Do we need buggies to comply with disability legislation?

A joint undertaking has been entered into by the National Golf Clubs’ Advisory Association and the English Golf Union to consider the impact of disability legislation on golf clubs and with specific reference to the use of motorised ride on buggies. It began with an assessment of damage impact and recommendations of how this could be managed. This can be found at EGU / Sports Turf Institute (STRI) Wear Study and a copy of the report can be accessed via www.englishgolfunion.org/STRIweartrial. It progressed in giving detailed consideration of the legislation surrounding the issues and culminated in obtaining counsel’s opinion on the issues clubs must manage. This article sets out the major considerations which must be taken into account in managing disability issues on the course.

The article cannot, of course, cover each and every aspect of this legislation given the variety of factual circumstances that may arise. The opinions expressed herein are general in nature only. Given the multitude of factual scenarios, each organisation is advised to seek specific legal advice should an issue arise in relation to this legislation

When did this law come into effect?

The Equality Act (‘the Act’) came into force on the October 1, 2010.

What is the purpose of the legislation?

Importantly, it repeals and re-enacts much existing legislation, notably the Disability Discrimination Act of 1995 and repeals the Disability Discrimination (Private Clubs etc.)  Regulations 2005. Paragraph 10 of the explanatory notes to the Act states: ‘The Act has two main purposes – to harmonise discrimination law and to strengthen the law to support progress on equality.’

The Act operates by identifying several protective characteristics in defining the prohibition against treating someone less favourably because of that protected characteristic. The protected characteristics for these purposes include disability (S.4).

‘A person (the club ‘A’) discriminates against a disabled person (member; associate member; visitor or guest ‘B’) if A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.’

Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

The legislation outlaws both direct and indirect discrimination. Direct discrimination appears fairly straightforward, but what is indirect discrimination?

The core provisions in relation to indirect discrimination are found in the Act at S.19(1) (2) and outlaws both direct and indirect discrimination. Direct discrimination is treating a disabled person less favourably than others because of the individual’s disability.

Protection for indirect discrimination for disabled people is new. In practice, this is a technical improvement to the law because previous law already required service providers (golf clubs) to make reasonable adjustments for disabled people.

Indirect disability discrimination happens when there is a rule, a policy or even a practice that applies to everyone but which particularly disadvantages people with a particular disability compared with people who do not have that disability, and it cannot be shown to be justified as being intended to meet the legitimate objective in a fair, balanced and reasonable way. It is necessary to strike a balance between the negative impact of the rules or practices on some people and the reasons for applying them.  Golf clubs should consider whether there is any other way to meet a particular objective that would not have a discriminatory effect. Lack of financial resources alone is unlikely to be sufficient justification.

Does the Act in relation to disability extend to anyone else beyond the disabled person?

The Act also protects people from being discriminated against and harassed because of a disability they do not personally have. For example, it protects people who are mistakenly perceived to be disabled. It also protects a person from being treated less favourably because they are linked or associated with a disabled person. Thus, if the father of a disabled male junior golfer (member) was unable to participate in the club’s ‘Father & Son’ competition because the junior was prevented from using a buggy, that would be unlawful discrimination. Similarly if the wife of a disabled male golfer (member) was refused access to the bar because of this association, that would be unlawful discrimination. The test of being ‘associated with’ is extremely wide and will be determined on the facts of each case. Family members and friends would be covered.

There has been an amendment to the definition of ‘disability’ within the Act. To qualify for protection from discrimination, a disabled person no longer has to show that their impairment affects a particular ‘capacity’ such as mobility or speech, hearing or eyesight. This should make it easier for members / guests to show that they are disabled.

It seems that all clubs should have a ride on buggy policy governing the use of buggies by the disabled, where do we begin in formulating a policy?

For the purposes of a club’s buggy policy and buggy use as a starting point, clubs should treat the question of disability as a matter of medical judgement and not one for the committee or an employee / manager of the club to decide. However, a degree of flexibility is essential for any policy to succeed; some disabilities are so obvious that in a number of cases the insistence of a certificate may be unnecessary!

The NGCAA has produced a template buggy policy for a number of years. The latest edition is available to be downloaded from its website www.ngcaa.co.uk.

Should disabled golfers be permitted to use a ride on buggy all of the time?

The abiding reality of the legislation requires clubs to permit access to its course by disabled golfers whenever it permits access by non-disabled golfers and where necessary and in order to achieve this to make in appropriate circumstances reasonable adjustments for disabled persons.

The relevant section of the Act is S20. Sections 21 and 22 applies where the duty is imposed:

Duty to make adjustments

The duty comprises the following three requirements:

The first requirement is a requirement, where a disabled person is at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

The third requirement is a requirement where a disabled person would, but for the provisions of an auxiliary aid A, be at a purported substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

If a club does not make these adjustments can it be taken to task?

Failure to provide a reasonable adjustment will amount to actionable discrimination.

Service providers (golf clubs) are required to make changes, where needed, to improve services for their members; associate members; visitors and guests. The duty is anticipatory and clubs should not wait until a disabled person experiences difficulties using the service as this may be too late to make the adjustments.

On the course, a thorough hole-by-hole risk assessment must be carried out where the use of buggies gives rise to health and safety concerns.

If areas of danger are identified then clubs must take reasonable steps to eradicate or minimise the danger. This may involve the construction of paths; defining routes; strengthening bridges and similar.

The range of what is reasonable is fact dependent for each golf club but the test is arguably now more refined in its application. Golf clubs must, however, carry out, a full audit on all these issues regarding a buggy policy. Health and safety issues are but one factor to consider. All such ‘audits’ must be fully documented.

Another fact that golf clubs will be concerned is the question of damage caused to the course by buggies particularly during the winter months and periods of inclement weather. The fact is that both footfall and the use of buggies, if not managed expeditiously, will cause undue wear / tear / damage to the course. As with the health and safety risk assessment, a similar damage assessment must be carried out on a hole-by-hole basis. Sensitive areas must be identified and reasonable steps taken to minimise or eradicate the risk of damage. Clubs are entitled to prescribe routes designating a 90 degree rule policy requiring buggies to travel in the rough and not drive on the fairway until adjacent with the player’s ball. All such audits must be fully documented.

Storage facilities

The legislation simply requires clubs to take ‘reasonable’ steps, the failure of which would make it impossible or unreasonably difficult for the golfer to use the course. There is thus no question of any mandatory duty to provide storage facilities for disabled members’ buggies.

If a club chooses to do so that is entirely a matter for them and their resources and if a club elects to do so, reasonable charges may be imposed.

Charging

The provision of the buggy is not an auxiliary aid. Further, the provision of a buggy is not considered to be, as a matter of generality, a reasonable adjustment within the definition of the ‘first requirement’ (S.20 (3)) Equality Act 2010. Consequently, the issue of charging does not arise. What golf clubs cannot do, however, is to operate a policy of banning buggies without justification. Such a policy would clearly amount to indirect discrimination for disabled golfers.

Circumstances may arise however, where the provision of a golf buggy may be required to be provided without charge. If a club insists that only a buggy of a certain type may be used and this results in a disabled visitor being unable to access the course by using his own buggy, then it would seem prudent to supply a buggy without charge. If, on the other hand, a disabled golfer was simply not prepared to bring his own buggy despite the fact that the club would permit this, then the general provisions would apply.

Additional matters

A golf club must allow access to the course by disabled golfers and to permit them to use buggies in appropriate circumstances. If a golf club had a policy of making buggies for hire to both disabled and non-disabled golfers, then in the absence of some compelling reason such as health and safety issues, then it must allow disabled golfers to use their own buggies.

It would be advisable for clubs to adopt a policy as to the use of hire buggies to avoid discrimination claims. For example, a disabled golfer may complain that he is unable to play a round of golf because all the buggies are hired. To avoid such complaints, a sensible policy should be adopted for the hire and use of buggies. Such a policy must be published and provided that, whilst a buggy for a disabled golfer cannot be guaranteed, disabled golfers will be given priority when making such bookings. It should be stressed that more favourable treatment of a disabled person is not unlawful within the Act (S.13 (3)). However, as the law presently stands (absent the regulations referred to above), a club is under no circumstances required to provide a buggy free of charge to a disabled golfer.