Building for Equality: Disability and the Built Environment Contents

5Public buildings and places

123.While housing, perhaps unsurprisingly, was a dominant concern among witnesses, so too was the accessibility of the wider built environment. People wanted to be able to access shops, pubs, clubs, theatres, cinemas and public services on an equal basis.190 Our witnesses wanted to be able to apply for jobs without wondering if they will be able to get into their workplace; Zara Todd of Inclusion London told how she turned up for a job interview but not been able to get into the building it was being held in—despite having alerted the organisation, in advance, that she was a wheelchair user. Another employer, having interviewed her and found her to be the best candidate, then “ended up having to rent a desk for [her] in a shared office space a good walk from the main building”.191

124.There are many factors that affect this, but within the terms of this inquiry two stood out: firstly, the extent to which building regulations reflect the expectations of a modern society in terms of such access, including not just buildings but external environments; and secondly, how the requirements of the Equality Act—which may require physical features of buildings that go beyond the minimum of the building regulations—can be made more effective.

Building Regulations for buildings other than dwellings

125.The accessibility of buildings other than dwellings, including commercial buildings and workplaces, is governed by Part M (Access to and Use of Buildings) of the Building Regulations, which dates back to 2004. These provide that reasonable provision must be made for people to access and use the building and its facilities and applies to new-buildings and some, but not all, material changes of use. Unlike for housing, there are no ‘optional’ higher standards. The details of what the Government considers ‘reasonable’ provision is set out in Approved Document M: Volume 2. It sets out, for example, requirements for accessible entrances, doors, reception areas, corridors and passageways, for passenger lifts, wheelchair spaces and the provision of toilets and other sanitary facilities.192

126.The Department for Communities and Local Government explained that the regulations were largely based on guidance developed in British Standards BS8300 (Design of buildings and their approaches to meet the needs of disabled people).193 BS8300 itself dates back to 2001, and was developed in anticipation of the coming into effect in October 2004 of Part 3 of the then Disability Discrimination Act 1995, which imposed a duty on suppliers of goods and services to “make their offerings accessible to disabled people”.194

127.The standards on which the Building Regulations are based are now well over a decade old, so it is perhaps unsurprising that witnesses felt that they were in need of an urgent update. David Petherick, Chair of the British Standards Committee which develops standards on access to the built environment, pointed out that BS8300 had been updated three times since the Guidance had been produced, and that there was “a whole lot more in BS 8300” that was “not even touched by approved document M”.195 This matters because while the details of the approved document have a legal status, the British Standards represent industry best practice—so there is no obligation to follow them. The Access Association also told us that the more recent version of BS8300 was “a far more comprehensive standard” that “covers a wider range of needs.” A particular concern was that the ergonomic data on wheelchairs that underpinned Part M dated back to 1997. Given the rate of technological advancement, this meant that “the basic ergonomics of space planning” needed to be updated.196

128.The Access Association expressed concern that Part M did not reflect current best practice on inclusivity, arguing that:

it is possible to design and develop in accordance with the design guidance found in the Approved Document and still create a building which is not inclusive, which (for example) segregates people according to those who require level access and those who do not, and those who can use revolving doors and those who cannot.197

129.We heard that the current standard was “very light” on features for disabled people who are not wheelchair users,198 a concern shared by many witnesses who spoke particularly of the need to reflect the needs of neuro-diverse people,199 people with restricted growth syndrome,200 people with dementia,201 people with learning disabilities,202 and people with sensory impairments.203 The Mental Health Foundation told us that it was concerned that the design and construction of built environments was not keeping pace with the “evolving and complex” requirements of the UK population because “as people change, demands from our built environment do too, and this needs to be factored in when adaptions to the built environment are being made to ensure inclusion.” The Foundation gave some practical examples of the kind of changes that would improve accessibility for people with dementia: carpets without patterns, long mirrors along corridors and replacing signs that make it difficult to differentiate between male and female toilets.204

130.The Minister for Housing and Planning acknowledged these concerns when he gave evidence to us:

it is 2004 since the regulations in respect of buildings that are not dwellings was looked at. You can take it from the fact that we have commissioned research there that we are aware that there may well be issues that we wish to address.205

Bob Ledsome gave some indication of what these might be: as examples, he cited Changing Places toilets (an issue we consider below) and the ability of people with visual or hearing impairments to navigate around buildings.206

131.Another reason why having up to date standards is important is that the Equality Act 2010 contains an exemption whereby if a particular feature of a building complies with the standards laid down in Part M, then—for the next ten years—it is exempt from the requirement under the reasonable adjustment duties to remove or alter that physical feature.207 While narrower than many believe208 this does mean that physical features constructed today in compliance with the current building regulations are likely to remain at the 2001 standard until 2027.

132.Given this and the history of Part M, it is unsurprising that many also called for that update to be in line with the most recent British Standards.209 Bob Ledsome, when asked if this was the Government’s intention, replied that “it is something that we would expect to look at.”210

133.As Mr Ledsome also acknowledged, the relevant British Standards themselves will soon be updated:211 the British Standards Institution is drafting an update to the existing BS8300 to produce two Codes of Practice, one on buildings and one on external environments.212 Added to this, BSI Committee B/559 told us that the BSI was working on a Publicly Available Specification (PAS) on “Design for the Mind”, with the longer-term aim of producing a standard “covering accessibility issues for people with the gamut of neuro-diverse issues ranging from dyslexia to dementia.”213 This work will provide the Government with an up-to-date industry standard.

134.Approved Document M of the Building Regulations (Volume 2) (buildings other than dwellings) should be updated to ensure it is still relevant and adequately addresses access for disabled people today, adopting an inclusive design, pan-impairment approach. The starting point for this should be guidance in the emerging British Standards on the subject, with the aim of ‘levelling up’ Approved Document M guidance as new standards are developed.

Changing Places toilets

135.One area where witnesses argued most strongly for an urgent update to the Building Regulations concerned the provision of ‘Changing Places’ toilets. These are toilets that are designed for assisted use, are larger than a standard accessible toilet and include equipment such as a hoist, height-adjustable basin, and an adult-sized changing table. While a reference to Changing Places toilets has been added to the guidance associated with Part M, it simply states that such provision is ‘desirable’ in ‘large building developments’.

136.Rachel George, parent of a ten year old boy with complex disabilities, told us that the lack of appropriate toilet facilities significantly limited his life and that of his family. She told us that:

he does not feel welcome in the world. He asks every day why places don’t have a toilet he can use. He cannot have whole days out. So neither does our family.214

137.Lorna Fillingham, a campaigner for Changing Places toilet provision and the parent of a child who has profound and multiple learning disabilities, pointed out that “you cannot opt out of whether you need the toilet or not, it’s a basic bodily function.” As such, the lack of Changing Places facilities often meant that:

disabled people are being changed on public toilet floors, or in the back of a car, either that or they are having to sit in their own body waste for prolonged periods of time. The last option is that the person avoids going out altogether or self medicates to avoid toilet use when out and about.215

Ms Fillingham argued strongly that:

Everybody in this country has the right to be free from degrading treatment and to be kept safe from harm. It is time those with responsibility make sure that this right is upheld. Make Changing Places toilet facilities compulsory under Part M of the Building Regulations. It is a moral obligation. It should NOT be left to chance or a businesses whim to decide whether they are included or not.216

138.This view was echoed by many others.217 Vaila Morrison, a chartered architect and the parent of a disabled child, asked:

why (when there are rules about the number of standard toilets, the number of car parking spaces etc.) would there be no compulsion to ensure the most vulnerable children and adults could actually access a toilet in buildings where everyone else can?218

139.The Government told us that, at the time the Minister for Housing and Planning gave evidence to us, there were 918 Changing Places toilets in the UK.219 The Minister related that the Government had “worked very closely with Mencap, the British Toilet Association and with the Changing Places campaign” and a website had been developed to help people find the nearest Changing Places toilet “quickly and easily”.220 He expressed concern that an approach to increasing provision that relied solely on building regulations would not catch existing infrastructure, in particular rail stations, airports and ports which are outside the scope of the building regulations. He nevertheless told us that the Government is “certainly going to consider whether [Changing Places toilets] should be required in larger public buildings.”221

140.With reference to provision in transport infrastructure. Andrew Jones MP, Parliamentary Under-Secretary of State for Transport told us that Changing Places toilets are required for ‘category A’ rail stations, that is, the 28 stations across the network where there are more than two million entrances or exits each year.222 When asked if he felt that was sufficient, the Minister replied:

We have a railway infrastructure that is essentially Victorian and all Governments of all colours have been upgrading it gradually ever since. Can we go further and faster? We are doing this. Can we do better? Yes, of course I want to make our stations and the trains and everything else much more friendly. It is almost impossible to answer your question, really. Are Changing Places toilets good? Yes, they provide a particular need, and I know that the Rail Minister is meeting the Changing Places Foundation in a few weeks’ time. We know that they are built into the planning for the most high-volume stations. We have accessible toilets in other areas of our transport network, but of course we are seeking to go further.223

141.While we appreciate that provision appears to be increasing, the figure of 918 Changing Places toilets nationally still only equates to one for every 70,925 people, or one toilet every 270 km2. This is assuming that they are spread equally across the country. In reality, numbers are concentrated in London and the South East224—which have the lowest rates of disability in the UK.225 Given the significance of the impact on disabled people’s dignity and ability to take part in society, we do not think that is good enough and agree with our witnesses that this should be a higher priority. The Parliamentary Under-Secretary of State for Transport told us that his Department is working on an action plan on the accessibility of public transport, and this strikes us an excellent place to start.226

142.We recommend that the update to the requirements of Part M Vol. 2’s approved document include a requirement to provide a Changing Places toilet in all large building developments which are open to the public, unless it can be demonstrated that adequate provision is already in place locally. This will require DCLG to undertake an assessment of what is reasonable to define as a ‘large’ development for these purposes—but we expect that as a minimum the requirement will apply to, for example, large shopping centres.

143.We further recommend that the action plan on the accessibility of public transport, currently being developed by the Department for Transport, include action to improve the availability of accessible and Changing Places toilets in transport infrastructure.

The requirements of the Equality Act and enforcement of those requirements

144.Despite the limited exemption for physical features of buildings that comply with the approved document on Part M, the Equality Act 2010 contains important obligations: not least on employers who, in any case, cannot take advantage of the exemption. As the Approved document explains:

Although the guidance in this approved document, if followed, tends to demonstrate compliance with Part M of the Building Regulations, this does not necessarily equate to compliance with the obligations and duties set out in the Equality Act. This is because service providers and employers are required by the Equality Act to make reasonable adjustments to any physical feature which might put a disabled person at a substantial disadvantage compared to a non-disabled person. In some instances this will include designing features or making reasonable adjustments to features which are outside the scope of Approved Document M.227

145.The College of Occupational Therapy Specialist Section in Housing similarly pointed out that even buildings designed to be accessible can become inaccessible if not maintained and managed effectively.228 As Chris Fry, managing partner of Unity Law, explained, the building regulations represent minimum requirements but the Equality Act “is not minimalist in its purpose”. He gave the example of a building in compliance with building regulations because it is equipped with the required accessible toilet, but the occupier uses that toilet as a storage cupboard—in which case they would be in breach of the Equality Act.229

146.A key provision in this context is the anticipatory reasonable adjustment duty under that Act. This requires, among others, service providers, educational institutions, transport providers, public bodies and those performing public functions, to “take such steps as it is reasonable to have to take” to avoid putting disabled people at “a substantial disadvantage”.230 Failure to comply with this duty is a form of discrimination. This is perhaps the clearest expression of the reality—recognised by the social model of disability—that changes to the environment, as well as attitudinal and behavioural changes, are needed if disabled people are to participate in society on an equal basis with dignity and respect.

147.Unfortunately, evidence presented to the House of Lords Committee on the Equality Act and Disability indicated clearly that the reasonable adjustment duty was often not respected in practice.231 We heard similar evidence: Gosport Access Group and Disability Forum felt that it was difficult to enforce compliance with accessibility standards retrospectively and that the Equality Act does not make it easy for customers to make formal complaints, with the result that “the vast majority” are deterred from doing so.232 Doug Paulley, who describes himself as being “known for using the Equality Act to challenge and change disabling provision” and who gave evidence to the House of Lords Committee, told us that the enforcement mechanisms for disabled people’s access to the built environment are “fundamentally broken” and suffer from “systemic barriers”.233 Martin McConaghy of the Access Association explained how this situation had changed over the years:

in the early 2000s, as people were preparing for the implementation of the physical adjustment duties of the Disability Discrimination Act, we saw a lot of engagement from businesses and authorities. Lots of people were putting in quite a lot of effort, because there was this unknown risk coming in the form of legislation and civil rights. A lot of organisations have wound down their efforts and have not continued that effort since 2004. [ … ] many disabled people do not exercise their rights, so the risk [to businesses] has not come to fruition in the scale it could have.234

148.The most common proposal to increase the incentive on business to comply with their legal obligations, and to shift the burden of enforcement away from disabled people, was to amend the Licensing Act 2003 to require the reasonable provision of a basic level of accessibility in licensed premises—which include the vast majority of premises that provide entertainment, sell alcohol or provide food late in the evening. This proposal originated in evidence from a representative of the National Association for Licensing and Enforcement Officers (NALEO) to the House of Lords Committee on the Equality Act and Disability. The Committee recommended that the Licensing Act 2003 be amended to make a failure to comply with the Equality Act 2010 a ground for refusal of a license. The report argued that doing so would:

allow the burden of enforcing that legislation to shift from disabled people to local authorities, many of which are keen to assume that responsibility. Businesses which comply with the Equality Act have nothing to fear.235

149.Supporters of this proposal included the Centre for Accessible Environments, British Standards Institution’s (BSI) Committee B/559 on Access to buildings for disabled people, Ms Julie Fleck (an expert on access for disabled people) and the Access Association.236 Bradford and District Strategic Disability Partnership gave a positive example of what could be achieved if local authorities were enabled to do so:

In 1993 a local access group carried out a survey and found that only three public houses in the district were accessible. This resulted in a multi-agency approach working with the trade, the local licensing authority and disabled people who developed a number of licensing conditions which had a major positive effect on accessibility of licensed premises. The licensing rules then changed and this (most effective tool) was no longer available. Bring it back!237

150.The Government, however, rejected this recommendation on the basis that it believed it would lead the Licensing Act 2003 to “duplicate” provisions in the Equality Act. Baroness Deech, the former Chair of the Equality Act 2010 and Disability Committee, along with a number of other former Members of that Committee, sought to amend the Licensing Act through the Policing and Crime Bill (now Act) when it passed through the House of Lords in 2016. Baroness Deech explained that:

With this amendment, licensing authorities could require, for example, old and existing buildings to be made accessible. When they are out inspecting and find disabled facilities not being provided as they should be, they could review the licence. They could issue a warning or, in the last resort, remove a licence [ … ]. At the moment, the licensing authority can only remind owners of premises of their duties under the Equality Act, and they have no teeth. Where the situation is not remedied, this amendment would shift the enforcement burden away from the individual disabled person or the person discriminated against—who, under existing law, have to take legal action on their own—to the local authority.238

151.An alternative suggestion was made by the House of Lords Select Committee on the Licensing Act 2003, which reported in April 2017.239 That Committee agreed with the Government that there was a risk of “stretching” the Act to become a mechanism for general enforcement of legislation which applies to licensed premises.240 The Committee did, however, point to an alternative means of achieving the same goal of ensuring that licensees comply with the law on disabled access. It noted that the Licensing (Scotland) Act 2005 sets out a list of the documents which must accompany an application for a premises licence, and that the Criminal Justice and Licensing (Scotland) Act 2010 added to that list “a disabled access and facilities statement”. Without such a statement, an application would be incomplete.241

152.The relevant section of the 2010 Act has not yet been brought into force in Scotland. The Committee nevertheless recommended that the law in England and Wales be amended along similar lines, to require that an application for a premises licence should be accompanied by a disabled access and facilities statement. It argued that:

The provision by licensees of disabled access facilities does not impose on them a new obligation or financial burden, since this is no more than what they are already required to do by law. This requirement is a simple way of enforcing the law and ensuring that licensees comply with it.242

153.Our evidence supports the view of the House of Lords Committee on the Equality Act 2010 and Disability that action is needed to reduce the burden of enforcement on disabled people. We appreciate the desire of the Government not to duplicate existing protections, but do not agree that proposals to amend the Licensing Act 2003 to require the reasonable provision of a basic level of accessibility in licensed premises would do so. Such amendments would not change the legal obligations of a licence holder, but would make those obligations more likely to be complied with.

154.We recommend that the Government amend the Licensing Act 2003 to mandate local authority Licensing Officers to act on failures to make licensed premises accessible.

190 See above, Chapter 1

191 Q16

193 Department for Communities and Local Government (DBE0124)

194 British Standards Institution’s (BSI) Committee B/559 – Access to buildings for disabled people (DBE0084)

195 Q45 (David Petherick)

196 Q45 (Martin McConaghy)

197 Access Association (DBE0057)

198 Q45 (Martin McConaghy)

199 London Autistic Rights Movement (DBE0130)

200 Liverpool Hope University (DBE0014)

201 Chartered Institute of Building (DBE0120)

202 Bradford and District Strategic Disability Partnership (DBE0139)

203 RNIB (DBE0110); Sense (DBE0103)

204 Mental Health Foundation (DBE0094)

205 Q228

206 Q229

207 Equality Act 2010 (Disability) Regulations 2010, Regulation 9 (SI 2010/2128)

208 Q50 (Chris Fry; David Petherick)

209 Centre for Accessible Environments (DBE0102); Access Association (DBE0057)

210 Q230

211 Q231

213 BSI Committee B/559 (DBE0084)

214 Mrs Rachel George (DBE0062)

215 Lorna Fillingham (DBE0052)

216 Lorna Fillingham (DBE0052)

217 Independent Lives (DBE0101); Mental Health Foundation (DBE0094); Around the Toilet (DBE0087); Mr Philip Barton (DBE0050); London Autistic Rights Movement (DBE0130)

218 Vaila Morrison (DBE0085)

219 Q234

220 Q234

221 Q234

222 Q231

223 Q232

224 Changing Places, ‘Changing Places Toilet Map’ (Accessed 20 April 2017)

226 Q191 (Andrew Jones)

228 College of Occupational Therapy Specialist Section in Housing (DBE0076)

229 Q48

230 Equality Act 2010, section 20

231 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, Chapter 5

232 Gosport Access Group and Disability Forum (DBE0117)

233 Doug Paulley (DBE0186)

234 Q29 (Martin McConaghy)

235 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, para 472

236 British Standards Institution’s (BSI) Committee B/559 – Access to buildings for disabled people (DBE0084); Centre for Accessible Environments (DBE0102); Ms Julie Fleck (DBE0083); Access Association (DBE0057)

237 Bradford and District Strategic Disability Partnership (DBE0139)

238 HL Deb, 9 November 2016, col 1202 [Lords Chamber]

239 House of Lords Select Committee on the Licensing Act 2003, Report of Session 2016–17, The Licensing Act 2003: post-legislative scrutiny, HL Paper 146

240 House of Lords Select Committee on the Licensing Act 2003, Report of Session 2016–17, The Licensing Act 2003: post-legislative scrutiny, HL Paper 146, para 271

241 House of Lords Select Committee on the Licensing Act 2003, Report of Session 2016–17, The Licensing Act 2003: post-legislative scrutiny, HL Paper 146, paras 273–274

242 House of Lords Select Committee on the Licensing Act 2003, Report of Session 2016–17, The Licensing Act 2003: post-legislative scrutiny, HL Paper 146, para 276

24 April 2017