The final phase of the Disability Discrimination Act 1995 came into force in October 2004, bringing with it many far-reaching implications for all service providers. Many organisations are making valid comments on the Act and we draw on observations from Dr David Bonnett, RIBA, of David Bonnett Architects, and Brethertons Solicitors for this feature.

The intention of the 1995 Act is to achieve equality between the disabled and the able-bodied members of society. It imposes a basic duty not to treat disabled people less favourably than others. From October, 2004, service providers will be under an additional duty to provide an equal service to all customers, whatever their disability. What this means is making alterations and improvements to premises, to make sure disabled users are not at a disadvantage.

The term 'service provider' means anyone who provides a service or supplies goods to the public, eg retail shops, leisure facilities, advisory clinics and offices of business consultants, accountants and lawyers.

The problems are there for all to see. The dynamic people problems are that there are 8.7 million 'disabled' people in the UK; over 50% of disabled people of working age are unemployed; and many cannot access education, the workplace, leisure and culture. The static buildings problems are that 90% of the building stock in the UK consists of older buildings; most of these are in some way physically inaccessible; and many are places of education, work, leisure and culture.

Demographic changes are afoot. In the past, the younger population exceeded the older population. Today, its more or less equal. In the future in 2020 the older population on current projections will exceed the younger population there will be more people aged over 50 than under 50. Looking at the figures for prevalence of disability by age group, nearly 45% of those aged over 75, 35% of those aged 65-74 and nearly 30% of those aged 55-64 are classed as disabled. Only 6% of those aged 16-34 are disabled.

Bonnett concludes we should determine building design through regulations. Building Regulations Part M 'Access and facilities for disabled people' relates to new buildings and extensions only. But it is expected to apply to existing as well as new buildings by October, 2004. The Disability Discrimination Act 1995 relates to all buildings. Legislation and standards The duty rests on the service provider, not the property owner. It doesn't matter if you are the tenant or the owner of the freehold, if you are the one providing the service, you are the one responsible for making the alterations.

A common solution will involve taking out physical structures like steps and replacing them with ramps, or providing an alternative form of access to a building. If this proves difficult/impossible, alternative means of offering the same service should be sought, e.g. an online service, home visits. In a shop solutions could include widening aisles and doorways to accommodate wheelchairs, and making information signs with larger print sizes to assist partially-sighted shoppers.

A small employer defined as one employing under 15 people is exempt from complying with the Act. But a small service provider does not receive exemption. Says solicitor Bretherton, you have the same duty in respect of your premises whether you are a small shop with two employees or an accountancy with a nationwide chain of offices employing hundreds of staff In a multi-let building, while the tenant as the service provider is responsible for carrying out works on their own premises, it is not likely that the lease will allow tenants to effect alterations to the common parts. In places where the main access parts are communal the landlord is certain to be classed as a service provider, and will be responsible for any necessary alterations. An example is a shopping centre. However, in multi-let offices, its not so clear-cut. Is a landlord providing a service just because 10 offices share a reception area and the car park? While it seems 'unfair' to place the landlord as a service provider here, more guidance is needed, particularly on points such as that one. The Disability Rights Commission (DRC) is to produce a Code of Practice in 2004, which is expected to address issues such as that. 

A number of Codes of Practice, explaining legal rights and requirements under the Disability Discrimination Act 1995 have been produced by the Government, and since the DRC was established in April, 2000. These Codes are intended to be practical guidance particularly for disabled people, employers, service providers and education authorities rather than definitive statements of the law. But courts and tribunals must take them into account where relevant.

All relevant consents for the work needed to effect the alterations will still need to be obtained. Landlords are not allowed to unreasonably withhold consent or impose unreasonable conditions. If a landlord does behave unreasonably, tenants cannot bring action against the particular landlord. Instead, tenants should inform the disabled person who then has the right to bring action against the landlord for discrimination.

Since December 1996, it has been unlawful for service providers to treat a disabled customer or service user less favourably or to refuse service on the grounds of disability. Since 01 October 1999 service providers must: Change policies, practices and procedures that prevent access or make a service unreasonably difficult for people to use, offer an alternative arrangement where a physical feature prevents access or makes a service unreasonably difficult for disabled people to use, bring in an auxiliary aid or service (other than equipment which would make a permanent physical alteration) to make it possible to use a service easily.

From 2004, service providers must:

Make 'reasonable adjustments' to the physical features of their premises to overcome physical barriers to access.

Tests for 'reasonableness' will include: Effectiveness of the adjustment for the disabled person. The practicality of the adjustment Its financial cost and likely disruption Financial and other resources available to the service provider, employer, etc.

Compliance: no compliance certification has been proposed.

Contracts: all contracts and leases that contravene the Act will be considered void Market rents of buildings may suffer if they do not comply. It is questionable as to what the demand will be for a building, which needs substantial alteration before it can be used as a place of business.

Service providers will be seeking to rent properties which already comply with the Act. Few will want to incur the additional costs of alterations. The inherent implication is that the value of some properties may be seriously and adversely impacted.

The Fire Precautions Act 1971 required unassisted escape by disabled people. The Fire precautions in the design, construction and use of buildings BS 5588 Part 8: code of practice for means of escape for disabled people: 1988 revised 1999, allows assisted escape for disabled people, and applies to new and existing buildings when refurbished. BS 8300:2001 Design of buildings and their approaches to meet the needs of disabled people Code of practice applies to new buildings but 'also applies for assessing the accessibility and usability of existing buildings and, where practicable, as a basis for their improvement.'

The Disability Rights Commission issues three codes of practice (NDC 1999, DRC 2001 and DRG 2002), which refer to services and draw no distinction between new and existing buildings. Auditing access An access audit is the systematic appraisal of how a building is used, measured against an agreed set of access design criteria. Underpinning the auditing access process is the 'sequential journey': arrival; external approach; entrance; reception; horizontal circulation; doors; lifts; stairs and ramps; WCs; signage and communications; escape; and special areas. Parameters that are measured include width, location near the entrance, level route, labelled/signed, gradient, surface. Actions may be 'essential' or 'recommended' and access consultants will be looking for patterns.

Access audit checklists will involve compiling a 'sequential journey' matrix. Access measures required (as listed above) will be mapped against disabilities, such as wheelchair use, slight physical handicap (e.g. using a stick/cane when using stairs), visual impairment and hearing difficulties. An access consultant will advise what works if any need to be carried out in order to comply with the Act. Advice will be given on what alterations should be made to assist all disabled users, not just those confined to wheelchairs.

If developing an action plan, are you designing for access or managing access? You must decide. Take as an example the emergency evacuation for disabled people. The choice of options is: 1 Building design evacuation lift, 2 Equipment evacuation chairs or 3 Management physical assistance. For fire rescues for example, there needs to be a management plan to evacuate disabled staff. This should constitute part of a risk assessment.

For DDA compliant premises, the accessibility cycle is:
1. Establish policies procedures and access standards
2. Audit access standards
3. Prioritise and programme
4. Delegate and implement
5. Sign off building
6. Maintain and monitor
7. Feedback
8. Review standards and procedures
9. Go back to 1.

Key team participants in the accessibility cycle are facilities management, designers, building managers, human resources, marketing, and health and safety.

Summary of four key issues
1. Examine what you already have for its strengths and weaknesses in other words undertake an Access Audit. The audit standards will need to reflect essential (Regulatory) and recommended (Best Practice) improvements
2. Establish priorities and opportunities. A proper audit will help to indicate an order of priorities. But your own organisations will need to establish which improvements can draw on existing budgets, like maintenance or repairs, or new capital projects and staff training programmes
3. Establish a programme for change that fits the prioritised improvements into a timescale. Most establishments will have planned building programmes. How can physical access improvements be dovetailed into these programmes time-wise and financially?
4. Establish arrangements for monitoring progress.

This might be the DDA 'team' or a joint consultative committee. For real effectiveness, the team should demonstrate progress to the board.  Access is never just the province of building and maintenance departments. The best way to tackle questions of access is by a team approach incorporating the areas of 'reasonable adjustments'  

There is a perception within the property industry that the Disability Discrimination Act 1995 (DDA) is all about altering the existing building stock to allow access for wheelchair users. Wrong! Lets look at what the Act really says and does. The chosen duty relates to service providers. The Act states (in clause 21(2)): Where a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) makes it impossible or unreasonably difficult for disabled persons to make use of [such] a service, it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to: remove the feature; alter it so that it no longer has that effect; provide a reasonable means of avoiding the feature; or provide a reasonable alternative method of making the service in question available to disabled persons.

What is a service provider?
A provider of services includes anyone who is concerned with the provision, within the UK, of goods, facilities or services to the public or a section of the public, whether or not payment is made (s19(2) of the Act). Examples include retailers, operators of restaurants, hotels, theatres and cinemas, bankers and professionals who offer their services to members of the public. The service (i.e. the goods, facilities or services) must be offered to the public or a section of the public. The fact that services are offered to a selected few (for instance the provision of service yards provided to tenants by the landlord of a shopping centre) and not the public as a whole (as are, for instance, the public parking facilities within that same centre) does not mean that the landlord becomes a service provider so far as the service yards are concerned (although it is a service provider in relation to the public parking facilities). The distinction is subtle, but its crucial. The landlord who can recover from tenants the costs of complying with statute under his leases, via a service charge, might (under our example) recover costs incurred in carrying out DDA works within the parking area but not within the service yards.

Who is a disabled person?
A person has a disability for the purposes of the DDA if he or she has a physical or mental impairment that has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities (s1). Schedule 1 of the Act includes definitions of the terms impairment, long-term effect and normal day-to-day activities. We are not simply talking about a person in a wheelchair. We are talking about persons with any physical or mental impairment, be it sight, hearing, speech, mobility, severe disfigurement, continence or the ability to concentrate, learn or understand.

What is a physical feature?
These have come to be known as physical barriers. As the Act states, they may arise from the design or construction of a building, or from the approach or access to premises. But the Act does not simply relate to the built environment. Premises are defined within s68 of the Act as including land of any description. While we are talking about barriers within offices, doctors surgeries, shops, entertainment halls, etc, all part of the built environment, we also have to consider rural features moors, mountains, lakes, etc. So long as there is access to or use of a place for members of the public, we are within the Act (s19(3)(a)). Hence, physical barriers can arise from the oft-quoted steps leading to the front door, the lack of a lift to reach upper trading floors, the lack of a toilet for use by disabled persons (not to be described as a disabled toilet!) but, equally, they can be due to a stile, a stony path within a rough terrain or a rock pool on a beach. Obviously we cannot flatten out the whole of the natural environment and make it accessible to all, but we must think about more than just buildings when considering the Act.

What is the definition of reasonable steps?
This is where so many people go wrong. A service provider only has to take such steps as it is reasonable, in all the circumstances of the case, for him to take in order to deal with the physical barrier. The Disability Rights Commission in its relevant Code of Practice lists some of the factors that will be taken into consideration when considering reasonableness: Will taking the proposed step be effective?
How practicable is it for the service provider to take the step? How much disruption will it cause?
Can the service provider afford it, and what other resources has it already expended on making adjustments relating to the DDA?
How many access consultants consider these factors with their clients?

There could be other factors to consider. Take that stile mentioned earlier. Hardly accessible if you are 85 and walking with the assistance of sticks. So you, as access consultant, advise that it be replaced with a gate wonderful. But then, along comes a member of the public, walks through the gate and leaves it open. The livestock meant to be retained within the field are out all over the highway. An accident is caused and, due to existing UK law, the poor old landowner (your client) is held strictly liable for any damage done. How reasonable is he going to be when he telephones you to ask why you advised removal of a stile from an inhospitable landscape that is visited by few and almost certainly never by that 85-year-old you had in mind? An exaggeration? Possibly, but I am making a serious point. Surveyors, as advisers to service providers, have to consider what is a reasonable step for the client to take. By all means advise them that they have a problem, but give your client some options. Do not simply say that they must take the step you have in mind, which relates to removing the physical feature causing the problem. Tell your client about reasonableness and discuss what the Act says. Leaving that stile in place may be the reasonable thing to do given the circumstances of the case under consideration.

Remove, alter, provide a means of avoiding the physical feature or provide the service in some other reasonable way? Here we get to the crux of the matter. Many access reports talk about removing or altering physical features at the premises occupied by the client. But how many consider how a feature might be avoided or, heaven forbid, how the service provider might provide the service in some other way? Some, I am sure, but not many. Take, for example, a smallish retail unit trading from more than one floor. How reasonable would it be to install a passenger lift? What is wrong with offering the disabled person a seat on the accessible ground floor and training staff to bring the goods to him or her? Not ideal, granted, but perhaps reasonable in all the circumstances of the case. Take a hairdresser trading from inaccessible premises. The hairdresser could offer to cut the clients hair in their own home. Too often, however, we see access reports advising the installation of ramps, ripping out existing equipment and changing the lighting at the hairdressers salon. The proposed works may well be one way of dealing with the physical barrier but they are not the only way. And the client ends up spending vast amounts of money he or she cannot afford and making alterations that are rarely, if ever, appreciated.

THE DISABILITY DISCRIMINATION BILL 2005
The Bill amended the Disability Discrimination Act 1995 (DDA) in the following ways:   Definition of disability: this was extended so as clearly to include more people with HIV, cancer and multiple sclerosis from the point of diagnosis.

Transport: the DDA was extended to cover discrimination in relation to transport.

Public sector: a duty to promote disability equality was placed on the public sector, alongside the existing duty to promote race equality under the Race Relations Act. The Bill provides that every public authority must, in carrying out its functions, have due regard to the need to eliminate discrimination and harassment that is unlawful under the DDA, and the need to promote equality of opportunity between disabled people and other people by improving opportunities for the former group. One complication is that public authorities are not listed, but merely defined (in the same manner as in the Human Rights Act 1998) as any person certain of whose functions are functions of a public nature. The DRC will have the power to issue codes of practice in relation to these new duties.   Public authorities the DDA will be extended to cover most functions of public authorities, meaning that (with some exceptions) a public authority will not, without justification, be permitted to discriminate against a disabled person when exercising its functions.

Letting of premises: the DDA's duties on landlords and managers of premises were extended to include a duty to make reasonable adjustments to policies, practices and procedures, and to provide auxiliary aids and services, where reasonable, to enable a disabled person to rent a property and facilitate a disabled tenants enjoyment of the premises. This is considered in further detail below:

Private clubs: any club with 25 or more members will be covered by the DDA.  

Councillors: local authorities will be prohibited from discriminating against disabled councillors.  

Other changes: The two areas of the Bill that are likely to have the most impact on the built environment are the extension of the DDA duties to the letting of premises and to private clubs.   Currently the DDA imposes no duty on people managing or disposing of premises to make reasonable adjustments to policies, procedures or practices or to provide auxiliary aids or services. The duty currently merely requires such people not to treat disabled people less favourably. This limitation is an indication that the letting of premises is not on its own a service that is covered by Part 3 of the DDA.   The Bill creates new duties on those disposing of premises to make reasonable adjustments to policies, practices and procedures. The notes to the draft Bill provide examples of landlords who might be obliged to:   Allow a tenant with mobility difficulties to leave their rubbish in another place if they cannot access the designated place.   Change or waive a term of the letting that forbids alterations to the premises so that a disabled tenant could make necessary access alterations, subject to the landlord giving consent.   In addition, landlords would also be placed under a duty to take reasonable steps to provide an auxiliary aid or service that would enable or make it easier for a disabled person to rent the property or to facilitate a disabled tenants enjoyment of the premises. For example, a landlord might need to read out a tenancy agreement to a visually impaired person.   Landlords or managers will not have to take any steps under the new provisions unless requested to do so by the tenant or prospective tenant.   There will not be any requirement on landlords to change physical features of premises, and it will not be permissible for the landlord or manager to recoup the cost of making any adjustments from the tenant by way of increased rent or service charge.   These duties apply not only to the premises that are let, but also to common parts of buildings such as entrance halls and lifts.