Back in June 2019, I wrote about how difficulties in enforcing the Equality Act 2010 are affecting the UK’s growing population of people with disabilities. Eighteen months on and nothing much has changed – except that we have all now been affected, to a greater or lesser degree, by the devastating impact of Covid-19. We have all been restricted in the way we are able to navigate our world, but none more so than those with disabilities.
According to the most recent figures (March 2020), approximately one in five people across the UK are disabled – approximately 14m people. Sadly, but inevitably, as a result of Covid-19, this figure is sure to rise, with many more people in the UK developing disabilities which will impede their ability to access the same resources and spaces as before and to support themselves and their families. It is therefore more crucial than ever that we reimagine our built environments to accommodate those living with disabilities.
According to the Equality and Human Rights Commission, only 7% of homes in England offer nominal accessibility features and, in the private sector, one in three disabled people are living in unsuitable rental properties.
With privately rented properties making up a large part of the housing currently being built in the UK and reports that such units are generally built to a lower standard than public or council-owned properties, we may soon find that our built environment is inadequate to support those with disabilities.
Of course, it is not only housing that must be addressed but also commercial buildings, which need to allow access to and use of their services for people with a wide range of disabilities. This applies not just to those with obvious mobility issues, such as wheelchair users, but those with hidden disabilities, such as learning difficulties and visual or aural impairments, who require adjustments in order to engage with their surroundings as a person without disabilities would.
It’s easy to imagine a scenario where you might not know there is a fire in a building because you can’t hear the alarm, or not being able to evacuate because you can’t get down the stairs in your wheelchair. But it’s not just emergencies we need to account for. Imagine not being able to go to your local park because there are no toilet facilities, or not being able to use your kitchen because you can’t reach the cupboards.
The Equality Act 2010 was intended to consolidate various anti-discrimination laws, including the Disability Discrimination Act 2005, but, despite its noble goals, there remain a number of vital provisions that have not yet been brought into force, and there is a concerning lack of consequences for those who fail to comply.
The Equality Act 2010
Under the 2010 Act, commercial property owners and managers have a duty to make reasonable adjustments to their properties to ensure that visitors with disabilities will be able to access and use their properties, facilities and services.
They must take a visitor’s disability into account in various situations. However, if they fail to comply with their duty, the 2010 Act does not impose any penalties. The only remedy for a disabled visitor is to raise a claim against a private property owner or, in the case of a public body, to raise a claim for judicial review.
This is the same remedy available to disabled tenants in residential properties. Arguably, far too much reliance is put on the individual bringing legal action when many are not aware of their right to do so.
There is a big difference in how commercial and residential property owners are treated by the 2010 Act. Residential property owners are only required to make changes to how they manage their property and to add auxiliary aids within the disabled tenant’s premises.
However, these changes do not need to be made in anticipation of a disability. Instead, the duty arises at the request of the disabled tenant. Crucially, the 2010 Act specifies that it would never be reasonable to expect private landlords themselves to make physical alterations to disabled tenants’ premises. Although paragraph 5 of Schedule 4 does require private landlords to make changes to physical features in common parts, that paragraph is not yet in force.
Consent for alterations
While a landlord cannot be forced to undertake physical alterations, in the case of Smailes and another v Clewer Court Residents Association [2019] PLSCS 31, Cardiff County Court held that a landlord could not refuse consent to a disabled tenant wanting to undertake physical alterations in her premises.
Although her lease prohibited alterations, section 21 of the 2010 Act implies reasonableness in the case of disabled tenants and the court held that the exemption regarding physical alterations did not apply because the management company was not being asked to carry out the work, it was only giving consent.
The withholding of such consent therefore amounted to a significant disadvantage to the disabled tenant and the management company was required to grant consent. While this may look like a win for those with disabilities, it implies that they can afford to make the repairs themselves, which many cannot.
One big deterrent for residential property owners is where the disabled tenant is only occupying on a licence or short-term tenancy. In this case, the guidance recommends that both tenant and owner submit to each other certificates stating that the landlord will do the works and the tenant will live in the property as their only or main residence for at least three years. This, however, is often not possible, with many buy-to-let mortgages limiting any tenancy to 12 months.
Meanwhile, commercial owners of public property, such as those providing assisted-living housing or providing goods or services to the public, are obliged to ensure that their buildings are accessible even if that means physically altering the property to enable disabled access (though this is only the case for residential or mixed-use properties). The local authority will provide them with details of the required alterations and a timeframe within which to complete the works.
Without a mandatory system within which developers and property owners must work and without an enforcement process that is adopted by local authorities, we are unlikely to see any serious attempt by any party to address these issues
At what cost?
For residential and commercial properties, the disabled person cannot be pursued for the cost of the works, and the cost to the owner can be prohibitive. The 2010 Act recognises this, stating that, when considering whether an action is reasonable, one should consider how effective it will be, whether it can actually be made, the cost, and the size and resources of the organisation making the change.
In terms of listed buildings, for example, an owner may be required to engage surveyors and designers with an understanding of the sympathetic treatment the building requires, while also taking into account the needs of disabled tenants or customers.
To alleviate some pressure, in England, Wales and Northern Ireland local authorities are able to provide financial aid to property owners (residential and commercial), up to a maximum grant of £30,000 in England, £36,000 in Wales and £25,000 in Northern Ireland (the grant is not available in Scotland). However, this is provided on a needs-assessment basis and it can take months for a determination to be made.
When it comes to new buildings, the emphasis in recent years has been on building more housing in general, with less consideration for accessible housing. In addition to the 2010 Act, all property owners and developers need to take into account the Building Regulations 2010, which aim to provide standards of health and safety, welfare and convenience, and energy conservation.
Part M deals with the accessibility of buildings, but, when it comes to enforceability, it has no bite. Volume 1 of Part M, which deals with dwellings, states that the requirement to make dwellings accessible and adaptable is only optional. Volume 2 states only that “reasonable provisions” are required for non-dwellings.
Compliance
Though Part M sets out examples of compliance, such as step-free access and accessible WC facilities, these remain optional. This is further watered down by several factors. First, the 2010 Act states that, while failure to co-operate constitutes unlawful discrimination and the disabled person can bring a discrimination claim, ‘‘it remains for the persons undertaking building works to consider if further provision, beyond that described in Approved Document M, is appropriate”.
Further, the current process of local authorities appraising the viability of accessible housing allows developers to argue, if their expected profits are below 20%, that their accessible housing provision should be modified. This is patently open to manipulation by developers who already have little to no liability (aside from where they fail to comply with planning conditions) should they fail to comply with the requirements.
As a result, local authorities have reported: (i) having difficulties negotiating with developers whether a planning permission condition should be imposed; and (ii) many developers failing to comply with the accessibility regulations.
The Equality and Human Rights Commission reported in May 2018 that, while 68% of local authorities reported that developers do not always comply with accessibility requirements, only 3% of local authorities had taken action against a developer on these grounds.
Even the duty on public or commercial property owners and service providers to anticipate the needs of their disabled visitors does not ensure compliance.
It is clear that local authorities need better data to improve their accessible housing targets, development monitoring and planning for the future. The lack of such data is blamed for severe delays in the approval of adjustments and adaptations and allows too many people’s needs to slip through the cracks.
While it is considered to be several times cheaper to ensure that a property is adaptable at the outset than trying to make adjustments later on, developers are not engaging appropriate experts to ensure that this is done.
There have been some attempts to make property owners take their obligations seriously. For example, the House of Lords argued in 2015 that pubs and restaurants should be refused their premises licence or be shut down if they fail to comply with the 2010 Act. But the Act cannot force an owner or occupier to alter an existing building, and the industry fought back, pointing out how difficult it can be to make appropriate alterations to premises which are often within old or listed properties.
Confusion on obligations
There is, understandably, a good deal of confusion about what constitutes a “reasonable” adjustment. As there is no definition in the 2010 Act, it is open to interpretation. Every building is different, and every disability presents differently. As such, there is no “one size fits all” adjustment that could be made.
Instead, property owners and managers are required to make adjustments to avoid the disabled person being at a substantial disadvantage (as compared with a non-disabled person). This can lead to property owners being taken to court by a disabled visitor for not complying with the 2010 Act, despite believing that they made reasonable adjustments.
To combat this, it is recommended that commercial property owners produce access statements, not just as part of a planning application but as a document evidencing the owner’s consideration of disabled visitors and the adjustments they have made to enable access. By producing an access statement, a property owner can provide information to those with access needs while showing that they have taken steps to assist such visitors.
Ultimately, though, the issue is with enforcement. Without a mandatory system within which developers and property owners must work and without an enforcement process that is adopted by local authorities, we are unlikely to see any serious attempt by any party to address these issues.
The Equality Act 2010: key issues
- Only 7% of homes in England offer nominal accessibility features
- One in three disabled people live in unsuitable rental properties
- Disabled facility grants are available up to a maximum of £30,000 in England, £36,000 in Wales and £25,000 in Northern Ireland
- 68% of local authorities have reported that developers do not always comply with accessibility requirements
- Only 3% of local authorities have reported taking action against a developer on accessibility grounds.
Lydia Willox is a solicitor in the commercial real estate team at Seddons
