England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARLISLE COUNTY COURT
HIS HONOUR JUDGE HUGHES QC
0CA01582

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th July 2013

Lord Justice Longmore:

1. This is an appeal by a disabled child, Melissa Edwards, in a discrimination case relating to a restaurant and bar area called "The Coach House" in Flamingo Land near Malton in North Yorkshire. Flamingo Land owns and operates a large theme park which has a number of eating outlets including the Coach House which has both an inside seating area and an outside seating area. Beyond the outside seating area and separated from it by a low screen is a picnic area where people can bring their own food and drink for consumption. Flamingo Land does not permit the customers of the bar/restaurant to be served or take their own food and drink to that area.
2. Melissa's father is blind; her sister Isla has cystic fibrosis. Melissa herself has Down's syndrome with autism and challenging behaviour. So, as District Judge Ashton said in his judgment after the hearing in Carlisle when the father represented Melissa (as well as himself and Isla in claims which failed and on which nothing now turns), "this is truly a disabled family". The facts found by the District Judge, after hearing the evidence, were that Mr Edwards arranged to stay at Flamingo Land for a week's holiday for his family of wife and 4 children in July 2010. On Tuesday 6^th July 2010 the family decided to go to the Coach House for a meal and to eat at one of the 6 seater all in one bench tables in the picnic area. They sat down there; there was no sign saying that this was not permitted.
3. Mrs Edwards ordered a meal at the bar and collected the drinks making payment in full; she was asked by the manager on duty where the family was sitting; when she said they were in the picnic area, she was told that they would have to move into the outdoor sitting area. She explained to the manager that that would not be suitable because of the needs of the family. The manager said that staff were not allowed to serve in the picnic area because of health and safety considerations. Mrs Edwards responded that she only needed the food and would carry it there. Mrs Edwards was at this point joined by Mr Edwards and there was an altercation, resulting in the manager returning their money and requesting them to leave which they did.
4. It is accepted that, if the case was just about Isla or her father, they could probably have sat in the outside area attached to the restaurant without difficulty. The case of Melissa was, however, different as the mother explained in her evidence to the District Judge:-

"Melissa is quite a strong girl. Her behaviour is very challenging because she can't express herself verbally. If something is upsetting her she tends to lash out. I am her care giver, we take her out and about and do our own risk assessment. She will run over and pull the hair of other children. We know as a family how to deal with her and how to manage her. When sat at a table with family on either side of her she is happy and if we have to move her everything falls apart. When she cries or laughs she does not know when to stop and it is difficult for everybody. We have to interpret what might happen. The manager I spoke to obviously did not understand this but we were not given the opportunity to explain. I do not wish to stand at a bar and justify our family. We like to go out but have to do it in a way that is safe to us and to her and the public."

5. Mr Heap for Flamingo Land made two submissions at trial: first that there was no discrimination because the restaurant did not and would not have served meals to (or allowed meals to be taken by) any persons in the picnic area; and secondly that the manager had not been made aware of the specific disabilities of the family and so could not take them into account. The first submission fell foul of sections 19 and 21 of the Disability Discrimination Act 1995 ("the 1995 Act") at first instance because District Judge Ashton held that "the defendant is providing meals and has a policy that these should not be consumed in the picnic area". As to the second, the district judge accepted (para 18) that the special needs of the family were not explained to the manager but said that it was not reasonable to expect the parents to denigrate their children in a public discussion and that the father's sight impairment should have been obvious. If the manager had any doubts on the matter he should have formed his own assessment. He then awarded Melissa £2,000 for the discrimination practised by Flamingo Land's manager and a further £2,000 by way of aggravated damages for pursuing a defence which was not suitable.
6. Flamingo Land appealed the decision of District Judge Ashton to His Honour Judge Peter Hughes QC also sitting in Carlisle. He upheld the appeal on the basis that the Flamingo Lane was entitled to have a policy that it would only serve food within the seating area of the restaurant (inside and outside). The question was whether that policy made it impossible or unreasonable for disabled persons to use the service and what adjustments to that policy it was reasonable to expect Flamingo Land to make. He continued:-

"46. The policy itself did not make it impossible or unreasonable for the disabled to use the restaurant. The fact that the judge dismissed the claims of the father and Isla illustrates this point. It was the wish of the family having settled themselves at a picnic table, not to have to move again which brought them into conflict with the policy. This wish was not explained, though, to the manager.

47. The service provider has to make a judgment of what adjustments are possible and reasonable in the circumstances. He cannot perform this task unless he is provided with some information on which to make his decision. In other words, in the context of this case, why it would be reasonable to allow Melissa and her family to have their meal at the picnic table and not to require them to move. To be asked for and to provide a simple explanation of something that may not be immediately obvious is not to denigrate the disabled person. I cannot see how walking over to the picnic table and viewing the family unit for himself might have assisted the manager in this decision. I can, though, see how a stranger doing this might have upset Melissa and created just the sort of situation the family was anxious to avoid."

He concluded:-

"In my judgment, District Judge Ashton adopted the wrong approach. He focussed overmuch on the reasonableness to the parents of their decision, looking at the situation from their perspective and through their eyes, and insufficiently on the decision that the manager had to make and the information available to him on which to base his decision. Had he considered the reasonableness of the decision from this perspective, the only reasonable conclusion he could have reached was that it was essential for the parents to inform the manager of the reasons why, because of Melissa's needs they wished to stay in the picnic area, and that, in the absence of such information, his decision was not unreasonable."

He therefore allowed the appeal and added that anyway aggravated damages were not appropriate merely because a defendant defended a claim which he lost.

7. Melissa, with permission of Pill LJ, now appeals to this court on the basis that Flamingo Land did not originally appeal the District Judge's finding that no information about Melissa's disability had been provided but merely contended that the service which Flamingo Land provided at The Coach House was that of a restaurant not that of a takeaway food outlet. Mr David Wolfe QC on her behalf now submits to us that it was not therefore open to HHJ Hughes QC to decide the appeal on a point that had not been argued. If it had been argued, reference would have been made to the contemporary evidence of Ms Skelton to the effect that it had been explained to the manager that both he and some of his children were classified as disabled. The evidence taken as a whole would show either that there was sufficient explanation or at least that the manager was put on inquiry as to the needs of the family. Melissa accepts that she cannot appeal on the question of aggravated damages but maintains that she ought to recover at any rate the £2,000 awarded by the District Judge. By respondent's notice, Flamingo Land maintains its contention that there is a critical distinction between a restaurant and a takeaway for the purpose of the relevant sections of the 1995 Act, a point with which Judge Hughes did not, in the event, find it necessary to deal.
8. There are thus three questions:-

i) whether the provisions of the 1995 Act apply to the facts as found;

ii) whether, the judge ought to have founded his judgment on the absence of any explanation of Melissa's disability in the light of the fact that the absence of explanation formed no part of Flamingo Land's notice of appeal;

iii) whether, if an explanation of Melissa's disability was required at all, a sufficient explanation was given.

It is convenient to consider the questions in that order.

The 1995 Act

9. Sections 19 and 21 of the Act relevantly provide:-

"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.

….

21. Duty of providers of service 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 the 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.

….

(6) Nothing in this section requires a provider of services to take any steps which would fundamentally alter the nature of the service in question or the nature of his trade, profession or business."

10. The first question which arises under section 19(1)(a) is therefore "What are the services which a person provides or is prepared to provide?" District Judge Ashton thought (para 13) that the service provided by Flamingo Land was "providing meals" and that Flamingo Land had a "policy that these should not be consumed in the picnic area".
11. In my view this is too broad an approach. An owner or operator of a restaurant/bar is not a mere meal provider; he provides a service which can be best described as "serving meals and drinks at tables prepared with chairs and eating equipment such as glasses and cutlery". That may be outside or inside but it will usually be within the area operated as a restaurant. To my mind that is different from the service of a take away establishment which provides food and drink to be consumed away from the premises without any accompanying services. One establishment could, of course, provide both services but the services are distinct from one another.
12. If it were otherwise, both a sophisticated and unsophisticated restaurant could be required pursuant to section 21 of the 1995 Act to take reasonable steps to provide a takeaway service for disabled customers. Conversely a takeaway establishment could be required to take reasonable steps to allow disabled customers to eat inside the area of the takeaway establishment but so to require would, in my view, require the service provider to provide a different service from that which he provides or is prepared to provide.
13. Melissa's claim obtains some credence from the fact that there is an area of land just outside the restaurant and bar which is already prepared with picnic tables and that such area is within the theme park owned by Flamingo Land as a whole. But the existence of picnic tables on nearby land cannot make any difference of substance. Suppose that the picnic area was situated a little distance away across a road or a river. It could scarcely be said that the restaurant then had a "policy" not to serve takeaway meals which might require to be adapted for disabled persons. The restaurant just would not be providing a takeaway service.
14. Mr Wolfe submitted that the District Judge made findings that The Coach House "provided meals" and had a "policy" that they should not be consumed in the picnic area and that these findings were findings of fact with which this court should not interfere. But the question what service a service provider provides is as the judge said (para 13) a matter of interpretation. It is thus a question of law what service is provided, taking into account the primary facts found. It is a matter of categorisation and "providing meals" is too broad a category to be correct or useful in the context of services provided for the purpose of the 1995 Act. One needs to know what kind of service the provider is providing and the right categorisation of service must be a matter of law.
15. The judge noted that there is a statutory requirement on the court to take account of the Code of Practice as published by the Disability Rights Commission. This is an extremely lengthy document. Section 10 is entitled "Providers of Service to the Public" and there is a sub-heading of "Reasonable Adjustments" at para 10.25 which deals with sections 19 and 21 of the Act. Para 10.28 says that the duty to make reasonable adjustments is a series of duties the first of which is a duty requiring a service provider to

"change a practice, policy or procedure that makes it impossible and unreasonably difficult for disabled people to make use of its services."

There is then a sub-section headed "Protecting the fundamental nature of a business or service" at para 10.39. A side-note refers to section 21(6) of the 1995 Act and para 10.39 provides:-

"The Act does not require a service provider to take any steps that would fundamentally alter the nature of its service, trade, profession or business. This means that a service provider does not have to comply with a duty to make reasonable adjustments in a way that would so alter the nature of its business that the service provider would effectively be providing a completely different kind of service"

An example is then given:-

"A restaurant refuses to deliver a meal to the home of a disabled person with severe agoraphobia (a fear of public or open spaces) on the grounds that this would result in the provision of a different kind of service. This is unlikely to be against the law. However, if the restaurant already provides a home delivery service, it is likely to be discrimination to refuse to serve the disabled person in this way."

16. The Code's reference to section 21(6) shows that that sub-section is available to Flamingo Land but in my opinion the better view is, as Mr Heap for Flamingo Land submitted, that the defendant is providing a restaurant service and there is therefore no policy which requires adaptation. On either view, however, the appellant has not made out her case.
17. I would, therefore, conclude that the appeal falls to be dismissed on this ground, although HHJ Hughes did not specifically consider this matter and although DJ Ashton held otherwise. In these circumstances it is unnecessary to come to a final view on the grounds of Melissa's appeal. But since they were argued, it may be useful to say a little about them.

Absence of lack of explanation in the Notice of Appeal

18. Mr Wolfe is correct to submit that neither Flamingo Land's notice of appeal nor its skeleton argument for the first appeal relied on the absence of explanation that Melissa's disability prevented the family from coming into and seating themselves in the restaurant. It was, however, an issue before the District Judge, as can be seen from his notes of evidence. Mr Paul Edwards, Melissa's father, said he tried to describe what he called "our activities" but to no avail. Mrs Edwards said the family were given no opportunity to explain. The restaurant manager, Mr Franks, said that Mr Edwards had said he was registered blind but that he did not tell Mr Franks about the children. Mr Heap submitted that the service provider had to be aware of the problem and that the District Judge was going to have to make a finding of fact about that. He further submitted that the claimant (presumably Mr Edwards as he was at that stage) was agitated and did not attempt to explain. It was in these circumstances that the District Judge said in para 18:-

"Counsel submitted that the special needs of the family was not explained to the manager and I accept this."

19. This court inquired of Mr Heap how it was that His Honour Judge Hughes QC came to rely on this finding. Mr Heap responded that the judge himself raised the matter in the course of argument and queried whether that was not an answer to the case. As Mr Heap put it "I rode on that band wagon". It seems therefore that the issue of "lack of explanation" was in the arenas. Unfortunately counsel who appeared for the family instructed by Unity Law at the first appeal was not instructed for the second appeal. In the absence of any transcript of the argument on the first appeal or any statement from counsel then instructed or his solicitors (who continue to instruct Mr Wolfe) this court is in no position to gainsay what it is told by Mr Heap. It seems to me, therefore, that although the point of lack of explanation was not in the notice of appeal, the judge did give the parties notice that he wanted argument upon it. In those circumstances I cannot see that there was any unfairness in the result.

Was an explanation required and, if so, was it given?

20. In these circumstances it would be positively unhelpful to embark on an obiter excursus into the law beyond saying that, before a service provider is required to adapt a policy, common sense requires some form of reason or explanation to be given. What is sufficient in any particular case must depend on the particular facts. In the present case, the judge heard the evidence and decided no explanation was given. Mr Wolfe sought to say that in the light of Ms Skelton's evidence such finding was unsustainable but it was the judge who heard all the evidence and this court could not, in any event, go behind that finding.

Conclusion

21. For all these reasons I would dismiss this appeal.

Lady Justice Black:

22. I agree.

Lady Justice Gloster:

23. I also agree.