This section seeks to explain and provide typical scenarios of how best to deal with inherent obligations under the Act, which may be relevant as a defence in the instance of court proceedings, if the provisions within the Code have not been followed.


1. What sort of buildings come under the Part III of the Disability Discrimination Act 1995?

The Disability Discrimination Act 1995 (DDA) Part III affects all those who provide a service to the public or even a section of the public, whether that service is in the private, public or voluntary sector. This would include the local councils, government departments and agencies, the emergency services, charities, voluntary organizations, restaurants, post offices, telecommunications organizations, public utilities, national parks, sports stadia, leisure centres, advice agencies, shops, café's, specialist service providers (doctors, dentists, opticians, banks, building society's, solicitors, accountants), restaurants, cinemas, garages and petrol stations, hairdressers, public houses, supermarkets, places of worship, courts and hospitals and clinics - although the list is not exhaustive and seeks to represent an overview of business types covered by the (DDA).

As well as an organisation or businesses main trading activities, the (DDA) also covers information relating to the business, toilets, telephone and telecommunications, car parks and all other services in connection with and available to the general public.

An important piece of information and guidance has been produced by the Disability Rights Commission (DRC) entitled the 'Code of Practice - Rights of Access, Goods, Facilities, Services and Premises'. This document has since been revised (2002) in conjunction with developments (to date) under the (DDA).


2. What is a "physical feature"?

This can be considered to be a structure or part of a structure including steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits (including emergency escape routes), internal and external doors, gates, toilets and washing facilities, public facilities (including telephones, counters, service desks), lighting and ventilation, lifts and escalators. As before, please note that this list is not exhaustive.


3. What do we have to do to make buildings comply? Give an example.

Reasonable changes, adjustments and alterations are what the (DDA) prescribes. What is reasonable will depend on a variety of factors, such as effectiveness, practicality, disruption, and costs. For instance, it may be sufficient for a retailer to display a reasonable cross section of his goods on the ground floor, use larger print on signs and /or Braille, widening of aisles and doorways and have specially trained staff to assist with disabled people.

It is also necessary to look at other areas of our buildings and ask whether there are sufficient disabled orientated facilities both within and outside. The emphasis should be a totally inclusive environment that is mindful of individual need(s) and covers an array of disabilities.

Accessibility is key to the (DDA); we must view our buildings not just from the able-bodied persons perspective but also from a disabled persons viewpoint. A simple test is to see how easy it is for both a wheelchair bound, blind and/or deaf person to access and function within your building. This will disclose a number of criteria that are found to be obtrusive or more importantly identify those areas that need to be addressed.


4. By when do they have to comply?

The third and final phase of the (DDA) comes into effect on 1 October 2004. This relates to Part III, which concerns the Access to Goods, Facilities, Services and Premises (revised). It is the responsibility of the service provider to make the necessary adjustments and it would be prudent for access audits to be conducted as soon as possible, to identify any barriers to access for disabled people and then comply with the any recommendations in the audit.

An access audit will give the service provider specific indication of the likely adjustments required and an ability to spread the cost, so that incidental disruption can be kept to a minimum. Failure to comply by 1 October 2004 will mean that a disabled person can bring an action against the service provider for damages (e.g. injury to feelings)


5. Are there any exemptions?

There are no exemptions to this part of the (DDA), unless you do not provide services for the public or a section of the public. Even if you do not necessarily receive payment for such services or facilities, you are not exempt.

The most notable exclusions are services that are not available to the public. A good example of this is a Private Members Club, where membership is a condition of use of the facility or service and there is a genuine process of selection, regulated by club rules. However, if services are provided to the public then the (DDA) applies to those services, an example of this is a 'publicly accessible' gathering held on the clubs premises.

Education providers (publicly funded) are not included as they are dealt with under Parts IV and V of the (DDA) respectively. However, if you are a manufacturer or a designer and you don't directly service the Public then you also are excluded, but you may have to consider your position as an employer and look to the specific requirements of any employee(s).


6. What has changed?

Service providers must be compliant by 1 October 2004. They are required to make 'reasonable adjustments, alterations or improvements' in relation to any physical features that make it impossible or unreasonably difficult for disabled people to make use of the service provided.

A disabled person is defined as anyone with a physical or mental impairment, which has a substantial or long-term effect on their ability to carry out normal day-to-day activities. This includes not only those with a wheel chair, but also people with epilepsy, respiratory problems, heart conditions, learning difficulties or impaired sight, hearing and/or speech.


7. If I'm halfway through building a retail space, could the (DDA) force me to tear down and re-build any elements of the building?

No. The DDA will not force anyone to tear down and rebuild any element(s) of a building. If the service provider fails to make reasonable adjustments in relation to the physical features of their premises by 1 October 2004, where it is impossible or unreasonably difficult for a disabled person to make use of the service they provide, then the disabled person will be able to commence proceedings for discrimination and damages. Often providing a service in a different way will avoid discrimination and the need to make physical adjustments. However, the appointed designer(s) should design all new build schemes in full consideration of current building regulations as deemed appropriate.


8. What happens if the (DDA) compels me to make alterations on a listed building? Will I be pinned between two conflicting pieces of legislation?

No. Section 59 of the DDA and Clause 6.28 - 6.30 inclusive of the Code of Practice for the (DDA) produced by the Disability Rights Commission, which details what steps should be taken. The (DDA) does not override the need to obtain any statutory consent for changes to buildings such as Listed Building consent.


9. What if a binding obligation other than a lease prevents a building being altered? (Clauses relate to the Code in full):

Refer to SI 2001/3253 reg 3(2) of the DDA and Clause 6.31of the Code of Practice for the (DDA), which confirms that in these circumstances, the 2001 Regulations provide that it is reasonable for the service provider to have to request that consent, but that it is not reasonable for the service provider to have to make an alteration before having obtained that consent.


10. What happens if a lease says that certain changes to premises cannot be made?

Refer to Section 27(2) of the DDA and Clause 6.32 of the Code of Practice for the (DDA), which confirms that special provisions apply where a service provider occupies premises under a lease, the terms of which prevent it from making an alteration to the premises. In such circumstances, if the alteration is one that the service provider proposes to make in order to comply with a duty of reasonable adjustment, the Act overrides the terms of the lease so as to entitle the service provider to make the alteration with the consent of its landlord ("the lessor"). In such a case the service provider must first write to the lessor asking for consent to make the alteration. The lessor cannot unreasonably withhold consent but may attach reasonable conditions to the consent'.

See the Code of Practice at www.drc-gb.org


Who is ultimately responsible?

The ascertainment of liability for procuring and executing the removal of identified barriers remain a grey area, particularly with regards common or circulation areas of leased or tenanted buildings.

However, whether the service provider is a tenant or the freehold owner is not relevant, who ever provides the service must be compliant with the (DDA) by 1 October 2004.