Confusion over Disability Discrimination Act as lawyer highlights potential loophole

A partner at international law firm CMS Cameron McKenna has warned that the Disability Discrimination Act may have a loophole that needs to be clarified urgently.

The Act states that from 2004, service providers will owe a duty to disabled people to take 'reasonable' steps to remove the physical barriers to access to buildings. The Act contains provisions that deal with alterations required to service providers' premises where they are occupied under a lease. However, it is not clear how these provisions will apply in respect of alterations required to 'common parts' in multi-let buildings.

Mark Heighton of CMS Cameron McKenna's Property group, says "It appears that a landlord may not be under a duty to carry out alterations to common parts, and that the provisions requiring them to act reasonably in giving consent to alterations to be carried out by the tenant do not apply to common parts. It's also not clear whether a tenant has complied with its duty under the Act if it has asked for, but been refused, consent to make such alterations. It's possible that this is a loophole in the Act."

The key issues are:

• The Act only imposes the duty on a 'service provider'. A 'service provider' is someone who provides goods or facilities to the public. It is unclear whether this would include a landlord. Early indications from Government helplines suggest that a landlord is not a service provider. However, there may be an argument that in some cases a landlord is a 'service provider' e.g. a landlord of a shopping centre that has public toilets and baby changing facilities.
• It may be that the feature preventing disabled access to a service is in common parts and not the premises occupied under the lease by the service provider - for example, an entrance to an office block that is too narrow for wheelchairs. A diligent landlord would take steps to rectify such a situation, but if the landlord is not considered to be a 'service provider' they are not under any duty under the Act to take 'reasonable steps' to remove any physical barrier to access in the common parts.
• If there is no such duty on the landlord to take action, a tenant may nevertheless be under an obligation to take 'reasonable' steps to remove the barrier to access. For example, a retailer in a shopping centre is a service provider, and if a narrow doorway in the common parts is a barrier to access to their shop they are under an obligation to take reasonable steps to deal with this.
• If a tenant is refused permission to make alterations by the landlord, it could be argued that they have taken 'reasonable' steps to remove physical barriers to access and are therefore not in breach of their obligations under the Act. If the landlord argued that it was under no obligation to give consent or to carry out the alterations itself, this could mean that neither was liable for the failure to make the alterations.

Mark Heighton comments, "Given this sort of confusion, it will be difficult for tenants and landlords to fully assess their potential liability under the Act, and evaluate what needs to be done to comply with the introduction of this duty in 2004. It is likely that there will be some case law before 2004 relating to the employee protection provisions that are already in force that will give some guidance on the issue, particularly with the launch of the Disability Rights Commission, which will be able to assist disabled people in any legal proceedings."

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Notes to Editors

CMS Cameron McKenna is a full service UK and international law firm advising businesses, financial institutions, public sector bodies and governments throughout the world. With over 180 partners and some 800 fee earners, the firm is top ten in Europe and is one of the largest firms in Central & Eastern Europe through offices in Warsaw, Budapest, Prague, Moscow, Almaty and Tashkent. In Asia the firm has offices in Hong Kong and Beijing and an associated office in Singapore. The firm's North American affiliate, based in Washington DC, specialises in energy and utilities work and has an exclusive alliance with Canadian specialist energy firm Power Budd LLP, based in Toronto. Further details on the firm can be accessed at www.cmck.com

CMS Cameron McKenna is a founding partner of CMS, a transnational legal services organisation. CMS provides integrated legal services across national boundaries and came into effect on 1 July 1999. It has 1400 lawyers and a total staff of 3000 based in 32 offices in 19 jurisdictions, with a combined revenue of 250m Euros. The firms involved are CMS Cameron McKenna, CMS Derks Star Busmann Hanotiau (The Netherlands and Belgium), CMS Hasche Sigle Eschenlohr Peltzer (Germany), CMS Strommer Reich-Rohrwig Karasek Hainz (Austria) and CMS Tisell (Sweden). Further details on CMS can be accessed at www.cmslegal.com

CMS Cameron McKenna's quality and strength has been recognised in a number of recent industry awards: Law Firm of the Year 1998 (Legal Business Awards); Best Large Law Firm 1998 (The Lawyer/HIFAL Awards); British Consultancy of the Year 1998 and British Consultancy of the Year 1999 (The British Consultants Bureau Awards) and Energy Team of the Year 1997 (Legal Business Awards).

For further information, please contact:

Mark Heighton/Angela Watts, CMS Cameron McKenna
Tel: 0171 367 3000
Leigh Cook, GCI Group
Tel: 0171 349 5018