Disability Discrimination Act

Steve Goss and Tony Harvey discuss the practical implications of the Disability Discrimination Act 1995 and recommend a managed approach to compliance sooner rather than laterDespite the fact that the Disability Discrimination Act (DDA) is dated 1995, there is a general perception in the services and retail industry that it does not come into force until October 1, 2004. From that date service providers may have to make 'reasonable adjustments' to service and retail premises, but many parts of the Act are already in force.
There is also a belief that compliance with the Act is purely about the provision of automatic entrance doors and permanent ramps to premises. In actual fact, the Act encompasses much more and impacts on a much wider and deeper part of in-store and out-of-store service provision.
This article is intended to familiarise practitioners with the key requirements of Part III of the Act, to identify the significant issues and duties for the optical services industry, and to define how this forms an integral and vital part of any optical service provider's overall, sustainable, DDA compliance solution.
The DDA1 was passed through UK Parliament in 1995 and is governed by the Department for Work and Pensions. The Act itself is split into eight parts:

Part I: disability
Part II: employment
Part III: discrimination in other areas
Part IV: education
Part V: public transport
Part VI: the National Disability Council
Part VII: supplemental
Part VIII: miscellaneous.

Part III of the Act Ð discrimination in other areas Ð is of particular relevance to service providers. Like many of the other parts, it subdivides into sections (Figure 1).

DDA Part III
This article focuses on sections 19 to 21, Ð the provision of goods, facilities and services. Of specific interest is section 21, which defines the general duties imposed on the service provider to make reasonable adjustments.

Part III duties
These duties are being introduced in three stages:

Stage 1 Ð Since December 2, 1996 it has been unlawful to treat disabled people less favourably.
Stage 2 Ð Since October 1, 1999 service providers must make 'reasonable adjustments'
Stage 3 Ð From October 1, 2004, where a physical feature makes it impossible or unreasonably difficult for disabled people to make use of services, a service provider will have to take reasonable steps to remove the feature; or alter it so that it no longer has that effect; or provide a reasonable means of avoiding it; or provide that service by an alternative means.

These four options are not weighted, and each could be seen as the best solution to a specific problem area. The service provider does not need to demonstrate that all options were considered, though they may have to justify their actions if a complaint came before a court.
What is considered 'reasonable' will vary depending upon the size of the business, and the type of premises. A 'multiple' chain has an aggregate duty to comply: (both a profitable store and an unprofitable store are viewed equally). However, it would be unreasonable to expect a small independent practice to fund large changes, which would render the business unprofitable. Furthermore, changes to historic and listed buildings would be seen as unreasonable.
It must be highlighted that it is only physical features that need a DDA compliant solution by October 1, 2004. All other areas of a company's service provision should already be compliant, as 'reasonable adjustments' should have been completed by October 1, 1999. The way that a service provider's staff treats its customers with disabilities, for instance, should already be compliant, so that those customers are not treated less favourably.

Unlawful acts of discrimination
With respect to 'committing an unlawful act of discrimination', it is unlawful for a service provider to:

Discriminate against a disabled person (sections 19 and 20) by refusing to provide (or deliberately not providing) any service which it provides (or is prepared to provide) to members of the public; or in the standard of service which it provides to the disabled person or the manner in which it provides it; or in the terms on which it provides a service to the disabled person; and it cannot show that the treatment in question is justified
Discriminate against a disabled person (section 21) in failing to comply with any duty imposed on it by section 21 (a duty to make reasonable adjustments) in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service; and it cannot show that the failure to comply with that duty is justified.

The Disability Rights Commission
Formed three years ago, the DRC raises awareness of disabled people and their issues, and helps develop capability in organisations for the disabled.
Funded by the Government, it is a not-for-profit organisation. The DRC helpdesk expects to handle 150,000 calls this year (compared with 20,000 last year) and can provide advice to service providers and service receivers alike. The helpdesk can refer callers to caseworkers, who work with both parties. They give non-legal advice, attempt persuasion, and then reconciliation, before going to court as the last resort. (They would go as far as procuring a QC if they felt that a clear legal precedent could be secured.)

Guidance
In an attempt to offer guidance, the Disability Rights Commission have issued Approved Codes of Practice (ACOP),2 the latest version of which was issued in July 2002. These codes offer a more readable and easily understood interpretation of the Act, with reference to specific examples to highlight key points.
It must, however, be borne in mind that while the ACOPs do offer guidance, a definitive specification as to what is deemed to be compliant, and what is not, still does not exist. It is only case law, after October 1, 2004, that will provide such detail, and it will take a considerable time after that for a suitably defined set of case law precedents to be established. This in itself then creates two major problems for the service provider.
Firstly, there are no guarantees that the solution they are instigating will be fully compliant, and as a result they have to rely on information from other sources. This has led to an increasing reliance and focus on service provider forums to establish peer positioning. With a few exceptions, most service providers now seem to be trying to ensure that they are 'among the pack', rather than exposing themselves as exemplary or below average. Happily, the DDA Helpline3 has been established to offer direct access to experts in the Act and its application.
Secondly, there is a misplaced expectation among the disabled community that all service and retail premises will reach a level of 'perfect' compliance by October 1, 2004. This expectation has been created as a direct result of the detail to which accredited access consultants4 audit service and retail premises. This level of detail is quite correct, but still leaves the service provider free to define their own interpretation of 'reasonable adjustment'.
As an example, an audit would define the compliance of all the entrance points to a service and retail premises, but the service provider may decide to make only one entrance point compliant. The service provider is supplying a compliant solution, but the disabled customer may expect more. Given today's tough service and retail environment, with very few cash rich service providers, this is increasingly likely to occur. There is an increased focus on driving the service and retail business in a value maximising way, and as a result, service providers may decide to opt for an average/minimal level of compliance rather than exemplary, to leave cash free to expand or consolidate their business. It could be suggested that this expectation needs to be jointly managed by the Department of Work and Pensions and the Disability Rights Commission well in advance of 1st October 2004.

IMPACT ON THE OPTICAL SERVICES INDUSTRY
The starting point for defining the impact of the Act on the optical services industry is in the definition of accountabilities and responsibilities. Such definitions must be included within landlord/tenant agreements and contracts to protect both parties. For those optical service providers with a sizeable property portfolio, this can be a lengthy and costly exercise.

Responsibility
DDA compliance for customer-facing areas of an optical practice is clearly the responsibility of the service provider (generally the tenant). The allocation of DDA responsibility and the extent of that responsibility, for any 'back-shop' or 'common' areas, depends on how those areas are used. A process for allocating responsibility is summarised in Figure 2.
It can be seen that extensive input is required before a decision can be made. This is further complicated by the fact that all permutations of usage and area are possible.
Add to this the influence of other legislation, such as health and safety, and the whole task of defining responsibilities, accountabilities and a compliance solution become more demanding.
The situation will inevitably arise where there is conflict between different legislation, and a decision has to be made as to which is 'dominant'. Invariably the wellbeing of staff and customers comes first, but this then necessitates the need to secure, justify and record such a decision.

Service provision
There should be the understanding that the implementation of a successful DDA compliance plan is based around the service provision.
This service provision should be defined for all areas of the business that are impacted by the Act. It invariably defines the 'customer journey' and not the organisational structure of the service provider. After all, it is at the point of service provision that compliance with the Act is ultimately judged.
It is then possible for each service provision area, to:

Define non-compliance
Define compliance solutions
Implement compliance solutions
Incorporate those solutions into working practices.
The service provision areas likely to be affected by the Act depend on the service provider's size, nature and market that it operates in. As a general guide, this effect can be split between those services being delivered 'in-store' and those being delivered 'out-of-store'. The in-store impact is defined in Figure 3.
Non-compliance issues
The non-compliance issues commonly found within the in-store service provision are numerous and are defined through the implementation of accredited audit processes. Accreditation is achieved via the use of auditors who are members of the National Register of Access Consultants4 or via the use of industry standard audits. Analysis of the results of such accredited audits highlights the following issues to which most optical service providers will most likely have to provide a compliance solution.

Entrance doors
In the absence of automatic doors, door mechanisms will have to be modified to lower the operating force required to open them. The colour, contrast and general visibility of the doors and handles will have to be modified for those with visual impairment. The shape and design of the door handles will have to be modified for those with manual dexterity disabilities.

Entrance steps
Refer to Example 1.

Counters
The working height will have to be lowered for customers in wheelchairs and the glare will have to be reduced and contrasting edging will have to be provided for those with visual impairment.

Product display units
The use of mirrors and shiny surfaces will have to be reduced to minimise the glare for those with visual impairment.

Labelling and ticketing
Labels etc have to be provided in a suitable font, format, colour, contrast and size for those with visual impairment.

Waiting area seating
A range of suitable seating will have to be provided, in terms of colour, accessibility, support, and in sufficient quantity for those with a range of disabilities.

Consultation rooms
Equipment layout will have to be modified to allow clear access to those with restricted mobility or visual impairment. Suitable procedures will have to be established to enable customers with restricted mobility or visual impairment to get into and out of the consultation chair. The use of mobile testing equipment will have to be considered. Once the consultation is in progress and the lighting levels have been lowered, communication can be hindered for customers with a range of disabilities. Suitable communication methods will need to be established. Written or pre-printed methods of communication still have to be compliant in the same way as labelling and ticketing, but within the potentially less well lit consultation room. The general layout of the premises will need to be considered if consultation rooms are not located on the entrance level (Example 2).

Fire evacuation
Evacuation procedures will have to be established, as access to different floors for customers with mobility impairment may then be restricted (and the service will have to be provided by alternative means).

General housekeeping
This must be maintained to high levels to ensure access routes are kept clear.

The out-of-store impact is defined in Figure 4. The non-compliance issues commonly found within the out-of-store service provision are again defined through the implementation of accredited audit processes. Accreditation is generally achieved via the use of industry standard audits, such as 'W3C' for internet accessibility. Analysis of the results of such accredited audits defines a list of issues and actions for the optical service provider of equal size and magnitude to those for the in-store service provision. However, their discussion is outside the scope of this article.

Compliance management systems
Whether the optical service provider is a 'single-location independent' or a 'multiple', consolidation of the overall approach to the production of a sustainable, company wide, compliance solution is achieved via the creation of a compliance management system. The primary functions of such a system are to enable the owner to prove/defend its compliance position and to facilitate the management of compliance initiatives into the future. The system should be fully accessible to all those with DDA accountabilities and responsibilities, especially those within the service provider's premises, so that they can manage their own store-specific compliance plan.

CONCLUSION
The issues raised in this article are just a few of the many that need to be addressed by the optical service industry and by service providers in general when responding to the requirements of the DDA. Those requirements are still, as yet, not definitively defined, and will remain so, in the absence of specific case law, for some considerable time to come. In the meantime, a consolidated and managed approach to compliance is recommended. Responsibilities and accountabilities for all stages, from the definition of non-compliance to the incorporation of compliance solutions into working practices, must be defined and established to ensure success.
If service providers choose not to act now, there is danger of a 'last minute' rush to complete adjustments, with increased costs as the demand for contractors spirals upwards. Furthermore, landlord consent and planning permission can take many weeks.
In summary, the aim of the Act is to 'introduce measures aimed at ending the discrimination which people with disabilities can face'. If this is to be achieved, it can only be realised through working partnerships between service providers and receivers. The basis for this is a general understanding between both parties that 'reasonable' works both ways and that they must work together to achieve an amicable level of compliance.

References
1 Disability Discrimination Act 1995 (c 50) 1995 Chapter 50 (Crown Copyright 1995).
2 Disability Discrimination Act 1995 Ð Code of Practice Ð Rights of Access Ð Goods, Facilities, Services and Premises (commencement date May 27 2002).
3 Disability Rights Commission. Helpline Tel: 08457 622633. Faxback service: 08457 622611. Textphone:08457 622644. www.drc-gb.org.
4 National Register of Access Consultants: www.nrac.org.uk.

Steve Goss is DDA programme manager for Boots Retail. Tony Harvey is a dispensing optician in private practice who consults on practice design and layoutDespite the fact that the Disability Discrimination Act (DDA) is dated 1995, there is a general perception in the services and retail industry that it does not come into force until October 1, 2004. From that date service providers may have to make 'reasonable adjustments' to service and retail premises, but many parts of the Act are already in force.
There is also a belief that compliance with the Act is purely about the provision of automatic entrance doors and permanent ramps to premises. In actual fact, the Act encompasses much more and impacts on a much wider and deeper part of in-store and out-of-store service provision.
This article is intended to familiarise practitioners with the key requirements of Part III of the Act, to identify the significant issues and duties for the optical services industry, and to define how this forms an integral and vital part of any optical service provider's overall, sustainable, DDA compliance solution.
The DDA1 was passed through UK Parliament in 1995 and is governed by the Department for Work and Pensions. The Act itself is split into eight parts:

Part I: disability
Part II: employment
Part III: discrimination in other areas
Part IV: education
Part V: public transport
Part VI: the National Disability Council
Part VII: supplemental
Part VIII: miscellaneous.

Part III of the Act Ð discrimination in other areas Ð is of particular relevance to service providers. Like many of the other parts, it subdivides into sections (Figure 1).

DDA Part III
This article focuses on sections 19 to 21, Ð the provision of goods, facilities and services. Of specific interest is section 21, which defines the general duties imposed on the service provider to make reasonable adjustments.

Part III duties
These duties are being introduced in three stages:

Stage 1 Ð Since December 2, 1996 it has been unlawful to treat disabled people less favourably.
Stage 2 Ð Since October 1, 1999 service providers must make 'reasonable adjustments'
Stage 3 Ð From October 1, 2004, where a physical feature makes it impossible or unreasonably difficult for disabled people to make use of services, a service provider will have to take reasonable steps to remove the feature; or alter it so that it no longer has that effect; or provide a reasonable means of avoiding it; or provide that service by an alternative means.

These four options are not weighted, and each could be seen as the best solution to a specific problem area. The service provider does not need to demonstrate that all options were considered, though they may have to justify their actions if a complaint came before a court.
What is considered 'reasonable' will vary depending upon the size of the business, and the type of premises. A 'multiple' chain has an aggregate duty to comply: (both a profitable store and an unprofitable store are viewed equally). However, it would be unreasonable to expect a small independent practice to fund large changes, which would render the business unprofitable. Furthermore, changes to historic and listed buildings would be seen as unreasonable.
It must be highlighted that it is only physical features that need a DDA compliant solution by October 1, 2004. All other areas of a company's service provision should already be compliant, as 'reasonable adjustments' should have been completed by October 1, 1999. The way that a service provider's staff treats its customers with disabilities, for instance, should already be compliant, so that those customers are not treated less favourably.

Unlawful acts of discrimination
With respect to 'committing an unlawful act of discrimination', it is unlawful for a service provider to:

Discriminate against a disabled person (sections 19 and 20) by refusing to provide (or deliberately not providing) any service which it provides (or is prepared to provide) to members of the public; or in the standard of service which it provides to the disabled person or the manner in which it provides it; or in the terms on which it provides a service to the disabled person; and it cannot show that the treatment in question is justified
Discriminate against a disabled person (section 21) in failing to comply with any duty imposed on it by section 21 (a duty to make reasonable adjustments) in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service; and it cannot show that the failure to comply with that duty is justified.

The Disability Rights Commission
Formed three years ago, the DRC raises awareness of disabled people and their issues, and helps develop capability in organisations for the disabled.
Funded by the Government, it is a not-for-profit organisation. The DRC helpdesk expects to handle 150,000 calls this year (compared with 20,000 last year) and can provide advice to service providers and service receivers alike. The helpdesk can refer callers to caseworkers, who work with both parties. They give non-legal advice, attempt persuasion, and then reconciliation, before going to court as the last resort. (They would go as far as procuring a QC if they felt that a clear legal precedent could be secured.)

Guidance
In an attempt to offer guidance, the Disability Rights Commission have issued Approved Codes of Practice (ACOP),2 the latest version of which was issued in July 2002. These codes offer a more readable and easily understood interpretation of the Act, with reference to specific examples to highlight key points.
It must, however, be borne in mind that while the ACOPs do offer guidance, a definitive specification as to what is deemed to be compliant, and what is not, still does not exist. It is only case law, after October 1, 2004, that will provide such detail, and it will take a considerable time after that for a suitably defined set of case law precedents to be established. This in itself then creates two major problems for the service provider.
Firstly, there are no guarantees that the solution they are instigating will be fully compliant, and as a result they have to rely on information from other sources. This has led to an increasing reliance and focus on service provider forums to establish peer positioning. With a few exceptions, most service providers now seem to be trying to ensure that they are 'among the pack', rather than exposing themselves as exemplary or below average. Happily, the DDA Helpline3 has been established to offer direct access to experts in the Act and its application.
Secondly, there is a misplaced expectation among the disabled community that all service and retail premises will reach a level of 'perfect' compliance by October 1, 2004. This expectation has been created as a direct result of the detail to which accredited access consultants4 audit service and retail premises. This level of detail is quite correct, but still leaves the service provider free to define their own interpretation of 'reasonable adjustment'.
As an example, an audit would define the compliance of all the entrance points to a service and retail premises, but the service provider may decide to make only one entrance point compliant. The service provider is supplying a compliant solution, but the disabled customer may expect more. Given today's tough service and retail environment, with very few cash rich service providers, this is increasingly likely to occur. There is an increased focus on driving the service and retail business in a value maximising way, and as a result, service providers may decide to opt for an average/minimal level of compliance rather than exemplary, to leave cash free to expand or consolidate their business. It could be suggested that this expectation needs to be jointly managed by the Department of Work and Pensions and the Disability Rights Commission well in advance of 1st October 2004.

IMPACT ON THE OPTICAL SERVICES INDUSTRY
The starting point for defining the impact of the Act on the optical services industry is in the definition of accountabilities and responsibilities. Such definitions must be included within landlord/tenant agreements and contracts to protect both parties. For those optical service providers with a sizeable property portfolio, this can be a lengthy and costly exercise.

Responsibility
DDA compliance for customer-facing areas of an optical practice is clearly the responsibility of the service provider (generally the tenant). The allocation of DDA responsibility and the extent of that responsibility, for any 'back-shop' or 'common' areas, depends on how those areas are used. A process for allocating responsibility is summarised in Figure 2.
It can be seen that extensive input is required before a decision can be made. This is further complicated by the fact that all permutations of usage and area are possible.
Add to this the influence of other legislation, such as health and safety, and the whole task of defining responsibilities, accountabilities and a compliance solution become more demanding.
The situation will inevitably arise where there is conflict between different legislation, and a decision has to be made as to which is 'dominant'. Invariably the wellbeing of staff and customers comes first, but this then necessitates the need to secure, justify and record such a decision.

Service provision
There should be the understanding that the implementation of a successful DDA compliance plan is based around the service provision.
This service provision should be defined for all areas of the business that are impacted by the Act. It invariably defines the 'customer journey' and not the organisational structure of the service provider. After all, it is at the point of service provision that compliance with the Act is ultimately judged.
It is then possible for each service provision area, to:

Define non-compliance
Define compliance solutions
Implement compliance solutions
Incorporate those solutions into working practices.
The service provision areas likely to be affected by the Act depend on the service provider's size, nature and market that it operates in. As a general guide, this effect can be split between those services being delivered 'in-store' and those being delivered 'out-of-store'. The in-store impact is defined in Figure 3.
Non-compliance issues
The non-compliance issues commonly found within the in-store service provision are numerous and are defined through the implementation of accredited audit processes. Accreditation is achieved via the use of auditors who are members of the National Register of Access Consultants4 or via the use of industry standard audits. Analysis of the results of such accredited audits highlights the following issues to which most optical service providers will most likely have to provide a compliance solution.

Entrance doors
In the absence of automatic doors, door mechanisms will have to be modified to lower the operating force required to open them. The colour, contrast and general visibility of the doors and handles will have to be modified for those with visual impairment. The shape and design of the door handles will have to be modified for those with manual dexterity disabilities.

Entrance steps
Refer to Example 1.

Counters
The working height will have to be lowered for customers in wheelchairs and the glare will have to be reduced and contrasting edging will have to be provided for those with visual impairment.

Product display units
The use of mirrors and shiny surfaces will have to be reduced to minimise the glare for those with visual impairment.

Labelling and ticketing
Labels etc have to be provided in a suitable font, format, colour, contrast and size for those with visual impairment.

Waiting area seating
A range of suitable seating will have to be provided, in terms of colour, accessibility, support, and in sufficient quantity for those with a range of disabilities.

Consultation rooms
Equipment layout will have to be modified to allow clear access to those with restricted mobility or visual impairment. Suitable procedures will have to be established to enable customers with restricted mobility or visual impairment to get into and out of the consultation chair. The use of mobile testing equipment will have to be considered. Once the consultation is in progress and the lighting levels have been lowered, communication can be hindered for customers with a range of disabilities. Suitable communication methods will need to be established. Written or pre-printed methods of communication still have to be compliant in the same way as labelling and ticketing, but within the potentially less well lit consultation room. The general layout of the premises will need to be considered if consultation rooms are not located on the entrance level (Example 2).

Fire evacuation
Evacuation procedures will have to be established, as access to different floors for customers with mobility impairment may then be restricted (and the service will have to be provided by alternative means).

General housekeeping
This must be maintained to high levels to ensure access routes are kept clear.

The out-of-store impact is defined in Figure 4. The non-compliance issues commonly found within the out-of-store service provision are again defined through the implementation of accredited audit processes. Accreditation is generally achieved via the use of industry standard audits, such as 'W3C' for internet accessibility. Analysis of the results of such accredited audits defines a list of issues and actions for the optical service provider of equal size and magnitude to those for the in-store service provision. However, their discussion is outside the scope of this article.

Compliance management systems
Whether the optical service provider is a 'single-location independent' or a 'multiple', consolidation of the overall approach to the production of a sustainable, company wide, compliance solution is achieved via the creation of a compliance management system. The primary functions of such a system are to enable the owner to prove/defend its compliance position and to facilitate the management of compliance initiatives into the future. The system should be fully accessible to all those with DDA accountabilities and responsibilities, especially those within the service provider's premises, so that they can manage their own store-specific compliance plan.

CONCLUSION
The issues raised in this article are just a few of the many that need to be addressed by the optical service industry and by service providers in general when responding to the requirements of the DDA. Those requirements are still, as yet, not definitively defined, and will remain so, in the absence of specific case law, for some considerable time to come. In the meantime, a consolidated and managed approach to compliance is recommended. Responsibilities and accountabilities for all stages, from the definition of non-compliance to the incorporation of compliance solutions into working practices, must be defined and established to ensure success.
If service providers choose not to act now, there is danger of a 'last minute' rush to complete adjustments, with increased costs as the demand for contractors spirals upwards. Furthermore, landlord consent and planning permission can take many weeks.
In summary, the aim of the Act is to 'introduce measures aimed at ending the discrimination which people with disabilities can face'. If this is to be achieved, it can only be realised through working partnerships between service providers and receivers. The basis for this is a general understanding between both parties that 'reasonable' works both ways and that they must work together to achieve an amicable level of compliance.

References
1 Disability Discrimination Act 1995 (c 50) 1995 Chapter 50 (Crown Copyright 1995).
2 Disability Discrimination Act 1995 Ð Code of Practice Ð Rights of Access Ð Goods, Facilities, Services and Premises (commencement date May 27 2002).
3 Disability Rights Commission. Helpline Tel: 08457 622633. Faxback service: 08457 622611. Textphone:08457 622644. www.drc-gb.org.
4 National Register of Access Consultants: www.nrac.org.uk.

Steve Goss is DDA programme manager for Boots Retail. Tony Harvey is a dispensing optician in private practice who consults on practice design and layout