DDA and the Rights of Disabled People

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1 The Disability Discrimination Act (DDA) What is the DDA? The DDA is a collection of statutes that makes it unlawful to discriminate against disabled people in the areas of employment, access to goods and services as well as the management, buying or renting of land and property. Dentists have duties under the legislation both as employers and service providers. Who is covered by the provisions of the DDA? The DDA protects the rights of people with sensory, mental or physical disabilities. This includes people who use wheelchairs, blind and partially sighted people, deaf people, people with arthritis, people with long-term illnesses and people with learning disabilities. Recent case law has determined that dyslexia can be classed as a disability. The Act also covers people with severe disfigurements and in certain circumstances, people who have had a disability in the past. Are there any special measures for Dental Practices? In 2005, the Disability Discrimination (Amendments) Act established a Disability Equality Duty (DED)* which places a statutory duty on public bodies, which includes Dental Practices, to have due regard to the need to: promote equality of opportunity between disabled persons and other persons eliminate discrimination that is unlawful under the DDA eliminate harassment of disabled persons that is related to their disabilities promote positive attitudes towards disabled persons encourage participation by disabled persons in public life take steps to take account of disabled persons disabilities, even where that involves treating disabled persons more favourably than other persons *in the context of the DED, any organisation which carries out functions of a public nature is included in the definition of a public authority (thereby including dental practices); such organisations are required to conform to the 'general duty'. Many public bodies, including Primary Care Organisations, are required to conform to more onerous 'specific duties', which include the development of Disability Equality Schemes. The DED applies in England, Scotland and Wales. There is different legislation in Northern Ireland. What are the implications for dental practices conforming to the 'general duty'? To conform to the 'general duty' practices must, in both service provision and in their employment procedures, have regard to the elimination of unlawful discrimination and harassment on the grounds of a person's disability. This may be achieved through the existence and enforcement of the following:

2 An Equal Opportunities/Anti-Discrimination (Employment) Policy A Bullying and Harassment Policy An Equal Opportunities/Anti-Discrimination (Service Provision) Policy What is the definition of a disability? The DDA currently defines a disabled person as someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. For the purposes of the Act: Substantial means neither minor nor trivial. Long term means that the effect of the impairment has lasted or is likely to last for at least 12 months (there are special rules covering recurring or fluctuating conditions). Normal day-to-day activities include everyday things like eating, washing, walking and going shopping. A normal day-to-day activity must affect one of the 'capacities' listed in the Act which include mobility, manual dexterity, speech, hearing, seeing and memory. There are additional provisions relating to people with progressive conditions, so that those with HIV, cancer and multiple sclerosis are deemed to be covered by the DDA effectively from the point of diagnosis, rather than from the point when the condition has some adverse effect on their ability to carry out normal day-to-day activities. Some conditions, such as a tendency to set fires and hay fever, are specifically excluded. What are your obligations towards patients? Since December 1996, it has been unlawful to refuse to serve a disabled person, offer a lower standard of service or provide a service on worse terms to a disabled person for a reason related to his/her disability. Since October 1999, service providers have had to make reasonable adjustments in the way they provide their services to disabled people including changing policies and procedures, providing an auxiliary aid or service or a reasonable alternative method of service. From October 2004, service providers have had to consider making reasonable adjustments to the physical features of their premises to overcome physical barriers to access. What does reasonable in reasonable adjustment actually mean? Unfortunately, there is no hard and fast definition. Much will depend on circumstances, practicality, resources, financial availability, situation, type of property, size of practice, planning permission etc. The main aim of the

3 adjustments is to ensure that as many disabled persons as possible can access and use your premises. The following examples provide better explanations of what adjustments can be classed as reasonable in a dental practice. At our small practice we have one patient whose wheelchair is much wider than usual and it doesn t fit through our main doors. To admit them they have to be helped through the door by staff and then into the dental chair. They don t like it but the cost of widening the doors, due to major reconstruction and strengthening work would be 25,000. Do I have to have this done to comply? On the basis that the current doors can accept a normal sized wheelchair, then the 25,000 expense of widening them for one patient would not be considered reasonable. Remember, the aim is to ensure that as many disabled persons as possible can access and use your premises. However, the above would only be defendable if you had also considered other possible entrances, such as a rear or side door and also discounted them due to similar expenditure. If the cost was 1,000 to 3,000 then yes, you should consider making such a change. We are a reasonably small practice and recently had a patient who is clinically obese. Due to their weight they broke a brand new specialist dental chair. We can t afford another 18,000 to replace it, so we ve referred him to the local hospital. Have we discriminated against him? Do we have to buy another special chair and treat them? Obesity is always a difficult issue because it is not, in itself, a disability but the reasons for it, e.g. depression and the subsequent issues it may have created, such as mobility, are. Recent case law shows that in the overwhelming majority of cases, obese persons are being regarded as disabled on the basis of the other medical conditions and their restricted ability to undertake normal day-today activities. Have you discriminated against them? Yes, would be the obvious answer, but that may not be correct. To determine discrimination requires a comparator. For example, if you would have referred a non-obese person who had broken your chair due to their weight, then there is no discrimination due to disability. You would have treated both the same in spite of any disability. So, you re now left with a broken chair and required expenditure of 18,000. This would seem to be unreasonable to accommodate just one patient. Your reasonable adjustment of having them treated elsewhere would, under the circumstances be acceptable. However, a word of caution, with obesity allegedly increasing, such a defence may be short lived! How do I decide what reasonable adjustments may need to be made? Most dental practices already provide easy access for disabled patients, however, all organisations that provide services to the public must audit their

4 facilities and ensure that they comply with the legislation. This is known as an Access Audit. Several factors will have a bearing on whether a change is a reasonable one to have to make, particularly for physical adjustments to premises. These would include: whether taking any particular measures would be effective in overcoming the difficulty that disabled people face in accessing the premises the extent to which it is practicable to take the measures the financial and other costs of making the adjustment(s) the extent of any disruption which taking the measures would cause the extent of your financial and other resources the amount of any resources already spent on making adjustments the availability of financial or other assistance Responding to your duties as a service provider under the DDA means coming up with solutions that are reasonable in all circumstances and which result in as many disabled customers as possible being able to access your practice and receive treatment. For small practices (as compared to larger ones with more resources at their disposal) the emphasis is likely to be on practical, low-cost adjustments, although you should also consider more major physical alterations to improve access to your premises if feasible and affordable. What if I don t own the premises? In cases where a practice occupies premises owned by a third party, liaison with the landlord may be required before any building alterations can be undertaken, subject of course to local planning regulations. What about practices located in listed buildings? A listing building can be altered, however any such alterations will require special consent and in some cases the proposed change may be refused. In such cases, your Local Authority Planning Department will advise what can be changed. How do I conduct an Access Audit? When conducting an Access Audit, the first step is to consider the physical layout and physical features of your practice and work out what could be done to improve access. Remember, this is not just for your patients but also your employees. It is often easiest to assess each type of disability e.g. wheelchairs, blind and partially sighted or deaf, people with arthritis, people with long-term illnesses and people with learning disabilities separately. Record your findings and consider what changes could be made to remove or minimise the impact such physical features or layout have and what other

5 improvements, such as lighting, signage, floor coverings and evacuation procedures for example could be enhanced. This is known as your Action Plan, which you will need to review on a regular basis. Many Local Authorities have Access Officers who will visit premises and give advice on what actions to take to improve access. Architects and Surveyors can also advise on access improvements. When considering adjustments for employees, most Jobcentres have an Access to Work Advisor who is able to assist. In some cases, funding can also be provided for specialist equipment. What physical features are covered by the DDA? Physical features are defined under the DDA as anything on the premises arising from a building s design or construction or the approach to, exit from or access to such a building; fixtures, fittings, furnishings, equipment or materials and any other physical element or quality of land in the premises... whether temporary or permanent. Several factors will have a bearing on whether a change is reasonable particularly for physical adjustments to premises. What sort of building alterations might be involved in providing better access for disabled people? A lot will depend upon your practice layout. A non-exhaustive list of reasonable adjustments would include: Reserved parking with wide bays Tarmac as opposed to gravel pathways and parking areas Ramps (not necessary for these to be permanent) Handrails Alternative entrance with level access Electrically operated doors Wide doors and aisles Disabled toilets Lift capable of admitting a wheelchair (when consulting rooms are on first floor) Low-level counter at reception Easy to read signs Additional lighting Hearing loop What if I can t accommodate a particular disabled patient or group of patients due to their disabilities? If it is impossible to provide access for individuals with certain disabilities at your practice, you must either make suitable alternative arrangements with a local colleague (who can provide that access) or offer treatment at the client s home. Likewise, there will be some situations when a disabled person can be treated less favourably. For example when there is a genuine Health and Safety Risk either to them or those that are treating them that cannot be reasonably

6 managed. This is known as justification. For further information on justification see the Equality and Human Rights Commission website: What are my obligations towards employees? Essentially, your obligations are the same as for your patients but also extend into recruitment, training, attendance and performance. You should conduct an Access Audit in exactly the same way and produce an Action Plan. As part of your Audit, you must review employment policies and procedures to ensure they don t discriminate against disabled employees in: the recruitment process, their terms and conditions of employment, job promotion, training or other benefits, treating them less fairly than other staff members, dismissing them unfairly, subjecting them to harassment, or victimising them. Reasonable adjustments for disabled job applicants would include altering the interview process, such as allowing a longer time or providing the questions in advance. In addition, you must consider, not only for applicants but also staff: Adjustments to premises, Altering a person s working hours, Allowing absence during working hours for medical treatment, Giving additional training, Getting special equipment or modifying existing equipment, such as computer screens, chairs and keyboards as well as software, Changing instructions and manuals, Providing additional supervision and/or support. I only have five employees, so do I have to undertake an audit? Yes, you do. Since October 2004 the exemption for employers with 15 or fewer employees was removed making it unlawful to discriminate against a disabled person in all areas of recruitment and employment. What else do I have to consider with regards to employees? You should ensure that all staff are aware that it is unlawful to discriminate against disabled people and that they cannot refuse to serve a disabled person or offer them an inferior service, or service on worse terms compared to those offered to an able-bodied person. All employees are individually responsible for complying with the law, however, action could be taken against an employer if his or her employee has broken the law, even if the employer was unaware or did not approve of the employee s actions. To avoid it, an employer needs to prove that reasonably practicable

7 steps have been taken to prevent the employees from discriminating. To achieve this, it is recommended that you: Establish a policy on dealing with disabled people and ensure all staff are aware of it, Provide all staff with Disability Awareness Training and monitor its implementation, Have an appropriate complaints procedure, Hold staff training referring to the policy and Action Plan, Review your Action Plan and policy on a regular basis and re-train your team. What should be included in Disability Awareness Training? Primarily, the training is about communication with disabled people. The training should ensure that you and your staff: Are comfortable when dealing with disabled people, don t patronise or assume that they know best, offer assistance but do not impose it, ask whether the person has a specific requirement and provide a sensible response, are ready to sit or bend down to talk to a person at his or her eye-level, offer a seat or help with the doors, offer their arm for guidance and support, use appropriate means of communication, for example writing something down if required, speaking slower, etc., are polite and talk to the disabled person directly not through their companion, respect the person s privacy and confidentiality, check to ensure that what they have said is understood, ask patients about their particular requirements in advance. In addition and as part of your normal practice training programme, ensure that your staff are trained to deal with the emergency evacuation of disabled persons. Your Fire Risk Assessment should have identified such issues and provided for the necessary instruction and or equipment. Are there any other communication issues that I need to take into account? Make sure your client information materials, including the patient information leaflets and treatment advice leaflets are fully accessible for disabled persons. Accessible formats for printed materials include Braille, large typeface and audiotape. Check that the Practice website is an accessible version to facilitate visiting with a text reader (audio) or with other web accessibility tools such as increasing the font size. For full information on accessible websites please refer to the Web Access Centre -

8 In addition you should: Incorporate a standard line in letters or as part of your customer care procedure (e.g. Please let us know if you require any particular assistance ), Highlight the service offered to disabled customers in your marketing materials, Ensure you have an appropriate, published and accessible complaints procedure in place, Incorporate requests for adjustments into your practice procedures, Record new or as yet unachieved requests for considering how to deal with them in a timely manner. Frequently Asked Questions What if a member of my staff becomes disabled? If a member of staff becomes disabled, you must make all reasonable attempts to retain their services, which includes offering alternative and suitable duties. (See What are my obligations towards employees?) In determining what is suitable, you will have in effect conducted a risk assessment according to their capabilities. For progressive disabilities, you must review this assessment with them on a regular basis, making the necessary reasonable adjustments. You must ensure you record and retain your discussions and the details of any adjustments made. We have an employee with motor neuron disease. So far we have managed to accommodate them but have now run out of things that they can do. Can we dismiss them? There may well come a time when an employee s disability makes it impossible for them to undertake any work duties, no matter how these have been varied to accommodate them. In such circumstances it is perfectly acceptable for them to be dismissed. You should refer to and follow your Capability Procedure and it s recommended that you get a qualified medical opinion from an independent Occupational Health specialist. We have a dental nurse who has damaged her back and is now unable to assist the dentists. We have a receptionist and also another nurse. There are no other duties for her that she can do. Are we able to dismiss her and recruit a new nurse? Much depends upon whether your nurse has a permanent or impermanent incapacity. Your Sickness Absence and or Capability Procedure should permit you to refer them to an independent Occupational Health specialist to provide their opinion. If it s impermanent, in other words a return within the next six to nine months, then leave them on sick leave and if necessary hire a temporary nurse to cover her duties. You should continue to review her recovery and if necessary refer her again to your Occupational Health specialist.

9 If the initial or subsequent Occupational Health prognosis indicates or states that a return is either unlikely or may be more than twelve months, you should refer to and follow your Capability Procedure and dismiss under the grounds of incapacity due to long term absence. I recently had to discipline a member of staff but was unaware that they had a recognised disability. They didn t mention it at the Hearing or their Appeal. They ve now brought a discrimination claim against me. What do I do? Without going into the detail of the incident and the claim itself, providing you followed your Disciplinary Policy and made your decision based on the facts and information available to you at the time and did not treat them less favourably than any other employee, you have nothing to be concerned about. You will now need to establish whether their non-revealed disability did or did not have an impact on the offence they committed. If not, then the sanction you have imposed should stand. If it did, then you should revisit your decision. We have adapted the entrance and reception areas as well as the treatment rooms for disabled access. Do I also have to install fully disabled toilets? Without seeing your premises it s difficult to give a definitive answer, however, if you provide access to people in wheelchairs then the associated services such as toilets should also be made available. In some cases this may not be fully possible due to building regulation restrictions. In such instances you must consider reasonable alternatives such as additional staff training or equipment to assist disabled persons. Further guidance and details are available from the HSE website ( The Disability Discrimination Act 1995 The Disability Discrimination Act 1995 (Amendment) Regulations 2003, ISBN Disability Discrimination Act 2005 Making access to goods and services easier for disabled customers - A practical guide for small businesses and other small service providers (prepared by the Centre for Accessible Environments (CAE) for the Disability Rights Commission (DRC) and the Equality Commission for Northern Ireland DDA Code of Practice Rights of Access Goods, Facilities, Services and Premises 07/96 A Brief Introduction to the Disability Discrimination Act (DDA) 1995, Employers Forum on Disability What about Disability? A need to know guide for small business, Employers Forum on Disability Links The British Council of Disabled People (BCODP) - The British Dyslexia Association -

10 The British Society for Disability and Oral Health ( the aim of this society is to bring together all of those interested in the oral care of those with disabilities) - The College of Occupational Therapists The Disabled Living Foundation Disability Unit of the Department of Work and Pensions - Department for Work and Pensions, The Disability and Carers Directorate - Department for Transport, The Mobility and Inclusion Unit - Disability Conciliation Service - Disability Employment Advisory Committee - Disabled Living Foundation (DLF) - Disabled Persons Transport Advisory Committee - English Federation of Disability Sport - Equality and Human Rights Commission Equality Britain - Mencap (Provides information on the needs of adults and children with learning disabilities) - The Multiple Sclerosis Society - The National Rheumatoid Arthritis Society - New Deal for Disabled People - RADAR (provides information on the needs of disabled people and consultancy services) Remploy (Interwork employment services, services for disabled people, people with a health condition and employers) - Royal National Institute for the Blind (RNIB) - Royal National Institute for Deaf People (RNID) - Scope (The disability organisation in England and Wales whose focus is people with cerebral palsy)