CHAPTER 13: TRIGGERS
387. The existing DDA contains two different
"triggers" for requiring reasonable adjustments to be
made for disabled people. In Part 2 (employment), reasonable adjustments
must be made if a disabled person is placed at a "substantial
disadvantage". In Part 3 (goods, facilities and services)
reasonable adjustments must only be made if it would be "impossible
or unreasonably difficult" for disabled people to access
the service. However, Part 2 only applies to individual disabled
people when they are disadvantaged: it is a reactive duty.
Providers of services under Part 3 have to anticipate what changes
they should make to avoid making it unreasonably difficult for
disabled people to use their service at some time in the future:
it is an anticipatory duty. For education, covered by Part
4 DDA, the duty is to ensure that pupils or students are not placed
at a "substantial disadvantage". The duty on
educational establishments to make reasonable adjustments is thus
anticipatory, although in some cases it could also be reactive,
reflecting the fact that schools and colleges are likely to have
a consistent intake of disabled students over time.
388. A number of witnesses argued that the draft
bill introduces two new triggers. Under clause 4, public authorities
will be required to make reasonable adjustments if the outcome
of the function in question is "very much less favourable"
for a disabled person than it would be for a non-disabled person.
Under clause 5 the Government will have the power to make regulations
requiring clubs to make adjustments where a policy, practice,
procedure or physical feature "adversely affects" disabled
persons who are or might wish to become members.
389. We have assessed these two provisions in
detail in chapters 4 and 7. We have noted the Government's argument
that the draft bill does not create new triggers; that the clause
4 wording is intended to mirror the "impossible or unreasonably
difficult" trigger used in Part 3 DDA, and that the clause
5 wording simply gives the Government sufficient latitude to introduce,
by regulation, appropriate duties on private clubs - which the
Government again intend to reflect the Part 3 trigger of "impossible
or unreasonably difficult".
390. Putting to one side the confusion surrounding
clauses 4 and 7, various witnesses argued for the adoption of
a common standard trigger across the entire DDA: that reasonable
adjustments should be required to be made if a disabled person
would otherwise be placed at a "substantial disadvantage"
(in other words, any disadvantage that is not minor or trivial).[449]
391. However, the Committee is aware that the
DDA is still being implemented, and has noted the Government's
emphasis on the differing kind of obligations which may arise
from anticipatory and reactive duties. We do not therefore recommend
that a single trigger be adopted across the entire DDA. We do,
however, recognise that the DDA is a complicated piece of legislation,
and think that the bill should add no further complications: the
Government should make clear that the full bill and any statutory
instruments made under it will create no new triggers, and will
employ the two already used in the DDA: "substantial disadvantage"
and "impossible or unreasonably difficult".
449 See Q 485 (Ms Dandridge); Law Society, Ev 174,
para 8; DCC, Ev 76, para 2.11 Back
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