The Claimant was a customer of the bank. The branch was inaccessible to wheel chair users. He made a claim in his capacity as a customer. His Honour Judge Dowse, at first instance declared that the Bank had discriminated against the Claimant contrary to s.19(1)(b) and awarded the Claimant £6,500 for injury to feelings. His Honour also ordered the Bank to install a platform lift in the banking hall. The Bank appealed the order to install the lift but not the award for injury to feelings.
The Claimant was a young man who suffered from Duchenne Muscular Dystrophy. He had been using an electric wheelchair from an early age. He had a bank account with the Royal Bank of Scotland at its main branch in Sheffield. The main branch was in a listed building and access to all of the entrances was gained by a flights of stone steps. The branch was therefore inaccessible to wheelchair users.
Two potential adjustments were before the court. The first proposed adjustment was installing a lift in the lobby area and the second was installing a lift in the banking hall. The Respondent did not raise an objection on the grounds of cost.
The Bank contended that the Judge had failed to properly identify the services that the bank was providing and had therefore failed to properly identify the adjustments that were required. The Court of Appeal rejected the Bank’s contention. Lord Justice Dyson stated that the service in question was the provision of banking facilities at the main branch and that unless a platform lift was installed in the main branch, persons whose disability required them to use wheelchairs could not gain access to the main branch and could not therefore make use of the facilities that were available to able bodied persons.
The availability of the banking services elsewhere was relevant to the reasonableness of the adjustment not to whether the duty to make adjustments arose.
The Court of Appeal also upheld the HHJ Dowse’s judgment that installing a platform lift would have been a reasonable adjustment. When finding that the bank had failed to make an adjustment HHJ Dowse made a number of references to the bank’s failure to consider whether or not the installation of the lift was feasible. Lord Justice Dyson stated:
“the judge should not have concluded that a breach of section 19(1)(b) and 21(2)(a) was proved by the Bank’s failure to consider the [installation of the lifts], But it is clear that what he meant was that, by failing to consider the proposal, the Bank was not in a position to adduce evidence to show that the duty to make adjustments imposed by section 21(2) did not require it to remove the offending physical feature by [installing a lift].”
The banks failure to consider the adjustment was therefore highly relevant to their ability to prove that the adjustment was reasonable. For instance, one of the grounds upon which the Bank argued that the adjustment was unreasonable was that the lift could not be installed on the banking floor without removing one of the conference rooms. However, since the bank had not really considered what effect removing a conference room might have on its business the Judge was entitled to conclude that it was reasonable to make the adjustment even though a conference room would be lost.
This is an interesting case dealing with what must be a common problem for many disabled persons – access to a building. Lord Justice Dyson set out a useful checklist for service claims under what was the old DDA 1995, ss.19(1)(b) and 21(2):
The full transcript is here: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1213.html