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.
The National Register of Access Consultants (NRAC) is at
www.nrac.org.uk
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
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 to 1
Key team participants in the accessibility cycle are facilities management,
designers, building managers, human resources, marketing, and health & 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
But, what’s missing? Consultation – asking your experts, customers and
employees. 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'
More
Vivien King is a consultant with law firm Bond Pearce and a member of the RICS
disability discrimination working party.
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! Let’s 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 it’s 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 client’s 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 hairdresser’s 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.
(This article appeared in RICS Business, October 2004)
THE DISABILITY DISCRIMINATION BILL
2005
Legislation giving further rights to disabled people was promised in the Queen’s
Speech in November 2004. Peter J G Williams and Richard Cullingworth consider
the new Disability Discrimination Bill
A new
Disability Discrimination Bill is expected to be passed in this (Spring 2005)
Parliamentary session. This article gives an overview of the changes that it
will (if enacted) bring about, and takes a closer look at two of the specific
issues that the Bill addresses. We have borrowed from both the explanatory notes
that accompanied the draft Bill when it was first published in December 2003,
and the commentary issued by the Disability Rights Commission at the same time,
and most of the examples come from those sources.
The Bill
will amend the current Disability Discrimination Act 1995 (DDA) in the following
ways:
-
Definition of disability
this will be extended so as clearly to include more people with HIV, cancer
and multiple sclerosis from the point of diagnosis. Currently, people with
progressive conditions such as these must show that their condition is more
likely than not in the future to restrict substantially their day to day
functional activities, and that at present their condition has an impact on
those activities. In the future, the DDA will apply from the point of
diagnosis. Provision is also made for the Guidance that the Secretary of State
produces on the definition of disability to cover a broader remit than at
present.
-
Transport – the DDA is to
be extended to cover discrimination in relation to transport. At present, the
transport infrastructure (such as train and buss stations) is covered by the
DDA itself, and regulations made under the DDA set out accessibility
requirements for new vehicles. However, the DDA does not apply to the
management of transport services.
-
Public sector – a new
duty to promote disability equality will be 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 will be 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 tenant’s
enjoyment of the premises. This is considered in further detail below.
Two major 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:
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 tenant’s
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. Full details of the new
duties will be provided in regulations, which have yet to be prepared. These
will explain what will need to be done, and what will not need to be done.
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 new
duties will apply not only to the premises that are let, but also to common
parts of buildings such as entrance halls and lifts. The manner in which these
duties are likely to operate needs further analysis.
Private clubs
Under the
Bill, any private club with 25 or more members will be covered by the DDA. The
new duties will cover both the way in which membership is given and the way in
which benefits are afforded.
Government has recently consulted on the duties that are to be created, and the
detail will be contained within regulations which will make provision for
imposing duties in relation to policies, practice or procedures, and to physical
features, that adversely affect disabled people who are, or might wish to
become, members.
Regulations will also be able to require associations to take steps for the
purpose of making an auxiliary aid or service available.
The dates
from which these new duties might apply have not yet been announced.
(Reproduced from The Journal – February 2005)
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