Building Regulations and the Disability Discrimination Act – Meeting the Needs.

There are about 10 million disabled people living in the UK – all of whom have money to spend and many whom are in full or part time employment. The Disability Discrimination Act (DDA) requires any organisation that provides a service to ensure that it is accessible to people with disabilities. With disabled people estimated at spending around £50 billion per year, it is in the interest of all service providers to make their services available to disabled customers. Part 3 of the DDA came into effect last year and extended its measures to all employers irrespective of the size of their business. With legislation now affecting almost every business in one way or another, how can an organisation ensure that it does not discriminate? If a business is considering refurbishments or moving premises, how does it prevent its budget being drained by unnecessary modifications? What are the legal ramifications if a business does not meet the statutory requirements? David Kirby of Concept UK explores the options and suggests solutions that could help you to avoid discrimination and costly litigation.

The Disability Discrimination Act (DDA) was passed in 1995. It introduced measures aimed at ending the discrimination that many disabled people faced. It gave them new rights as to how they could expect to use services and facilities and encompassed a wide range of disabilities including people with sensory impairment, mobility problems, wheelchair users, as well as mental illness. The DDA has been introduced in three stages, the last of which (Part 3) came into effect in October 2004. Part 3 requires service providers to ensure that their premises are accessible to people of all disabilities by making “reasonable adjustments” to their building’s physical features. This means that your building should not contain any physical barriers that make it ‘unreasonably’ difficult for a disabled person to access it use your service.

But what is a physical feature? The list is long, but here are jut a few examples: steps, stairways, signs, entrances, exits, kerbs, floors, doors, gates, toilets, washing facilities, lighting, ventilation, counters, service desks, lifts and escalators.

With all these features to consider, it is not surprising that many service providers and employers are daunted by the prospect of technically complying with the objectives of the DDA. Companies are immediately alarmed by the cost implications and concerned that the design and aesthetics of their building will be compromised. This is not unreasonable. There is more and more evidence to show that office design is related to job satisfaction, retention and recruitment. However, there is no need to panic. The law does not expect businesses and organisations to modify all the features listed above. By using the word “reasonable” in its terminology it allows for different solutions in different situations. With careful consideration modifications and features can be included that are sympathetic to the design and branding of your premises. But before we look at the situations and solutions, let us take a look at the consequences of discrimination under the DDA.

Under the DDA anyone who feels that they have been discriminated against when attempting to access a service can claim discrimination. Consequently action can be taken via a County Court and can result in a magistrate’s fine and a requirement to alter the feature/activity concerned. There is also the costly matter of adverse publicity to throw into the equation.

When you consider the time, cost and bad PR involved in claims of this kind, it makes sense to adopt good practice and comply with the duties and requirements of the DDA where possible.

Service providers and employers are asked to make “reasonable adjustments” to the physical features of their premises. This means you should anticipate a disabled person’s needs and consider whether any aspect of your service is unreasonably difficult to access.

The Code of Practice says that what is ‘reasonable’ can vary according to:

• The type of services being provided
• The nature of the service provider, its size and resources
• The effect of the disability on the individual

In the end this comes down to what steps you have taken to ensure you do not discriminate. There are numerous design features that should be implemented for a building to be technically compliant. The list caters for all disabilities and is extensive. Here are just a few examples: making sure the reception desk can accommodate a wheelchair, lowering sinks to 850mm, ensuring there is a differentiation between the colour of the floor, walls, doors and doorframes and placing power outlets at an accessible height. Before the pound signs start flashing before your eyes, panic not; the law recognises that for many businesses applying all the requirements is too cost prohibitive. So how does a business ensure that it has acted ‘reasonably’ in the eyes of the law?

Your first step should be to have an Access Audit conducted. If you are planning on remaining in your existing business premises an Access Audit will identify all the areas where you are likely to be discriminating against the disabled. This includes all aspects of your service provision, such as how disabled people are addressed as part of your management policies and procedures. Integral to the Audit is a physical assessment of your premises to identify accessibility deficiencies under the current technical guidelines. An Audit can vary from a simple ‘walk and talk’ audit, through to detailed surveys, staff and customer interviews and consultation with access groups.

The results of the Access Audit will allow you to assess the best and most cost effective way forward in improving accessibility. Should a claim be made against you, a court will take into consideration how practical the solution required was, how much money was available and how much had already been spent on improving accessibility. Whilst an Access Audit is not a legal requirement, defending a claim of discrimination can be far easier if one has been carried out. It shows that either the necessary alterations to the

physical environment and management procedures have taken place, or that your company has a clear strategy to address the accessibility issues raised in the audit. It may be that you cannot comply completely, but it will show that you have done everything within the restrictions of your building and budget that you can.

If you are considering any refurbishment works or looking for new business premises then it is advisable to have an Access Audit conducted prior to signing the purchasing or letting agreement, or before any work is carried out. The Audit will highlight any accessibility issues and give you an opportunity to consider the modifications required in light of your budget. It can be a costly mistake to move into a building only to find out that it is not suitable or you cannot afford to make the necessary modifications.

Compliance to the statutory requirements is not always going to be possible. Once you have decided on the modifications you are going to put in place you will need to get an Access Statement produced. This should be written prior to any building work taking place. It will testify that any proposed building works comply with the technical requirements of Part M (Access To and Use of Buildings) of the Buildings Regulations. It also means that where compliance is not possible, you have written justification for any deviations away from the technical guidelines, as well as written proposals for how you intend to compensate for the environment that does not comply. For example, in an office block with floor to ceiling windows and glass partitions it is impossible to place power outlets and switches at the required level of between 400mm and 1200mm above the floor. Outlets set into the floor or the skirting board are the only real option here, but it may be possible to provide strategic outlets at the specified height on a number of supporting posts or pillars.

The Access Statement provides evidence that you have identified potential issues regarding accessibility. It also shows that proper consideration has been given to the provision for disabled people using the building. This paperwork justifies the buildings access arrangements and is vital should any claims of discrimination be brought under the DDA.

The Disability Discrimination Act was put in place to give people with disabilities the right to access all the services available to able-bodied people. They were not established to provide unnecessary complications or cost, and as such the terminology used gives provision for an organisation to be considered on a case-by-case basis. Service providers and employers do however have new responsibilities as a result of the DDA and failure to bear in mind accessibility issues for disabled people carries heavy penalties. Whether you are considering refurbishments, moving premises, or simply staying put, an Access Audit will highlight those areas where you are currently deficient with regards to accessibility. Whilst you may not be expected to comply with all the requirements, the results of the audit will allow you to prioritise the changes that can be made and put in place a strategy for ensuring your business does not discriminate unnecessarily. With workplace environments a priority in employees’ minds it is also important that any modifications made do not compromise on the design of your premises or the comfort of your employees.

For more information on DDA compliance and office design, contact us