The majority of the provisions of the Equality Act 2010 will come into force in England, Wales and Scotland in October 2010. Property interests are affected, although certain new provisions relating to common parts of premises will not be implemented until a later date. The 2010 Act consolidates existing discrimination legislation, including repealing the Disability Discrimination Act 1995 in full.
The 2010 Act covers all types of discrimination including disability discrimination, which is particularly relevant to property owners and occupiers. Much of the existing law in relation to a property owner's duties is restated in the 2010 Act. A property owner or occupier who provides a service to the public (whether or not for payment) must not discriminate against a disabled person by not providing the service, or discriminate as to the terms on which the service is provided, or subject the person to any other detriment. The duty is owed to disabled people generally and the service provider is required to anticipate the needs of disabled people who may wish to use their service.
Reasonable steps have to be taken to avoid a disabled person being put at a substantial disadvantage due to a provision, criterion or practice of the service provider, or physical feature of their premises, and reasonable steps have to be taken to provide an auxiliary aid (such as a hearing loop or handrail) if without this the disabled person would be substantially disadvantaged.
The service provider may well be under an obligation to make reasonable changes to the physical features of their premises to ensure that a disabled person is not substantially discriminated against in using the facilities. In general, the cost of making the changes to the physical features cannot be passed on to the disabled person. Although the duty may be discharged by providing a reasonable alternative means of using the service or facilities, merely offering alternatives may not be sufficient. In 2009 a court ruled, in relation to similar provisions under the 1995 Act, that the Royal Bank of Scotland plc had not provided a wheelchair accessible access point or ATM at a particular branch, and that the alternatives it proposed were inadequate, and RBS were ordered to pay damages and install a platform lift.
The 2010 Act goes on to provide that a landlord or manager of a let premises may have to make reasonable adjustments in response to a request from a disabled tenant or occupier. This contrasts with the duty on service providers, as, in the case of let premises, the duty only applies once the tenant has requested a change. This duty applies to both residential and commercial property. For example, the alterations clause in a lease may require to be amended if the lease prevents the disabled person from adapting the premises. Such a blanket refusal could put the disabled person at a disadvantage if the alteration requested was reasonable, and sought to alter the premises to remove a disadvantage suffered through disability.
The landlord is required to amend the lease only so far as is necessary to enable the tenant to make a particular requested alteration to avoid the disadvantage. In letting situations, the landlord does not have to go as far as to remove or alter a physical feature. Physical features do not however include furnishings or equipment, and alterations do not include the replacement or provision of a notice, replacement of a tap or door handle, replacement, provision or adaptation of a door bell or entry system and changes to the colour of a surface (the implication being that the landlord would be required to take these steps).
The 2010 Act provides that the Scottish Ministers may make regulations that entitle disabled persons to make physical adjustments to common parts of residential properties, where the disabled person is either a tenant or owner of premises in the building. This may involve changes to the structure and exterior of the building and to any common facilities in, or used in connection with the building. Provisions that apply in England and Wales impose the duty to make reasonable adjustments in relation to common parts of let premises and commonhold properties on those who let properties, commonhold associations or the person responsible for the common parts. These provisions will not come into force now, but it is likely that there will be some consultation on the form that the regulations in Scotland are to take, before this part is commenced.
Restatement and enhancement
While the Disability Discrimination Act 1995 is to be repealed in full by the Equality Act 2010, much of the property related aspects of the 2010 Act is a restatement of the principles contained in the 1995 Act along with some enhancements to the protections afforded to the disabled. The onus is on all service providers, employers, owners and tenants to ensure they are complying with the new Act.
To access the current version of the Equality Act 2010, click here.