Rights of Access to Services for Disabled People from October 2004

The Disability Discrimination Act 1995 (‘the DDA’) brought in measures to prevent discrimination against disabled people. Since 1 October 1999 service providers have had to make "reasonable adjustments" for disabled people, such as providing additional help or making changes to the way they provide their services. On 1 October 2004, Part III of the DDA came fully into force. This extends the obligation to require changes to the physical features of premises in order to overcome physical barriers.

The DDA provides that where a physical feature makes it impossible or unreasonably difficult for disabled people to make use of services, a service provider will have to take reasonable steps to:

• remove
the feature;

• alter
it so that it no longer has that effect;

• provide a reasonable means of avoiding it; or

• provide a reasonable alternative method of making the services available.

It should be emphasised that the key question is not, for example, whether wheelchair users can get through a particular door into a shop or restaurant, but rather whether everyone, including wheelchair users, the blind and those with reduced hearing, can benefit from the various services offered by the shopkeeper or restaurant owner as a whole.

This is known as the "duty to make reasonable adjustments". Unlawful discrimination will arise where a service provider:

(a) fails to comply with this duty;

(b) the effect of the failure is to make it impossible or unreasonably difficult for the disabled person to make use of the service; and

(c) the failure to comply cannot be justified.

The DDA provides that a failure by a service provider to comply with a duty to make reasonable adjustments will not be lawful, unless the failure can be justified. The failure will be justified if:

1. The service provider believes that it is justified on health or safety grounds or by reason of the disabled person being incapable of entering into a contract - (a subjective test – what did the service provider believe?); and
2. It is reasonable in all the circumstances of the case for the service provider to hold that opinion (an objective test – was the belief reasonably held?).

A disabled person who has been discriminated against may bring a claim in the County Court and may claim compensation for financial loss and for injury to feelings. Recent cases indicate that a relatively small, yet discriminatory, charge can lead to a substantial award of damages in respect of injury to feelings.

It is worth noting that the Disability Rights Commission has published a very useful Code of Practice (the "Code of Practice") which provides general guidelines and advice on the extent of the new duties¹

The DDA defines "disability" as "any physical or mental impairment which has a substantial and long-term effect on the ability of the person concerned to carry out normal day-to-day activities, with reference to mobility, manual dexterity, physical coordination, continence, ability to lift, carry or otherwise move everyday objects, speech, hearing or eyesight, memory or ability to concentrate, learn or understand, or perception of the risk of physical danger". The definition therefore extends beyond people in wheelchairs and the totally blind and deaf, to people with arthritis, partial sight, progressive Alzheimer’s Disease and many other conditions, including mental illnesses.

The Disability Rights Commission estimates that around 15 % of the UK population falls within this definition of disabled, that is, approx 8.5 million people.

"Service providers," means any person, organisation or entity which is concerned with the provision in the UK of services to the public or a section of the public. The provision of services includes the provision of goods and facilities and there are no exemptions for service providers based on size, turnover or any other factor. It is also irrelevant whether a service is provided free of charge or on payment of a fee.

There are certain fairly narrowly drawn exceptions to these general rules including primary and secondary schools, further education institutions, transport and private members’ clubs.

The definition of "disabled" shows that a wide range of disabled people are entitled to expect that any service provider makes its services accessible to them. In order to assess what reasonable steps they might take, service providers need to find out where there might be access problems, and to ensure that they do not assume that the only way to make their services accessible is to make a physical alteration to their premises (e.g. by installing a wheelchair ramp). A minor measure, such as allowing more time to serve a disabled customer, may be sufficient.

The duty is for a service provider to take such steps, as are reasonable, in all the circumstances of the case. The Code of Practice indicates that what is reasonable will vary according to:

• the type of services being provided;

• the nature of the service provider and its size and resources; and

• the effect of the disability on the individual disabled person.

Once these factors have been considered, further relevant factors include:

• whether taking any particular steps would be effective in overcoming the difficulty that disabled people face in accessing the services in question;

• the extent to which the steps are practicable for the service provider to take;

• the financial and other costs of making the adjustment;

• the extent of any disruption which taking the steps would cause;

• the extent of the service provider’s financial and other resources;

• the amount of any resources already spent on making adjustments; and

• the availability of financial or other assistance.

In general, it is more likely to be reasonable for a service provider with substantial financial resources to have to make an adjustment with a significant cost than for a service provider with fewer resources.

In many situations, there will not be one single answer in relation to what is a reasonable adjustment. The focus of the DDA is on results, i.e. where there is a physical barrier, the service provider’s aim should be to make its services accessible to disabled people. How that aim is achieved is not as important as the fact that it is achieved.

The provisions catch listed buildings and other historic buildings and compliance with the DDA may involve obtaining Listed Building or other forms of consent.

The obligation is to make reasonable adjustments and, in order to do so, it is not necessary to incur unreasonable costs. However, whether the service provider has acted reasonably will depend upon the circumstances of each case. Property owners should have independent audits undertaken of their buildings to ensure that any steps they have taken are reasonable. The duty requires service providers to think ahead and to try to cater for any form of disability. It is also an ongoing duty, which may require further changes to be made over time.

If works have been carried out within the last ten years, modifications will not be required where the original works complied with Part M of the Building Regulations. The service provider will not be required to make further modifications until the ten-year period has expired. Property owners should check whether the Building Regulations 1992 or 1999 Edition were complied with in relation to any works undertaken within the last ten years before effecting further changes to their properties. Part M has been updated with effect from 1^st May 2004 and it is likely that a similar exemption will apply if the works comply with the latest edition.

A tenant will not be able to rely on the provisions in its lease, prohibiting the making of certain alterations, as a defence against failure to comply with the Act. A fundamental change introduced by the DDA is that the terms of the Act override the terms of any lease so as to entitle the service provider to make the alteration required with the consent of its landlord.

A tenant should submit an application for consent with copies of all necessary plans and specifications. Under the Regulations, the landlord has 21 days (beginning with the day on which he receives the application) or such longer period as is reasonable, to respond either consenting or refusing to the application or consenting subject to obtaining the consent of a third party (such as a superior landlord). The landlord is under a duty to seek any such third party’s consent and a failure to do so will result in the landlord being exposed to a charge of having acted unreasonably.

The landlord will be deemed to have unreasonably withheld its consent if it fails to deal with the application within the 21-day time period. Similarly, the landlord will have withheld consent unreasonably if the lease specifies that consent would be given to an alteration of the kind proposed and the landlord withholds its consent.

Under Regulation 6, the landlord will be regarded as having acted reasonably in withholding consent if he is required to obtain the consent of any other person to the alteration and, having sought that consent, consent has either:

(i) not been given or

(ii) been given subject to a condition making it reasonable for the landlord to withhold its approval.

A landlord is entitled to impose conditions on the giving of consent. Such conditions will only be regarded as being reasonable if they satisfy one of the following criteria:-

(i) that the tenant obtains any necessary planning permission or other consent or permissions required;

(ii) that the tenant has provided plans and specifications for approval as long as the condition states that the landlord will not unreasonably withhold its approval to those plans provided that the work is carried out in accordance with such plans and specifications;

(iii) that the landlord must be permitted a reasonable opportunity to inspect the work when completed; and

(iv) that the tenant must repay to the landlord the costs reasonably incurred in connection with the giving of consent.

The landlord is also entitled to impose an obligation that the work be reinstated at the end of the lease.

In acquiring new premises a prospective tenant will clearly take into account works required to comply with the DDA as part of any other fitting out costs in deciding on the rent it will agree to pay. The new obligations are also likely to be an important factor in the valuation process at rent review, at least in the short term. Certain issues and question seem inevitable:

• Does the surveyor have to value the premises as if the works have been carried out where the lease assumes that the tenant has complied with statutory obligations?

• Could a tenant argue for a nil or lower rent increase on review to reflect the cost of works it will need to carry out to the premises to make it compliant?

• How would such arguments be sustained and what should the valuer be assessing when the works required should be those of the hypothetical rather than the actual tenant?

• How will comparable evidence be treated where the comparables might include premises adapted to suits the obligations of a particular service provider?

• Will the DDA works themselves be disregarded on future reviews on the basis that they are a tenant’s improvements?

• What if the works reduce the lettable area? Will we see cases of tenants seeking not to apply the usual disregard for improvements?

Summary

S21 and the new Regulations will have a dramatic impact on a service provider's obligation to adapt its premises as well as its business practices and to monitor the change in needs, which may be imposed by potential users. The legislation, however, does envisage that only such works as are reasonable should be undertaken and the means of the service provider will be taken into account. It is the end result of making services accessible which is important and in may instances simple modifications to premises may be all that is required to ensure compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.