Memorandum from the Department for Work
and Pensions (DDB 94)
This memorandum provides further information
in respect of clause 6 (premises provisions) sought by the Committee
at the informal meeting with DWP officials on 27 January 2004.
COMMON PARTS
OF PREMISES
The Committee asked how clause 6 might affect
the situation where a disabled tenant needs alterations to be
made to common parts of rented premises to improve accessibility
for them.
In line with the recommendation of the Disability
Rights Task Force, clause 6 does not require a controller of premises
(eg a landlord or manager of the premises) to make alterations
to physical features of those premises. Thus, a controller of
premises would not be under a DDA duty to build a permanent ramp
to improve disability access, as that would entail the removal
or alteration of a physical feature.
However, clause 6 does require a controller
of premises to take reasonable steps to provide an auxiliary aid
or service which would facilitate a disabled person's enjoyment
of let premises or associated facilities. Thus, a controller of
premises would be under a duty to provide, where reasonable, an
auxiliary aid to alleviate a disabled tenant's difficulty in gaining
access to their demised premises. This might, for example, entail
the supply of a portable ramp to overcome the barrier caused by
steps in the common parts.
The controller of premises would also have a
duty, where reasonable, to change his practices, policies or procedures,
or the terms of the letting. He might, for example, allow a disabled
tenant to use an existing accessible service entrance where this
would otherwise not have been allowed.
If a controller of premises has a practice,
policy or procedure of seeking consent to alterations to common
parts from other tenants then it might be reasonable for him to
waive or alter that, where he is permitted to do so. This might
avoid eg a single tenant blocking alterations that the controller
of premises is otherwise willing to make.
However, if the controller of premises is legally
obliged to obtain consent from a third party before alterations
to common parts are made, then it is unlikely to be reasonable
for him to have to do anything under clause 6 without first getting
that consent. But it is likely to be a reasonable step for the
controller of premises to ask for consent.
Where common parts are collectively managed
by tenants, for example, through a company or a committee, then
that company or committee would be treated as a controller of
premises and be subject to the duties in clause 6 of the Bill.
SUB-LEASES
The Committee asked whether the freeholder of
property would be covered by the provisions in clause 6 where
a tenant occupied premises under a sub-lease (ie where the tenant's
landlord in turn had a lease of the premises from a head landlord
or freeholder—to whom ground rent was payable).
The Department's view is that, as the clause
is drafted, a head landlord would very likely be regarded as a
person who manages the premises for the purposes of section 24A(3)(b).
This is supported by the wording of section 24A(4)(a), where "let"
is defined to include "sub-let". The section 24C duty
could therefore apply to the head landlord if, for example, a
term of the head lease made it "impossible or unreasonably
difficult for the relevant person to enjoy the premises".
"Relevant disabled person" is defined
in section 24C(7)(a) as a person to whom the premises are "let"—which
also means "sub-let". Thus, a sub-tenant could bring
proceedings under section 25 DDA against the head landlord where
he unreasonably refused to amend or waive the term in the head-lease
concerned.
TOWARDS INCLUSION
CONSULTATION ON
REINSTATEMENT OF
PREMISES
The Committee asked whether the Government had
taken any action in response to the Disability Rights Task Force
proposal that a consultation take place about the factors in determining
when it would be reasonable/unreasonable for a landlord to withhold
consent if a tenant wanted to make an alteration to physical features
(number 6.27).
The Government asked a question about this as
part of its consultation on Towards Inclusion. A brief
analysis of responses to the main legislative proposals in Towards
Inclusion is available on:
http://www.disability.gov.uk/drtf/towards_inclusion/TI_responses_summary.html
An unpublished statistical analysis of responses
to the question about factors is attached for the Committee.
PART M OF
BUILDING REGULATIONS
The Committee asked whether Part M of Building
Regulations made under the Building Act 1984 would apply in the
case of a tenant installing a ramp to, for example, a ground floor
flat he rents.
Part M of the Building Regulations has applied
to all new dwellings since October 1999. The Regulations require
reasonable provision to be made for disabled people to gain access
to and to use new domestic buildings. The requirements do not
apply to extensions to existing domestic buildings. Although not
mandatory, Approved Document M provides guidance on some building
situations, including the use of ramped approaches. The Approved
Document advises that level access is preferred for domestic (and
non-domestic) premises.
Thus, the requirements of Part M will apply
to a ramp constructed when domestic premises are first built,
but it will not apply where a tenant retrofits a ramp. However,
Building Regulations do require that after what are known as "material
alterations" of existing dwellings the provision for access
for disabled people should be no worse than it was before the
work was carried out. In the case of the installation of a ramp,
the provision for access could reasonably be expected to be better
after the work had been carried out, even though the dimensions
of the ramp might not comply exactly with the provisions of Approved
Document M.
February 2004
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