Disability Discrimination Act
The problem
Hotels, boarding houses and any other establishment providing facilities for entertainment, recreation or refreshment need to be aware of the potential impact of the Disability Discrimination Act 1995 (DDA). Part III comes into force in October 2004, and will require service providers to make reasonable adjustments to features of their premises that might otherwise prevent physical access.
The DDA is based on the principle that disabled people should not be discriminated against by service providers, either in terms of the provision of services or in physical access. "Disability" is defined in the act and includes people with difficulties with mobility, manual dexterity, speech, hearing or eyesight, and people with learning difficulties.
Will it affect you?
Tenants of commercial premises might think that the DDA does not apply to them. However, it would be extremely unusual for a standard commercial lease not to contain a covenant on the tenant's behalf that it will comply with all relevant legislation, statutes, regulations, etc.
The DDA is, therefore, something that all commercial tenants should consider well in advance of the start date of Part III, as it may necessitate substantial changes to their premises.
A service provider, such as a restaurateur, can obviously be responsible only for the property that has been leased to him by the landlord and over which he has control. In a shopping centre, for example, a landlord would normally be liable for compliance with the DDA in relation to the common parts.
The law
The act states that where a physical feature such as a doorway makes it impossible or unreasonably difficult for a disabled person to make use of the premises, then the provider of that service (the tenant) has to take reasonable steps to remove the feature; alter it; provide a reasonable means of avoiding the feature, or
provide a reasonable alternative method of making the service available to disabled people.
It is important that a provider does not restrict his thinking to physical access features. The DDA covers a whole spectrum of disabilities and may, for example, require a stair tread to be a different colour from a stair riser to help partially sighted people.
"Reasonable" steps have to be taken to alter premises. What is reasonable will vary according to:
- The type of services being provided.
- The nature of the service provider, its size and resources.
- The effect of the disability on the individual disabled person.
Other factors in what is "reasonable" include:
- How practicable it is for the service provider to take the steps.
- The financial and other costs of making the adjustments.
- The extent of any disruption which taking the steps would cause.
- The extent of the service provider's financial and other resources.
Expert advice
It is imperative that service providers take action now, and well in advance of the October 2004 start date.
A surveyor with expertise in this specific area should undertake an inspection of the property and recommend what, if anything, needs to be done to comply with the act.
It may be that substantial alterations are necessary. If so, your legal advisers should be instructed to obtain the landlord's consent, which is normally required, for such alterations.
The act imposes into commercial leases an obligation that a landlord does not unreasonably withhold consent to an application to alter premises for the purposes of complying with the act. Such alterations may, however, require detailed plans, planning permission, listed buildings consent and/or building regulations consent.
Legal advice is therefore urgently needed.
Check list
- Consider whether you're a "service provider" under the definition of the act.
- Consider, with expert advice from a surveyor, whether your premises comply with the DDA.
- Instruct solicitors to consider the terms of your lease, and obtain necessary consents, planning permissions, etc.
- Obtain copies of the codes and guides to the Disability Discrimination Act 1995 from Her Majesty's Stationery Office, or visit www.disability.gov.uk/dda/
Beware!
While October 2004 may still seem some time away, a number of consents and/or permissions may be required in order for adjustments to be made to comply with the act.
Despite the fact that the obligations imposed by Part III of the DDA have been known for some years, it is thought that fewer than half of service providers have complied with their obligations. Large claims for damages are only just around the corner.
Contacts
Fladgate Fielder
020 7323 4747
www.hmso.gov.uk/acts/acts1995/1995050.htm
Individuall
(A non-profit-making organisation, established and funded by hospitality businesses, intended to help the industry meet the standards set out in the Disability Discrimination Act)
01273 464518
