The first element of the act, which came into force in 1996, deals with physical access to buildings for disabled employees and job applicants. The second element deals with “discrimination in other areas” and comes into force in two parts.
The first part, most of which does not have a direct impact on the property, took effect on 1 October 1999 and includes section 21(2)(d), requiring that where a physical feature makes it impossible or unreasonably difficult for disabled people to make use of a service, a reasonable alternative means of access should be provided. For example, if it is difficult to enter a shop at the front, it may be appropriate to allow disabled people to use another entrance.
The second part, which comes into force in 2004, includes section 21(2)(a)-(c), which requires that where a physical feature makes it impossible or unreasonably difficult for disabled people to make use of the service, reasonable steps must be taken to remove the feature, alter it so that it no longer has that effect or provide a reasonable means of avoiding the feature.
What constitutes a service?
This includes use of any place that the public can enter, means of communication, banks, shops, hotels, entertainment facilities and “the services of any profession or trade, or any local or other public authority”. In other words, any place where it is reasonable to expect a member of the public to visit.
The definition is not limited to buildings and includes public open space, such as woodland, beaches and national parks. Contractors and consultants in the construction industry will almost certainly be service providers.
What constitutes a disability?
Any mental or physical impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. It will be a matter of degree whether a particular incapacity is a disability, but a very wide range of conditions may constitute a disability, including conditions such as incontinence and psychiatric and learning difficulties, such as an inability to appreciate danger. Impaired hearing, sight, mobility, strength and grip may also qualify.
What action should be taken?
The service provider should choose the alternative in section 21 that is most reasonable in the circumstances to remedy any difficulty of access.
There may be different solutions for similar problems: for example, two or three steps may require only a temporary wheelchair ramp, more steps may require a fixed wheelchair ramp and many, or steep steps, a permanent chair lift. However, access to the building by another entrance may be equally satisfactory.
Who is affected?
Anyone involved in designing a building or specifying a refurbishment must now have regard to the act and draw the client’s attention to it. Failure to do so is likely to be considered negligent.
Contractors may also be under such an obligation and will certainly be if employed under a design-and-build contract. Developers and investors will be affected by the potential impact on the value and marketability of the building.
Building surveyors inspecting a building for a potential buyer ought to advise clients of the existence of the act even if they cannot give detailed advice.
What does the act do?
If a service provider has not adopted one of the alternatives in section 21 (or has adopted one that is not the most effective) and that is unreasonable, he can be ordered to pay damages to any disabled person affected by his failure. As long as that situation exists, the building’s value and marketability will be affected. The act requires service providers to take reasonable steps and the courts may regard as unreasonable any failure to take an opportunity to improve access to a building between now and 2004, even though section 21 is not yet fully in force.
A code of practice has already been published that contains many examples of how different problems should be dealt with but it is not exhaustive. Further codes of practice and regulations are to be published and these are likely to be available well before section 21 comes into force. The act makes it clear that there will be a financial limit on what a service provider has to do to comply, although how this will affect new developments and refurbishments is not so clear, particularly if they are carried out before 2004.
Given the wide-ranging nature of the act, that action or lack of action before the section comes into force is likely to be taken into account, and that compliance with its requirements is a matter of judgement, it presents the construction industry with a considerable challenge over the next few years.
Postscript
Neil White is the head of the construction and engineering group at Taylor Joynson Garrett.
