Equality enabled
In the second of their articles on the effect of the Equality Act on housing law, Jim Shepherd and Robert Latham consider the changing scope of reasonable adjustment duties
This is the second of two articles in which we discuss the impact of the Equality Act 2010 on housing. Having focused on the general provisionsin the first article, we now turn to the duty to make reasonable adjustments. We will examine these provisions in some detail because they are relatively complex. For completeness we have also made reference to the tenancy improvement provision in section 190 of the Act.
The reasonable adjustment duty applies only to the protected characteristic of disability. The provisions in the Equality Act simplify the rather cumbersome provisions that were contained in the Disability Discrimination Act (DDA) 1995.
The aim of duty is to ensure that disabled people can rent and enjoy premises and facilities associated with them in a similar way to non-disabled people, by removing barriers to their occupation or enjoyment.
The disabled person in this context is the tenant or person who is otherwise entitled to occupy the premises, such as the disabled child or spouse of the tenant. With the exception of the duty in relation to common parts (which are yet to be brought into force) the provisions do not go as far as to require alterations to physical features.
The substantive provisions are contained in section 20 and schedule 4 of the Act The duty does not provide a cause of action but rather provides that failure to comply with the duty is a form of discrimination.
Scope of the duty
The duty to make reasonable adjustments applies to a range of persons (see box below). An agency used by a landlord to let and manage leasehold premises, is a controller of premises under this provision (paragraph 138 of the explanatory notes to the Act). The Disability Rights Commission's 2006 code of practice, Rights of Access: services to the public, public authority functions, private clubs and premises, suggested that a management or resident's committee of a block of flats, and any other person who in practice has control over how the premises are let or managed would be likely to be covered under the equivalent provisions under the DDA 1995 (at paragraph 13.6). In the absence of a code on the current premises provisions, the previous codes remain instructive as to the intended scope of the legislation.
The duty to make reasonable adjustments contains three requirements: (i) where a provision, criteria or practice of the controller puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take reasonable steps to avoid the disadvantage; (ii) where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with non-disabled people, to take reasonable steps to avoid the disadvantage (note that this requirement only applies to the common parts provisions in schedule 4 to the Act which are yet to be brought into force, see below); (iii) to take reasonable steps to provide an auxiliary aid where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.
The term 'provision criteria or practice' is not defined in the Act but plainly covers policies, procedures rules and requirements (see box below). It specifically includes a reference to a term of the letting (schedule 4, paragraph 2(3)).
The new lower threshold for the duty to apply is 'substantial disadvantage' (the old test was impossible or unreasonably difficult). 'Substantial disadvantage' is defined as 'more than minor or trivial' (section 212(1)).
The need for a request
In relation to the premises provisions, the duty is only triggered when there has been a request from the relevant person to take steps to avoid the disadvantage or provide the aid. The DDA 1995, provided that it would be a request for the purposes of the Act if it was reasonable to assume from what was said or written that an adjustment has been requested.
The commission's code gave the example of a telephone conversation in which a prospective tenant tells her landlord that she is visually impaired and finds the print in her proposed tenancy agreement too small. The tenant is here identifying an impairment and it is likely that it would be reasonable to regard this as being a request for an auxiliary aid, such as a tenancy agreement in an accessible format.
The Equality Act provides that a request has to have been received which could be interpreted as requiring a more specific request (see schedule 4, paragraphs: 2(6), 3(5), 4(6) and 5(6) (a)). We must await a code of practice for further guidance on this.
The duty will only be discharged by taking such steps as are reasonable to have to take to avoid the disadvantage or provide the auxiliary aid. The test of reasonableness is an objective one that will depend on the individual case. There is no prescribed justification for the failure to make reasonable adjustments.
New duty for common parts
Following a recommendation by the Review Group on Common Parts (2005), a duty was for the first time imposed by the Act on landlords and managers of premisesto make disability related alterations to he common parts of residential premises, where reasonable and when requested by a disabled tenant or occupier (schedule 4, paragraph 5). This would apply where the disabled person is placed at a substantial disadvantage compared to a non-disabled person by a physical feature. Failure to comply with the duty would be treated as discrimination. Unfortunately this section is not being implemented at this time.
The Home Office website says: 'We are considering if and when the remaining provisions will be brought into force, to ensure the act is implemented in an eff ective and proportionate way.'
Improvements to let dwelling houses
Where a landlord refuses permission to allow a disabled tenant (or indeed a tenant with a disabled household member) to carry out improvements to the premises to bett er facilitate their disability, the tenant may be able to rely on specific provisions (section 190) which are equivalent to section 19(2) of the Landlord and Tenant Act 1927.
More often than not a tenant will be entitled to make improvements, but only with the consent of their landlord. If the landlord unreasonably refuses permission then the provisions in Equality Act, section 190 may assist. The explanatory notes gave an example of a disabled tenant who has mobility problems and who asks her landlord to consent to the installation of a walk-in shower and a grab rail to help her use the lavatory. Her landlord refuses consent. It would be for the landlord to give reasons for the refusal and to show that it was not unreasonable. If however the landlord consented to the fitting of the grab rail and shower, on condition that their colour matches the other bathroom fittings and that they must be removed if the disabled person moves out of the property, these might be reasonable conditions. It is for the landlord to show that they are.
Untested in court
The reasonable adjustments provisions in the context of premises under the DDA 1995 were relatively untested by the higher courts. The exceptions were Dee Thomas-Ashley v Drum Housing Association Ltd [2010] EWCA Civ 265 and Beedles v Guinness Northern Counties Ltd [2011] EWCA Civ 442.
In Dee Thomas-Ashley a tenant with bipolar disorder who owned a dog failed in her att empt to show that a 'no animals' term in her tenancy agreement discriminated against her on the grounds of her disability and that in the circumstances there were reasonable steps which her landlord could have taken but failed to take. The term did not make it impossible or unreasonably diffi cult for her to enjoy the premises.
In Beedles, the appellant was an assured tenant who was disabled. His tenancy required him to decorate and clean the interior of the property as oft en as necessary to keep it in reasonable order. He argued that he could not decorate because of suffering from regular epileptic seizures and that he could not enjoy his occupation of the property within the meaning of DDA 1995 section 24C(3)(a) because his surroundings had become shabby through neglect. His landlord waived its right to insist upon internal decorations, but the appellant maintained that the landlord was statutorily obliged to carry out repairs and decorating to a standard which would enable him to derive pleasure from his home. Langstaff J found that the decorative problems were fairly superfi cial and easily remediable. The Court of Appeal held that this finding about the state of the premises prevented a conclusion that the absence of decoration undertaken by the landlordmade it impossible or unreasonably diffi cult for the tenant to enjoy the premises.
Although anti-discrimination statutes were generally to be construed benevolently towards their intended benefi ciaries, the courts' approach to the construction of the words 'enjoy' and 'enjoyment' (which also feature under the Equality Act) required an assessment to be made as to whether the auxiliary aid or service requested by the disabled tenant would enable him to live in the premises in the same way as any other typical tenant. Quiet enjoyment meant an ability to use the premises in an ordinary lawful way i.e. enjoy is generally to be given a narrow interpretation.
The Equality Act 2010 has simplified the reasonable adjustment provisions that were contained in the DDA 1995. It remains to be seen whether this will result in a greater number of actions brought on behalf of occupiers of accommodation with disabilities. It is hoped that the government will agree to bring into force the common parts provisions which will offer disabled occupiers greater flexibility and independence. We also await a code of practice on the premises provisions.