Services and public functions
England and Wales have had laws against discrimination since the 1960s. The Race Relations Acts of 1965, 1968 and 1976 outlawed race discrimination, the Equal Pay Act 1970 and the Sex Discrimination Act 1975 outlawed gender discrimination and the Disability Discrimination Act 1995 outlawed disability discrimination.
In 2010 all anti-discrimination laws were brought together under one Act: the Equality Act 2010 (EqA). The EqA has applied in England and Wales since 1 October 2010. Discriminatory acts that took place on or after 1 October 2010, or that started before 1 October 2010 and continued after that date, will be covered by the EqA. Discrimination that took place before 1 October 2010 is covered by the Disability Discrimination Act 1995. For information about discrimination under the Disability Discrimination Act 1995, please .
Under the EqA it is unlawful to discriminate against someone who has a disability. The EqA provides protection against discrimination that happens at work, in the provision of services, public functions and premises, and in education. The EqA also deals with discrimination in associations. It does so by making discrimination unlawful in a number of ways, and by providing legal remedies to individuals who experience discrimination.
The EqA makes it unlawful to discriminate against someone based on any ‘protected characteristic’ set out in the Act. The protected characteristics are:
- Gender reassignment
- Marriage and civil partnership
- Religion or belief
- Sexual orientation
- Pregnancy and maternity
What is a disability under the EqA?
Section 6 of the EqA provides a definition of disability. In order for someone to show that there has been disability discrimination, they first have to show that this is because of a disability. Mind’s Proving Disability Checklist can help with this process, for a copy please email:
Under the EqA a person will be considered to have a disability if they:
- Have an impairment that is either physical or mental; and
- The impairment has substantial adverse and long-term effects on their ability to carry out normal day-to-day activities.
Impairment: It is not possible to give a complete list of impairments recognised under the EqA but they include mental health conditions such as depression, schizophrenia and bi-polar affective disorder as well as developmental impairments such as dyslexia or autism and learning difficulties. The EqA does not require someone’s mental health problem to be a clinically recognised mental illness in order for it to count as an impairment.
The first step is to show that someone has an impairment. This is normally quite straightforward. The second step is to show what effect the impairment has on their ability to carry out normal day-to-day activities.
Substantial adverse effect: A substantial adverse effect is something that is more than minor or trivial. When deciding whether an impairment has a substantial adverse effect on someone’s ability to carry out day-to-day tasks the following should be taken into consideration (this is not an exhaustive list):
- The time it takes them to complete a task, compared with the time it would take someone without the impairment
- The way they would complete task, compared with how someone without the impairment would complete the task
- The cumulative effect of the impairment on their ability to carry out everyday tasks.
Under the EqA a person only needs to show that their impairment gives rise to adverse effects, not that those adverse effects impact on any particular capacity, such as a person’s memory or their ability to concentrate.
If someone is receiving treatment or medication for their disability that helps them carry out their daily activities, they may still be a person with a disability protected by the EqA. This will depend on whether their ability to carry out day-to-day tasks would be affected in a significant and adverse way if they stopped taking their medication or having treatment. If this is in doubt at any stage it might help to get a medical opinion on what the consequences of stopping treatment or medication would be on someone’s day-to-day activities.
Long-term: A long-term impairment is one which:
- has lasted at least 12 months; or
- is likely to last at least 12 months; or
- is likely to recur.
If someone has a mental health problem that fluctuates over time they may still be regarded as having a long-term impairment. If someone has episodes of mental illness that have a serious adverse affect on their ability to carry out daily activities and those episodes could well occur again, the mental illness is likely to be considered long-term for the purposes of the EqA.
The Office of Disability Issues (see below) has published guidance on what may and may not be considered a disability under the EqA. The guidance can be found at: . Under section 6(5) of the EqA courts and tribunals must take account of this guidance when they are deciding whether or not someone has a disability.
The Mind Legal Unit’s Proving Disability Checklist can help with proving whether someone has a disability. To request a copy email: .
Services and public functions
This briefing looks at how unlawful discrimination may arise in situations where services are provided to the public or where public functions are carried out. These phrases are explained here. Unlawful discrimination can arise in a number of ways under the EqA (see Types of discrimination under the EqA below).
The EqA applies to services provided to the public or a section of the public whether these are provided free or for payment. So, this includes services provided by local councils such as advice services or social work services and park and leisure services. It also includes services provided by government departments, charities, hotels, restaurants, banks, building societies, solicitors, accountants, advice agencies, telesales businesses, leisure centres, sports facilities, gas and electric companies, buses, trains, theatres, cinemas, places of worship, GPs, hospitals and clinics. Some services are subject to special rules. So for example, there are special rules for insurance services. See Insurance cover and mental health.
The EqA also covers public functions like planning application procedures and tax collection, as well as investigation of crimes or being arrested by the police, although there are some exceptions. For example, the EqA does not apply to the procedures in Parliament (Schedule 3 para 1 EqA), to the Security Services (Schedule 3(5)) or to judges when they are judging cases (judicial functions)(Schedule 3 para 4).
Examples of services and public functions are set out in Public sector organisations and discrimination in provision of services and public functions - some examples below.
Types of unlawful discrimination under the EqA
There are many situations in which someone may feel discriminated against because of their disability. In order to reflect this, the EqA sets out different types of discrimination, referred to as ‘prohibited conduct’. Part 3 of Equality Act (EqA) applies to organisations providing services or performing public functions.
If an organisation discriminates against a disabled person in any of the ways described below then that organisation may face a legal claim from the disabled person. The types of discrimination below are the ones that apply to disability discrimination. Just because treatment is unfair does not mean that it will amount to unlawful disability discrimination. For unfair treatment to be unlawful disability discrimination, it must be related to a person’s disability in one of the ways described below.
Direct discrimination is where a person is treated less favourably than someone else because of their disability (section 13 EqA). In order to show that there has been discrimination, a person must demonstrate that there is a link between their disability and the way they were treated.
For example, if a hotel refuses a booking from a customer because she explains she has schizophrenia but the hotel accepts bookings from people who do not have schizophrenia, the hotel is treating that customer less favourably than others and the reason for this is her disability. This would be direct discrimination.
If a GP refuses to register a patient on her list because he has bipolar disorder but accepts other patients onto her list that would also be an example of direct discrimination.
A person may experience unlawful discrimination because of a disability even if they do not have a disability themselves. This might arise in two situations:
1) Discrimination by association: A person may be discriminated against because of their connection or association with a disabled person. For example if a restaurant refused to serve a customer because he had been campaigning on behalf of people with mental health problems this would be treating him worse than other customers and the reason for this was because of his connection with people with disabilities.
2) Discrimination by perception: A person may be discriminated against because there is a perception or belief that they are disabled, even if they are not. For example, if a bank incorrectly assumed that a customer had a mental health problem and because of this treated the customer worse as a result (by refusing to grant him a loan) this may amount to discrimination even though the customer may not have a mental health disability.
Direct discrimination can be difficult to prove. However, where there is evidence that direct discrimination has taken place, the discriminator will be held responsible for their unlawful behaviour and will have no opportunity to justify why they acted in that way.
A non-disabled person who is treated less favourably than a disabled person cannot bring a claim under the EqA. This recognises that in some circumstances disabled people may need to be treated in a more advantageous way (see Reasonable Adjustments below) than non-disabled people. In relation to disability discrimination, the Act only protects disabled people, so it is not discrimination to treat a disabled person more favourably than a non-disabled person.
Discrimination arising from disability
Section 15 of the EqA prohibits the unfavourable treatment of a disabled person where the reason for the unfavourable treatment is not the disability itself, but something that arises in consequence of the disability.
One example of this might be where a person is turned away from an interview at a Job Centre Plus because he is swearing. However, his swearing is the result of having Tourette syndrome. The refusal to interview is unfavourable treatment, which is because of something that arises in consequence of the disabled person’s disability. This is likely to be discriminatory.
Unlike direct discrimination, in this case, there is no need for the disabled person to compare themselves with anyone else; they just need to show that they were treated unfavourably and that this treatment was linked to their disability.
If someone shows that they have been treated unfavourably for a reason related to their disability, the organization providing the service or performing the public function will have the chance to justify this treatment. Discrimination arising from disability can be justified if it is a proportionate way of achieving a legitimate aim. This means that a service provider can justify the way they treated a disabled person if there was a good reason for it and the action they took was reasonable.
If the service provider can show that they did not know that the disabled person had the disability in question; and could not reasonably be expected to know that the disabled person had the disability, then the unfavourable treatment does not amount to discrimination arising from disability.
It is not enough for the service provider to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it.
Under section 19 of the EqA a disabled person can argue that a practice or arrangement which appears to be neutral and non-discriminatory does in fact put them at a particular disadvantage compared to people who are not disabled. This is indirect discrimination and it requires the organisation to think ahead about the impact that their policies and practices and arrangements might have upon disabled people.
For example, if an advice centre will only provide advice to people who visit their centre and will not provide advice by telephone or email, this practice is likely to put at a particular disadvantage customers who have a mental health condition like agoraphobia as they are unable to travel to the centre because of their mental health condition.
If an indirectly discriminatory practice is shown to exist, the organisation may be able to justify it if it is a proportionate way of achieving a legitimate aim. This means that an organisation providing a service or public function can justify this type of discrimination by showing that there was a good reason for it and that the action taken was reasonable.
The duty to make reasonable adjustments
The law (section 20 EqA) recognise that adjustments (changes) may need to be made in certain areas to help disabled people overcome barriers that are not faced by people who are not disabled.
This is known as ‘the duty to make reasonable adjustments’. An organisation providing a service or performng a public function has to consider making reasonable adjustments (in other words, changes) if a disabled person is at a substantial disadvantage in using its services or functions when compared with someone who is not disabled.
This may mean:
- changing the way in which services are delivered or functions are performed (EqA calls this the provisions, criteria or practices), and/or;
- providing extra equipment like an induction loop or extra staff assistance (EqA calls these auxiliary aids), and/or;
- removing, altering or avoiding physical barriers.
This means that organisations should not wait until a disabled person wants to use their services before they consider the changes they need to make for the range of disabled people they may serve. Organisations must plan in advance to meet the access needs of disabled people. So this includes planning how to deliver services or provide public functions to people with mental health problems. The duty to make reasonable adjustments is ‘anticipatory’.
An organisation is not expected to do more than it is reasonable for it to do.What is reasonable for an organisation to do will depend on all the circumstances including:
- the type of service it provides
- the size of the organisation and what resources it has
- the effect that making the change would actually have on the disabled person.
If adjustments (changes) are identified that are reasonable for that organisation to make, then it must make them. The duty to make reasonable adjustments aims to ensure that a disabled person can use an organisation’s services as closely as it is reasonably possible to get to the standard usually offered to non-disabled people.
Here are some examples of reasonable adjustments that organisations providing services or exercising public functions might make for a disabled person with a mental health problem:
a) A social worker plans a social care assessment for someone with a mental health problem. That person finds it is difficult to concentrate or to participate in the meeting to discuss his needs because of his condition. The social worker agrees that he should have an independent advocate to support him and help him explain what his views and his needs are. Providing the advocate in this case can be a reasonable adjustment when providing the social care assessment process.
b) A healthcare professional (HCP) invites a woman who has agoraphobia to go to a meeting about her Employment and Support Allowance claim. She explains she cannot leave her home because of her mental health problems and provides a doctor’s report to confirm this. The HCP reorganises the meeting to be a home visit. Changing the place where the meeting takes place is a reasonable adjustment to the normal practice.
c) A care coordinator arranges a Care Programme Approach (CPA) meeting for a patient who has mental health condition that leads her to feel very anxious and distressed in large groups of people. She also has difficultly in motivating herself to get up and leave home. The care coordinator discusses these considerations with her. She arranges for the CPA meeting to take place in the afternoon and ensures that the number of attendees is reduced and that there are opportunities for the patient to take short breaks. These changes are reasonable adjustments to the way that the health trust provides the CPA meeting.
Section 26 of the EqA prohibits harassment. Section 29 of the EqA says that providers of services or public functions must not harass disabled people. Harassment is defined in the EqA to mean behaviour that violates someone’s dignity or creates an environment that is intimidating, degrading or humiliating. The behaviour has to be related to the victim’s disability in order for it to be covered by the EqA. An example would be where a customer services assistant makes fun of a disabled customer using abusive or derogatory language or making light of their disability.
Under section 27 of the EqA a person can bring a victimisation claim if they have been victimised because of their disability. Victimisation means a person being placed at a disadvantage by the organisation that provides services or public functions because they have made an allegation of discrimination, or supported someone else who has made an allegation of discrimination. So for example if a sports centre refuses admission to a customer because that person has complained about disability discrimination that would be victimisation.
Challenging discrimination in the provision of services and public functions
If a person thinks that they may have been subjected to disability discrimination by an organisation providing a service or public function, it is advisable for them to make a note of what happened at the time it occurs and keep details of any witnesses present. There are a number of options for people wishing to raise a complaint of discrimination. Depending on the kind of problem, they can try to resolve the problem first informally by raising it with the customer services or complaints department of the organisation if it has one. They may want to use the formal complaints procedure for that organisation. For example someone who has been discriminated against by staff in a hospital or GP surgery can use the health and social care complaints procedure. See .
They may also want to get advice about a legal claim for disability discrimination.
Discrimination questionnaire or question form
If someone is considering whether they may be able to take a disability discrimination claim, it is often helpful to send the organisation a questionnaire form first. The form can be completed as soon as the person becomes aware of the discrimination. If the organisation responds to the questions, it can help to identify the strengths and weaknesses of a potential claim and can help to reach a settlement early on. If the organisation does not respond to the questionnaire then this may reflect badly on them if a legal claim is taken against them later. It is a good idea to get advice on how to complete the questionnaire.
A person who has experienced disability discrimination from an organisation that provides a service or public function can bring a legal claim in the County Court. If after considering the evidence, the court finds that the disabled person has been discriminated against, the court has the power make a public statement confirming that there has been disability discrimination (called a declaration) and/or award compensation and/or order the organisation to make a reasonable adjustment.
Time limits for the County Court
A claim against a service provider or a public authority has to be started in the County Court within six months less one day of the discrimination that is being complained about. This is particularly important if there is a single discriminatory act on a particular date. In some cases there may be a series of matters or ongoing poor treatment that amount to discrimination, the six month time limit will run from the last of these. It may occasionally be possible to make a claim after the six months has passed. The person making the claim will need to show that there are good reasons for being late, for example by showing that the effects of their disability prevented them being able to bring the claim sooner. The County Court may allow a late claim if it thinks it is fair to do so.
If someone wants to bring a claim in the County Court, they should seek legal advice as soon as possible.
The Public Sector Equality Duty
Under Part 11 of the EqA most public authorities that provide services or carry out public functions, such as NHS hospitals, government departments, local authorities, universities and the police have to comply with the public sector equality duty. A full list of the public authorities covered by the duty is in Schedule19 of the EqA. The public sector equality duty means they must try to eliminate discrimination, harassment and victimisation, to advance equality of opportunity for people with a protected characteristic (see Protected Characteristics above). So, this duty includes people who are disabled because of mental health conditions. Public authorities also have a duty to foster good relations between people who have a protected characteristic and people who do not.
When public authorities provide services or carry out their functions they have to consider the need to promote equality of opportunity by considering the three aims of the Public Sector Equality Duty which are:
- Removing or minimising disadvantages suffered by people who have a protected characteristic
- Taking steps to meet the needs of people who share a protected characteristic that are different from the needs of persons who do not have a protected characteristic
- Encouraging people who share a protected characteristic to participate in public life or in any other activity in which participation by such people is disproportionately low.
Meeting different needs means taking steps to take account of disabled people's disabilities. EqA describes fostering good relations as tackling prejudice and promoting understanding between people from different groups. EqA expects that compliance with the duty may involve treating some people more favourably than others. Here is an example of how the public sector duty could apply.
A local authority plans to cut its mental health care support services. This policy decision has to comply with the EqA public sector duty. It is likely to mean that the local authority should consult the people and organisations affected by the decision. It needs to take steps to consider and plan for the effect the proposed change will have on the existing and future service users, carers, relatives, and their related organisations. If the local authority does not take account of how the changes impact upon the people affected by the decision, then it may be in breach of its public sector equality duty.
The Equality and Human Rights Commission has produced guidance on how public authorities can make sure they comply with the public duty. It is worth checking through this if you are worried that a public authority is not keeping to its public equality duties. See .
If someone thinks that there may be a breach of the Public Sector Equality duty that affects them or the organisation they belong to they should seek legal advice as soon as possible. The procedure for challenging the decisions or policy plans of a public authority is by judicial review (see below).
Judicial review in the High Court
If a person thinks there has been disability discrimination and is complaining about the lawfulness of a decision, act or failure to act of a public authority or of a private person carrying out a public function, then it may be possible for that person to take legal proceedings for judicial review in the High Court rather than a claim in the County Court.
A judicial review is not about challenging the outcome of a decision, but the process by which the decision was made. A judicial review is concerned with whether the Equality Act’s public sector duty has been correctly applied and the right procedures have been followed in the decision making process. It may also include challenging a failure of the public authority to comply with human rights provisions (see human rights and discrimination below). If a judicial review is successful the court may cancel the decision that has been made or order the public authority to take a particular step or not to take a particular step in order to put things right.
Time limit for judicial review
Anyone who wants to bring a claim for judicial review has to get permission first from the High Court. Any application for permission has to be brought promptly and in any event within 3 months less one day of the discriminatory decision or act complained of.
Human rights and discrimination by public authorities
There is a close relationship between equality and human rights. Public authorities must act in accordance with human rights as well as the EqA and this includes the prohibition of discrimination under Article 14 of the European Convention on Human Rights (see Mind Legal Briefing Human Rights). This prohibition covers disability discrimination. This means that whenever the actions of a public authority involve human rights (such as the right to a private life under Article 8 or the right to practise a religion under Article 9), they must not behave in a discriminatory way.
Public sector organisations and discrimination in provision of services and public functions - some examples.
Services provided by courts and tribunals
Courts and tribunals provide services to members of the public. So court staff must not discriminate in the way that they provide services to the public. Courts and tribunal services must make reasonable adjustments if required. They have to plan and provide their services, taking account of the needs of disabled customers. One reasonable adjustment for a court to make might be to provide information about the court in a range of formats to ensure that disabled people with cognitive disabilities can understand the information. If a person is unable to attend a court hearing because of a disability then they may require an adjustment, for example use of a video link.
However, when judges in courts and tribunals are listening to evidence in trials and making decisions, a challenge cannot be brought against them under the EqA. If a court user thinks that a judge has acted in a discriminatory way, they can make a complaint. If a disabled person considers that there has been discrimination which makes the judge’s decision in the case either legally inaccurate or biased against the disabled person then they need to get advice about an appeal to the decision.
Services and public functions and the DWP
The Department of Work and Pensions (DWP) is a public authority which supplies services to the public and performs public functions. The EqA applies to the DWP’s services and functions and the public sector equality duty also applies.The DWP works with Job Centre Plus staff and health care professionals to provide information and assessment services for benefit claimants and must not treat a disabled claimant with mental health condition less favourably than other claimants because of that person’s mental health condition (see Types of unlawful discrimination under the EqA above). For example, a Job Centre Plus customer service officer must not refuse a service to someone because they have a particular mental health disagnosis. Disabled benefit claimants with mental health conditions may need reasonable adjustments to claims procedures, if their mental health condition makes it very difficult for them to use the procedure for claiming benefits. So for example, a person who experiences panic attacks or delusions because of their mental health condition may not be able to travel to the assessment centre. They might need to ask for a home visit if they are unable to access a medical assessment centre away from their home. To get the adjustment, they would need to provide evidence of the condition and its effect from a doctor or mental health professional. If a disabled claimant receives a decision about their claim that they think is wrong then they need to get advice about the welfare benefits appeals and review procedures ().
Discrimination and the police
The EqA applies to the police when they provide services to the public e.g. when they give crime prevention advice and also when they exercise their public functions such as investigating crimes; take statements from victims or witnesses or use stop and search powers or arrest and question suspects.
For example a person with a mental health problem who is the victim of crime should expect the police to respond to and investigate their crime report with the same standard of care provided to other members of the public. A decision to take no further action should be based on evidence and not on the fact that a person has a mental health condition. If it appears that a decision has been made not to investigate a crime because the victim has a mental health condition this would be a decision that might be challenged using judicial review (see The Public Sector Equality Duty above).
In developing their policing policies and priorities, police authorities and Chief Constables have to comply with the public sector equality duty.
Getting legal advice
The legal aid scheme covers initial legal advice (sometimes called ‘legal help’) for discrimination (discrimination law) and for decisions and policies made by public authorities (public law). To get legal aid, a person has to be financially eligible.
The Civil Legal Advice service can be contacted for further advice about providers . To obtain representation in court for a discrimination claim or a public law challenge, there is also a merits test based on the likelihood of succeeding in the claim and what is at stake.
A person bringing a discrimination claim may be able to obtain legal advice and/or representation on their insurance policy (for example, home contents), which may cover legal expenses. It may also be possible, depending on the kind of case, to have a conditional fee agreement.
The Law Society website provides a list of solicitors (see below).
Otherwise, free legal advice may be available from one of the following organisations:
- A local law centre with an employment or disability adviser. Law centres tend to be located in major towns and will be listed in the telephone directory or online. The Law Centres Network can be contacted on 020 7842 0720 or at
- A disability advice centre, which is part of the DIAL network. They should be listed in the telephone directory, or can be contacted through DIALUK on 01302 310 123 or at
- A Citizens’ Advice Bureau can offer general advice. Most towns have a CAB. They will be listed in the telephone directory, or you can contact the National Association of CABx on 020 7833 2181 or at
- The Disability Law Service, which offers legal advice about discrimination in education and can offer casework support. They can be found at or contacted on 020 7791 9800 or emailed at .
- LawWorks, which offers legal advice to individuals who are not eligible for public funding:
The Office of Disability Issues
The was set up in 2005 to coordinate disability policies across government. It is part of the Department of Work and Pensions and works closely with the Minister for Disabled People. The ODI drafts policies, advises the government on disability issues, undertakes research on disability issues and promotes the principles set out in the EqA, the Human Rights Act 1998 and the UN Convention on the Rights of Persons with Disabilities.
The Equality and Human Rights Commission
The (EHRC) is a statutory body. This means that it was established by legislation and has a specific function. The EHRC is responsible for monitoring and protecting human rights in Britain, including by equality for people with disabilities or other protected characteristics. The EHRC does research, promotes good practice, takes legal cases and offers advice on human rights and discrimination. The EHRC also has the power to challenge employers who ask unlawful pre-employment health questions (see above). A detailed in the context of provision of services and public functions has been produced by the Equality and Human Rights Commission.
The Equality Advisory and Support Service
The , funded by the Government Equality Office, began operation on 1 October 2012. The service replaces a helpline run by the Equality and Human Rights Commission which has closed.
The EASS helpline is for people who think they may have experienced discrimination. The service aims to support people referred from local organisations like advisory groups working within the community that support people experiencing discrimination. People are also able to call the helpline directly. The EASS helpline can provide advice and information on discrimination in employment, housing, education, transport and cases where there may have been discrimination when using or buying goods and services. It can also provide advice and information on human rights issues. Help is provided by:
- explaining what the law says and how it applies
- explaining how a situation could be resolved
- support to resolve issues informally
- referrals to a conciliation or mediation service
- helping to work out eligibility for civil legal aid
- helping to find an accessible legal service, or helping people to represent themselves by giving information and support on how to prepare and lodge a claim.
The EASS does not:
- provide legal advice
- represent you when providing pre-claim support
- advise on the strength of a case
- advise on what evidence is needed for a case
- advise on court or tribunal proceedings once a claim has been issued.
This legal briefing attempts to outline some of the key concepts of discrimination in the provision of services, as defined by the EqA. It is not a substitute for legal advice in any particular case. As mentioned above, there are some differences in the way that the law will apply depending on the circumstances and background to the alleged discrimination.
You can find out more about Mind’s on our website. For details on the kinds of cases that Mind might be able to assist with, please consult our .
For general advice about discrimination and difficulties at work, please contact the Mind Legal Advice Service on 0300 466 6463 or
More specialist advice can be obtained from the following four organisations:
The Law Society
0870 606 2555
Civil Legal Advice
0845 345 4345
The Equality and Human Rights Commission
The Equality and Advisory Support Service
FREEPOST, Equality Advisory Support Service, FPN4431
Telephone: 0800 444 205
Textphone: 0800 444 206
Monday to Friday, 9am to 8pm; Saturday, 10am to 2pm.
Text users can dial 0800 444 206 and Skype video BSL calls can access the helpline via the Royal Association for Deaf People. Details are on the website at
The Disability Law Service
Email: 020 7791 9800
Alternatively, you could contact your or , who may be able to help.
Mind Legal Unit