Disability Act

The Act is wide reaching. The Royal Institution of Chartered Surveyors detected in 1999 that lack of reasonable access facilities, which go far beyond ramps and disabled toilets, was affecting the lettability of property. This is surely an increasing trend.

The requirement covers most building types from the cinema, pub and petrol station, to high street shops, public offices and places of worship. Section 22 states explicitly that it is 'unlawful for those managing premises to discriminate against occupants', thereby also placing responsibility for compliance upon landlords and managing agents of property. Indeed the onus could fall on the individual facilities manager.

The DDA contains differing provisions to govern employers and 'service providers'. As with most property law, it is best to read the Act, rather than the hype to obtain the best picture of what needs to be done.

An 'employer' with more than 15 employees (a reduction from the original 20) is required to make adjustments and remove physical barriers only if there is a disabled employee, and even then, this is just one of a range of options, which could include moving the employee to another location.

However service providers – 'any person or any organisation or entity which is concerned with the provision in the United Kingdom of services (including goods and facilities)' – are required to make 'reasonable adjustments' to remove the physical barriers of 'any feature arising from the design or construction of a building on the premises occupied by the service provider'. This would be regardless of the numbers of disabled people served.

The DDA also has an effect on leases. Under Section 16, alterations to be carried out to conform with the DDA are permitted, even if the lease specifically forbids alterations or only allows them under restriction. The result is to effectively rewrite the lease as if such alterations were permitted with written consent (which cannot be reasonably withheld). This applies to all tenancies, head lease and subsequent.

So who is liable for the cost of these alterations? The case is clear cut for an owner occupier, but most commercial property is leasehold. A wholly occupied building would still appear to be the liability of the occupier, but a multi-occupancy building or site may require alterations to common areas – the landlord's responsibility. These costs may not be recoverable through 'service charges', unless tenants agree to the costs.

At the end of it all, what is a 'reasonable alteration'? It will be down to the courts to decide and enforce 'reasonableness' when the final section of the Act is in force, but the 'reasonable adjustments' do appear to be sensible. These are defined in the National Disability Council Code of Practice as being according to the effectiveness of the measures proposed and already implemented, the practicality of alterations and the disruption they would cause, and most importantly to a business, the resources available and the amount already spent.

A good example is that a far greater estimation of 'reasonable alterations' would apply to a national chain store than to a corner shop.

It should also be noted that the Act goes beyond Part M of the Building Regulations, although the government advises that any building constructed in accordance with Part M in England or Wales and still complies with the standards in force at the time, may be exempt from some alterations, for example the dimensions of doorways. Other aspects might still have to be altered, however.

Apart from the 'employer' mentioned above, only the education sector is currently exempt from the Act, but even here there is a requirement to publish 'disability statements' in annual reports.

At the same time, Bert Massie, chair of the Disability Rights Commission (www.drc-gb.org ) has been quoted as saying that the commission is looking for opportunities to show its teeth with 'big wins against big organisations': 'The DRC wants to end discrimination against disabled people through the force of argument. We want to change society through advice and conciliation. If this fails we will use the argument of force and bring about change through legal enforcement'.¹

The Centre for Accessible Environments (www.cae.org.uk) considers that the government's approach of 'leaving so much to the courts' could cause difficulty for those considering undertaking works, with regard to reasonableness and possible incurred costs through insufficient initial provision of access.

Discrimination is frequently unintentional through lack of awareness, but careful thought should be given to whether permanent alterations should be made now, or temporary measures for an interim period. If alterations are considered it may be cost-effective to ask those directly affected, or currently disadvantaged, together with professional property advisers, to obtain the best, most realistic means of creating better access for potential customers.

Access is not just about ramps for wheelchairs and 'knobbly paving' for the blind; disabilities take many forms, such as sensory impairments and learning difficulties, all of which the service provider has a duty to consider. By creating an accessible environment the 'service provider' can also aid young parents with pushchairs, people with luggage or shopping and those with small children, as well as maintaining access to the less mobile. Which business or service would want or be able to afford to exclude all these customers and clients?

Disability rights campaigners have heightened the expectations of disabled people and there are now over 10 million adults with some form of disability. Combined with our ageing population, the issue can only become more pressing. This is not merely about detail, but general access, emergency escape, and allowing people to live their lives. Those in business cannot afford to wait for the effect of the legislation.

Service providers have four years to – literally – put their houses in order. The most cost-effective solution for major and minor alterations will be to incorporate them within routine maintenance or refurbishment. Undertaking or instructing an 'access audit', by a suitably qualified access consultant, can identify potential problems and allow solutions to be created and implemented over the next four years. Where possible, clients should employ a consultant who is on the National Register of Access Consultants (www.nrac.org.uk).

This would also allow investigation and co-ordination of other requirements such as planning, listed building or highway authority consents and fire certificates.

¹ Summer 2000 newsletter from Disability Matters, www.disabilitymatters.com