As the momentum to comply with equality legislation gains, Mark Heighton looks at the growing obligations on the property industry and their impact so far
The statutory obligations in the Equality Act 2010 (the “2010 Act”) together with its predecessor, the Disability Discrimination Act 1995 (the “1995 Act”), have been in place for nearly 20 years. Although there have been very few reported cases on the statutory obligations in that period, a series of recent events serve as a reminder to the property sector that owners and occupiers should continue to ensure that they are complying with them.
An audit carried out by DisabledGo at the request of the government in 2014 concluded that the retail and leisure sectors still have a long way to go to comply with their statutory obligations. DisabledGo conducted an audit of 30,000 separate venues throughout the UK. They found that 20% of high street shops had no ramps for wheelchairs, only 15% of retailers had hearing loops for shoppers with hearing impairments, and less than a third of department stores had accessible changing rooms.
Separately, the Tory peer Lord Blencathra drew up a private member’s bill in an attempt to force public buildings such as shops and restaurants to install a ramp if the steps outside their entrances were six inches or less in height. He felt that not enough is being done in terms of wheelchair access to premises.
There was also the much publicised Court of Appeal decision in December 2014 which determined that a bus company was not in breach of its statutory duty when a passenger with a baby refused to move from a designated wheelchair area so as to allow a potential passenger in a wheelchair to access the bus.
Statutory obligations
There are six main parts of the 2010 Act that particularly affect property owners and occupiers: the most relevant obligation is to make reasonable adjustments to assist disabled people (particularly in relation to service providers).
There are separate provisions imposing obligations on owners and managers of property concerning disposal of the managed premises and giving any consent required to a disposal. With one exception relating to managers, these obligations primarily focus on not discriminating or harassing – compliance will not involve any physical alterations to buildings.
There is potentially a seventh additional area relating to an obligation on managers of premises to make physical alterations to common parts in residential or mixed-use premises at the request of individual tenants. However, the relevant provisions of the 2010 Act are not yet in force.
Reasonable adjustments
The duty under the 2010 Act to make reasonable adjustments arises in the following circumstances:
- adjustments to premises which are let;
- adjustments to premises which are to be let;
- adjustments to common parts in both residential and mixed-use buildings (not yet in force); and
- adjustments when providing services to the public.
Premises which are let or are to be let
There are three separate requirements on the party obliged to comply:
- changing the way things are done;
- where a property’s physical feature puts a disabled person at a substantial disadvantage, taking reasonable steps to avoid that disadvantage, ie, removing, altering or providing a reasonable means of avoiding the physical feature;
- providing an auxiliary aide, such as a hearing loop or information in an accessible format.
In relation to adjustments to premises which are or are to be let, the statutory duties are essentially the same. They apply where there is a request from a disabled tenant or occupier, or potential disabled tenant or occupier, to take action. However, in terms of compliance with this statutory duty, the controller of premises is only obliged to comply with two of the three requirements: to change how things are done and to provide an auxiliary aid. There is no obligation to make physical alterations to buildings.
Service providers
The statutory obligations of service providers in relation to making reasonable adjustments are set out in Part 3 of the 2010 Act. Section 29(7) requires that a disabled person is not put at a “substantial disadvantage” in accessing the service being provided to the public. This is a different emphasis to the original obligation in the 1995 Act, where service providers were required to make reasonable adjustments only if it was “impossible or unreasonably difficult” for a disabled person to make use of the service. The 2010 Act test is therefore more demanding than its predecessor.
This statutory duty applies to disabled people generally, meaning that the service provider must anticipate the needs of disabled people and make appropriate reasonable adjustments. Service providers need to think ahead and not wait until a particular person complains or requests an adjustment.
A service provider is essentially any person who provides goods facilities or services to the public or a section of the public. This can include carrying out public functions and running an association. It does not matter whether the services are provided free or at a cost.
There is no checklist of specific steps that need to be taken to comply with this statutory duty; it is a question of what is reasonable in the circumstances. Each service or property needs to be assessed separately and what is unreasonable in 2015 may well be reasonable in 2020 as circumstances change. The statutory duty is a continuing one; service providers need regularly to revisit what they have done and what also they can do.
Landlord’s consent
In many cases a service provider who is a tenant of a property will need its landlord’s consent before carrying out any physical alterations. Schedule 21 of the 2010 Act implies a reasonable consent regime into all leases. Notwithstanding the actual terms of the lease, the tenant can make the alterations to comply with its statutory duty with the landlord’s written consent and this consent is not to be unreasonably withheld; however, it can be granted subject to reasonable conditions.
These provisions only relate to the consent of the landlord and not another party. For example, a third party who has the benefit of a restrictive covenant or the planning authority.
Regulations 10 to 14 of the Equality Act 2010 (Disability) Regulations 2010 set out more detail on how this implied consent regime works by providing five circumstances where the landlord will be deemed to have unreasonably withheld consent. These include where the landlord has failed to respond within 42 days of receipt of the application for consent; or where the landlord believes that information supplied is not sufficient and fails to request the missing items within 21 days of receipt of the application.
Consent will also be deemed unreasonably withheld where the landlord gives consent within 42 days and the consent is subject to consent from another party (for example, the superior landlord) but the landlord does not, within the 42-day period, apply in writing for that superior consent with all the necessary supporting information, including highlighting that the tenant wishes to carry out operations to comply with its duty to make reasonable adjustments under the 2010 Act.
Momentum
Clearly, the statutory obligations are not going to disappear. The latest estimate is that there are 12m people in Britain with disabilities and that the spending power of these people and their families is £200bn per annum. As time goes on, it is likely that the momentum will gain to ensure that businesses actually comply with their obligations to disabled people. To the extent that it has not done so already, the property industry really needs to get its act together now.
Assessing reasonable adjustment
The Equality and Human Rights Commission has issued guidance to assess whether a physical adjustment to a building is reasonable, with four particular criteria:
- how effective the change will be in assisting disabled people in general or a particular group of disabled people;
- whether the change can actually be made;
- the cost; and
- the size and resources of the organisation making the change.
There are a wide range of fairly obvious steps that can be taken to comply including providing low level cash machines in a bank, making sure that chip and pin machines are not fixed to counters and have flexible leads, and installing a ramp for wheelchair access.
Mark Heighton is head of real estate at CMS Cameron McKenna LLP
