How is disability defined?
There are many misconceptions about what constitutes a disability and the definition set out in recent legislation is not widely known:
Under the Equality Act 2010, a person has a disability if:
- they have a physical or mental impairment, and
- the impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.
The Equality Act 2010 also says the effect of an impairment is long-term if:
- it has lasted for at least 12 months;
- it is likely to last for at least 12 months; or
- it is likely to last for the rest of the life of the person affected.
Other circumstances and conditions within the Equality Act 2010 may affect whether a person is defined as disabled. If after considering the above, a member of the Leaseholder Association (LA) is in any doubt they could contact the LA or another appropriate provider for specific advice.
What might the lease say about disability adaptations?
It is uncommon for a lease to include terms that allow a leaseholder to make adaptations to their property or the common parts of the block or grounds due to disability. A lease may include a covenant that tries to prevent all alterations or adaptations but as mentioned above iit will more commonly contain wording such as ‘not to make alterations without the landlord’s consent, such consent not to be unreasonably withheld’.
Many leases only allow for repair, renewal and refurbishment, if the terms do not allow for improvements or adaptations, this could represent a significant problem for a leaseholder or resident who is or becomes disabled, even if the landlord was prepared to consent and if the alteration improved the property. The main reason for this is that other leaseholders could object to the proposed alterations and ask the landlord to enforce the covenant in the lease.
What does housing legislation say about improvements and disability adaptations?
The Landlord and Tenant Act (LTA) 1927 introduced legislation relating to improvements but does not include specific provisions for disability adaptations.
A lease may include a covenant that tries to prevent all alterations or adaptations but as mentioned above it will more commonly contain wording such as ‘not to make alterations without the landlord’s consent, such consent not to be unreasonably withheld’.
The LTA 1927 states that the landlord’s consent to improvements shall not be unreasonably withheld, but this aspect of the LTA will not apply if the lease does not allow improvements in any circumstances. If the lease states no alterations can be made this could cause some difficulties, particularly for a disabled person, even if the landlord was prepared to consent and if the alteration improved the property. The main reason for this is that other leaseholders could object to the proposed alterations and ask the landlord to enforce the covenant in the lease.
The LTA 1927 allows the landlord to demand a payment from the leaseholder requesting the alteration, for reduction in the value of the property and the leaseholder can be asked to sign an undertaking to reinstate the property at the end of the term of the lease or at the time they transfer their leasehold interest.
An application can be made to a court by either party as to whether the alteration is an improvement, as only improvements are covered by the LTA 1927. The leaseholder can also apply to the court on the grounds that the landlord has unreasonably withheld their consent.
Where a lease does not allow any alterations, the landlord could, under the LTA 1927, withhold consent without needing to establish any reasonable grounds for this decision. It should be noted that the LTA 1927 does not cover proposed improvements or adaptations to the communal parts of leasehold property such as corridors and staircases. The intention of the LTA 1927 was only to cover requests for consent in respect of the leaseholder’s own property.
What disability discrimination legislation is applicable?
The Disability Discrimination Act (DDA) 1995 was legislation that made it unlawful to:
- discriminate against disabled persons in connection with employment;
- discriminate against disabled persons in connection with the provision of goods, facilities and services;
- discriminate against disabled persons in connection with the disposal or management of premises; or
- prevent any unjustified less favourable treatment of anyone defined as disabled by those managing or selling leasehold property.
However, the DDA 1995 did not impose a duty on landlords to make reasonable adjustments to the physical features in the communal areas of the property. The DDA 1995 was amended by the DDA 2005, which introduced the following requirements for let and leasehold premises. Landlords or managers are required to take reasonable steps to:
- change a policy, practice or procedure which makes it impossible or unreasonably difficult for a disabled person to accept a letting, enjoy the premises or use any facility that the lease or tenancy specifies;
- provide auxiliary aids and/or services; and
- change the term of a letting or lease when requested to by a disabled person, or by someone with the authority to act on their behalf.
The explanatory notes to the DDA 2005 gave the following examples:
- A leaseholder who has mobility difficulties should be allowed to leave their refuse in a different place to other residents if they could not easily access the designated place.
- A landlord or manager could be obliged to change or waive the term of a letting, or a lease, which prevented any alterations to demised premises, to allow the leaseholder to make alterations needed due to disability, with the consent of the landlord.
- A landlord or manager could be required to take reasonable steps to provide an auxiliary aid or service in some circumstances. An example could be a visual signal connected to a door-bell for a resident who was hearing impaired.
The Disability Discrimination (Premises) Regulations (DDR) 2006 set out the circumstances in which it is reasonable for a landlord to have to modify or waive a term in a lease that prohibits alterations to the leaseholder’s own property where these alterations would be needed to allow the disabled person to enjoy their property.
Nothing in the DDA 2005 or DDR 2006 required landlords or managers to make any alterations to physical features of the building, which meant that leaseholders could not insist upon any significant alterations to the common parts even if their access was limited without this. As none of the duties under these Acts were anticipatory, a specific request had to made by the disabled person and this is still the case under the Equality Act 2010.
Regulations have determined those features, which are auxiliary aids that, upon request, might need to be adjusted for a disabled tenant or resident as:
- the replacement or provision of any signs or notices;
- the replacement of any taps or door handles;
- the replacement, provision or adaptation of any door-bell or door entry system; and
- changes to the colour of any surface (such as, for example, a wall or door).
What is Disability Equality Duty for social housing providers?
Leaseholders whose properties are managed by Housing Associations (HAs) should note that the DDA 2005 made it unlawful for public authorities, which includes HAs, to discriminate in any of their functions that were not covered by other aspects of the DDA. This means HAs are under a ‘general duty’ to make reasonable adjustments where a function needs to be carried out and, for reasons related to the tenant’s disability, the outcome of any function carried out is very much less favourable to the disabled tenant than it would be to others. Despite this, the Disability Equality Duty does not require HAs or any other landlords to make physical adjustments to the building or grounds.
The general duty which applies to HAs requires that when carrying out their functions they need to have ‘due regard’ to the need to:
- promote equality of opportunity between disabled people and other people;
- eliminate discrimination that is unlawful under the DDA;
- eliminate harassment of disabled people that is related to their disability;
- promote positive attitudes towards disabled people;
- encourage participation by disabled people in public life; and
- take steps to meet disabled peoples’ needs, even if this requires more favourable treatment than that provided to those without disability.
‘Due regard’ means that HAs should recognise the need to promote disability equality in proportion to its relevance. It should be noted that it is the final one of the points above that will give HAs managing leasehold property more responsibility to assist with adaptations.
Consent for improvements
Section 16 of the DDA 2005 applies to let property not covered by previous housing legislation. Its aim was to ensure that where the lease allows improvements with the landlord’s consent, the landlord would not be able to unreasonably withhold consent if the alteration to the property was disability related. These duties are now confirmed in the Equality Act 2010. However, it still appears that the scale of the landlord’s operation would be a relevant factor in deciding whether the landlord could refuse the disability adaptation.
Where a lease prevents all alterations, the leaseholder has to rely upon reasonable adjustment duties under Sections 189 and 190 of the Equality Act 2010 to seek a change in the terms of the lease. Once this change in the relevant term of the lease has been achieved the leaseholder could then make the necessary adaptations to their property. The landlord would retain the right to make conditions relating to the specification for the works and impose conditions in respect of reinstatement of the property.
Leaseholders should be aware that the DDA 2005 allowed the Equality and Human Rights Commission (EHRC) to provide conciliation services to try to resolve any disputes about whether it would be reasonable for the landlord to withhold consent for a disability related adaptation. This conciliation service is provided by Mediation UK on behalf of the EHRC.
What has changed due to the Equality Act 2010?
The aim of the Equality Act 2010 was to replace all previous anti-discrimination legislation with one Act. However, as much of the Act that relates to premises has not been introduced and perhaps never will be, leaseholders are still reliant on the Disability Discrimination Act. In all the following provisions of the Equality Act the term tenants will also mean leaseholders.
Part 4 of the Equality Act would replace provisions in the DDA 2005 which make it unlawful to discriminate against, harass or victimise a person when selling letting or managing residential premises.
Part 13 of the Equality Act would replace provisions in the DDA 2005 to allow tenants with disabilities to seek consent to make a disability related improvement to their homes where the lease requires the landlord’s consent before alterations can be made.
Section 36 of the Equality Act was meant to replace the provisions in the DDA 1995 in relation to reasonable adjustments to premises. Section 36 has not been introduced but it would have brought in a new requirement for disability related alterations to the common parts of residential premises including commonhold premises.
Section 36 of the Equality Act would have enabled a tenant with a disability to request disability related alterations to physical features in the communal areas and sets out a process the landlord or manager would have to follow. This was not intended to be anticipatory and would still require a specific request from the tenant with a disability.
The process would include consultation with those affected, mostly other residents, which would need to be carried out within a reasonable time of the request for alterations. If the landlord or manager consented to the alteration a written agreement would be entered into between the tenant with the disability and the landlord or manager.
Under Schedule 4 to Section 36 of the Equality Act it would be unlawful for the landlord or manager to victimise a tenant with the disability making the request because costs had been incurred. When the alteration or adjustment relates to the common parts the landlord would be able to charge the tenant for all costs of making the alteration. If the tenant did not have the financial means to pay they could apply for a Disabled Facilities Grant, more information regarding this can be found at www.disabilityrightsuk.org
Sections 29 to 31 of the Equality Act impose on a person who provides services, which includes facilities to the public, a duty to make certain ‘reasonable adjustments’ described in Schedule 2 to the Act.
Where a person is obliged to provide services to another person’s employees, those employees may be deemed to be a section of the public. It appears that landlords and managers who provide and control common parts of buildings, which are open to the public will be subject to these duties and it will apply to those landlords or managers who provide services or facilities for use by the employees of the tenants in the building. The duties that are imposed include:
- Adopting reasonable alternative management policies or practices or methods of providing services in order to avoid substantially disadvantaging disabled persons, but without changing the nature of the services.
- Taking reasonable steps in relation to physical features that may substantially disadvantage a disabled person compared with persons who would not be regarded as disabled.
- Taking reasonable steps to provide any auxiliary aid for disabled persons.
Please see the LA information sheet 101 Glossary for a precise explanation of the terms used in this information sheet. Under the present legislation, it is difficult to achieve any significant alterations to the communal areas of leasehold premises even if the access of the disabled person might depend upon this. The LA would therefore advise caution in buying a leasehold property where disability adaptations are not in place in the hope that they will be possible at a later date, particularly in any communal areas or in the grounds.
Members of the LA can be given guidance and practical help if they consider they need adaptations within their own property or in the communal parts or the grounds of their estate due to disability, particularly if it is a retirement scheme. However, no assurance can be given by the LA that the landlord or manager will provide the adaptations requested, if they are not required by statute.
Disclaimer: This is a very general explanation of the subject. Where issues are not governed by statute the information is our opinion or best practice. You are advised to seek professional advice before acting on the guidance contained herein. Whereas The Leaseholder Association endeavours to ensure that published information is correct, it does not warrant its completeness or accuracy. The Leaseholder Association assumes no responsibility or liability for any injury, loss or damage incurred as a result of any use or reliance upon the information and material contained herein.
Info Sheet: 120/2/15 ©Copyright