Abstract

AbstractThe anticipatory reasonable adjustment duty, introduced by the Disability Discrimination Act 1995 and now found in the Equality Act 2010, has been hailed as an innovative and proactive tool for embedding disability equality in services and public functions. Despite important successes, the duty has had a surprisingly low profile in academic scholarship and has struggled to fulfil its practical potential. We seek to understand how this has happened, identifying a range of factors that may operate as blockages to the success of the duty. Whilst these factors are interrelated, we group them under three main headings – visibility, uncertainty and enforcement. We reflect critically on whether, and if so how, relevant blockages can be tackled to enable the duty to embed disability equality more effectively within services and public functions and whether new supplementary measures (particularly concerning accessibility) are also needed.

Highlights

  • The anticipatory reasonable adjustment duty in the Equality Act 2010 (EqA) requires providers of services and public functions continually to identify any possible disability-related disadvantage, and to take reasonable steps to avoid or remove it – failure to do so constituting unlawful discrimination

  • In 2017, the Equality and Human Rights Commission (EHRC) reported that disabled people continue to experience significant barriers to accessing services and public functions10 – a problem worsened by the Covid-19 crisis.[11]

  • That in services contexts the reasonable adjustment duty operated in favour of “disabled persons”, in the plural, whereas in employment contexts it operated in favour of a “disabled person”, in the singular. This reference to disabled persons in the plural was interpreted by the National Disability Council as indicating that the duty was owed to disabled people generally, with the result that it must arise prior to duty-bearers becoming aware of any particular disabled person being disadvantaged.[25]

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Summary

INTRODUCTION

The anticipatory reasonable adjustment duty in the Equality Act 2010 (EqA) requires providers of services and public functions continually to identify any possible disability-related disadvantage, and to take reasonable steps to avoid or remove it – failure to do so constituting unlawful discrimination. In 2017, the Equality and Human Rights Commission (EHRC) reported that disabled people continue to experience significant barriers to accessing services and public functions10 – a problem worsened by the Covid-19 crisis.[11] Two parliamentary committees have drawn attention to wide-scale implementation failures, identifying lack of awareness and understanding. We draw attention to problems which the anticipatory reasonable adjustment duty has encountered and reflect critically on how they might be addressed so as to give the duty a stronger chance of fulfilling its aim of embedding disability equality in services and public functions.

Historical Origins
Current Statutory Underpinnings
Situating the Anticipatory Reasonable Adjustment Duty Within the UN CRPD
Invisibility on the Face of the Equality Act 2010
Reduced Visibility in Official Guidance
UNCERTAINTY PROBLEMS
The Inherent Uncertainty of Reasonableness
ENFORCEMENT PROBLEMS
Costs of bringing cases
Lack of judicial experience and expertise
Limited reporting of judgments
Under-use of injunctive remedies for breach of the anticipatory duty
Limited access to legal aid and advice
Under-use of enforcement mechanisms not dependent on individual claimants
Findings
CONCLUSION
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