Counting the Cost of Access - The Provisions of the Disability Discrimination Act

As many retailers and businesses gear up to ensure they comply with the access implications of the Disability Discrimination Act ("DDA"), which came into force on 1 October 2004, there are inevitably those who have yet to take the necessary steps.  Whilst the DDA is not primarily concerned with property, the fact that it will be unlawful to discriminate against disabled persons has implications for most commercial property owners and occupiers.

For the majority of the DDA’s life to date, there has been a duty on a “provider of services” to ensure reasonable steps are taken to make its services accessible to disabled people.  This does not necessarily mean that changes need to be made to premises. What is required is “reasonable adjustment” to ensure that people with a disability are not prejudiced in buying goods and services from a particular organisation.  This can usually be dealt with in the way you conduct your business rather than making physical changes to a building.

However, the new duty requires service providers to take “all reasonable steps” to “remove a physical barrier, which may make it difficult for a disabled person to access a service”. If you have not yet done so, it is vital that you seek advice to see if your premises are affected.

Responsibility under the DDA falls on “occupiers” as opposed to the owners of a building.  Accordingly, where a building is subject to a Lease, it is the Tenant as opposed to the Landlord who must ensure compliance.

The duties under the DDA leave much open for negotiation between Landlords and Tenants before a lease is granted.  Depending on the bargaining position, the Tenant may seek to place the cost of his compliance on to the Landlord to ensure that adequate works are undertaken by him prior to entering into a formal lease. 

Alternatively, a Tenant might negotiate a lengthy rent-free period prior to entering into a lease, where his business requires extensive changes to a property.

Where it is not possible to ascertain responsibility, it is important to note that a Tenant cannot argue that he is prevented from complying by the terms of a particular lease.  The DDA contains specific provisions, which override any restrictions on alterations in a lease. Landlords cannot withhold consent for works unreasonably and must allow a Tenant to effect works to ensure compliance.

In a multi-let building, with more than one occupier, there are likely to be common areas, which may be used by disabled employees or customers.  The DDA does not expressly deal with such areas. Responsibility to ensure that such areas are accessible by disabled persons (if needed) will usually fall on the landlord, but remain recoverable from the tenants under service charge provisions.

Tenants should ensure that the costs of any such service charges are allocated fairly between the occupiers of the building who require disabled access to their services and those that don’t.

Article First Published: 1 May 2004

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