The interaction between disability legislation and the management of properties by educational institutions, is complex and, to some extent, still developing, following the coming into force of the Equality Act 2010 (“the Equality Act”). This article provides a brief background to the relevant legislation, and identifies the key areas to be aware of.
Equality Act 2010
The Equality Act replaced the existing anti-discrimination laws with one single act. Its aim is to simplify and strengthen the law, by tackling discrimination against people with certain “protected characteristics”, of which disability is one, and promoting equality.
Previously, the Disability Discrimination Act 1995 ( “the DDA”) provided the legislative framework which established the duties and requirements in relation to disability discrimination. Although repealed, the provisions of the DDA still apply in respect of “acts” which occurred prior to 1 October 2010, when the Equality Act came into force, so it may not always be clear which legislation covers a particular situation. We would also expect that many of the principles established under cases relating to the DDA will continue to be relevant under the Equality Act, so a thorough understanding of the previous law is still required.
Under the Equality Act, there are separate obligations imposed on property owners and managers, on service providers, and on education institutions. The Equality Act will almost certainly cover all educational establishments, whether public or private sector, but many institutions are currently unaware of the obligations imposed upon them, and the steps they ought to be taking to comply. Rather than waiting for issues to arise, institutions should be taking proactive steps to anticipate and manage areas of risk.
In relation to property owners, occupiers and managers, the Equality Act imposes obligations in relation to a wide variety of activities, including “disposing” of property (both commercial and residential) by way of sales, lettings and assignments - for example, the person “disposing” of the property (A) must avoid discriminating against another person (B) by refusing to dispose of the property or treating B differently in any way because of B’s disability. In relation to the management of premises (either commercial or residential), the manager (A) must not discriminate against the occupier (B) - for example, by prohibiting B from making use of a facility or benefit, or unfavourably influencing the way in which B does so. There is also a duty on the “controller” of premises to make reasonable adjustments to avoid any disadvantage that disabled people would otherwise suffer. This may involve removing a physical feature of a building, altering it or providing a means of avoiding it (eg a lift.) There are special provisions that apply where the premises are let.
These provisions will apply to education institutions, save that the duty to alter physical features of premises does not apply to schools. The duty to provide auxiliary aids and services had also previously been excluded, but from 1 September 2012, it applies equally in relation to schools as to other education institutions.
Providing goods, services and facilities
The Equality Act introduces a general prohibition against service providers (i.e. organisations which provide a service (including goods and facilities) to the public or a section of the public, whether or not for payment) victimising or treating disabled persons less favourably than other people for a reason arising from their disability. The Equality Act focuses upon the result, effect or outcome of the disability, which places a wider obligation on service providers than under the DDA. Any discriminatory treatment is unlawful unless the service provider can show that the treatment is a “proportionate means of achieving a legitimate aim”, or that they could not have been expected to know about the disability.
These provisions apply in relation to the provision of education, with certain exceptions not generally relating to disability. The provisions will be of particular importance where an education institution makes its facilities (for example sports or arts facilities) available to the public.
Service providers are also under a duty to make reasonable adjustments to assist disabled people in using the service. This duty comprises three elements: changing how things are done; changing a physical feature; or providing an auxiliary aid. Because of the way that this duty is imposed, service providers must anticipate the needs of disabled people and make appropriate adjustments.
There are some obvious examples of providing reasonable adjustments, many of which were in place before the Equality Act came into force, for example providing ramps, automatic doors and lifts to assist wheelchair users, providing disabled toilet facilities and providing fire and safety information in alternative formats for the visually impaired. However, the Equality Act goes beyond what was previously required and many institutions may find themselves in breach if they do not proactively take steps to accommodate service users.
Part 6 of the Equality Act deals exclusively with the education sector. It reinforces and expands many of the general provisions of the Equality Act, and provides specific exceptions to those in the sector (for example allowing schools to treat people differently on the grounds of age). In relation to disability, Part 6 reaffirms the obligation to make reasonable adjustments, and to prohibit discrimination in relation to the admission and treatment of students. It also places a special duty on local authorities and schools to prepare and implement accessibility strategies and plans. (This duty follows the approach in the DDA and is an alternative approach to ensuring that, over time, school premises become more accessible to disabled people, instead of imposing the duty to make reasonable adjustments in relation to school premises.)
Practical Steps and Considerations
The Equality Act imposes substantial requirements on a wide range of organisations in a wide range of circumstances. In particular, the Equality Act places a positive duty on educational establishments, whether acting as service providers, landlords, occupiers or property managers, to anticipate and prevent disabled people from being disadvantaged in the way that they access or use premises or services. It can be difficult to identify what barriers are currently in existence and to ensure that disabled employees, students and other users are not disadvantaged. It is also necessary to bear in mind the interrelationship between the various duties imposed upon an institution as it carries out its various functions and activities – for example, different requirements will apply to a institution which (at different times, or even at the same time) operates as a school and as a service provider hiring out facilities. Further obligations will also be imposed upon the institution as an employer.