The government brought most of the provisions set out in the Equality Act 2010 into force on 1 October. It consolidates, modernises and strengthens existing anti-discrimination legislation and protects people from discrimination on the grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or religious belief or sex or sexual orientation.
It protects people who are unfairly treated because they are wrongly perceived to have one of these characteristics or because they associate with someone who does. However, not all these characteristics are protected in all circumstances.
The legislation has important implications for the property industry. As well as complying with the legislation when providing goods and services, property owners and occupiers will also need to comply when managing or disposing of property.
Owners and occupiers will be particularly interested in changes to the statutory duty to make reasonable adjustments to assist disabled people. In future, instead of applying where access is “impossible or unreasonably difficult”, the duty to make reasonable adjustments will apply where a disabled person is put at “a substantial disadvantage”. In such circumstances, an owner or occupier may have to change the way in which things are done, make physical changes to a building, or provide an auxiliary aid (without charging the disabled person unless the Act specifically authorises this).
The Act makes another important change. It was previously possible to defend a claim for failure to make reasonable adjustments if that failure could be justified. The former Disability Rights Commission (now the Equality and Human Rights Commission) suggested that the defence was unnecessary, because only “reasonable’ adjustments” are required; the defence has been dropped.
The legislation also includes a new duty to make reasonable adjustments to physical features in the common parts of residential premises, although this has not been brought into force immediately. When the relevant provisions are in force, the obligation will arise if a disabled resident requests an adjustment. The landlord must, within a reasonable period of the request having been made, consult all those who would be affected and, if it decides that the adjustment is reasonable, must reach a written agreement with the disabled person confirming what rights and responsibilities each will have. The Act specifically authorises landlords to charge for such work and for any necessary reinstatement works should the disabled person vacate the premises.
Landlords should also be aware of section 15 of the Act, which has been included to address the decision in Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] 1 AC 1399. Here, the House of Lords upheld the eviction of a tenant who sublet his flat in breach of his tenancy agreement while suffering from the effects of schizophrenia, because the landlord would have treated other tenants in the same way. It is now discriminatory to treat a disabled person unfavourably because of actions arising as a consequence of his or her disability, unless the treatment is a proportionate means of achieving a legitimate aim or the defendant did not know, and could not reasonably have been expected to have known, of the disability.
Allyson Colby is a property law consultant
