C O N T E X T 8 4 : M A Y 2 0 0 4 11 people to take advantage of the service provided. The Act suggests as an example of this the provision of information on audiotape or of a sign language interpreter. In each case, the Code provides a number of helpful examples. From October 2004: overcoming barriers created by physical features The second, more taxing, provision, comes into force on 1 October 2004. This provides (in subsection (2)(a)-(c)) that where a physical feature (for example, one arising from the design or construction of a building or the approach or access to premises) makes it impossible or unreasonably difficult for disabled persons to make use of such a service, it is the duty of the provider of that service ‘to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to: • remove that feature • alter it so that it no longer has that effect • provide a reasonable means of avoiding the feature.’ It will be readily appreciated that this is a much more demanding (and potentially expensive) requirement. However, it will also be noted that the duty is still qualified by the requirement to take only such steps as are ‘reasonable, in all the circumstances of the case’. Obvious examples of this are the widening of doors and construction of ramps to enable access to buildings by those in wheelchairs. Again, a number of other examples of complying with this second stage duty are given in the Code. The Code also, rightly, exhorts service providers to adopt an ‘inclusive’ approach, so as to ensure that, as far as possible, all those who benefit from a particular service do so in the same way. It is thus better to widen or otherwise adapt the door into a building so that it can be used by all, rather than construct a separate one that can be used (only) by those who are less mobile. Unlike complying with the first-stage duty, installing a permanent ramp and widening a door will involve expenditure – and may be difficult to achieve satisfactorily if the building is of historic interest. Note that it will not be necessary to do something that alters the very nature of the service being provided (subsection 21(6)) – such as increasing the light levels in a nightclub to facilitate use by the partially sighted. Enforcement It is important to be clear that there is no criminal liability for failure by service providers to comply with duties under the 1995 Act.There is thus no entitlement for a local authority, or the DRC, or anyone else, simply to enforce those duties in the abstract. Instead, a disabled person who claims to have been the subject of discrimination has a right of action to sue the provider in the county court – and may seek damages (among other things, as compensation for injury to feelings). The details are in section 25 of and Part II of Schedule 3 to the Act. It may also be possible to seek an injunction. Clearly, in response to such an action, a service provider would need to show that it had taken ‘such steps as it was reasonable, in all the circumstances of the case, for it to have taken’. What approach the courts will take when such actions are brought remains to be seen. Carrying out works Of course none of this obviates the need for planning permission or (where necessary) listed building consent for any works that seems to be desirable. Indeed, the relevant secondary legislation provides specifically that where consent is required for the carrying out of works that may reasonably be required under the Act, there is no duty to carry out those works before that consent has been obtained.4 Thus, in relation to an application for a faculty to carry out works to Dorchester Abbey, the Chancellor observed: ‘However, although [the requirements of section 21 of the 1995 Act] are binding statutory obligations, they do not oust the faculty jurisdiction. Nothing can be done without first obtaining the authority of a faculty.’ It is here that there may arise a seeming conflict between the provisions of the 1995 Act and the faculty jurisdiction. This is because there may be cases where the value of a particular architectural item sought to be removed in pursuance of the 1995 Act is so great that it nonetheless ought to remain unaltered for posterity; in such a case, the removal or alteration would in itself be unreasonable when seen within the wider context of the national heritage. In those circumstances, it would be the duty of the consistory court to rule that the presumption for its retention outweighs the argument for change based on disability discrimination. Each case, of course, will depend on its individual facts, but the service provider will fulfil his or her obligation to take such steps (under section 21) as are reasonable ‘by pursuing the petition to the court’. It may well be that the same approach will be adopted by planning authorities (and by the Secretary of State on appeal).Thus there is no statutory or other duty on planning authorities to have special regard to disability issues. Compare this with the duty that exists to have special regard to the preservation of historic buildings and areas.5 But it is perhaps wise for them (and for applicants) to reflect on the guidance of the Secretary of State in para 3.28 of PPG 15: ‘It is important in principle that disabled people should have dignified easy access to and within historic buildings. If it is treated as part of an integrated review of access arrangements for all visitors or users, and a flexible and pragmatic approach is taken, it should normally be possible to plan suitable access for disabled people without compromising a building’s special interest. Alternative routes or reorganising the use of spaces may achieve the desired result, without the need for damaging alterations.’ It will be interesting to see how this all works out in practice. References 1 Disability Discrimination Act 1995: Code of Practice: Goods, Facilities, Service and Premises (produced by Disability Rights Commission, under section 53A(1) of the 1995 Act; brought into force on 27th May 2002, by 2002 SI No 720 – available fromTSO, £13.95) – referred to in the remainder of this paper simply as the Code of Practice. 2 Under the Disability Rights Commission Act 1999. (contact details: Disability Rights Commission, 7th Floor, 222 Gray’s Inn Road, London, WC1X 8HL; Tel. 0207289-6111; web-site www.drc.gov.uk). 3 Code of Practice, paragraphs 4.21-22. 4 Disability Discrimination (Providers of Services) (Adjustment of Premises) Regulations 2001 (SI 3253), regulation 3(2). 5 An amendment to the Planning and Compensation Bill currently before Parliament was promoted to deal with this, but without success. Charles Mynors and Alex Booth are barristers in the Chambers of Robin Purchas QC in the Temple. Charles Mynors is author of Listed Buildings, Conservation Areas and Monuments, published by Sweet & Maxwell.
RkJQdWJsaXNoZXIy MjgyMjA=