Disability Discrimination Act 1995 – impact on construction

Are you considering erecting a new building? Maybe refurbishing an existing building? Maybe you're involved in building design or construction works? If so, read on, as recent legislation could have a huge impact on your final design or negotiations.

The final part of the Disability Discrimination Act 1995 came into force on 1 October 2004. The aim of the Act is to end the discrimination faced by many disabled people in the UK, with the most common causes for complaint being a lack of access to premises for disabled people accompanied by guide dogs, restricted wheelchair access to sports stadia, theatres and cinemas, failure to provide disabled parking bays, and where they are provided, a failure to police them adequately.

The definition of what constitutes a "disability" is broad: "a physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities". The Disability in Great Britain, DSS Research Report (number 94), 1999 identified nearly 9 million people in the UK who had a disability, with disabilities covering the physical, sight, mental, hearing and learning problems.

This is the first time that the law has required businesses to consider whether their buildings are accessible and it presents a new challenge for many. However, focusing on the needs of disabled people can also provide an opportunity to gain from a significant consumer market - disabled customers are estimated to have a combined spending power of £80 billion. It is not just disabled people who will benefit from such adjustments. It will assist the friends and family of such persons, customers who have children and elderly people who, while not considering themselves disabled, would appreciate improved access.

Businesses and service providers must make "reasonable adjustments" to their premises to ensure they are accessible to disabled people. Such obligations had been widely publicised prior to the Act coming into force, however when Scope visited 1300 buildings on 1 October, they found 4 out of 5 to be inaccessible to disabled people. The worst offenders were restaurants, with only 9% being fully accessible. Additionally, they also found that 64% of venues did not have an accessible toilet.

It remains to be seen what is "reasonable"; there are currently no hard and fast rules. However, the Disability Rights Commission is preparing cases against unnamed building owners who have failed to provide reasonable adjustments. The obligation on the building owner is that they should not refuse to serve, or allow a lower standard of service for disabled persons. This might necessitate a change in policy, such as a relaxation on a ban on animals to cater for hearing or guide dogs, or a more physical alteration, such as the installation of lifts and ramps. As a general pointer to things that could be improved, are items such as ensuring doors don't stick, the lowering of door handles and lowering reception counters.

However, several factors will have a bearing on whether a change is a reasonable one for service providers to have to make, particularly for physical adjustments to premises. These include:

• whether taking any particular measures would be effective in overcoming the difficulty that disabled people face in accessing the services in question
• the extent to which it is practicable
• for the service provider to take the measures
• the financial and other costs of making the adjustment
• the extent of any disruption which taking the measures would cause
• the extent of the service provider's financial and other resources
• the availability of financial or other assistance.

For small service providers (as compared to larger ones with more resources at their disposal) the emphasis is likely to be on practical, low-cost adjustments, although consideration should also be given to major physical alterations to improve access to the premises if feasible and affordable. The duty of providing accessibility does not override any requirement to obtain any consent that may be necessary, such as planning consent, landlord consent or listed building consent. Landlords are not able to refuse consent unreasonably to physical adjustments, regardless of what is stated in the lease.

If you haven't already done so, now is definitely the time to make adjustments to your building!

For further information please contact Julie Dean on +44 (0)20 7367 2354 or at [email protected]