Disability discriminationEquality Act 2010

The key provisions of Equality Act 2010 came into force on 1 October 2010, with further provisions coming into force in 2011 and beyond. It removes many of the anomalies and complexities that have arisen as a result of the piecemeal nature of previous legislation. As far as property is concerned, Equality Act 2010 aims to harmonise the core provisions of different types of discrimination law.

Equality Act 2010 consolidates the existing nine main pieces of discrimination legislation, most of which will be or already has been repealed. Equality Act 2006 will remain in force in so far as it relates to the constitution and operation of the Equality and Human Rights Commission, and Disability Discrimination Act 1995 in so far as it relates to Northern Ireland.

Equality Act 2010 brings together over 100 separate discrimination measures, and provides a single approach where appropriate through a new concept of ‘protected characteristics’ which encompasses all the existing grounds on which discrimination is prohibited, including disability.

Whilst Equality Act 2010 primarily affects employment law, landlords and occupiers (whether tenants or licensees) must be aware of their obligations under the property aspects, as a breach may result both in an award of damages against them and a mandatory injunction to do works to the property. In rare cases, it could result in a criminal prosecution.

Equality Act 2010 introduces new duties:

• on organisations providing services to the public to take reasonable steps in relation to physical features at the premises where the service is provided. This arises where the feature makes it difficult for a disabled person to access the service

• to consent to changes to common parts in residential or mixed use buildings. If a disabled tenant or occupier who uses or intends to use premises in a building as his or her main home requests physical changes to common parts to reduce or avoid a disadvantage suffered in comparison with non-disabled people, the landlord must within a reasonable time consult anyone likely to be affected by the changes and, after considering the views of those consulted, take whatever steps are reasonable to avoid the disadvantage

The following duties contained in Disability Discrimination Act 1995 remain in place:

• on service providers to make reasonable adjustments to premises to accommodate disabled customers

• on landlords not unreasonably to refuse consent to Disability Discrimination Act 1995 alterations to premises and to respond to requests for consent within 21 days

• on landlords or property managers to change building management practices or provide auxiliary aids to assist disabled tenants

• on property owners and managers not to discriminate against, victimise or harass disabled occupiers, particularly in relation to eviction from premises

Disability Discrimination Act 2005

Disability Discrimination Act 2005 ('DDA 2005') extended the definition of 'disability', and goes far beyond the provision to the public of goods, facilities and services. It relates to:

• employment

• the provision of transport

• education

• all duties of public authorities

• private clubs

• property sales, lettings and management

The common feature is that duty holders must not discriminate against those suffering from a mental or physical disability in offering goods, employment, education or services. They may make reasonable physical adjustments to the premises from which services are offered, although this is only one of the possible methods of complying with the law. The DDA 2005 is not a property statute. It does not require a service provider to adopt one way of meeting its obligations rather than another: the focus is on results. Consequently, it is a matter for each service provider to interpret and apply the duties imposed by the DDA 2005 to its own services. In essence, there is no such thing as DDA 2005-compliant property.

'Premises' includes the built and unbuilt environments. Physical features include fixtures, fittings, furnishings, materials or equipment. With regard to new or refurbished buildings, planning and building regulations now require access and egress (often forgotten) for all, but the existing building stock causes most concern. Although some physical features can be removed or altered, the circumstances of the case may dictate that the duty holder should consider avoiding the feature that is causing the difficulties or providing its services in some other way. The service must not be more expensive than that offered to others and everyone must be treated with dignity and consideration. Precisely what a duty holder can or should do is a question of reasonableness judged within the particular circumstances of each case. What is reasonable to, for instance, a major retailer may not be reasonable to a sole trader. The advice offered by a consultant must be tailored to the particular duty holder, the type of services provided, the clients, the extent of any disruption, resources and so forth: see, for example, the code of practice issued by the Disability Rights Commission in respect of the provision of services. An expert can advise, not only by reference to a predetermined list of physical alterations to premises but also by a thorough understanding of the business and by suggesting proposals that include staff training, the use of auxiliary aids and potential changes in practices and procedures.