Allen v The Royal Bank of Scotland Group Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Hughes,Lord Justice Wall |
| Judgment Date | 20 November 2009 |
| Neutral Citation | [2009] EWCA Civ 1213 |
| Docket Number | Case No: B2/2009/0489 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2009 |
[2009] EWCA Civ 1213
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
His Honour Judge Dowse
Before : Lord Justice Dyson
Lord Justice Wall
and
Lord Justice Hughes
Case No: B2/2009/0489
7SE51122
Richard Lissack QC and Stephen Hardy (instructed by Cobbetts LLP) for the Appellant/Defendant
Robin Allen QC and Catherine Casserley (instructed by Sheffield Law Centre) for the Respondent/Claimant
Hearing dates : 10 November 2009
Lord Justice Dyson :
Introduction
David Allen is now 18 years of age. He suffers from Duchenne Muscular Dystrophy and has been using an electric wheelchair since an early age. He opened a bank account with the Royal Bank of Scotland (“the Bank”) at its main branch (“the main branch”) at Church Street in the centre of Sheffield.
The main branch is a 19 th century listed building. Access to all of the entrances is gained by flights of stone steps. There are two principal customer entrances to the front elevation, situated at the far right and far left. There is also a staff entrance adjacent to the far right entrance door. The front elevation incorporates two automated telling machines (“ATMs”), which are inaccessible to wheelchair users owing to their height above the ground.
The main branch is, therefore, inaccessible to wheelchair users. Following his attempts to use the main branch and complaints by Mr Allen's mother, the Bank suggested that Mr Allen use the branch staff entrance. But this entrance was inaccessible to him too. The Bank also offered what it asserted to be a reasonable alternative, namely a combination of internet banking, telephone banking and the use of branches elsewhere in the city. The Bank also suggested that Mr Allen could use NatWest branches. Mr Allen attempted to do this, but was turned away on the grounds that NatWest did not permit the use of an RBS card at its branches.
On 20 August 2007, Mr Allen issued these proceedings alleging unlawful disability discrimination on the grounds of a breach of section 19(1)(b) of the Disability Discrimination Act 1995 (“the DDA”) in failing to comply with the duty to make reasonable adjustments in section 21(2) without justification.
The court had before it two potential building solutions to the access difficulties encountered by Mr Allen. One solution (“the lobby scheme”), which the Bank had considered and rejected, involved the installation of a platform lift within the entrance lobby adjacent to the customer entrance. The Bank had obtained planning permission for this scheme but rejected it on the grounds that the turning circle required could not be accommodated and the works would cause severe disruption as they required alterations to incoming gas mains, water mains and internal services. The other solution (“the Owen scheme”), which was recommended by the single joint expert, Richard Owen, involved the installation of a platform lift in the area which forms part of the existing banking hall. This was rejected because it would require the loss of an interview room on the ground floor. A similar scheme to the Owen scheme had been rejected for the same reason in about 2002. The main branch has eight interview rooms. Four of these are located on the ground floor and four on the first floor.
By an Order made on 16 January 2009, His Honour Judge Dowse declared that the Bank had discriminated against Mr Allen contrary to section 19(1)(b), awarded damages in the sum of £6,500 for injury to feelings and ordered the Bank to install a platform lift in accordance with the Owen solution no later than 30 September 2009.
The Bank appeals with the permission of Moses LJ who also granted a stay pending the outcome of the appeal. It does not seek to disturb the award of damages made by the judge.
The relevant statutory material
So far as material, the DDA provides:
“ 19. Discrimination in relation to goods, facilities and services
(1) It is unlawful for a provider of services to discriminate against a disabled person—
(a) in refusing to provide, or deliberately not providing, to the disabled person any service which he provides, or is prepared to provide, to members of the public;
(b) in failing to comply with any duty imposed on him by section 21 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;
(c) in the standard of service which he provides to the disabled person or the manner in which he provides it to him; or
(d) in the terms on which he provides a service to the disabled person.
(2) For the purposes of this section and sections 20 and 21—
(a) the provision of services includes the provision of any goods or facilities;
(b) a person is “a provider of services” if he is concerned with the provision, in the United Kingdom, of services to the public or to a section of the public; and
(c) it is irrelevant whether a service is provided on payment or without payment.
(3) The following are examples of services to which this section and sections 20 and 21 apply—
(a) access to and use of any place which members of the public are permitted to enter;
…..
(e) facilities by way of banking or insurance or for grants, loans, credit or finance.
20. Meaning of “discrimination”
(1) For the purposes of section 19, a provider of services discriminates against a disabled person if—
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.
(2) For the purposes of section 19, a provider of services also discriminates against a disabled person if—
(a) he fails to comply with a section 21 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
(3) For the purposes of this section, treatment is justified only if—
(a) in the opinion of the provider of services, one or more of the conditions mentioned in subsection (4) are satisfied; and
(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.
(4) The conditions are that—
(a) in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);
21. Duty of providers of services to make adjustments
(1) Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect.
(2) Where a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is 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—
(a) remove the feature;
(b) alter it so that it no longer has that effect;
(c) provide a reasonable means of avoiding the feature; or
(d) provide a reasonable alternative method of making the service in question available to disabled persons.”
Prior to its repeal by the Equality Act 2006 (“the EA”), section 53A of the DDA conferred on the Disability Rights Commission the power to prepare and (subject to approval by the Secretary of State and absent any negative resolution of either House of Parliament) to issue Codes of Practice (“the Codes”), giving practical guidance on how to avoid unlawful acts or “on any other matter relating to the operation of any provision” under the relevant parts of the DDA. The Codes were admissible in proceedings and where any provision of a Code of Practice appeared to a court to be relevant, section 53A(8A) provided that it must take that provision into account. Section 42(3) of the EA, which makes transitional provision for the functions of the previous statutory Commissions, provides that “a code of practice issued by a Commission dissolved by virtue of section 36….(a) shall continue to have effect until revoked by the Secretary of State at the request of the Commission for Equality and Human Rights, by order made by statutory instrument”. The Code of Practice “Rights of Access: services to the public, public authority functions, private clubs and premises” (“the 2006 Code of Practice”) came into force on 4 December 2006: see the Disability Discrimination Code of Practice (Services, Public Functions, Private Clubs and Premises)(Appointed Day) Order 2006 (SI 2006/1967).
The grounds of appeal
There are five grounds of appeal. Ground 1 is that the judge misunderstood the legal nature of Mr Allen's case. He approached it as if it was an allegation of discrimination by less favourable treatment (section 20(1)), whereas in fact it was a claim that the Bank had failed to make reasonable adjustments in accordance with the duty imposed by section 21. Ground 2 is that the judge misapplied the reasoning in Lewisham London Borough Council v Malcolm [2008] UKHL 43, [2008] AC 1399. Ground 3 is that the...
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