An 81-year-old woman lived on the third floor of a block of flats. She had difficulty using the stairs and asked her landlord for consent to install a stair lift. She even offered to pay for it herself. But the landlord refused.
The lady brought a claim against the landlord, alleging that it was breaching its duty under the Disability Discrimination Act 1995. But was the landlord “discriminating”?
The court in Richmond Court (Swansea) Limited v Dorothy Williams (2006) noted that if other, non-disabled tenants, had made the same request, the landlord would also have refused. Therefore, the court said, the landlord could not be said to have discriminated against the tenant by treating her less favourably because of her disability.
Whilst seemingly harsh on the lady in question, the case serves to illustrate a distinction between the obligations imposed on employers and those providing services to members of the public on the one hand, and landlords and managers of let properties on the other.
A landlord or manager has a general duty not to discriminate against a disabled person. “Disabled” is widely defined. In addition, since December 2006, “controllers of let premises” have new duties under the Disability Discrimination Act 2005. These are a duty to take reasonable steps to provide auxiliary aids or services (such as appropriate door handles, taps etc) to enable a disabled person to use the premises, and a duty to take reasonable steps, according to the circumstances, to change a practice, policy or procedure that makes it impossible or unreasonably difficult for a disabled person to enjoy the premises (including terms of lettings).
However, significantly, it is not reasonable to expect a controller of premises to have to make adjustments to “physical features”. This term is also defined widely by the legislation but includes: features arising from the design and construction of the premises; features on a premises or of any approach to, exit from, or access to the premises; fixtures in or on the premises; and any other physical element or quality of the land comprised in the premises.
The legislation compels “service providers” to take steps to make their “services” available to disabled people. This refers to the provision of any goods or facilities to the public, voluntary or private sectors.
Service providers also have additional duties in relation to the “physical features” described above. In order to comply with the DDA, the options open to a service provider are:
- to remove the feature;
- to alter the feature so that it no longer has that effect;
- to provide a reasonable means of avoiding it; or
- to provide a reasonable alternative method of making the service available.
Examples may be changes to entrances and exits which impede access, such as widening doorways or installing ramps. It is important to remember that compliance is not a one-off duty; service providers are under a continuing duty to keep matters under review.
No distinction is made in the DDA 1995 between landlords and tenants – the duty may fall on one or both. Often, a service provider will be the tenant of a property. What happens if a tenant needs to undertake physical alterations in order to comply with this duty, but his lease restricts his ability to do so? In this situation the DDA will override the restriction by implying that a tenant may make reasonable alterations, with the landlord’s written consent, and that the landlord may not unreasonably withhold consent.
The landlord may impose reasonable conditions and, in certain circumstances, may even refuse consent. For example, where a proposed alteration is likely to entail a large, permanent reduction in the value of a landlord’s freehold interest, this is likely to be a reasonable ground for a landlord to withhold consent. Similarly, any alteration causing a large amount of disruption to other tenants (for example, in a multi-let building) might reasonably be refused.
If a landlord unreasonably withholds consent to an alteration that the tenant wishes to undertake in order to comply with the legislation, then the tenant may refer the matter to court or may join the landlord as a party to any proceedings brought against him.
To avoid problems arising, tenants should ensure that their leases spell out the division of responsibilities and who is going to pay for any necessary alterations. Landlords, of course, may seek to recover the costs of such works through the service charge.
The DDA 2005 allows a disabled tenant of a dwelling, in certain cases, to make an improvement to its own premises where the improvement will “facilitate its enjoyment of the premises”. This would not have assisted the elderly Mrs Williams, though, as her request to install the stair lift related to common areas, not to her own apartment. In an apparent attempt to plug this gap, a Government Green Paper (A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain) proposes placing a new duty on landlords of residential properties to make alterations to the common parts of their properties to allow easier access for disabled tenants. Consultation on the Green Paper closes on 4 September 2007.