuring that the disabled have some access. It is to provide access as close as it is reasonably possible to get to that offered to the public at large.

l All the circumstances have to be taken into account. So where there are competing solutions, judging what is reasonable includes considering the availability of one solution while assessing the reasonableness of the other.

l Certain steps might be rendered unreasonable if they impact unreasonably on third parties.

The second of these points about what is reasonable highlights that the DDA is not just about access; it is about avoiding discrimination. When considering what works it may be reasonable to undertake; that is perhaps the most helpful benchmark to keep in mind.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers. Visit www. crownoffice chambers. com

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