Clause 13: discrimination in relation to letting of premises

141.     Disabled people are already protected against some forms of discrimination in relation to premises. The relevant provisions can be found in sections 22 to 24 of the DDA. Under those sections it is unlawful for persons who are selling or letting premises to discriminate against a disabled person in the way they offer to dispose of the premises to the disabled person, by refusing to offer to dispose of the premises to the disabled person, or in their treatment of him in relation to any waiting list for the premises. It is further unlawful for persons who manage premises to discriminate against a disabled person occupying the premises in the way they permit the disabled person to use any benefits or facilities, or by evicting the disabled person or subjecting him to any other detriment. Provision is also made prohibiting discrimination where people withhold their licence or consent for the disposal of premises to a disabled person.

142.     Clause 13 inserts new sections 24A to 24L into Part 3 of the DDA. These make it unlawful for landlords and managers, in relation to premises they wish to let or that are let, to discriminate against a disabled tenant or prospective tenant by failing without justification to comply with a duty to provide a reasonable adjustment for the disabled person. As with other Part 3 provisions, a victim of discrimination contrary to new sections 24A to 24L will be able to bring enforcement proceedings in a county or sheriff court under section 25 of the DDA. See also new section 24M (premises provisions do not apply where other provisions operate) inserted by paragraph 20 of Schedule 1, discussed below in the notes relating to the Schedule, and clause 16 (improvements to let dwelling houses).

143.     The letting of commercial and residential premises in the United Kingdom is covered. "Letting" is defined widely to include sub-letting - and the granting of contractual licences to occupy premises, i.e. where the legal relationship created is not one of landlord and tenant. (See new sections 24A(4) and 24G(4)).

144.     The new provisions would require a landlord or manager to take reasonable steps to change a policy, practice or procedure which makes it impossible or unreasonably difficult for—

• a disabled person to take a letting of the premises, or

• (where there is a letting already in existence) a disabled tenant - or other disabled person lawfully occupying the premises - to enjoy the premises or use a benefit or facility conferred with the lease,

so that the policy, practice or procedure concerned no longer has that effect (see new sections 24D and 24J(3) and (4)).

For example, a landlord or manager may be obliged (where it was reasonable to do so)—

• to allow a tenant who has mobility difficulties to leave his rubbish in another place if he cannot access the designated place;

• to allow an occupier who uses a wheelchair to use an existing accessible entrance at the back of a block of flats even though other tenants cannot use it.

145.     The provisions would also require a landlord or manager to take reasonable steps to provide an auxiliary aid or service where that would either—

• enable or facilitate a disabled person's enjoyment of the premises or use of any benefit or facility conferred with the letting; or

• (as the case may be) enable or make it easier for a disabled person to take a letting of the premises.

146.     The duty would apply if, were the auxiliary aid or service not provided, it would be impossible or unreasonably difficult for a disabled person or occupier to enjoy the premises, to make use of any benefit or facility they were entitled to use or (as the case may be) to take a letting.

147.     For example, a landlord or manager may need to put correspondence in large print for a visually impaired tenant or provide a clip-on receiver (which vibrates when the door bell rings) for a tenant who has a hearing impairment. However the landlord/manager would not have to provide an auxiliary aid or service unless it was needed specifically in connection with the premises concerned. So, he would not, for instance, be obliged to provide a wheelchair for a tenant who had difficulty in walking: the tenant would need this for general purposes, and not just moving around the flat or house let to him by the landlord. (See new sections 24C and 24J(1) and (2).)

148.      These duties would not require the making of any alteration to the physical features of premises by a landlord or manager (see new sections 24E(1) and 24J(5)). However they may place a controller of premises, in an appropriate case, under a duty to change or waive a term of the letting which prohibits any alterations to the premises, to the extent necessary to allow a tenant, with the consent of the landlord ⁶, to make (at his own expense and subject to reasonable conditions including conditions as to reinstatement) alterations needed by reason of the disabled occupier's disability.

⁶ Where a term in the letting permits alterations with the landlord's consent, a requirement that consent is not to be unreasonably withheld would normally be read into that revised term even if not specifically provided for. This is because section 19(2) of the Landlord and Tenant Act 1927 provides that a condition in a lease or tenancy agreement forbidding a tenant from carrying out improvements to the premises without the landlord's consent is to be read as one saying that such consent is not to be unreasonably withheld.

149.     If the terms of the letting are modified to permit an alteration with the landlord's consent, then the provisions of new section 49G (inserted by clause 16) would apply. Clause 16 makes procedural and evidential provision as to the withholding of consent to disability-related "improvements" by a landlord, and also provides for the Disability Rights Commission to issue a code of practice and provide conciliation services and support in disputes.

150.     The Government intends to make regulations setting out the circumstances in which it is reasonable for a landlord to have to modify or waive a term in a lease prohibiting the making of alterations to a let dwelling house, where that term makes it impossible or unreasonably difficult for a disabled person to enjoy the premises. The exemptions to the duty of reasonable adjustment described below, i.e. the exemptions for small dwellings and the landlord's principal or only home, would operate.

151.     A landlord or manager would not have to take any steps under the new provisions unless requested to do so by the tenant or prospective tenant (see new sections 24C(1), 24D(1) and (2) and 24J(1) and (3)).

152.     The provisions do not apply to premises which are, or have been at any time, the principal or only home of the landlord or manager (see new sections 24B(1) and 24H(1)).

153.     These provisions also do not apply to a landlord or manager who lives on the premises where there is not normally residential accommodation on the premises for more than six persons, or the premises do not contain residential accommodation for more than two other households besides that occupied by the landlord or manager and members of his household. This is the exemption currently provided in section 23 of the DDA (see new sections 24B(3) and (4), and 24H(3) and (4)). However, the exemption can be limited or ended under clause 14 of the Bill.

154.     In limited circumstances, a landlord or manager may justify less favourable treatment or a failure to take reasonable steps: see new section 24K. Where he or she can do so, no unlawful discrimination occurs. Section 24K(3) would allow the Secretary of State in regulations to amend, add to or remove the conditions under which a person's failure to comply with a reasonable adjustment duty can be justified.

155.     New section 24F makes special provision where a landlord or manager has incurred costs in taking steps under the new duties in the case of a disabled person lawfully occupying the premises but who is not the tenant (for example, a disabled child of the tenant). This new section makes it unlawful for the landlord/manager to victimise that tenant (whether or not he is disabled) by, for instance, evicting him or increasing the rent. (Section 22 of the DDA, read with section 55, would make it unlawful for a landlord to evict a disabled tenant because the latter asked for a reasonable adjustment to be made on account of his own disability or to evict any tenant, whether or not disabled, solely because the tenant asked for a reasonable adjustment to be made for the benefit of a disabled person who lawfully occupies the premises but is not a tenant.)

156.     New section 24L(1) confers power on the Secretary of State to make supplementary provisions by regulations, for example to prescribe what steps it is reasonable for a landlord to have to take, or as to what constitutes an auxiliary aid or physical feature.

157.     New section 24L(2) makes it clear that the regulations made under subsection (1)(a) can provide for a commonhold unit to be treated as let to a person where that person is a unit-holder.

158.     It would be contrary to sections 22 to 24 of the DDA for a landlord/manager to single out for increase any one tenant's rent or service charge in order to pay for the cost of steps taken under the new provisions inserted by clause 13: see the amendments made to section 24 by paragraph 19 of Schedule 1 to the Bill (and the notes on that provision below). The landlord may make an "across the board" increase to all his tenants (including the disabled tenant) to cover costs.

Clause 14: Power to modify or end small dwellings exemption

159.     Clause 14 confers a power on the Secretary of State to amend, by order, the exemption for small dwellings for the purpose of: adding to the conditions for entitlement to the exemptions provided for in sections 23, 24B and 24H; making any of the conditions for entitlement to those exemptions more onerous; making the conditions for entitlement to those exemptions more onerous overall; otherwise restricting the cases in which any of those exemptions is available; or removing those exemptions.

160.     The small dwellings exemption is set out in section 23 and new section 24B(3) and (4) and new section 24H(3) and (4) of the DDA (as inserted by clause 13). Broadly speaking, the exemption applies where the landlord or manager shares living accommodation with those not of his own household and either the landlord or manager lets out accommodation in the premises to not more than two other households, or there is not normally residential accommodation on the premises for more than six persons in addition to the landlord or manager and members of his household.

161.     Where the exemption applies, the provisions of section 22 and new sections 24A and 24G of the DDA do not apply.

162.     Any order to modify or end any of those exemptions relating to small dwellings is subject to the affirmative resolution procedure, i.e. the order must be laid in draft before, and approved by a resolution of, each House of Parliament.

Clause 15: General qualifications bodies

163.     Clause 15 inserts a new Chapter 2A (sections 31AA to 31AF) into Part 4 of the DDA. These provisions prohibit unlawful discrimination against disabled persons by general qualifications bodies, in relation to the award of relevant qualifications. The prohibitions imposed here reflect, to a large extent, those imposed under sections 14A and 14B of the DDA on qualifications bodies which award trade or professional qualifications. Sections 14A and 14B of the DDA were inserted into Part 2 of that Act by the Amendment Regulations.

164.     A "relevant qualification" is one to be prescribed in regulations made by the Secretary of State under new section 31AA(4). It is intended that this power will be used to prescribe qualifications such as A levels, GCSEs and other non-vocational qualifications and their equivalents in Scotland and Wales. But something that is a "trade or professional qualification" within the meaning of section 14A cannot become a relevant qualification (see section 31AA(5)).

165.     Under new section 31AA(6)(a) a "general qualifications body" is any authority or body which can confer a relevant qualification. But this does not include responsible bodies within the meaning of Chapters 1 and 2 of the DDA (e.g. schools), local education authorities in England or Wales, Scottish education authorities, or such authorities or bodies as may be prescribed in regulations to be made by the Secretary of State under subsection (6)(a)(iv).

166.     New sections 31AB and 31AC define what is meant by unlawful discrimination in this context and what is meant by unlawful harassment. The definitions mirror those which apply for the purposes of Part 2 of the Act in relation to qualifications bodies which confer trade or professional qualifications, by virtue of sections 14A and 14B of the DDA. Therefore, in like manner to sections 14A and 14B of the DDA, if the application of a competence standard by a general qualifications body amounts to less favourable treatment it may only be justified if the standard is applied equally to all persons and its application is a proportionate means of achieving a legitimate aim. A competence standard is any academic, medical or other standard applied by a qualifications body in order to determine whether a person has a particular level of competence or ability.

167.     New section 31AD requires general qualifications bodies in certain circumstances to make reasonable adjustments where disabled persons suffer substantial disadvantage in comparison with others. There is no duty to make reasonable adjustments in relation to competence standards, but the duty is imposed where general qualifications bodies apply provisions, criteria or practices to disabled persons. It also applies in relation to the physical features of premises occupied by general qualifications bodies. This would mean, for example, that a general qualifications body would need to modify arrangements for disabled persons when they sit examinations in premises provided by the body, for example by ensuring there is appropriate ramp access for candidates who use wheelchairs.

168.     New section 31AD(6) enables the Secretary of State to make regulations to further define, clarify and elaborate on the detailed ambit of the duty to make reasonable adjustments, by, for example, specifying what is meant by a provision, criterion, practice or physical feature, or specifying when any of those things is (or is not) to be taken to have a particular effect.

169.     New section 31AE provides powers to make provision with respect to enforcement matters. There is power to set out how a disabled person may enforce a claim of unlawful discrimination under new Chapter 2A. For example, the regulations could specify the enforcement mechanisms (i.e. the court/tribunal), the remedies and procedural matters, such as time limits and admissibility of evidence, which apply. It is intended that much of the detail which is currently contained in Schedule 3 to the DDA would be set down in these regulations with appropriate amendments and modifications.

170.     New section 31AE(2) and (7) provide power to make provision in regulations about the cases where leasehold premises are occupied by qualifications bodies and how the reasonable adjustment duty impacts in this context. The aim is to mirror section 18A of the DDA and much of the detail contained in Schedule 4 to that Act but with appropriate modifications as required.

171.     New section 31AE(3) mirrors, in large measure, provisions which are to be found elsewhere in the DDA (see for example paragraph 1 of Schedule 3A to the DDA and section 28P of the DDA). The aim is to prevent any contract or agreement from seeking to oust, limit or contravene the substance of Chapter 2A. Section 31AE(4) provides power to make regulations to elaborate, clarify and modify the operation of subsection (3) in this context.

172.     Before making regulations under the new Chapter 2A, the Secretary of State must consult the Scottish Ministers, the National Assembly for Wales and such other persons as appear to him to be appropriate (see new section 31AF).

Clause 16: Improvements to let dwelling houses

173.     Clause 16 extends only to England and Wales. Subsection (1) inserts a new Part 5B (Improvements to let dwelling houses) into the DDA. New section 49G of the DDA makes new procedural and evidential provision with regard to consent to improvements to let dwelling houses. A 'dwelling house' is a broad term with an established legal meaning as premises (which could be a house, a part of a house, or a flat) which are suitable for all the major activities of life. New section 49G applies to all leases of residential property other than those which concern a protected tenancy, a statutory tenancy or a secure tenancy (to which similar rights already apply by virtue of the Housing Acts 1980 and 1985). It applies where a lease or tenancy agreement provides that a tenant may make improvements to the premises with the landlord's consent. Where the lease prohibits the making of improvements absolutely, the tenant could seek a reasonable adjustment of the terms of the letting under new sections 24A to 24E (inserted by clause 13) where those terms have the effect of making it impossible or unreasonably difficult for the disabled person to enjoy the premises.

174.     New section 49G(2) to (6) set out a number of new procedural and evidential rights which apply where—

• a disabled person is tenant or lawful occupier of the premises,

• the dwelling house is their only or principal home,

• the tenant is entitled under the lease to make improvements to the premises with the consent of the landlord,

• the tenant applies to the landlord to make a 'relevant improvement', and

• the lease does not already provide for those rights.

By subsection (7), an improvement is a relevant improvement if, having regard to the disabled person's disability, it is likely to facilitate his enjoyment of the rented premises (for example, a grab rail or a walk-in shower). 'Improvement' is defined in subsection (9), using similar terms to those used in the Housing Acts 1980 and 1985.

175.     New section 49H of the DDA makes provision for the Disability Rights Commission ("DRC") to make arrangements to provide conciliation services in relation to a dispute of any description concerning the question whether it is reasonable for a landlord to withhold his consent to making of a relevant improvement to a dwelling house. Therefore, conciliation services may be provided where any question arises as to the unreasonable withholding of consent to a relevant improvement, whatever the legal basis for the dispute. For example, it could be an improvement dispute under the express terms of the lease or any dispute arising from the application of the following provisions: section 19(2) of the Landlord and Tenant Act 1927; sections 81 to 85 of the Housing Act 1980; sections 97 to 99 of the Housing Act 1985; or new section 49G of the DDA. Disputes under the new premises provisions (sections 24A to 24L) as inserted by clause 13 may be conciliated by virtue of existing section 28 (conciliation of disputes) of the DDA.

176.     Clause 16(2) amends section 53A of the DDA to enable the DRC to issue codes of practice giving practical guidance to landlords and tenants with regard to consent to the making of relevant adjustments (including the application of the other legislation listed in new section 53A(1E) concerning tenants' improvements) and circumstances in which a landlord's refusal of consent to an improvement is unreasonable.

177.     Section 53A is also further amended by paragraph 28 of Schedule 1 so that a court must take account of any provision of the code of practice which appears relevant in any proceedings relating to a relevant improvement, for example in proceedings under section 53 of the Landlord and Tenant Act 1954 which gives a county court, concurrently with the High Court, jurisdiction to make a declaration as to whether a landlord has unreasonably withheld consent to the making of an improvement (even where the tenant seeks no other relief in the proceedings). See also section 86 of the Housing Act 1980 and section 110 of the Housing Act 1985 concerning a county court's power to make a declaration in cases about improvements to premises let under a protected, statutory or secure tenancy.

178.     Clause 16(3) amends section 7 of the Disability Rights Commission Act 1999 (provision of assistance in relation to proceedings) to enable the DRC to provide assistance to a tenant or lawful occupier in any proceedings relating to the making of a relevant improvement to a let dwelling house.

Clause 17: Generalisation of section 56 of the 1995 Act in relation to Part 3 claims

179.     Clause 17 replaces existing section 56 of the DDA. That section currently sets out a framework for a questions and reply procedure which may be used by complainants, prospective or otherwise, in deciding whether to bring a claim or in bringing claims under Part 2 of the DDA. The new section extends that framework so that it will also apply to claims brought or to be brought under Part 3 of the DDA as amended. The current prescribed forms (both the questionnaire and reply) are set out in S.I. 2004/1168.

Clause 18: Meaning of "disability"

180.     Section 1 of the DDA defines a person as having a disability for the purposes of the DDA where he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. This definition is supplemented by Schedule 1 to the DDA, which elaborates on, and sets out other, circumstances in which a person is to be treated as disabled and therefore as meeting the definition in section 1. In particular, in Schedule 1 to the DDA: paragraph 1(1) deals with mental impairments; paragraph 2 defines a long-term effect for the purposes of section 1 and modifies that definition in certain circumstances; paragraph 7(5) deals with persons deemed to be disabled; and paragraph 8 provides that a person with a progressive condition such as HIV infection, multiple sclerosis (MS) or cancer is to be treated as disabled where the impairment has an effect on his ability to carry out normal day-to-day activities, even where it is less than substantial, provided that the effects are likely to become substantial in the future. All four of these supplementary provisions are affected by clause 18.

181.     Clause 18(2) removes the requirement in paragraph 1(1) of Schedule 1 to the DDA that a mental illness must be "clinically well-recognised" before it can amount to a mental impairment for the purposes of section 1. The removal of this requirement does not affect the need for people with a mental illness to demonstrate that they have an impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities.

182.     Clause 18(3) inserts a new sub-paragraph (2A) into paragraph 2 of Schedule 1 to the DDA and modifies the definition of 'long-term' as set out in that paragraph. Paragraph 2(1) provides that the effect of an impairment is long term if it lasts or is likely to last for at least 12 months, or is likely to last for the rest of the affected person's life. Paragraph 2(2) makes special provision for impairments which have intermittent or recurring effects which do not satisfy the requirement in paragraph 2(1). It provides that an impairment which ceases to have a substantial effect on normal day-to-day activities is nevertheless to be treated as continuing to have such an effect where the effect is likely to recur.

183.     Sub-paragraph (2A) provides for an effect to be treated as likely to recur in certain cases where a person's impairment is depression.

184.     Clause 18(4) inserts a new paragraph 6A into Schedule 1 to the DDA. New paragraph 6A(1) deems people with HIV, cancer or MS to be disabled before they experience any of the effects described in section 1 of, or paragraph 8 of Schedule 1 to, the DDA. New paragraph 6A(2) and (3) enable the Secretary of State to make regulations excluding persons who have cancer of a prescribed description from the provisions of sub-paragraph (1). This power could be exercised, for example, to exclude those types of cancer which do not require substantial treatment. Any regulations made under this power are subject to the affirmative resolution procedure: see the new section 67(4)(h) inserted by paragraph 33(5) of Schedule 1 to the Bill.

185.     Paragraph 7(5) of Schedule 1 to the DDA contains a power to deem a person to have a disability in prescribed circumstances and hence to be a disabled person for the purposes of the DDA ⁷. New paragraph 7(5A) is inserted into Schedule 1 to the DDA by clause 18(5) in order to make it clear that there are no implied limitations on the power in paragraph 7(5) of that Schedule. Regulations made under paragraph 7(5) will then be able to deem any group of people to be disabled, even a group covered in some way by another provision of Schedule 1 to the DDA (such as persons with a progressive condition (other than MS, HIV infection or cancer) or persons who will, for some other reason, not be protected by either section 1 of, or Schedule 1 to, the DDA).

⁷ Regulations have been made under this power: see the Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003 (S.I. 2003/712).

186.     Clause 18(6) inserts a new paragraph 9 into Schedule 1 to the DDA to define HIV infection in recognition of the fact that there are two strains of the Human Immunodeficiency Virus recognised as capable of causing AIDS in human beings.

Clause 20: Short title, interpretation, commencement and extent

187.     By subsection (7), the Bill generally does not extend to Northern Ireland. This is despite the fact that the DDA, as originally enacted, extends to Northern Ireland as well - but with the modifications referred to in Schedule 8. The reason for this discrepancy, as explained in the note on territorial extent above, is that discrimination is now a transferred matter under the Northern Ireland Act 1998.

188.     The blue badge provisions (as defined in subsection (9)) and clause 16 (improvements to let dwelling houses) do not extend to Scotland: see subsections (8) and (9). The regulation of parking permits for disabled persons falls within the legislative competence of the Scottish Parliament. The Scottish Executive is considering what steps to take regarding the making of disability-related improvements.