1. Landed Estates Discussion Forum Disability Access: Premises Issues Orleton Hall, 28 November 2006 Clive Read - Partner

2. www.martineau-johnson.co.uk Index  DDA framework  Key terms  Service provider and duties  Reasonable adjustments  Access audits  Wider legal issues of making adjustments  Useful contacts

3. www.martineau-johnson.co.uk 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 disability…if 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

4. www.martineau-johnson.co.uk Service Provider (Part 3) Education Provider (Part 4) Employer (Part 2) (incl. employment, transport, private clubs, premises) Public Authorities (Part 5A) Public transport (part 5)

5. www.martineau-johnson.co.uk DDA 1995 SENDA 2001 DDA 2005 Guidance Cases DRC Codes of Practice – Rights of Access (Goods, Facilities, Services and Premises) 2002 (New one in force 4/12/06) Adjustment of Premises Regs SI 2001/3253 Premises Regs SI 2006/887 (in force 4/12/06) Statutory Consents - planning/ listed buildings/ building regs Amends Services and Premises Regs SI 1999/1191

6. www.martineau-johnson.co.uk Key terms  Discrimination: “A provider of services discriminates against a disabled person if (a) For a reason which relates to the disabled person’s disability, he treats him less favourably than he treats…others 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)

7. www.martineau-johnson.co.uk Key Terms Discrimination - Justifications  “treatment is justified only if (a) in the opinion of the provider of services, one or more conditions…are 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 Dominic’s 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)

8. www.martineau-johnson.co.uk 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

9. www.martineau-johnson.co.uk 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

10. www.martineau-johnson.co.uk 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))

11. www.martineau-johnson.co.uk Service providers’ duties  To take reasonable steps, in all the circumstances, to change discriminatory practices, procedures or policies DDA Section 21(1)

12. www.martineau-johnson.co.uk 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)

13. www.martineau-johnson.co.uk 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)

14. www.martineau-johnson.co.uk 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 adjustments…will 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)

15. www.martineau-johnson.co.uk General approach to reasonable adjustments  “The Act does not specify that any particular factors should be taken into account. What is a reasonable step…depends on all the circumstances…it 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)

16. www.martineau-johnson.co.uk General approach to reasonable adjustments  “Often minor measures, such as allowing more time to serve a disabled customer, will help…Disability 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 services…might help a service provider identify any less obvious or unintentional barriers…obtaining the views of disabled customers will also assist” (Para 4.10 Service Provider Code)

17. www.martineau-johnson.co.uk 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)

18. www.martineau-johnson.co.uk Ref: English Heritage

19. www.martineau-johnson.co.uk 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)

20. www.martineau-johnson.co.uk 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

21. www.martineau-johnson.co.uk Making physical adjustments – legal issues  Freehold - restrictive covenants - third party approval of work  Leasehold - who is responsible? - common parts - recovery of costs by landlord - landlord’s consent (Adjustment of Premises Regulations 2001)  Bank’s consents?  Statutory consents

22. www.martineau-johnson.co.uk 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 to…obtain that consent; and (b) it is never reasonable…to make that alteration before that consent is obtained” (DDA section 18B (3))  “A service provider might have to obtain statutory consent before making adjustments…planning 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)

23. www.martineau-johnson.co.uk DDA SENDA 2001DDA 2005 Building Regs Part M Town and Country Planning Act 1990 Ancient Monuments and Archaeological Areas Act 1979 Planning (Listed Buildings and Conservation Areas) Act 1990 Adjustment of Premises Regs

24. www.martineau-johnson.co.uk  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 Statutory consents

25. www.martineau-johnson.co.uk 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

26. www.martineau-johnson.co.uk Conclusion  Pervasive and ongoing duties  Are you a service provider?  Access and legal audits  Premises – physical adjustments?  Keep reviewing

27. Clive Read Partner Property Direct Dial: 44(0)870 763 1439 Email: clive.read@martjohn.com www.martineau-johnson.co.uk Lynne Franklin Senior Associate Planning & Environmental Direct Dial: 44(0)870 763 1457 Email: lynne.franklin@martjohn.com