Building for Equality: Disability and the Built Environment Contents

2Strategic leadership

17.The Government has in place a framework of legislative levers to achieve a more accessible and inclusive built environment. In later chapters we consider how that framework should itself be improved—but even as it currently stands there is more that the Government can, and should, be doing to make better use of those levers and to achieve a real, and significant, impact on removing disabling barriers. One element of this is ensuring that the State leads by example at national and local levels, not least in involving disabled people in decisions affecting the environment in which they live.

Bringing coherence and impact to the legal framework

18.Broadly speaking, accessibility of the built environment is governed by three main areas of law:

a)Firstly, national planning policy and guidance, set out in the National Planning Policy Framework, states that Local Plan policies developed by local planning authorities should “take into account the need to design inclusive developments”,32 including what a local authority needs to do if it wishes to apply the ‘optional’ housing standards in the Building Regulations, for example to require a proportion of new homes to be built to one of those standards. Local planning authorities are then expected to take decisions on individual planning applications in line with these policies. This is explored further in Chapter 3.

b)Secondly, Part M of the Building Regulations provides that “reasonable provision” should be made for people to gain access to and use a building and its facilities.33 For dwellings, the Regulations also set out two ‘optional’ standards: the first of which (M4(2) or ‘category 2’) adds a requirement for provision to meet the needs of “some older or disabled people” and be adaptable to meet future needs; and a second (M4(3) or ‘category 3’), that, if applied, requires a dwelling to be able to be used by, or be adapted for use by, wheelchair users. The Regulations apply to new buildings and some, but not all, changes of use, although the optional housing standards only apply where a local authority takes the necessary steps to introduce planning policy requirements as per Planning Practice Guidance.34

Much more detailed guidance on what the Government deems to be ‘reasonable provision’ or satisfactory under the Building Regulations is given in the ‘Approved Documents’ to Part M, volumes 1 (applicable to dwellings) and 2 (applicable to non-dwellings).35 While not legally binding, these give practical guidance on how the requirements of the Building Regulations could be satisfied and if not followed a developer would have to identify an alternative means of meeting these.

c)Finally, the Equality Act 2010 imposes a range of duties relevant not only to the planning and building control processes, but also to those who use the buildings as employers and service providers. These include duties on public authorities, individual employers, and service providers not to discriminate—including by making reasonable adjustments so that disabled people are not placed at a substantial disadvantage.36

Public authorities, including private companies carrying out ‘public functions’, are also subject to the public sector equality duty (PSED), which requires public bodies and those performing public functions to have due regard to the need to advance equality for, among others, disabled people. More specifically, due regard must be given to “the steps involved in meeting the needs of [disabled persons]”, including “steps to take account of disabled persons’ disabilities.”37

19.This framework may appear at first sight to be fairly straightforward. In practice, however, the situation can be rather more complicated and less robust than this model suggests.

20.The Chartered Institute for Highways and Transport characterised the strategy for achieving inclusive built environments as “weak”, pointing out that there are only two references to disability in the National Planning Policy Framework (NPPF), one relating to transport and one relating to housing.38 The Royal Institute of British Architects (RIBA) argued that the NPPF was “vague” in respect of accessibility and placed undue emphasis on viability of developments.39 Inclusive design is itself only briefly mentioned in the NPPF and, when asked if inaccessible design is by definition poor design, Steve Quartermain, Chief Planner at the Department for Communities and Local Government, told us that “the judgment is for the decision maker at the time”,40 suggesting less clarity than at first appears.

21.The use of Building Regulations, with their associated enforcement mechanisms, to provide for accessible housing standards was welcomed by some of those who gave us evidence,41 but witnesses also argued that the requirements to demonstrate need and viability complicated matters.42

22.Regarding the third limb—the requirements of equalities legislation—evidence was presented to us and to the House of Lords Committee on the Equality Act and Disability that the reasonable adjustments duties were “neither well known nor well understood”,43 and that heavy reliance on individual disabled people bringing legal action to enforce the Equality Act 2010 was both inappropriate and ineffective.44 This has led to proposals to require local authorities to take a more proactive role in enforcing the duties under the Act,45 and for changes to legislation to enable this, such as requiring accessibility as part of licensing regimes,46 a suggestion we return to below.

23. Adding to the complexity, witnesses pointed to other parts of the ‘accessibility jigsaw’:

a)Standards developed by the British Standards Institution, which act as industry Codes of Practice, formed the basis for guidance in the Building Regulations in 2004.47 However, the standards used for the guidance date back to 2001 and have developed further in the intervening years. The Institute is also in the process of developing new standards on accessibility in the external environment and buildings and is working towards guidance on design that better meets the needs of people with neuro-diverse conditions;48

b)Even where local planning authorities had made provision for accessible homes, we received evidence that disabled people often couldn’t find or access such homes due to a lack of a centrally held database. One suggested solution to this was for local authorities to have accessible housing registers;49

c)The means-tested Disabled Facilities Grant was cited by many as a crucial means by which adaptations can be made to existing homes,50 but witnesses also told us of people having to wait a long time for such adaptations to be made;51

d)Although we deliberately did not include transport in the terms of reference for our inquiry, some witnesses cited problems with aspects of the built environment that are the responsibility of transport bodies rather than councils, including some street design and the availability of lifts and toilets in transport infrastructure. The Department of Transport has a role in addressing the availability of Changing Places toilets and concerns about the use of ‘shared space’ principles, as well as publishing national guidance on the design of streets and public spaces.52 That Department is also currently developing an accessibility action plan, which is welcome but also adds a further element to the picture.53

24.This complex jigsaw led the Chartered Institute for Highways and Transport (CIHT) to argue that there was a lack of clarity on how access for disabled people could be delivered “in a complex mix of different organisations with different roles and purposes.”54 The CIHT felt that there was a need to bring together the different parts of the system in a more coherent way:

There should be a clear strategy, set nationally, for collaboration between different policy areas in making inclusive and accessible environments. The strategy must include the entire range of professional inputs so that separate commissioning bodies are clear who should be involved, how they will contribute and how accessible environments can be delivered.55

25.This call for coordination was echoed by Later Life Ambitions,56 and the Royal Town Planning Institute (RTPI) set out the case for greater leadership from the Government:

Really, if I was making an ask of you, it would be this: it is not more tinkering with the planning system we need here; it is for Government to set the tone. It is the use of all the other tools, fiscal and procurement. It is about giving people the capacity.57

26.The Minister of State for Housing and Planning, Gavin Barwell MP, acknowledged that “clearly, this work does cross a number of Government Departments and different ministerial responsibilities”, and as such there may be a need for a cohesive overall plan. He told us that:

in terms of the ability of members of the public to see that work drawn together in one place, there may well be a case for that. There is certainly a lot of work going on. [ … ] Whether there is a case for trying to publish this work in one document so people can see it in one place is something we are happy to reflect on.58

27.Strategic leadership and greater coordination is needed across Government in order to join up the different parts of the jigsaw, including planning, the building regulations, the Equality Act, Disabled Facilities Grants, ways for disabled people to find accessible housing and facilities and the activities of other Government Departments, such as the Department for Transport.

28.We recommend that a cross-departmental strategy be established to bring together all aspects of built environment policy affecting accessibility. The Department for Communities and Local Government (DCLG) should be accountable for this strategy. DCLG should also convene a stakeholder forum of, among others, disabled people, to influence and provide feedback on this strategy annually.

Involvement of disabled people

29.Involvement of disabled people was a cornerstone of the original Disability Equality Duty, and its importance has been highlighted in case law59 and technical guidance on the Public Sector Equality Duty in the 2010 Equality Act.60 It was also cited by many of our witnesses as crucial for attaining a truly inclusive built environment. As the Design Council explained:

Engaging individuals and groups in all stages of a project is indispensable. Without it, there is a continuing risk that we create homes, public buildings and spaces which cannot be used by significant numbers of people.61

30.We heard examples of where involvement had worked well, such as a group in Bradford led by people with dementia who had provided feedback on signage and accessibility, advised on a hospital refurbishment and on planning the local Westfield Shopping Centre,62 as well as Planning Aid, a service run by volunteers from the Royal Town Planning Institute to help people who might otherwise be excluded from the planning system to engage effectively.63 Nevertheless, the predominant message was that disabled people did not feel that they were being effectively involved in local decision-making.

31.This was in part due to the methods used to engage. The Thomas Pocklington Trust felt that more could be done to ensure modes of consultation are inclusive and accessible to all64 and the Chartered Institute of Logistics and Transport in the UK argued that:

it is vital to remember that surveys and other forms of engagement cannot just be done on-street. Many older and disabled people may have lost the confidence to go out into certain areas or streets and unless their views are also sought, bad judgements may be made about what works for a local community. Seeking to engage with what might be determined “displaced” people—those who no longer have the confidence to be out and about—is not easy but can be done through collaboration with social services and voluntary organisations supporting older and disabled people.65

32.The second, and more significant, reason was that many felt that engagement, where it took place, was not meaningful and did not alter outcomes. Gosport Access Group and Disability Forum told us that:

As an access group, we often have engineers and architects come and ‘tell’ us what they are going to do, but they do not actually ask for or take account of our views.66

33.The City of Nottingham’s Disability Involvement Group (DIG) described effective contact with the city council on theatre refurbishment and East Midlands Trains on rail station closures, but reported that on another project it appeared that a decision had been made before they were involved; the group felt that the council had “used our involvement to imply that we had given approval to the scheme.”67 Leicester Disabled People’s Access Group stated that they struggled to interpret plans and felt that they were often involved too late to make any difference, leaving them frustrated and at odds with decision-makers.68

34.Independent Lives, a West Sussex and Hampshire based user-led disability organisation, spoke for many witnesses when it called for involvement to be at the point of design. They argued that:

Meaningful conversations about accessibility can be had if disabled people are consulted and listened to during the design process. By improving the built environment through discussion, there is a possibility for real innovation in regards to accessibility.69

35.Sense gave a practical example of this type of innovation. They had recruited a group of Champions—local people with disabilities and family members—who highlighted issues of accessibility, lighting and acoustics in the design of TouchBase Pears, a community centre where services for people with sensory impairments will be delivered. The Champions were involved from the very start of the process and their input resulted in changes to layout and design.70

36.Engagement with disabled people is happening at the local level, and there is good practice that shows what can be achieved when people are engaged meaningfully. However, all too often engagement is experienced as an afterthought or a mechanistic process with little effect on the outcome. We recommend that best practice guidance is produced by DCLG in partnership with disabled people’s organisations to provide guidance for local authorities and built environment professionals on how and when to involve disabled people in the processes which lead to the creation of built or external environments.

Leading by example

The use of public money

37.Some witnesses argued that the Government should be showing leadership in creating accessible environments through its use of public funds, specifically by applying conditions through procurement processes and grant funding. The project board for the main group working to embed inclusive design into education and training of built environment professionals (the ‘BEPE’ Project) argued for:

Government as client and commissioner of buildings setting an example by embedding a requirement for an inclusive design process into all government funded development projects—making an inclusive design process explicit in the strategic brief at the outset of a project, in the budget and in the procurement process, when any government department commissions built assets, and progressively as existing government-owned building stock is maintained and improved.71

38.The Committee responsible for the British Standards on access to buildings for disabled people (B/559) explained that procurement bodies, including commercial and retail organisations, house builders and housing associations, can choose simply to comply with minimum building regulations. They could, however, choose to adopt more rigorous standards—such as those contained within the British Standards—and to specify compliance with these in contract documentation.72

39.This had been an important part of the approach to delivery of the London 2012 Olympic and Paralympic Games and its legacy programme, which Trudi Elliot of the Royal Town Planning Institute described as “the shining example of inclusive planning and delivery”73. Julie Fleck, an expert in accessibility whose work helped steer planning for the Games, and who now leads the work of the BEPE Project, argued that the Inclusive Design Strategy used by the London Legacy Development Corporation should be a model adopted by the government for all publicly-funded major developments. This would entail addressing accessibility issues in the procurement process, rather than relying solely on the planning and building control process to address accessibility.74

40.This approach was supported by Trudi Elliot of the Royal Town Planning Institute, who told the Committee that it:

was all about proactive planning, and using every tool, planning and non-planning, in the box. If you look at that, one of the biggest sets of tools [ … ] was procurement. By the time an application gets to planning, we have missed too many moments. In the Olympics, the planning tools were aligned with the procurement tools. That is a very, very powerful way forward.75

41.The Chair of a local access group made a similar point when he told us that many examples of good access and involvement in the museum and heritage sector had come about because accessibility was a condition of Heritage Lottery Funding.76

42.We asked the Minister for Housing and Planning whether the Government was considering requiring a higher standard of accessibility when public funds were being used for developments. He told us “that is not something that the Government are seeking to prescribe” and in his reply emphasised the existing building regulations as the means to achieve accessibility.77 However, legal requirements on this already exist. The Public Procurement: Public Contracts Regulations 2015 provide that technical specifications for public procurement “intended for use by natural persons” are to be “drawn up so as to take into account accessibility criteria for disabled persons or design for all users.”78 The arguments we have heard for accessibility criteria to be brought into public procurement suggest that, currently, this requirement may not always be being met.

43.Reliance on the minimum standards of the building regulations is not sufficient to secure an inclusive built environment. We explore below concerns that these minimum standards are themselves out of date. Regardless of that, we should expect more of our public services than adherence to a minimum. The model of the 2012 Olympic and Paralympic Games shows what can be achieved when ambitions are set high, and British Standards provide a clear statement of what those ambitions should be.

44.We recommend that the Government ensures, as a minimum, compliance with existing regulations by proactively setting out inclusive design and accessibility standards to be required of all publicly-funded works. In doing so it should use the most recent versions of BS8300 (Design of buildings and their approaches to meet the needs of disabled people), updating requirements as those standards change, and use its commissioning and procurement systems to ensure that appropriately high standards are adhered to.

Fiscal incentives

45.Participants at our outreach event in Leeds produced an idea that we believe merits further exploration: the use of VAT exemptions to incentivise employers and service providers to improve the accessibility of their premises. It was noted that local authorities waive planning and building control fees on works to or within buildings open to the public, where the work improves access for disabled people.79 While this was welcome, it does not apply to many workplaces and in reality the financial benefit is fairly low.

46.The possibility of a waiver of VAT on relevant building works was suggested by participants as potentially a much more powerful incentive, particularly for employers renovating office premises.80 For example, a company that decides to upgrade the toilets when refurbishing an existing office block could apply for a VAT exemption on the work to its sanitary facilities, or a restaurant could be encouraged to install step-free access rather than use a temporary ramp, by applying a tax exemption to the building work that would require.

47.This approach would also have the advantage of applying to works which are not caught by Part M of the Building Regulations because they are adaptations rather than new builds or material alterations.81

48.We recommend that the Government undertake a review into the possibility of using tax exemptions, and specifically VAT exemptions, for the installation of specific physical features that improve accessibility to incentivise building works which improve access for disabled people to, from and within buildings and facilities.

Buildings where public services are delivered

49.A concerning theme in the evidence that we have received is that often disabled people found the buildings they rely on for access to public services to be inaccessible. Inclusion London told us about a law student forced to study at home because of a lift that was out of order for a year.82 Public Toilets UK told us about hospitals which lacked fully accessible toilets, 83 and Unity Law about an Ear, Nose and Throat Department that repeatedly failed to install or maintain a functioning hearing loop.84 Revolving doors and lack of step-free access were specifically cited as problematic features.85

50.The Scottish Disability Forum highlighted a need for information as well as physical access, and called for every public building to have a text guide explaining what its accessibility features are and how they can be obtained or used.86 Participants in our outreach events argued that there should be some form of ‘kitemark’ or ‘Disability Access Certificate’, for display both in the building and online. These certificates would set out information on the accessibility features of a building, so allowing disabled people to plan ahead. Leeds City Council was apparently already considering just such a ‘kitemark’ system and participants at the outreach event proposed a system whereby all public buildings “are audited on accessibility and the information is then publicly available”.87

51.We agree that the proposal for a kitemark or certificate setting out information on the access features of a public building is a good one, especially for buildings used by public bodies who should already be leading by example and demonstrating they actively consider, assess, and plan access and inclusion for disabled people. Those meeting their existing legal obligations will already be doing this, and greater transparency can act as a spur to others.

52.Taking British Standard 8300 as the starting point, the Government should require public authorities to publish information on the accessibility of buildings owned or used by them, along with information on how accessibility is managed and maintained.

32 Department for Communities and Local Government (DBE0124)

33 Department for Communities and Local Government, Part M ‘Access to and Use of Buildings’, M1, Access and use (2015)

34 See further below, Chapter 4

35 Department for Communities and Local Government, Part M ‘Access to and Use of Buildings’, M1, Access and use (2015)

36 Equality Act 2010, section 20

37 Equality Act 2010, section 149

38 Chartered Institution of Highways and Transportation (DBE0118)

39 Royal Institute of British Architects (DBE0121)

40 Q66

41 Q110 (Jennifer Peters, Greater London Authority)

42 Q140 (Jennifer Peters, Greater London Authority); Bradford and District Strategic Disability Partnership (DBE0139); RIBA (DBE0121), British Standards Institution’s (BSI) Committee B/559 (DBE0084)

43 House of Lords Committee on the Equality Act 2010 and Disability, Report of Session 2015–16, The Equality Act 2010: the impact on disabled people HL Paper 17

44 Doug Paulley (DBE0186); Unity Law (DBE0160); Councillor Douglas Johnson (DBE0135); Inclusion London (DBE0097); British Standards Institution’s (BSI) Committee B/559 (DBE0084)

45 Access Association (DBE0057); Centre for Accessible Environments (DBE0102); British Standards Institution’s (BSI) Committee B/559 (DBE0084)

46 Bradford and District Strategic Disability Partnership (DBE0139); RNIB (DBE0110); Sheffield Access Liaison Group (DBE0099); British Standards Institution’s (BSI) Committee B/559 – Access to buildings for disabled people (DBE0084); Centre for Accessible Environments (DBE0102); Doug Paulley (DBE0186)

47 Department for Communities and Local Government (DBE0124)

48 Department for Communities and Local Government (DBE0124); British Standards Institution’s (BSI) Committee B/559 (DBE0084)

49 Inclusion London (DBE0097); written evidence; Motor Neurone Disease Association (DBE0064); Access Association (DBE0057); RIBA (DBE0121); Thomas Pocklington Trust (DBE0123)

50 Age UK (DBE0156); City of Nottingham’s Disability Involvement Group (DBE0142); Care and Repair England (DBE0053); Aspire (DBE0026); Habinteg (DBE0100)

51 Gosport Access Group Disability Forum (DBE0117); Aspire (DBE0026); Habinteg (DBE0100); Dr Caroline Voisey (DBE0082)

52 We consider this further in Chapters 5 and 6.

53 Q200 (Andrew Jones MP)

54 CIHT (DBE0118)

55 CIHT (DBE0118)

56 Later Life Ambitions (DBE0108)

57 Q72 (Trudi Elliott, RTPI)

58 Q198

59 R. (on the application of (1) Luton Borough Council and Nottingham City Council (2) Waltham Forest London Borough Council (3) Newham London Borough Council (4) Kent County Council (5) Sandwell Metropolitan Borough Council) v. the Secretary of State for Education [2011] EWHC 217 (Admin) Holman J. at para 114

60 Equality and Human Rights Commission, Technical Guidance on the Public Sector Equality Duty: England (2014)

61 Design Council (DBE0125)

62 RTPI (DBE0122)

63 RTPI (DBE0122)

64 Thomas Pocklington Trust (DBE0123)

65 Chartered Institute of Logistics and Transport in the UK (DBE0180)

66 Gosport Access Group Disability Forum (DBE0117)

67 Disability Involvement Group (DBE0142)

68 Leicester Disabled Peoples Access Group (DBE0131)

69 Independent Lives (DBE0101)

70 Sense (DBE0103)

71 Supplementary written submission from the Built Environment Professional Education Project Board (DBE0191)

72 British Standards Institution (DBE0084)

73 Q64

74 Julie Fleck (DBE0083)

75 Q64

76 Mr Alan Morey (DBE0133)

77 Q204

78 The Public Procurement: Public Contracts Regulations 2015, Regulation 42 (8), (SI 2015/102)

79 Annex 1: Note of Committee Outreach Events

80 Annex 1: Note of Committee Outreach Events

81 See further below, Chapter 5

82 Inclusion London (DBE0097)

83 Public Toilets UK (DBE0033)

84 Unity Law (DBE0160)

85 Alasdair Gordon Guest (DBE0074); Access Association (DBE0057); Inclusion London (DBE0097)

86 Scottish Disability Equality Forum (DBE0095)

87 Annex 1: Note of Committee Outreach Events

24 April 2017