Allen v Royal Bank of Scotland Group plc

Bank – Access – Reasonable adjustments – Appellant’s premises inaccessible by wheelchair – Respondent alleging disability discrimination – Whether appellant making reasonable adjustments – Appeal dismissed The respondent was disabled and used an electric wheelchair. He held an account with the appellant bank at a branch that was located in a listed building. The building was inaccessible to wheelchair users, as were two ATMs at the front of the building. Various solutions had been proposed, including the installation of a platform lift in part of the banking hall, but the appellant had rejected the proposal because it required the removal of an interview room on the ground floor. The respondent brought an action against the appellant alleging unlawful disability discrimination, in breach of section 19(1)(b) of the Disability Discrimination Act 1995, on the ground that the appellant had failed to make reasonable adjustments without justification within section 21(2) of the Act. The appellant claimed that it had offered the respondent a reasonable alternative by a combination of internet banking, telephone banking and the use of other branches. However, the judge declared that the appellant had discriminated against the respondent contrary to section 19(1)(b) of the 1995 Act, awarded £6,500 in damages for injury to feelings and ordered the appellant to install a platform lift. The appellant appealed contending, inter alia, that the judge had failed to: (i) identify the relevant service that the appellant was providing; and (ii) apply the correct objective test in section 21(2), which included “the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to provide a reasonable alternative method of making the service in question available to disabled persons”.Held: The appeal was dismissed.(1) The judge had failed to analyse with sufficient rigour the nature of the services that the appellant provided. The relevant service was the provision of banking facilities at the appellant’s main branch. It was not disputed that, unless a platform lift was installed, persons whose disability required them to use wheelchairs could not use the facilities that persons who were not disabled had available to them at that branch. The means by which a service was delivered was often an integral part of the description of that service. In any event, by section 19(2)(a), “provision of services” included “the provision of any goods or facilities”. The provision of banking facilities by internet or telephone constituted different banking services from those of traditional face-to-face banking. The judge had been entitled to conclude that the availability of face-to-face facilities was an important element of the service that the appellant provided at the branch. Many customers preferred distance banking, but others preferred the traditional way of doing things. The public had physical access to banks in order to use traditional counter banking services and the appellant’s non-disabled customers had physical access to all its branches. The judge had been entitled to conclude that providing alternative methods of making those banking services available was not a reasonable option, unless it was not reasonably possible to afford the respondent physical access, which was not the case here. (2) The language of section 21(2) was plain. The duty arose once a physical feature made it impossible or unreasonably difficult for disabled people to use a service and there was a step that it was reasonable for the service provider to have to take to achieve one of the goals stated in paras (a) to (d). The judge had applied the correct test. The judge should not have concluded that a breach of sections 19(1)(b) and 21(2)(a) had been proved by the appellant’s failure to consider the platform lift scheme, but he clearly meant that, by failing to consider the proposal, the appellant 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 adopting that scheme. Whether a step was unreasonable involved an exercise of judgment in all the circumstances of the case. Although the language that the judge used was unfortunate, the judge had not misdirected himself. He had addressed the central question of whether the reasonable adjustments duty required the appellant to adopt the platform scheme or whether it sufficiently discharged that duty by making available the alternative facilities on which it relied. The judge had addressed that question objectively and reached a conclusion that had been open to him.Richard Lissack QC and Dr Stephen Hardy (instructed by Cobbetts LLP, of Manchester) appeared for the appellant; Robin Allen QC and Catherine Casserley (instructed by the Sheffield Law Centre) appeared for the respondent.Eileen O’Grady, barrister