DDB 135 The Law Society - Further Submission
Parliamentary Brief
Follow up Submission to the Committee
on Draft Disability Bill
April 2004
The Law Society welcomes the pre-legislative
scrutiny process and is grateful to the Joint Committee for the
opportunity to provide further written evidence on the Draft Disability
Discrimination Bill. We hope that the information we have supplied
will be of some assistance to you.
1. Definition of Disability
The Law Society supports the widening
of the definition of disability in the Disability Discrimination
Act 1995 to include people who are perceived as having a disability
and discrimination by association. This would ensure protection
for the following:
- A worker who is discriminated against
because people believe he/she is HIV+
- A person with a family history
of a disability who is discriminated against because it is believed
the person may also develop the condition
- A parent who is refused a job because
the employer assumes he or she will need time off work to look
after a child with a disability
- A carer of a person with a disability
who is refused accommodation because of his or her association
with the person with a disability
- People who are refused access to
a restaurant because they are with a friend who has a disability
During its oral evidence the Law Society
agreed to provide the Joint Committee with examples of how disability
discrimination law in America and Australia protects people who
are perceived as having a disability and covers discrimination
by association.
In America people who are perceived
as being disabled are included under the core definition of disability.
Thus Section 3 (2) of the Americans with Disabilities Act 1990
defines the term 'disability' as:
(A) a physical or mental impairment
that substantially limits one or more of the major life activities
of such individual;
(B) a record of such as impairment;
or
(C) being regarded as having such
an impairment
Regulations specify three ways in which
a person may be 'regarded as having such an impairment':
an individual with an impairment which is not substantially limiting
but is treated as if it is, an individual who has a substantially
limiting impairment as a result of the attitudes of others and
someone who does not have an impairment as defined but are treated
as if they have a substantially limiting one.
The Americans with Disabilities Act
1990 also covers discrimination by association. Title I (Employment)
makes it clear that the term 'discriminate' includes excluding
or otherwise denying equal jobs or benefits to a qualified individual
because of the known disability of an individual with whom the
qualified individual is known to have a relationship or association.
Similarly under Title III (Public Accommodations and Services
Operated by Private Entities) it is discriminatory to;
"exclude or otherwise deny
equal, goods, services, facilities, privileges, advantages, accommodations,
or other opportunities to an individual or entity because of the
known disability of an individual with whom the individual or
entity is known to have a relationship or association".
The Australian Disability Discrimination
Act 1992 defines disability as:
(a) total or partial loss of the
person's bodily or mental functions; or
(b) total or partial loss of a part
of the body; or
(c) the presence in the body of
organisms causing disease or illness; or
(d) the presence in the body of
organisms capable of causing disease or illness; or
(e) the malfunction, malformation
or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that
results in the person learning differently from a person without
the disease or malfunction; or
(g) a disorder, illness or disease
that affects a person's thought processes, perception of reality,
emotions or judgement or that results in disturbed behaviour;
This does not include perceived disability
under the core definition of a 'disability' but instead section
4 (1) provides protection to a disability that:
(h) presently exists; or
(i) previously existed but no longer
exists; or
(j) may exist in the future; or
(k) is imputed to a person
The Australian Disability Discrimination
Act 1992 also protects people who have some form of personal connection
with a person with a disability. This is referred to as an 'associate',
and includes:
(a) a spouse of the person; and
(b) another person who is living
with the person on a genuine domestic basis; and
(c) a relative of the person; and
(d) a carer of the person; and
(e) another person who is in a business,
sporting or recreational relationship with the person
We hope that these examples will be
of some assistance to the Joint Committee in illustrating how
the law can provide protection to people who are perceived as
having a disability and cover discrimination by association.
2. The definition of a Public Authority
During our oral evidence the Law Society
was asked whether it was in favour of using Schedule 1A of the
Race Relations Act 1976 to define a public authority for the purposes
of the Draft Disability Discrimination Bill.
The Race Relations (Amendment) Act
2000 placed a general duty on listed public authorities to promote
race equality. Currently, a large number of bodies, approximately
43,000, are subject to this general duty. In addition, specific
duties are placed on certain of the listed bodies. Only bodies
that are listed in the Schedule can be subject to the duty.
The schedule is made up of the following:
- The Race Relations (Amendment)
Act 2000
- The Race Relations Act 1976 (General
Statutory Duty) Order 2001 No 3457
- The Race Relations Act 1976 (General
Statutory Duty) Order 2001 No 3458
- The Race Relations Act 1976 (General
Statutory Duty) Order 2003 No 3007
- The Race Relations Act 1976 (General
Statutory Duty) Order 2003 No 3006
The Law Society has argued in favour
of consistency in the legal definition of a public authority across
discrimination law. For effective duties to be placed on public
authorities it is necessary not only for the listed public authorities
to be aware of their obligations but also for the public, and
in particular people with a disability, to know with certainty
which authorities are subject to both general and specific duties.
The Law Society believes that Schedule
1A of the Race Relations Act would provide a suitable starting
point for the definition of a public authority for the purposes
of the Disability Discrimination Act.
3. Discrimination in Relation to Letting
of Premises
The Law Society agreed to provide written
representation on whether the Landlord and Tenant Act 1927 provides
sufficient protection for disabled tenants who are unable to make
physical improvements to the premises.
The Law Society is disappointed that
the Draft Disability Discrimination Bill did not include recommendation
6.27 of the report by the Disability Rights Task Force. This
stated that though "there should be no duty on those disposing
of premises to make adjustments to the physical features of the
premises" those letting premises "should not be allowed
to withhold consent unreasonably for a disabled person making
changes to the physical features of the premises."
I. Section 19 (2) of the Landlord
and Tenant Act 1927
The Government's position is that section
19 (2) of the Landlord and Tenant Act 1927 already provides a
suitable remedy. This provides, amongst other things:
"In all leases whether made
before or after the commencement of this Act containing a covenant
condition or agreement against the making of improvements without
license or consent, such covenant condition or agreement shall
be deemed, not withstanding any express provision to the contrary,
to be subject to the proviso that such licence or consent is not
to be unreasonably withheld…"
Section 19 (2) applies to all leases
where there is a covenant, condition, or agreement by the tenant
not to make improvements to the premises without the consent of
the landlord. It provides that such consent is not to be unreasonably
withheld.
II. Leases with an absolute bar
upon improvements
If a lease contains an absolute bar
upon improvements then section 19 (2) is of no assistance. If
a tenant of residential premises wishes to make alterations which
are necessary and appropriate because of an occupant's disability,
they cannot do so if there is an absolute bar on this contained
in the lease. It is therefore incorrect to say that the Landlord
and Tenant Act 1927 provides a remedy in these circumstances.
Indeed we believe this was the reason
that Parliament enacted section 16 of the Disability Discrimination
Act 1995. This provides, amongst other things, that an employer
who occupies premises under a lease with an unqualified bar and
who requires to carry out "alterations" in order to
comply with his/her duties under the Act has a right under the
lease "to make the alteration with the written consent of
the lessor."
If it is not permissible for a lease
of commercial premises to place an unqualified bar upon alterations
which are necessary and appropriate for disabled employees, this
should also apply where there is an unqualified bar upon alterations
which are necessary and appropriate for a disabled person in their
home. It is arguable that this raises a breach of Article 14
of the European Convention on Human Rights in that there is illegitimate
discrimination between the rights in property of an employer of
disabled people and the reduced rights of a disabled person as
a homeowner.
If provisions similar to section 16
of the Disability Discrimination Act 1995 were enacted for disabled
tenants this would not of course remedy the deficiencies in the
Landlord and Tenant Act 1927 but it would place that group on
the same footing as employers seeking to require alterations to
meet their obligations under the Disability Discrimination Act.
The explanatory notes to the Draft
Disability Discrimination Bill argue that under the new provisions
(a landlord is required to take reasonable steps to change a policy,
practice or procedure which makes it impossible or unreasonably
difficult for a disabled person to enjoy the premises) they may
be obliged (where it is reasonable to do so) to change or waiver
a term of letting which forbids any alterations to the premises.
This would have the effect of replacing a term of letting prohibiting
any alterations with one permitting alterations with the landlord's
consent, and therefore section 19 (2) would apply. We do not
agree that these proposals would necessarily affect the current
legal position and that further test cases would be necessary
to establish such a position. However, even if they did achieve
this, the Law Society is opposed to relying on the Landlord and
Tenant Act to make physical changes to a property.
III. Problems faced by disabled tenants
seeking to make physical improvements
Where a lease contains a qualified
covenant, where the tenant agrees not to make improvements to
the premises without the consent of the landlord, it is possible
under the Landlord and Tenant Act for a disabled tenant to obtain
a declaration from the court that a landlord had unreasonably
refused consent. In doing so the tenant would need to rely upon
judicial discretion structured by judge-made law. The caselaw
associated with section 19 (2) has developed in relation to both
residential and commercial leasehold property and fails to recognise
the specific nature of residential accommodation and the specific
needs of disabled people. Accordingly we believe that the rights
and needs of disabled people can only be effectively recognised
by an explicit legislative scheme.
Under current caselaw it is not clear
to the landlord or tenant when it would be un/reasonable to refuse
or grant consent. Landlords have a legitimate interest in wishing
to retain reasonable control over works carried out at their property.
This interest must however be balanced against the social need
of disabled tenants. We therefore favour the retention of judicial
discretion to decide in any particular case whether consent has
been unreasonably withheld, but that this discretion is structured
to reflect the social importance of disabled tenant's needs for
alterations to be met. The precedent for this is the structured
discretion contained in section 98 (2) of the Housing Act 1985
which lists the factors the court should have particular regard
to when considering whether consent has been unreasonably withheld.
There are advantages to both landlords and tenants in the law
being clear and certain.
Damages are not available in respect
of a claim pursuant to section 19 (2) of the Landlord and Tenant
Act 1927 that a landlord has unreasonably withheld consent for
improvements. The remedy is a declaration that the consent
was unreasonably withheld. An unreasonable withholding of consent
could case a disabled person considerable personal distress and
inconvenience during the period s/he was unable to adapt his/her
home due to a landlord's unreasonable refusal of consent. It
might however be difficult given the proposed discretionary nature
of the judicial jurisdiction to grant a declaration for a tenant
to have a right to damages. Consideration ought to be given to
give the responsible tribunal a discretion to grant damages.
Where the landlord is a public authority the court already has
discretion pursuant to section 8 of the Human Rights Act 1998
to award damages for any breach of Convention rights.
There are procedural difficulties in
relying upon section 19 (2). There are no statutory time limits
in which a landlord must reach a decision. There is no statutory
requirement to give written reasons in the case of a refusal.
The onus is placed upon the disabled tenant to show the landlord
unreasonably withheld consent and providing evidence to prove
this is difficult. The Disability Rights Commission has no power
to bring cases on behalf of a disabled person under the Landlord
and Tenant Act 1927. Clarity and certainty in procedural matters
aids the ability to use any rights granted. We would propose
that there be a statutory procedure for seeking consent with requirements
amongst other things for the landlord to make a decision within
21 days of a request being made and if no decision is made then
it be deemed that the decision be a refusal, that in any dispute
the onus should be placed upon the landlord to establish s/he
withheld consent reasonably. It may also assist for the proceedings
to be simple and accessible consideration ought to be given as
to whether the Residential Property Tribunal Service ought to
have jurisdiction to hear such applications.
The Law Society believes that S19 (2)
of the Landlord and Tenant Act 1927 does not provide sufficient
protection for disabled tenants who are seeking to make physical
improvements to the premises. It is not specifically related
to the needs of disabled people and the sheer complexity of its
provisions make it difficult for disabled tenants to invoke.
We therefore call for the Draft Disability Discrimination Bill
to be amended to include a requirement that landlords should not
be allowed to withhold consent unreasonably from a disabled person
seeking to make changes to the physical features of the premises.
For further information please contact:
Shona Ferrier, Parliamentary Adviser, Tel:
020 7320 9546, email, shona.ferrier@lawsociety.org.uk
APPENDIX A
Ss 97-99 Housing
Act 1985
S97 Tenant's improvements require consent
(1) It is a term of every secure
tenancy that the tenant will not make any improvement without
the written consent of the landlord.
(2) In this Part "improvement"
means any alteration in, or addition to, a dwelling-house, and
includes -
(a) any addition to or alteration
in the landlord's fixtures and fittings,
(b) any addition or alteration connected
with the provision of services to the dwelling-house,
(c) the erection of a wireless or
television aerial, and
(d) the carrying out of external
decoration.
(3) The consent required by virtue
of subsection (1) shall not be unreasonably withheld, and if unreasonably
withheld shall be treated as given.
(4) The provisions of this section
have effect, in relation to secure tenancies, in place of section
19 (2) of the Landlord and Tenant Act 1927 (general provisions
as to covenants, etc not to make improvements without consent).
S98 Provisions as to consents required
by s97
(1) If a question arises whether
the withholding of a consent required by virtue of section 97
(landlord's consent to improvements) was unreasonable, it is for
the landlord to show that it was not.
(2) In determining that question
the court shall, in particular, have regard to the extent to which
the improvement would be likely -
(a) to make the dwelling , or any
other premises, less safe for occupiers,
(b) to cause the landlord to incur
expenditure which it would be unlikely to incur if the improvement
were not made, or
(c) to reduce the price which the
landlord would be able to charge on letting the dwelling-house.
(3) A consent required by virtue
of section 97 may be validly given notwithstanding that it follows,
instead of preceding, the action requiring it.
(4) Where a tenant has applied in
writing for a consent which is required by virtue of section 97
-
(a) the landlord shall if it refuses
consent give the tenant a written statement of the reason why
consent was refused, and
(b) if the landlord neither gives
nor refuses to give consent within a reasonable time, consent
shall be taken to have been withheld.
S99 Conditional consent to improvements
(1) Consent required by virtue of
section 97 (landlord's consent to improvements) may be given subject
to conditions.
(2) If the tenant has applied in
writing for consent and the landlord gives consent subject to
an unreasonable condition, consent shall be taken to have been
unreasonably withheld.
(3) If a question arises whether
a condition is reasonable, it is for the landlord to show that
it was.
(4) A failure by a secure tenant
to satisfy a reasonable condition imposed by his landlord in giving
consent to an improvement which the tenant proposes to make, or
has made, shall be treated for the purposes of this Part as a
breach by the tenant of an obligation of his tenancy.
Section 102 (b) (4) ADA
Section 302 (b) (1) (E) ADA
Section 4 (1) Disability Discrimination Act 1992
(Australia)
Home Office Figures 6 April 2004
'From Exclusion to Inclusion' A Report of the Disability
Rights Task Force on Civil Rights for Disabled People (December
1999)
See Appendix A.
Treloar v Bigge 1874 LR 9 Exch 151.
This provision is included in the 2004 Regs at
para 4 for requests made by employer lessees to their landlord.
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