Royal Bank of Scotland Group Plc v Allen

A service provider’s duty to make reasonable adjustments may require disabled people to receive access which approximates, so far as reasonably practicable, the standard offered to the public. Alternative channels do not necessarily discharge that duty where face-to-face facilities are themselves an important element of the service.

Reasonableness under section 21(2) of the Disability Discrimination Act 1995 is assessed objectively in all the circumstances. Where a practicable adjustment would provide physical access, the availability of telephone, internet or other branches must be weighed against matters such as cost, disruption and loss of facilities. The words “have to” do not ordinarily require a separate, stronger stage of analysis.

A wheelchair user could not enter the Royal Bank of Scotland’s main Sheffield branch or use its inaccessible automated telling machines. The Bank proposed internet banking, telephone banking and other branches as alternatives. Two possible lift schemes were considered. The single joint expert’s scheme would provide access but require the loss of one of eight interview rooms.

His Honour Judge Dowse declared that the Bank had discriminated contrary to section 19(1)(b) of the Disability Discrimination Act 1995, awarded £6,500 for injury to feelings and ordered installation of the expert’s platform-lift scheme. The Bank appealed against the declaration and installation order, but not the damages award.

The central issues were whether the alternative banking arrangements discharged the reasonable-adjustments duty and whether it was objectively reasonable to require installation of the lift.

1. Appeal dismissed unanimously. The relevant service was the provision of banking facilities at the main branch. Face-to-face counter facilities were themselves an important element of that service. Internet and telephone facilities were different banking facilities and did not necessarily provide a reasonable alternative to physical access.

2. The policy of the reasonable-adjustments duty is, so far as reasonably practicable, to approximate the access enjoyed by the public generally. Non-disabled customers could enter the branch and use traditional counter services. The judge could therefore find that the Bank’s proposed alternatives were insufficient unless there was no reasonable means of providing physical access. The approach in Roads v Central Trains Ltd [2004] EWCA Civ 1541, drawing on In re Holy Cross, Pershore [2002] Fam 1, supported that conclusion.

3. Reasonableness under section 21(2) of the Disability Discrimination Act 1995 is objective and requires judgment in all the circumstances. Relevant matters included the available alternatives, the Bank’s resources, cost, disruption and the business consequences of losing an interview room. The words “have to” did not ordinarily introduce a separate two-stage inquiry beyond asking whether it was reasonable to require the provider to take the step.

4. The trial judge’s statement that failure to consider the lift scheme itself established discrimination was legally flawed. A failure to consider an adjustment is not, without more, a breach. Read as a whole, however, the judgment showed that the Bank’s lack of consideration left it without evidence establishing that the technically competent scheme was unreasonable. Its sole substantiated objection was the loss of one interview room, without detailed evidence of room usage, cost or alternatives. The objective conclusion that installation was required was open to the judge and disclosed no appealable error.

5. This was a failure-to-make-adjustments claim under sections 20(2) and 21(2), not a less-favourable-treatment claim under section 20(1). Lewisham London Borough Council v Malcolm [2008] UKHL 43 therefore had no application. There was also no factual basis for health-and-safety justification under section 20(4)(a), because the Bank had identified no safety concern relating to the operative lift scheme.

1. Court of Appeal (Civil Division): The Bank’s appeal was dismissed unanimously. The declaration of discrimination, damages award and platform-lift order remained undisturbed: [2009] EWCA Civ 1213.
2. Sheffield County Court: His Honour Judge Dowse declared that the Bank had discriminated contrary to section 19(1)(b) of the Disability Discrimination Act 1995, awarded £6,500 for injury to feelings and ordered installation of a platform lift. No citation is stated.