The DDA : How will Section 21 Work in Practice?

Our last issue led with a piece that attempted to clarify the relationship between the DDA and Part M. It prompted significant response and some healthy debate. In the interests of balance and to offer our readers more "expert" advice we reproduce below part of an article written by Sue Lindsey that appears on the CAE website.

Sue Lindsey has practised as a chartered architect and is currently a barrister at Lamb Chambers, London, specialising in construction law, property law and related matters. From a lawyer's perspective she ponders the likely implications and potential difficulties for service providers when responding to the requirements of Part III of the Disability Discrimination Act 1995 (DDA). Apparently written in 1999 the article is still very relevant today. We have added the text highlights.

The Disability Discrimination Act 1995 addresses the needs of disabled people in a variety of fields. When section 21 comes into force it will impose a duty on providers of services to make adjustments to their premises to avoid discrimination against people with disabilities. The duty is imposed upon businesses, local or public authorities, information services, and indeed anyone responsible for a building to which members of the public have access . Consultants working in this area, as well as service providers, need to be aware of the implications and potential problems.

Present indications are that the guidance to be made available will be minimal. The Governments current intention seems to be that at least some service providers will be used as test case 'guinea pigs' to establish exactly what their duties are: this is both an uncertain and potentially expensive way in which to legislate.

Where a disabled person finds it 'impossible or unreasonably difficult' to make use of the service provided, the service provider has a duty to take reasonable steps to change either the practice or procedure or the physical characteristic of the building, depending on which gives rise to the difficulty. Failure to comply with the section 21 duty may be discrimination, and any person who has been discriminated against can bring a civil action. The Government intends to bring section 21 into force in 1999 insofar as it relates to matters short of physical change to the building, with those more far-reaching requirements being imposed from 2004.

The need for guidance

Service providers have five years in which - literally - to put their houses in order. To do so they will undoubtedly need comprehensive guidance as to what physical changes they should consider, and might expect a certification procedure to enable them to demonstrate compliance with the Act. Most of the section 21 provisions hinge on 'reasonableness'. The Act makes provision for extensive regulations to be made, in particular to address what is reasonable, but the DfEE says that the Government is in fact adopting a 'light touch' in respect of these regulations, and are not providing any. What is reasonable will be left to the courts. There is, however, a proposed Code of Practice, which will give the court guidance as to what factors to consider.

Furthermore, there will be no certification mechanism - the justification being that the duty is seen as an evolving one. There is a suggestion from DfEE that compliance with Part M of the Building Regulations might be deemed to be compliance.

This approach does not sit comfortably with the scheme of the Act, which envisages a somewhat heavy-handed regulatory regime.

How will Part M fit in?

The extent to which the suggested compliance with Part M would fully meet the issues is questionable. First, the intended scope of the Act appears to be far broader than that envisaged by Part M. The Act, for example, makes reference to auxiliary aids and services. Second, the Part M Regulation is no more precise than the Act; it is the Approved Document which contains prescriptive guidance. In Building Regulation matters compliance with the guidance is deemed to achieve compliance with the Regulation. Where compliance with the guidance is not feasible, the building control officer assesses compliance with the Regulation. In the present context, if exact compliance with the guidance is not achievable, Part M will provide little comfort. However, a certification mechanism similar to, and perhaps even based upon, Part M and administered by, for example, local authority access officers might work.

The full text of this article can be found at www.cae.org.uk/and_articles/section21.html. We thank the CAE for allowing us to reproduce this item and would direct our readers to their website at www.cae.org.uk for further information.