Disability Discrimination Act 1995 - Impact on Commercial Property - Spring 2004

01 April 2004

Businesses which provide a service to the general public will need to be aware of the latest sections of the Disability Discrimination Act 1995 coming into force on 1st October 2004. Sub-sections 21(2)(a) to (c) provide that where a physical feature of a building, or the approach or access to premises, makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is the duty of the provider of that service to take reasonable steps in order to:

1. Remove the feature;
2. Alter it so that it no longer has that effect; or
3. Provide a reasonable means of avoiding the feature.

A service provider under the Act is anyone providing goods, facilities or services to members of the public with or without payment.

The Act focuses on accessibility to the service provided, not the premises. As a result, altering or removing physical features of business premises is not the only way to ensure that a service is more accessible to disabled people.

Sub-section 21(2)(d), already in force, provides that a service provider has a duty to take reasonable steps to provide a reasonable alternative method of making the service available to disabled persons. The Act does not require service providers to physically alter premises if there is another way to meet its obligations; changing its procedures on service delivery could be the answer: eg providing an on-line service appropriate to clients. The emphasis is on the end result.

Businesses will need to consider the following:

• Whether the services provided are accessible to disabled persons. This will mean anticipating their needs and considering what adjustments may be necessary. An Accessibility Audit will investigate the needs of disabled persons and complete an audit on behalf of the business and can include advising businesses of what changes are required if it is impossible or unreasonably difficult for disabled persons to use a service.
• When negotiating a new lease, landlords and tenants should consider who will be responsible for making the premises more accessible and whether agreement can be reached on the cost. The landlord may perhaps contribute to the cost involved, if major works are necessary, in making the premises more accessible and therefore more attractive to future tenants. Further, rent review provisions should be considered to ensure that the necessary assumptions and disregards are properly negotiated and agreed between the parties to avoid uncertainty at rent review.
• If the service provider decides that reasonable adjustments should be made, the proper consents should be obtained well in advance. These may include statutory consents, such as planning permission, and consent from a landlord, if the property is held under a lease. Where a lease prohibits alterations to the premises, section 27 of the Act provides that a written request for consent must be made to the landlord for permission to make the alterations. The landlord may not unreasonably withhold consent but may attach conditions to that consent.

Put simply, the Act will override the terms of a lease and it will be no defence for a service provider to claim that the lease did not allow for alterations to the premises
 

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