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The Disability Discrimination Act 1995

June 11, 2010
Commercial Property
What does the law say?

Part III of the Disability Discrimination Act 1995 ("the Act") makes it unlawful for service providers to discriminate against disabled people by failing to make "reasonable adjustments". You are required to consider reasonable adjustments to the physical features of your premises so that goods, services and facilities are accessible for disabled people. Does the Act apply to me? If you provide goods or services to the public (e.g. a retail outlet, pub / bar, restaurant / hotel, bank - essentially all types of business) then the Act will apply to you.

Who is covered by the Act?
The Act covers disabled people. Disabled people may include those with mobility or sensory impairments, learning disabilities, mental illness, severe facial disfigurements and certain other conditions. The Disability Discrimination Act 1995 amended the definition of disability. Now, people with HIV, cancer and multiple sclerosis are deemed to be covered by the DDA from the point of diagnosis. Consider: What is important, is that you recognise that not all disabilities are obvious.
Why should I make any alterations?
It makes commercial sense to ensure that your premises are accessible to disabled people. If not, then obviously, disabled people may not be able to use your services. Consequently, you may miss out on valuable trade from their families and friends. Furthermore, carrying out the necessary alterations to your premises will make them more accessible to others, including children, their parents and older people. Failure to make reasonable adjustments to your premises could amount to unlawful discrimination against a disabled person in the absence of any justification. As a result, a disabled person may bring a claim against you for unlawful disability discrimination and you may be ordered to pay damages. That's not all. Any negative publicity resulting from a hearing could have a significant impact on your business. As a result of the recent Court of Appeal decision in Allen v Royal Bank of Scotland Group plc [2009] EWCA Civ 1213), you may also be ordered, by injunction, to physically adapt your premises in order to facilitate disabled access.
What are physical features?
Physical features are defined in the Act as any features arising from the design or construction of a building and any fixtures, fittings, furnishings and equipment on the premises. This could include entrances, exits, car parking, paths, public phones, changing rooms, service counters, doors, toilets, stairs, shelves, waiting areas and signage. You will need to foresee the types of problems that could arise so that when a disabled person requests a service, you will have already taken reasonable steps to overcome any problems with access.
What are reasonable adjustments?
You must take such steps as are reasonable in all the circumstances in order to remove the physical feature or to alter it so that it no longer has the adverse affect referred to. You may also be required to provide a reasonable means of avoiding the feature or provide a reasonable alternative method of making the service available to disabled people. Reasonable adjustments will obviously vary from case to case. You will need to take into account the type of service being provided, the practicality of taking a particular measure, the size of the service being provided and the resources available to you.
What can I do?
Firstly, you will need to anticipate the types of problems that could arise when a disabled person requests a service, identify the physical features that prevent accessibility and find solutions and alternatives for them. You will have to plan for the alterations carefully and ensure that you communicate details of the changes to your premises to the general public. It would also be prudent to establish a positive policy for the provision of services so that disabled people are not discriminated against and convey this to your employees. Under the Act, as a service provider, you will legally be responsible for the conduct of your employees. An employee who discriminates against a disabled person will usually be acting in the course of their employment. If you can show that you have implemented a disability policy and have trained your staff to understand it, you may have a valid defence.
I occupy premises under a commercial lease. What is the position here?
Where a person owns the freehold to premises, there is no question that the person has the right to make any alterations subject to both planning and environmental considerations. However, many parties to whom the Act applies, occupy premises under commercial leases which forbid / restrict their ability to make alterations. The Act overrides such provisions in leases. Even if the lease does not permit alterations, a term is implied under section 27 of the Act that a Tenant can carry out such alterations with the Landlord's consent. When considering the tenant's application for consent, the landlord must act reasonably. It is likely that the tenant will need to supply plans and a specification showing the proposed changes to the premises. The landlord must respond to the Tenant's application within 42 days of the date of receipt of the application. Before providing its consent, the landlord will likely require the tenant to obtain any necessary planning consents and to comply with the approved plans and specification. The landlord will require a reasonable opportunity to inspect the works. Where a landlord has refused to consent or is deemed to have withheld consent then the tenant can apply to the Court for consent to make the alterations or to comply with its statutory obligations under the Act Published - June 2010 This article is provided for general information only. Please do not make any decision on the basis of this article alone without taking specific advice from us. stevensdrake will only be responsible for the advice we give which is specific to you.

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