IMPORTANT INFORMATION ABOUT THE DELIVERY OF SERVICES TO THE PUBLIC BY MSPs

Section 29 of the Sex Discrimination Act 1975 makes it unlawful, for those who provide goods, facilities or services to the public or to a section of the public, to discriminate on the grounds of sex by refusing to provide a woman with goods, facilities or services or by refusing to provide goods, facilities or services of the same quality and on the same basis as they would be provided to a man. Section 20 of the Race Relations Act 1976 has the same effect so far as race discrimination is concerned.

These sections have been broadly interpreted by the courts in the past. The safest and best course is to act on the basis that the work done by MSPs does come within the definition of a service provided to the public for the purposes of the legislation.

The sections do go on to provide examples of the type of facilities and services which are covered. They include access to and use of any place which members of the public or a section of the public are permitted to enter - this could include, for example, a constituency office. However, there are many other services provided by MSPs which are likely to be covered. You will undertake a significant range of tasks for your constituents - in so doing you are likely to be viewed as providing a service within the context of discrimination law.

In the event that an individual considered that an MSP had breached either of these provisions or that an employee or agent of the MSP, for whom the MSP was vicariously liable, had done so he or she could make a claim against that MSP for breach of statutory duty. Damages can be awarded for actual loss occasioned by the act of discrimination and for injury to feelings.

In essence, in the work which you do as an MSP and in the facilities which you provide for your constituents, you should ensure that you do not discriminate on the grounds of sex or race.

DISABILITY DISCRIMINATION AND THE PROVISION OF SERVICES

Since December 1996 it has been unlawful, as a result of the provisions of the Disability Discrimination Act 1995, for service providers to treat disabled people less favourably than other people for a reason relating to their disability. Less favourable treatment includes failing to provide a service, providing a poorer standard of service or varying the terms on which the service is provided. So, for example, it would be discriminatory to refuse to meet with a constituent, who has a severe facial disfigurement, in your constituency office because it would upset your staff.

Since October 1999 service providers have been required to make "reasonable adjustments" for disabled people to the way in which they provide their services. This means that service providers are required to take reasonable steps to:

· change practices, policies and procedures which make it impossible or unreasonably difficult for disabled people to use a service;

· provide auxiliary aids or services which would make it easier for, or enable, disabled people to use a service; and

· overcome physical features (for example, those arising from access to premises or from the design or construction of premises) which make it impossible or unreasonably difficult for disabled people to use a service, by providing the service by a reasonable alternative method. This could include, where suitable, providing the services which you offer as an MSP at a disabled person's home or other suitable venue.

If you fail to comply with the duty to make reasonable adjustments and cannot show that your failure is justified then your action, or inaction, will be regarded as discriminatory. It is important that you do not wait until a disabled person wants to make use of the service you provide before considering what adjustments might be made. You should be thinking now about the accessibility of your services to disabled people and keeping the matter under constant review. It should be borne in mind that there are no hard and fast solutions; actions which may assist some disabled people to access your services will not necessarily assist others, given the range of disabilities which you have to take account.

In essence, you must do all that you reasonably can to provide an accessible and effective service to your disabled constituents which is of the same standard as you provide for the remainder of your constituents.

What is meant by changes to practices?

You need to think very carefully about the way in which you deliver your services as an MSP. For example:

· Is your constituency office cluttered with unnecessary furniture and other items? This could prove hazardous to people with certain types of disability. A simple adjustment which you could make would be to ensure that access routes within the office are clear by moving furniture and other possible hazards.

· Do you have a policy which excludes animals from the office? If you do, that policy should be amended to allow sight and hearing dogs to enter.

What type of aid or service should be provided?

The type of auxiliary aid/service which you might reasonably be expected to consider is open ended. It will depend on the nature of the service being provided and the requirements of actual or potential service users. It could involve the provision of special equipment or extra assistance of some type. Examples might include:

· Making your consultations with constituents who have speech or hearing impairments more accessible by using a pen and paper to communicate

· In certain circumstances, using a British Sign Language interpreter to communicate important information to a deaf constituent who uses BSL

· Providing information, on request, on audio tape for constituents with a sight impairment

· Providing information, on request, in large print for those with a sight impairment

· Providing information, which you would otherwise have imparted orally, in writing to a constituent with a hearing impairment

· In some circumstances, providing a portable induction loop system for those with hearing impairments who use hearing aids

· Where appropriate, providing a portable ramp to allow those with a mobility impairment to gain access to your constituency office

Many reasonable adjustments can be made easily and at relatively little or no cost. There are many organisations, which work with and on behalf of disabled people which may be able to provide further guidance. The Disability Rights Commission is able to provide further information. A good deal of guidance can be found on its web-site, including an extensive list of the organisations which can assist you further (http://www.drc-gb.org/).

The law does take account of the fact that there are various factors to be considered in assessing whether it is reasonable to expect a service provider to make a particular adjustment. The type of matters which could be taken into account include:

· Whether taking a particular step would actually be effective in overcoming the difficulty which a disabled person faces in accessing the service

· The extent to which it is practicable for the service provider to take the steps

· The extent of any disruption to service which taking the steps would cause

· The extent of the service provider's financial resources

· The amount of any resources already spent in making adjustments

It should be noted that it might be reasonable for a large, well resourced, organisation to take a particular step. It might not be reasonable to expect a service provider with limited resources to take the same step.

Further duties imposed from 1 October 2004

At the moment the duty to make reasonable adjustments by providing auxiliary aids and services is restricted in that service providers do not require to provide aids or services which involve a permanent alteration to the physical fabric of premises or the fixtures, furnishings and fittings. However, from 1 October 2004 the auxiliary aids and services which could be required in terms of making a reasonable adjustment could be of any description, whether temporary or permanent.

From 1 October 2004 service providers will have additional duties in relation to physical features of premises which make it impossible or unreasonably difficult for disabled people to use a service. From then service providers may have to overcome a difficulty caused by such a feature by taking reasonable steps to:

· remove it

· alter it

· provide a reasonable means of avoiding it

However, it will also remain open for a service provider to provide a reasonable alternative method of making the service in question available to disabled people where a physical feature of the premises makes it impossible or unreasonably difficult for disabled people to make use of their services. Given the nature of the services provided by MSPs it is important to note that this option will remain valid.

One reasonable step to take now, which will also assist in meeting the 2004 obligations, would be for an MSP to display a large print sign in his/her office which makes it clear that s/he would be happy to visit constituents at home or a reasonable alternative location if they have mobility difficulties which make it difficult for them to attend at the office. Similarly, where there are access difficulties caused by physical features of office premises, those who make appointments for MSPs with constituents by telephone could be given guidance on making sensitive enquiries to elicit whether the offer of a home or other location visit should be made.

One question which cannot be answered at the moment is whether an MSP who takes reasonable steps to ensure a service is provided by a reasonable alternative method (for example, by always offering an out of office consultation), will thereby avoid the need to make structural alterations which might otherwise be reasonable. The Government has indicated that it will be issuing information and guidance to service providers before the 2004 changes come into force and it may be that this matter will be clarified. In any event good practice would suggest that people with disabilities should be able to access services in a way which is as close to the standard or normal method of provision as possible.

It would make sense for MSPs to begin thinking now about alterations which may require to be made because they are reasonable or which could be made, bearing in mind good practice. If your current premises are completely unsuitable for disabled access, you will wish to avoid taking out a long lease and consider moving in advance of 2004. Otherwise, opportunities may arise before 2004 to make some or all of the changes which may assist in fulfilling legal obligations and which would accord with good practice. While there is no limitation on the type of adjustment which could be considered reasonable in the circumstances many adjustments may cost very little. For example:

· relocating door handles,

· providing appropriate contrast in decor to assist the safe mobility of a visually impaired person,

· clearly marking the edges of steps,

· hanging a sign out at right angles above the entrance so that it is visible from the pavement

· painting the door frame a contrasting tone or colour from the surround to make the door stand out more clearly

· providing tactile buttons in lifts

· fitting handrails

· improving lighting to assist those who are hearing impaired to lip read and those who have a degree of sight loss to move around more freely

would all be reasonable adjustments which could be made to improve the accessibility of premises for disabled people.

It is important to note that this new duty, like the existing ones, involves taking such steps as are reasonable in the circumstances.

The type of factors which will be taken into account in assessing whether it was reasonable to make a structural alteration will be the same as those mentioned above in relation to the existing obligations on service providers.

It should also be noted that the Act allows service providers flexibility when deciding the most appropriate way of ensuring that disabled people can use their services. For example, a constituent who is hearing impaired cannot insist that an induction loop be provided if the service can be reasonably provided using some other aid, facility or service.

In it Regulatory Impact Assessment in relation to the implementation of certain provisions of the DDA in 1999 the Government stated "The Act makes it clear that service providers will only have to take reasonable steps to make their services more accessible. S21(1) and (2) and (4) say that "it is [the service provider's] duty to take such steps as it is reasonable, in all the circumstances of the case". That means there no open-ended obligation on all service providers, whatever the nature or size of their business, to make every aspect of it accessible to disabled people whatever the cost of individual adjustments". This same principle underpins the implementation of the provisions which will come into force in 2004.

Members' Allowances Scheme

The Members' Allowances Scheme makes special provision in relation to reasonable adjustments which an MSP may wish to make. Specifically, under section 9(3) of the Scheme a member may apply to the SPCB for an allowance to meet costs incurred in:

(a) making reasonable adjustments to his or her local office to accommodate a member's employee who has a disability and/or facilitating access for disabled members of the public;

(b) providing equipment and/or parking spaces for disabled persons;

(c) facilitating meetings for disabled persons by hiring (on an occasional basis) alternative office and meeting premises; and

(d) contracting sign language interpreters for meetings with members of the public;

It is for the SPCB to determine whether any other adjustments would qualify for consideration for payment from this allowance.

Any member who wishes to apply in respect of any specific expenditure should apply in writing and in advance of the expenditure being incurred, with all relevant information including costings, to the Corporate Policy Unit.

Structural alterations and statutory consents

If a structural alteration to premises is being considered to fulfil obligations under the DDA the need to obtain statutory consents such, as planning permission, will remain.

Structural Alterations to leased premises

Special provisions will be introduced in 2004 to deal with premises which are occupied under a lease which, on the face of it, would not allow a particular alteration to be made. In certain circumstances the lease will be modified to allow the alteration to be made. Special rules will also be introduced to deal with to lessors (landlords) who unreasonably withhold consent to a particular alteration.

It will not be enough, to avoid liability for discrimination, for tenants of leased premises simply to take no action because a lease appears to prevent a proposed alteration or a landlord refuses to consent.

Costs incurred in making alterations

At the moment the law appears to be silent on the matter of who will bear the cost of any alteration carried out to comply with the duty to make reasonable adjustments. The most likely scenario is that where the landlord gives consent under the lease, either willingly or because he/she is forced to do so by the special legal provisions which will apply, the provisions in the lease which normally govern payment for alterations will apply. It may be that Regulations will be introduced which will deal with this particular matter. The position is complex and you should take professional advice in relation to any difficulty you experience with your landlord on the new provisions which come into force in 2004.

Justification of less favourable treatment

It is possible for a service provider to justify less favourable treatment of a disabled person in a limited range of circumstances. Justification will only be possible where, in the reasonable opinion of the service provider, one or more of the following conditions are met:

(i) Where the less favourable treatment was necessary in order not to endanger the health and safety of any person (including the disabled person)

(ii) Where the treatment is reasonable because the disabled person is not capable of entering into an enforceable agreement or giving informed consent

(iii) Where the treatment is necessary because the service provider would otherwise be unable to provide services to members of the public

(iv) In cases where the standard of service or the terms on which a service is provided are less favourable for disabled people, where such is necessary in order for the service provider to be able to provide the service to the disabled person or to other members of the public.

(v) [This relates to the cost of providing a service being increased and is not relevant]

You will only succeed with a justification defence if it was reasonable for you to believe that one or more of the above conditions were met.

Further steps which you can take

It will help you to comply with the letter and the spirit of the DDA if you establish a clear written service provision policy which includes service provision to disabled users of the service you provide. This policy should be effectively communicated to staff through training and monitored.

Disability awareness training may assist an MSP and his/her staff in providing a service to and for people with different types of disabilities. The Personnel Office is able to provide further guidance in the first instance.

There is a widespread consensus that the provisions of the DDA are complex and difficult to understand. It is hoped that this guidance will assist you in meeting your obligations. However, you may wish to obtain independent legal advice should any specific issue arise in relation to your obligations under the legislation.

At the moment there are many questions which remain unanswered in relation to the full effect of the obligations which will come into force in 2004. The Government has indicated an intention to provide further information and it has also acknowledged that it will be necessary to revise the guidance in the "Code of Practice: Rights of Access, Goods and Facilities, Services and Premises (1999). When the position becomes clearer in relation to the 2004 provisions further guidance will be prepared for MSPs. In the meantime the current Code of Practice contains much useful guidance which will cast further light on the service provision aspects of the DDA. It can be accessed at www.disability.gov.uk/dda/finalcode.pdf

"Access by Design - Implementing the DDA 1995" is a low cost video produced by the Centre for Accessible Environments with the support of the Department of Social Security on behalf of the Minister for Disabled People. Details on how to obtain a copy are available on the Disability Rights Commission website. Similarly, a factsheet has been produced on behalf of the Minister for Disabled People entitled "Later Rights Relating to Access to Goods, Facilities and Services" which is accessible on the DRC website.

The DRC website also contains links to organisations which can give further advice on making reasonable adjustments to premises.

Further Information and Advice

Model Policy for MSPs on equal opportunities in their role as service providers for display in constituency offices and distribution to constituents as appropriate. It is recommended that a large print version is also available and on display in offices.

SERVICE PROVISION

General Policy Statement

As an MSP I will do all that I can to ensure that the my services as an MSP are provided in accordance with the principles of equality of opportunity and without discrimination on the grounds of gender, gender identity, sexual orientation, marital/family status, racial group, disability, religion or age.

If, as a service user, you consider that I, or any of my staff, have not behaved in a manner which is consistent with this policy you should draw the matter to my attention at the earliest opportunity by discussing the matter with me or setting out your concerns in writing.

If there is any step or measure which you consider could be taken to improve equality of access to the services which I provide you should not hesitate to raise this with me or with a member of my staff. We will do our best to respond positively to any suggestions or requests which are made.

The Provision of Services to Minority Ethnic Constituents

I am very keen to ensure that all service users have equal access to the services which I provide. I would be happy to arrange for an interpreter to be present, if available, in the event that a constituent would prefer to use a language other than English at any meeting. If you wish an interpreter to be provided I would be grateful if you could provide 10 days notice of this request to my office so that the appropriate arrangements can be made. I would also be happy to meet with you in the presence of any interpreter invited by you to come along to a meeting.

The Provision of Services to Disabled Constituents

I wish to ensure that the services which I provide are as accessible as possible to constituents who have a disability. I will take what steps I can to achieve this goal including:

· Arranging for a British Sign Language interpreter to be present at a meeting where one is available. The greater the length of notice given that a sign language interpreter is needed the greater the chance that one can be located in time for the meeting. Where possible it would be helpful if you could notify my office 14 days before our meeting so that the necessary arrangements can be made

· Maximising the use of written information for constituents who are deaf or hearing impaired

· Providing information, on request, on audio tape for constituents who are blind or sight impaired

· Providing information, on request, in large print for those who are sight impaired

I would also be happy to visit disabled constituents at home if this is preferable to them.

These are only examples of the kind of steps which can be taken to ensure that disabled constituents can access the services which I provide. Please let me, or a member of my staff, know if there are particular steps which I could take which would assist you in accessing my services.

NOTES

1. The range of criteria coming within the scope of this policy is wider than that required by law but it is consistent with the other policies and the overall equality ethos of the Scottish Parliament.

2. The commitment on interpreting would involve MSPs setting up an arrangement with the local community language interpreting service in their area - local authorities and local Community Relations Councils will have details.