Landed Estates Discussion Forum Disability Access: Premises Issues Orleton Hall, 28 November 2006

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Landed Estates Discussion ForumDisability
Access Premises IssuesOrleton Hall, 28
November 2006

• Clive Read - Partner

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Index

• DDA framework
• Key terms
• Service provider and duties
• Reasonable adjustments
• Access audits
• Wider legal issues of making adjustments
• Useful contacts

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Who might be disabled?

• Approx 10m adults
• Approx 700,000 children
• 17 of disabled people are born with their
  disability
• Disability - A person has a disabilityif he has
  a physical or mental impairment which has a
  substantial and long term adverse affect on his
  ability to carry out normal day to day
  activities (DDA Section 1)
• Severe disfigurement (DDA Sch 1, para 3)
• Deemed disabled cancer, HIV, MS (DDA Sch 1, para
  6A)

• Normal day to day activities (DDA sch 1, para 4)
• Lifting and carrying
• Mobility
• Physical co-ordination
• Learning and understanding
• Seeing and hearing
• Manual dexterity
• Continence
• Perceptions of risk

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Service Provider (Part 3)
Education Provider (Part 4)
(incl. employment, transport, private clubs,
premises)
Public Authorities (Part 5A)
Public transport (part 5)
Employer (Part 2)
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DRC Codes of Practice Rights of Access
(Goods, Facilities, Services and Premises)
2002 (New one in force 4/12/06)
SENDA 2001
DDA 2005
Guidance
Amends
DDA 1995
Cases
Statutory Consents - planning/ listed
buildings/ building regs

• Premises Regs
• SI 2006/887
• (in force 4/12/06)

Services and Premises Regs SI 1999/1191
Adjustment of Premises Regs SI 2001/3253
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Key terms

• Discrimination
• A provider of services discriminates against a
  disabled person if
• (a) For a reason which relates to the disabled
  persons disability,
• he treats him less favourably than he
  treatsothers to whom
• that reason does not or would not apply and (b)
  He cannot show
• that the treatment in question was justified
• DDA Section 20 (1)

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Key Terms

• Discrimination - Justifications
• treatment is justified only if (a) in the
  opinion of the provider of services,
• one or more conditionsare satisfied and (b) it
  is reasonable, in all the
• circumstances of the case, for him to hold that
  opinion
• DDA Section 20 (3)
• Conditions
• Health and Safety (Ford - Shubrook v St Dominics
  College)
• Inability to contract/give consent
• Inability to provide service without denying
  access
• Inability to provide service without
  discriminating
• Terms offered reflect greater cost of providing
  service (but Ross v Ryanair)
• Alterations would change fundamentally the
  service offered
• 
  DDA Section
  20 (4)

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Penalties enforcement

• Civil action in County Court for
  damages/injunction/ declaration
• May include compensation for injury to feelings
  (DDA section 25)
• The role of the Code of Practice
• Practical guidance
• Not authoritative statement of law
• But can be used in evidence

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Are you a service provider?

• Yes if you provide services to the public
• Provision of services includes goods or
  facilities
• access to/use of a place which
  public permitted to enter
• Irrelevant whether service is provided with or
  without payment
• DDA section 19

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Service providers duties

• Not to treat a disabled person less favourably
  than other members of the public
• In refusing to provide a service failing to make
  adjustments in the standard of service in the
  terms offered (DDA S19(1))
• And without justification (DDA S20(1))

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Service providers duties

• To take reasonable steps, in all the
  circumstances, to change discriminatory
  practices, procedures or policies
• DDA Section 21(1)

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Service providers duties

• To make reasonable adjustments, in all the
  circumstances, to any physical features which
  make it impossible or unreasonably difficult for
  disabled persons to use the service provided.
• DDA Section 21(2)

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Reasonable adjustments to physical features
available options

• Removing it
• Altering it (Jackson v Debenhams)
• Reasonable means to avoid it (Roads v Central
  Trains Limited)
• Reasonable alternative method to provide the
  service (Holland v Arcadia Group)
• DDA Section 21 (2)

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Reasonable adjustments to physical features
preferred implementation

• It is recognised good practice to consider first
  whether a physical feature which creates a
  barrier for disabled people can be removed or
  altered (para 5.38 Service Provider Code)
• Removing or altering the barriers is an
  inclusive approach to adjustmentswill also be
  preferable to any alternative arrangements from
  the standpoint of the dignity of the disabled
  people (para 5.39 5.40 Service Provider Code)

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General approach to reasonable adjustments

• The Act does not specify that any particular
  factors should be taken into account. What is a
  reasonable stepdepends on all the
  circumstancesit will vary according to the type
  of services being provided, the nature of the
  service provider and its size and resources the
  effect of the disability on the individual
  disabled person (para 4.21 Service Provider
  Code)
• No hard and fast solutions (para 4.24 Service
  Provider Code)

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General approach to reasonable adjustments

• Often minor measures, such as allowing more time
  to serve a disabled customer, will
  helpDisability awareness training for staff is
  also likely to be appropriate (para 4.9 Service
  Provider Code)
• Regularly reviewing the way in which it provides
  its servicesmight help a service provider
  identify any less obvious or unintentional
  barriersobtaining the views of disabled
  customers will also assist (Para 4.10 Service
  Provider Code)

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Reasonable adjustments practical factors

• Will it be effective in overcoming the
  difficulty?
• Will it be practical?
• What are the costs involved?
• What are the resources available own and other
  assistance?
• What is the size of the service provider?
• How much has already been spent?
• What is the likely disruption?
• DDA Section 18B (1)

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Ref English Heritage
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Reasonable adjustments auditing of physical
features

• Physical features include any feature arising
  from the design or construction of a building
  any approach exit from or access to any
  fixtures, fittings, furniture, equipment or
  materials (Para 5.44 Service Provider Code)
• See also non exhaustive list (Para 5.45 of
  Service Provider Code)

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Physical features what to audit?

• Pedestrian access and exits
• Car parking
• Surface levels and materials
• Dropped kerbs/ramps and steps/bollards
• Lighting
• Colour schemes and contrasts
• Reception desks split level

• Lifts big enough/voice
• activation/braille signs
• Doors and door handles
• width/accessible/positioning/
• vision panels
• Handrails
• Corridors width
• Toilets numbers/
• positioning/flooring
• Safety visual/clear
• routes/refuge stations

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Making physical adjustments legal issues

• Freehold - restrictive covenants
• - third party approval of work
• Leasehold - who is responsible?
• - common parts
• - recovery of costs by landlord
• - landlords consent (Adjustment of
  Premises Regulations 2001)
• Banks consents?
• Statutory consents

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Statutory consents general framework

• Where under any binding obligation a person is
  required to obtain the consent of another
  person(a) it is always reasonable for him
  toobtain that consent and (b) it is never
  reasonableto make that alteration before that
  consent is obtained (DDA section 18B (3))
• A service provider might have to obtain
  statutory consent before making
  adjustmentsplanning permission, building
  regulations, listed building consent, scheduled
  monument consent and fire regulations approval.
  The Act does not override the need to obtain such
  consents. (Para 6.28 Service Provider Code)

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SENDA 2001
DDA 2005
Building Regs Part M
DDA
Adjustment of Premises Regs
Town and Country Planning Act 1990
Ancient Monuments and Archaeological Areas Act
1979
Planning (Listed Buildings and Conservation
Areas) Act 1990
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Statutory consents

• Part M Building Regs (access and facilities for
  disabled)
• Physical features installed in compliance with
  Part M within last 10 years likely to be
  unreasonable to adjust
• Planning Permission/Listed Building Consent
• General permitted development?
• Local Development Framework
• Planning Policy Guidance 15 Planning and the
  historic environment
• British Standards
• BS 7913 1998 - Principles of the conservation of
  historic buildings
• BS 5588-8 1999 Fire precautions in the design,
  construction and use of buildings. Code of
  practice for means of escape for disabled people
• BS 8300 2001 Design of buildings and their
  approaches to meet the needs of disabled people

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Useful contacts/guidance

• Institute of Historic Building Conservation
  www.ihbc.org.uk
• English Heritage www.english-heritage.org.uk
• National Trust www.nationaltrust.org.uk
• Royal Town Planning Institute (RTPI)
  www.rtpiconsultants.co.uk
• Planning portal www.planningportal.gov.uk
• Royal Institute of Architects (RIBA)
  www.riba.org
• Disability Rights Commission (DRC)
  www.drc.org.uk
• UK Council for Access and Equality
  www.ukcae.com
• National register for access consultants
  www.nrac.org.uk

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Conclusion

• Pervasive and ongoing duties
• Are you a service provider?
• Access and legal audits
• Premises physical adjustments?
• Keep reviewing

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Clive ReadPartnerPropertyDirect Dial 44(0)870
763 1439Email clive.read_at_martjohn.com
Lynne FranklinSenior Associate Planning
EnvironmentalDirect Dial 44(0)870 763
1457Email lynne.franklin_at_martjohn.com

• www.martineau-johnson.co.uk