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The Disability Discrimination Act 1995 - All Change on 1 October 2004
An update for landlords and tenants

Background

· Since December 1996, it has been unlawful for service providers to treat the disabled less favourably for any reason related to their disability

· Since October 1999, service providers have had to make “reasonable adjustments” for the disabled eg making changes to the way they provide their services – an accountant whose offices are on the first floor of a building without a lift could comply by offering to meet clients at their home.

What is new?

· From 1 October 2004 service providers may have to make “reasonable adjustments” to the physical features of their premises to overcome physical barriers to access.

· The new law may affect rent reviews

Who is a “service provider”?

S19 of the Disability Discrimination Act 1995 (DDA) effectively defines a service provider as a person or organisation which provides almost any service to the public – whether for payment or otherwise. The Code of Practice produced by the Disability Rights Commission provides numerous examples; but it includes shops, offices and restaurants.

What are “reasonable adjustments”?

S21 provides that where a “physical feature” of a service provider’s premises makes it impossible or unreasonably difficult for the disabled to make use of the service, it is the duty of the provider 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 that feature
· alter it so that it no longer has that effect
· provide a reasonable means of avoiding the feature

Physical features are defined under the DDA as “anything on the premises arising from a building’s design or construction or the approach to, exit from or access to such a building; fixtures, fittings, furnishings, equipment or materials and any other physical element or quality of land in the premises … whether temporary or permanent.”

Taking the example used above – an accountant whose offices are on the first floor of a building may have to install a lift – this may of course involve a great deal of expenditure and planning permission and building regulation consent may also be needed.

What is likely to be considered reasonable?

The Code of Practice states that “what is a reasonable step for a particular service provider to have to take depends on all the circumstances of the case. It will vary according to:

· the type of service being provided
· the nature of the service and its size and resources; and
· the effect of the disability on the individual disabled person”

It will not be necessary to do something that alters the very nature of the service being provided.

Discharge of the duty will not necessarily mean adjustment to the premises. Consider:

· e-commerce
· Assistance with shopping
· Adjustment to working practices

Who will pay for adjustments?

The DDA does not contain any provision for the cost of adjustments. Service charge provisions in individual leases will govern who covers the cost. The main issue is whether the landlord or the tenant is providing the services. Generally in a lease of whole, the tenant will be responsible. In a lease of part landlords and tenants may well be in conflict; landlords will want to ensure that they can recover the cost of compliance works whilst tenants will not want to contribute towards works that go beyond what is strictly required under the legislation.

There is also likely to be uncertainty over whether accessibility improvements should be disregarded or taken into account for rent review purposes in commercial leases.

Will a landlord have to consent to alterations needed for a tenant to comply with the DDA?

From 1st October, a landlord may not unreasonably withhold consent if a tenant wants to carry out works to comply with a DDA duty.

Further information

The Disability Rights Commission has produced a guide to some of the practical implications of the part of the DDA coming into force on 1 October 2004 this can be found at www.drc-gb.org/ (select “The Law).

Update: The Disability Discrimination Act 2005 and property

Who can help?

If you would like further advice about the DDA please get in touch with your usual contact at plainlaw or Philip Horn on 01865 240202 or e-mail him on philip.horn@plainlaw.co.uk .

This edition of “The Law made plain” is written to provide you with general information. It is recommended that you seek specific professional advice before taking any action.

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